Case: Nabam Rebia And Others Vs. Deputy Speaker

155. It is not necessary for the present purposes to delve into the Governor?s role in legislative or quasi-legislative issues, such as assent to Bills (Article 200 and 201 of the Constitution), procedure in financial matters and legislative powers of the Governor (Chapter IV). Nor is it necessary to deal with the relations between the Governor and the Judiciary (Chapter V and Chapter VI of Part VI of the Constitution). All that need be said is that except in specified matters, executive functions of the Governor whether relating to governance issues or issues pertaining to the Legislature are required to be performed by him on the aid and advise of the Council of Ministers and the Rules framed by the House. No discretion is available to him in these matters since he is bound by the advice given to him by the Council of Ministers and Article 163 of the Constitution cannot be imported into these matters. The only discretion available to the Governor under Article 163 of the Constitution is in respect of matters provided for by or under the Constitution not relatable to the Council of Ministers and the Judiciary. 156. In the view that I have taken, the question relating to the interpretation of Article 175 of the Constitution and the validity of the message of the Governor becomes academic or does not arise and it is not necessary or even advisable to answer it. This Court has held on several occasions that it is inexpedient to delve into problems that do not arise and express an opinion thereon. (Sanjeev Coke Manufacturing Co. v. Bharat Coking Coal Ltd., (1983) 1 SCC 147 ) 157. Therefore, I answer the first three questions in the negative and hold that the fourth question does not arise in the circumstances of the case. 158. The fifth and final question in these appeals is: Whether the Deputy Speaker of the Legislative Assembly of Arunachal Pradesh was entitled at law to set aside the order of the Speaker of the Legislative Assembly of Arunachal Pradesh by which the Speaker had disqualified fourteen Members of the Legislative Assembly of Arunachal Pradesh (including the Deputy Speaker) under the Tenth Schedule of the Constitution? 159. The question here is not whether the disqualification of fourteen members of the Legislative Assembly is valid or not. That was a matter pending consideration in the Gauhati High Court when judgment in these appeals was reserved, but has since been decided. We are not concerned with the decision of the Gauhati High Court or the power or propriety of the decision of the Speaker. The narrow question is whether the Deputy Speaker could, by his order dated 15th December, 2015 set aside the order of the Speaker also dated 15th December, 2015 disqualifying fourteen members of the Legislative Assembly including the Deputy Speaker himself. 160. The Speaker gave a notice to fourteen members of the Legislative Assembly on 7th December, 2015 requiring them to show cause why they should not be disqualified under the Tenth Schedule of the Constitution. Thereafter, by an order dated 15th December, 2015 the Speaker disqualified them from their membership in the Legislative Assembly. As mentioned above, the correctness of this order and the procedure followed has now been decided by the Gauhati High Court and the correctness of that decision is not before us. 161. The Deputy Speaker passed an order on 15th December, 2015 inter alia, on the ground that the Speaker lacked the competence to pass the disqualification order and that he had not followed the constitutional and legal procedures. He had had lost his competence to pass the disqualification order since a notice of his removal dated 19th November, 2015 was pending and was to come up before the Legislative Assembly on 16th December, 2015. In passing his order of 15th December, 2015 the Deputy Speaker purported to derive his power from the message given by the Governor to the Legislative Assembly on 9th December, 2015 requiring the Deputy Speaker to conduct the proceedings of the House on the resolution for removal of the Speaker. What is important to note is that the Deputy Speaker was to preside over the House on 16th December, 2015. He certainly had no derivative power from the message of the Governor dated 9th December, 2015 to take over the functions of the Speaker or to sit in judgment over the decision of the Speaker of 15th December, 2015. 162. That apart, it is now well settled by the decision of this Court in Kihoto Hollohan v. Zachillhu (1992 Supp.(2) SCC 651) that the Speaker while acting under the Tenth Schedule of the Constitution acts as a Tribunal and his decision can be challenged only in a court exercising constitutional jurisdiction. It was held in Kashinath Jalmi v. Speaker ((1993) 2 SCC 703 ) that even the Speaker does not have the power to review the decision taken by him under the Tenth Schedule of the Constitution. Under these circumstances, there is absolutely no question of the Deputy Speaker setting aside the order of the Speaker passed under the Tenth Schedule of the Constitution. 163. It is also important to note that the Deputy Speaker was himself disqualified from the membership of the Legislative Assembly by the Speaker and he could certainly not have set aside the order passed against him and in respect of which he would be the beneficiary. There is no doubt that the Deputy Speaker had no authority at all to set aside the decision of the Speaker passed under the Tenth Schedule of the Constitution. The fifth question is answered in the negative. 164. In the view that I have taken, I am of opinion that the view expressed by my learned Brothers relating to the power or propriety of the Speaker taking a decision under the Tenth Schedule of the Constitution with regard to the fourteen members of the Legislative Assembly does not at all arise in these appeals. Final order

