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India: In an openly anti constitutional and anti federal move an elected govt is removed in Arunachal Pradesh — select commentary

26 January 2016

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[upated on 7 February 2016]

What Modi’s Pursuit of Power in Arunachal at Any Cost Means for Democracy by Rajeev Dhavan

The Times of India - January 26, 2016

BJP throws federalism to the winds: Arunachal doesn’t deserve President’s Rule

by M V Rajeev Gowda in TOI Edit Page | Edit Page, India | TOI

On the eve of Republic Day, the NDA government struck a devastating blow to our Constitution by deciding to impose President’s Rule on Arunachal Pradesh even as a constitutional bench of the Supreme Court is examining developments in this sensitive northeastern state.

The BJP-led government argues that Article 174(1) mandates that there cannot be a gap of more than six months between two assembly sessions. This implies that the government does not recognise the assembly session summoned by its own appointee, Governor Rajkhowa. Logically it must recall the Governor immediately.

Arunachal has been boiling since some Congress MLAs rebelled against Chief Minister Nabam Tuki, and joined BJP MLAs to attempt a regime change. Who has the majority? That question must be answered on the floor of the assembly, as per the Bommai judgment.

On December 9, 2015, Governor Rajkhowa precipitated a constitutional crisis. Without consulting the council of ministers, he summoned the assembly on December 16 instead of the scheduled date of January 14, 2016. He overstepped his powers by instructing the assembly to first take up a resolution to remove the Speaker, with the Deputy Speaker (a rebel) presiding, though notice for removal was pending. He violated the Valluri judgment which states that as long as a democratically elected government exists, the Governor can only act on its advice.

In the face of public protests, the rebels were not able to enter the assembly hall. They then held a meeting in a private hall where they “impeached” the Speaker. Never before has India witnessed such a rump assembly. Meanwhile, a number of Congress MLAs were disqualified by the Speaker on grounds of defection.

The Speaker appealed to the Guwahati high court which stayed the Governor’s actions. Another judge vacated that stay. The case is now before a Supreme Court constitutional bench which has to decide on the appropriate powers of the Speaker and Governor.

Now, though this issue is sub judice and a hearing is scheduled for February 1, the NDA government has changed the status quo, thwarting the Supreme Court’s efforts to resolve the issue constitutionally. Its action gives the Governor a free hand, as there is now no elected government to heed.

BJP’s game plan is to use the provision of President’s Rule under Article 356 to weaken the chief minister’s support. (We are reminded of 2003, when BJP induced Congress legislators to defect en masse.) BJP has thrown federalism to the winds, disregarding the Sarkaria Commission’s stricture that Article 356 “be used sparingly, in extreme cases, as a measure of last resort, and when all available alternatives fail to prevent or rectify” the situation.

Attempting to appropriate Ambedkar, BJP commenced the Parliament’s winter session with a celebration of the Constitution. The recommendation of President’s Rule demonstrates that this was a mere façade. Modi sarkar paid lip service while it plotted the destabilisation of a democratically elected government.

The sun in India rises in Arunachal Pradesh. So too does the decline of our democracy.

o o o

The Hindu, December 19, 2015


Unseemly turn in Arunachal Pradesh

The saddest aspect of the political turmoil in Arunachal Pradesh is that its key actors have revived unedifying practices that one would have thought the Indian polity had left behind some years ago: dissident ruling party legislators joining hands with their political rivals to bring down an elected government, holding parallel or unauthorised Assembly proceedings, and the Governor playing a partisan role. The conduct of Governor J.P. Rajkhowa in the ongoing crisis facing the Nabam Tuki government, set off by a group of ruling Congress MLAs revolting against his leadership, is questionable. In S.R. Bommai in 1994, the Supreme Court decided that the only place for determining whether a Chief Minister has lost his majority is the floor of the House, and not the Raj Bhavan. When it appeared that Mr. Tuki had lost the support of many of the legislators, the Governor could have either asked him to prove his majority when the Assembly met on January 14, 2016, or, if the matter brooked no delay, requested him to advance the session for the same purpose. There was no justification for the Governor to advance the session to December 16 on his own, and a legitimate question arises whether the Constitution permits such action. In another partisan act, he sent a message to the House to take up ‘Resolution for removal of the Speaker’ as the first item on the agenda.

The Congress has been ruling the State with the support of 47 MLAs in the 60-member Assembly, but 20 ruling party legislators have rallied under former Minister Kalikho Pul and joined hands with the 11-member Bharatiya Janata Party group in a bid to unseat Mr. Tuki. They accuse the Chief Minister of financial mismanagement and corruption. In a pre-emptive move against the rebels convening the Assembly on the Governor’s order, the government locked down the legislature building and the Speaker disqualified 14 out of the 20 dissidents to bring down the number required for a majority. Disqualification under the anti-defection law is subject to judicial review and the rebels could have challenged the Speaker’s decision. Instead, showing unseemly hurry, the Deputy Speaker, a dissident himself, ‘revoked’ their disqualification. All the rebels, along with the BJP and independent MLAs, held a sitting of the ‘Assembly’ at a makeshift venue, and ‘removed’ the Speaker and then the Chief Minister through a ‘no-confidence motion’. With the Guwahati High Court keeping in abeyance all the decisions taken at the rebel ‘session’, and sharply questioning the Governor’s action in convening the Assembly, the rest of the crisis may play out in a courtroom. Nevertheless, it would be a travesty of democracy if the current crisis results in the imposition of President’s Rule without Mr. Tuki being given an opportunity to prove his majority on the floor of the House. The Centre should avoid any impression that constitutional norms will not be respected while handling the issue.

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The Shillong Times

Constitutional crisis in Arunachal Pradesh?