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]50. In our opinion there is no merit in the submission that the power of review inheres in the Speaker under the Tenth Schedule as a necessary incident of his jurisdiction to decide the question of disqualification; or that such a power existed till November 12, 1991 when the decision in Kihota Hollohan (1992) 1 SCC 309  was rendered; or at least a limited power of review inheres in the Speaker to correct any palpable error outside the scope of judicial review.?54. It was the pointed assertion of learned senior counsel, that the order of the Deputy Speaker dated 16.12.2015, quashing the Speaker?s order dated 15.12.2015 (disqualifying 14 members of the House, belonging to the INC), was totally without jurisdiction. It was also urged, that if any individual including the Deputy Speaker of the Assembly and/or the other 13 disqualified members of the House were aggrieved, they could have legitimately taken recourse to judicial review, either before the jurisdictional High Court under Article 226, or before this Court under Article 32. It was pointed out, that the disqualified MLAs had actually assailed their disqualification orders before the High Court. It was accordingly submitted, that the decision of the Deputy Speaker, quashing the order of the Speaker dated 15.12.2015 (disqualifying 14 MLAs of the INC), was per se unconstitutional, it lacked jurisdictional authority, and as such, was unacceptable in lawthe concerned 13 MLAs had sought the removal of the Speaker – Nabam Rebia under Articles 179 and 181. It was also pointed out, that in consonance with the procedure of the House, such a resolution was required to be considered and disposed of, by the Assembly immediately after the minimum mandatory period of 14 days. It was also urged, that the ruling political party – the INC, was no longer enjoying majority in the House, as its strength stood reduced to only 25 out of a total of 60 members. It was in this background, that a prayer was made by the concerned 13 legislators to the Governor, to cancel the summoning of the 6th session of the Assembly for 14.1.2016, and to re-summon the House at the earliest, so that the resolution could be settled without any delay. It was submitted, that the 13 MLAs had advised the Governor, that he had the power to modify the earlier summons, and prepone the date of summoning of the Assembly72. It is also relevant to mention, that on 27.11.2015 the Commissioner to the Governor, addressed a letter to the Secretary of the State Legislative Assembly, that the Governor was in receipt of a resolution signed by 13 members of the House, seeking the removal of the Speaker of the Assembly.84. It was urged, that insofar as the present controversy is concerned, a correct understanding of Article 163(2) would be of extreme relevance. Under Article 163(2), according to learned counsel, the Governor has the authority to act on his own, in respect of matters where the Governor is mandated to act in his own discretion ?by or under? the Constitution. It was further submitted that when a question arises, as to whether such discretion is vested with the Governor ?by or under? the Constitution, the decision of the Governor, on the above question, is final and binding. It was submitted, that Article 163(2) postulates three situations where, as an exception to the general rule, the Governor can act at his own will and discretion. Firstly, when he is required to discharge his functions by the mandate of some provision of the Constitution itself, in his own discretion. Secondly, when the Governor is assigned functions on the basis of enactments made under the Constitution, where he is mandated to discharge his functions by exercising his own discretion. And thirdly, where he is impliedly required to act in his own discretion85. It was pointedly contended, that in the present controversy, the question that needs to be determined is, whether Article 174 which vests the Governor with the authority to summon the Assembly, can be envisioned as one of the provisions, which requires the Governor to impliedly act at his own discretion? Learned counsel acknowledged, that the exercise of discretion by the Governor in the present case did not fall within the first two categorizations, postulated in his submission. Insofar as the implied power of the Governor with reference to the summoning of the House (vide order dated 9.12.2015) is concerned, the first and foremost submission canvassed was, that a clear distinction needed to be drawn between Article 174(1), which postulates the authority to summon the House, and Article 174(2) which vests the authority to prorogue or dissolve the Assembly. In dealing with the distinction between the two, it was pointed out, that the process of summoning a House can never be considered to be anti-democratic. Summoning the House, according to learned counsel, inevitably supports the cause of the democratic process. The same, according to learned counsel, may not be true with reference to proroguing or dissolving the House. When a House is prorogued or dissolved, the democratic process is sought to be deferred for the time being, or till the re-election of the members of the Legislative Assembly, respectively86. Learned senior counsel also pointedly focused on Article 179, and more particularly, sub-article (c) thereof. It was submitted, that an incumbent Speaker (or Deputy Speaker) can be removed under sub-article (c) of Article 179, by a resolution of the Assembly passed by a majority of ?… all the then members …? of the Assembly. It was submitted, that the issue of removal of the existing Speaker (or Deputy Speaker) contemplated under Article 179, should not be confused with the exercise of ?executive power? of the State. It was asserted, that the functions of an Assembly could be placed in two entirely separate categories. Firstly, its purely legislative activities. Legislative activity, according to learned counsel, included the responsibility of the ?executive power of the State? represented through the Chief Minister and his Council of Ministers, to determine the field and nature of legislation, to be brought before the House for legislation. It was submitted, that in the discharge of the aforesaid activity, the Governor can have no role whatsoever. The realm of legislative activity, according to learned counsel, also included the actual consideration of a Bill. Herein again, it was submitted, that the Governor would have no role, except to the extent contemplated under Article 200, wherein, when a Bill is passed by the House, the same has to be approved by the Governor. And only when the Governor gives his assent to the Bill, the same assumes the status of a legislative enactment. It was pointed out, that Article 200 contemplates a situation, where the Governor can return the Bill with a message, requiring the House to reconsider the same, by examining the suggestions made by the Governor. This limited responsibility cast on the Governor, it was contended, fell within the legislative process. The Governor before whom a Bill (passed by the Legislative Assembly) is placed, has also the right to reserve the Bill, for the consideration of the President. This action of the Governor, according to learned counsel, must be accepted as a further responsibility of the Governor within the legislative process. It was submitted, that in all the functions vested with the Governor under Article 200, are to be discharged by the Governor, in his independent discretion, and not on any guidance or advice. This, according to learned counsel, illustrates the third category of the Governor?s functions, wherein the Governor is impliedly required to act in his own discretion, even though he is not expressly so required, by any written mandate emerging from Article 20087. Secondly, it was submitted, that there are functions and activities of the House, which are separate and distinct from its legislative functioning. The said activities may have no role, of the Chief Minister or his Council of Ministers. Illustratively, it was contended, that the issue of removal of a Speaker (or Deputy Speaker) under Article 179(c) is an exclusive function of the House, but is independent of its legislative business. Insofar as the issue of removal of the Speaker (or the Deputy Speaker) is concerned, it was acknowledged, that neither the Chief Minister nor his Council of Ministers has any determinative role in the matter. The Speaker (or the Deputy Speaker) can be removed from his office, only ?… by a resolution of the Assembly passed by a majority of all the then members of the Assembly.?. Insofar as the present controversy is concerned, it was pointed out, that the notice of resolution for the removal of the Speaker, dated 19.11.2015, was brought by 13 members of the House. According to learned counsel, it is necessary to understand, the aforesaid submission, in the background of the position occupied by the Speaker. It was emphasized, that a Speaker is a neutral arbiter, between the ruling Government (which has the majority in the Assembly), and the opposition parties (which constitute the minority)88. In continuation, learned senior counsel, invited our attention to Article 180. It was pointed out, that sub-article (1) thereof provides, that if the office of the Speaker is vacant, the duties of ?the office? of Speaker, are to be performed by the Deputy Speaker. And if the office of the Deputy Speaker is also vacant, the duties of ?the office? of Speaker, are to be performed by a person appointed by the Governor, out of the existingMLAs. It washighlighted, that in the above exigency, where the question of discharging duties of the Speaker arises, the Governor has been expressly vested with a constitutional responsibility. Based on the above analysis, it was submitted, that insofar as the non-legislative duties of the Assembly are concerned, the Governor has also been ascribed some specific responsibilities. And since the Chief Minister and the Council of Ministers have no role in the aforestated action/activity, the Governor need not make the choice of the person, to discharge the duties of Speaker, on the basis of any aid and advice of the Chef Minister and his Council of Ministers89. It was asserted, that the position prevailing after the conclusion of the 5th session of the Assembly on 21.10.2015, did occasion the applicability of sub-article (2) of Article 