Editor | Tuesday, January 26, 2016

THE Union Cabinet’s recommendation for bringing Arunachal Pradesh under central rule has come in for a lot of flak considering that the case is pending before the Supreme Court. On Monday, Home Minister Rajnath Singh met President Pranab Mukherjee to explain the circumstances under which the government decided to impose President’s Rule in the border state of Arunachal Pradesh. The Congress Party, Delhi CM Arvind Kejriwal and Bihar CM, Nitish Kumar have lashed out at the Modi Government calling this move a reflection of the Central Government’s political intolerance. Going by the Governor JP Rajkhowa’s report the state’s constitutional machinery has broken down under chief minister Nabam Tuki.

Arunachal Pradesh was rocked by a political crisis on December 16 last year, when 21 Congress MLAs joined hands with 11 BJP members and two Independents to “impeach” Assembly Speaker Nabam Rebia from a makeshift venue in Itanagar. The Speaker called the meeting “illegal and unconstitutional”. Only 27 MLAs in the 60-member assembly, including chief minister Tuki and his ministerial colleagues, boycotted the proceedings. The matter is now before the Supreme Court.

If the Supreme Court rules the session invalid, it would amount to a constitutional breakdown because the assembly has breached Article 174 of the Constitution – mandating that the gap between two sessions of the assembly should not exceed six months. However, if the top court rules that the session was valid, it would mean that the State’s Congress government was in a minority but unwilling to let a floor test of its strength be conducted. In that case the State Government would be violating Article 167(b) of the Constitution, which requires the Government to respond to Governor Rajkhowa’s request for information regarding affairs of the state as well as legislative proposals.

Meanwhile the law and order situation has deteriorated to such an extent that the Raj Bhavan was gheraoed and access to it blocked. What is worse is that the Governor has alleged in his reports that Government officials were indulging in indiscipline, lawlessness and politicking even while the Central Government says it has evidence that a section of the bureaucracy was funding certain student groups and others pressure groups to rant against the Governor. This situation is unwarranted and it bodes ill that the office of the Governor should be the subject of so much controversy, if he was indeed fulfilling his constitutional duties

o o o

Imphal Free Press - 19 December 2015


Arunachal in ugly crisis

The crisis developing next door in Arunachal Pradesh is ugly and unfortunate. The state, as we all are watching is steeped in controversy once again, though this time it has nothing to do with the periodic claim by China that the state is what traditionally constituted South Tibet, and therefore should rightly belong to it, triggering off vehement protest by India. The current crisis pertains to political defection, and this kind of crisis is also not unfamiliar in the state, and indeed practically all the small states Assemblies of the Northeast where the majority status of a political party can be upset by a few legislators crossing the floor. Compounding Arunachal Pradesh’s crisis is what seemingly is an overt partisan role the Governor of the state, Jyoti Prasad Rajkhowa is playing in arbitrating the tussle.

Like Manipur Arunachal Pradesh has a legislative assembly of 60 members, and in the last Assembly election in 2014, the Congress emerged with an absolute majority, having bagged 42 seats. The party was followed by the BJP with 11 seats and People’s Party of Arunachal, PPA, with 5. Two independents also returned. The PPA subsequently merged with the ruling Congress, leaving the latter with a comfortable 46 members. However, as Manipur is so familiar with, such a big majority can also prove to be the doom of a ruling party. The Anti-Defection Law, besides putting tough restrictions on legislators crossing floors in the Assembly, also puts a low ceiling on the size of the cabinet. In small Assemblies of 60 or less legislators, this number has been fixed at 12 including the Chief Minister, almost predicating unrest in the party at the time of awarding ministerial positions.

Quite apparently, Congress Chief Minister, Nabam Tuki is feeling the heat a year after assuming power with a dissident movement building up within his legislative party. It is reported that a total of 27 Congress rebel MLAs have been camping in New Delhi to demand the ouster of his government, although only 21 of them ultimately signed the petition. If these 21 join the BJP, a no confidence motion in the Arunachal Assembly now would surely mean the doom of the Tuki government. However the Winter Session of the Arunachal Assembly is due only in mid-January. The Governor stepped in here to advance the Assembly session by about a month to December 15, a move widely seen was aimed at facilitating the BJP to form the next government in partnership with the Congress rebels. He also allowed the first and foremost agenda item of the Winter Session to be a motion moved by the Opposition for the removal of the Speaker Nabam Rebia.

Speaker Nabam Rebia however refused to allow the December 16 Assembly session. He also reportedly claimed he had earlier disqualified 14 of the 21 rebels by the provisions of the Anti Defection Law. With the blessing of the Governor however the opposition and rebel Congress legislators, went ahead and held the session with Deputy Speaker TN Thongdok in the chair. Since the Legislative Assembly building remained out of bounds, the first day of the rebel session was held in a community hall and the next day in a hotel conference room. The session not only impeached the Speaker but also passed a no-confidence motion against the chief minister. It also elected former finance minister Kalikho Pul as leader of the House.

The Speaker Rebia approached the Gauhati High Court with a writ petition on December 9 and on Thursday the court stayed till February 1 the Governor’s order to advance the Assembly session, describing the development in Arunachal Pradesh as disturbing. The Governor, according to reports, in the meantime has made it known he would be challenging the High Court’s stay order. The situation is also complicated because the amended Anti-Defection Law does not allow defection at all, even if the dissidents form one thirds of their original legislative party, as was the rule before the 2004 amendment to this 1985 law. A party can merge with another and this clearly cannot happen in the present case. A party can also split first and then the breakaway faction merge with another party, but for a split not to attract penal provisions of the Anti-Defection Law, at least two thirds of the legislative party has to agree to split. This number however has remained elusive for the rebels in the troubled Arunachal Congress.