180, in the peculiar facts of this case. As such, it was urged, that it would be wholly incorrect to assume, that the action taken by the Governor with reference to the office of Speaker was extraneous, specially when considered with reference to the relevant provisions of the Constitution90. Learned senior counsel seriously questioned the action of the Speaker in locking the premises of the Assembly, and thereby, consciously stalling the democratic process of the House. It was asserted, that if the Speaker was desirous of enforcing the order of disqualification (of 14 MLAs) by himself, under the Tenth Schedule, he may well have prevented the entry of the said 14 disqualified members into the premises of the House. It was submitted, that the action of the Speaker in disallowing the consideration of the notice of resolution for his removal, by preventing entry of all the legislators, into the building of the House, was really an action aimed at frustrating the democratic process. And, an escape route with reference to the notice of resolution for his own removal. It was pointed out, that the Speaker being an elected member of the Assembly, discharges vital legislative and non-legislative functions. His non-legislative functions include the duties as head of the Secretariat of the Assembly, and in addition thereto, his quasi-judicial functions are those postulated under the ?Tenth Schedule?, of the Constitution. The legislative functions, as well as, the duties vested with the Speaker under the Tenth Schedule, have a direct nexus to the democratic process, and as such, the discharge of the above responsibilities, while his position as a Speaker of the House was under challenge, constituted a serious constitutional impropriety91. On the duties assigned to the Governor under Article 174, it was submitted, that it was improper and unjustified to describe the action of the Governor in summoning the House vide order dated 9.12.2015, as anti-democratic. According to learned counsel, only anti-democratic forces would contest a decision of the Governor, in summoning the House. It was asserted, that a Government which is confident of its majority on the floor of the House, would have nothing to fear, when the House is summoned. The summoning of the House by the Governor, at his own discretion, would be inconsequential where the Government can establish its numbers. For exactly the same reason, it was submitted, that the action of the Governor in summoning the House, for the consideration of a notice of resolution for the removal of the Speaker would be inconsequential, if the Speaker enjoyed the support of the majority of the members of the House. It was pointed out, that the action of shying away and stalling consideration, of a resolution for the removal of the Speaker, is an action which could be justifiably described as anti-democratic. It was submitted, that a party in power which claims to enjoy the majority, cannot be aggrieved in a situation where the Governor requires the Government to establish its majority, through a floor test. Likewise, a Speaker who enjoys the confidence of the House, cannot be an aggrieved party, when the Governor calls for the consideration of a notice of resolution for his removal92. Referring to the action of the Governor, based on the order dated 9.12.2015, it was submitted, that even in the worst case scenario, the action of the Governor could not be described, as an action in conflict with any provision of the Constitution, or even a constitutional norm/propriety. It was submitted, that the notice of resolution for the removal of the Speaker was submitted on 19.11.2015. The Governor had made repeated efforts in writing, to confirm, whether such a notice had actually been submitted to the Secretary of the Legislative Assembly. Initiating action for summoning the House, by ordering its preponement, according to learned senior counsel, could be an option only if, the concerned 13 MLAs had actually submitted the above notice dated 19.11.2015, to the Secretary of the Legislative Assembly. Merely because a copy thereof had been furnished to the Governor, he could not have initiated any action. In spite of the high office of the Governor, and despite repeated communications were sent by the Governor, seeking information about the factual position, whether a notice of resolution for the removal of the Speaker – Nabam Rebia had been received, the same remained unanswered. Finally, the factual position came to the notice of the Governor, only on 8.12.2015, on the receipt of a communication from the Secretary of the Legislative Assembly. By this time the postulated 14 days? notice period, before such notice could be taken up for consideration, had expired (on 3.12.2015). Allowing the Speaker to discharge functions pertaining to the Secretariat of the Assembly, or under the Tenth Schedule to the Constitution, while his own position was under challenge, would not only be unconstitutional, but also undemocratic. It was urged, that it was in the aforesaid background, and based on the aforesaid understanding, and also to ensure that the functioning of the House was carried out in consonance with established democratic norms, that the Governor (in exercise of the powers vested with him under Article 174), had ordered the summoning of the House for 16.12.2015 (by preponing the 6th session of the Assembly, earlier scheduled for 14.1.2016). It was therefore contended, that the submissions advanced at the behest of learned counsel for the appellants, deserved to be rejected93. Mr. Rakesh Dwivedi, learned senior counsel, having concluded his submissions with reference to the order of the Governor dated 9.12.2015, similarly endeavoured to justify the message of the Governor dated 9.12.2015. His submissions to support the message dated 9.12.2015, were the same as in support of the order of the Governor dated 9.12.2015. According to learned counsel, the message was clear, that the Governor had authorised the House, to permit the resolution for removal of the Speaker to be moved. The message required the members of the Assembly, to discuss and put the same to vote, as ?… the first item on the agenda of the House at the first sitting of the Sixth Session…?. The Governor also required the Deputy Speaker, to hold the proceedings peacefully and truthfully, so as to ensure that they were conducted fairly. The message of the Governor, required the proceedings to be video-graphed. It was submitted, that the message of the Governor, would not only secure the enforcement of the democratic process, but would also ensure transparency and fairness. It was therefore the assertion of learned senior counsel, that no fault whatsoever could be found with the message of the Governor94. Having submitted thus far, learned senior counsel, pointedly referred to paragraph 5 of the message dated 9.12.2015. It was conceded, that the contents of paragraph 5, were instructions to the House, that until the 6th session (to commence on 16.12.2015) of the Legislative Assembly was prorogued, no Presiding Officer would alter the party composition of the House. It was acknowledged, that this could only be understood to mean, that disqualification proceedings under the ?Tenth Schedule?, would have to await the outcome of the motion against the Speaker under Article 179(c). In order to demonstrate the propriety and constitutional validity of paragraph 5 of the message, it was submitted, that once it is concluded (- that is, if this Court, on accepting the submissions advanced on behalf of the respondents, so concludes), that the Governor had the discretion to summon or prepone the sitting of the Assembly under Article 174(1) read with Articles 163 and 179(c), then it would also be up to the Governor to decide when and/or where, the House should meet. It was pointed out, that the Governor is undisputedly a high constitutional functionary. And as such, his decisions could neither be taken lightly, nor be easily interfered with. By inviting the Court?s attention to Article 174, it was urged, that the above provision vests responsibility in the Governor to summon, prorogue or dissolve the Assembly. The Governor is mandated to summon the Legislative Assembly ?at such time and place as he thinks fit?. The instant connotation in Article 174, makes it abundantly clear, that the Governor has to discharge the above function, as he in his own discretion, considers appropriate. Premised on the aforesaid foundation, it was contended, that the instant discretion conferred on the Governor, could not be subservient to any aid and advice. It was pointed out, that the fixation of time for sitting of the Legislative Assembly, determined by the Governor under Article 174, was an issue on which reasonable persons could differ widely. As such, it would not be proper for any Court to interfere with, the time and place fixed by the Governor in summoning the Assembly95. On the subject of the power of the judicial review, with reference to the exercise of discretion by the President (in relation to the removal of a Governor), it has to be accepted, that the power of judicial review has to be limited to situations wherein, it could be established that the President had exercised his discretion wantonly, whimsically or arbitrarily. It was urged that the same position would apply to decisions of Governors as well. It was submitted, that the appellants before this Court, were obliged to establish, that the Governor had acted deliberately in an unprincipled manner, and that, the action of the Governor would impair the constitutional trust assigned to him82. The President in exercising power under Article 156(1) should act in a manner which is not arbitrary, capricious or unreasonable. In the event of challenge of withdrawal of the pleasure, the Court will necessarily assume that it is for compelling reasons. Consequently, where the aggrieved person is not able to establish a prima facie instance of arbitrariness or malafides, in his removal, the Court will refuse to interfere. However, where a prima facie case of arbitrariness or malafides is made out, the Court can require the Union Government to produce records/materials to satisfy itself that the withdrawal of pleasure was for good and compelling reasons. What will constitute good and compelling reasons would depend upon the facts of the case. Having regard to the nature of functions of the Governor in maintaining centre-state relations, and the flexibility available to the Government in such matters, it is needless to say that there will be no interference unless a very strong case is made out. The position, therefore, is that the decision is open to judicial review but in a very limited extent83. We summarise our conclusions as under:(i) Under Article 156(1), the Governor holds office during the pleasure of the President. Therefore, the President can remove the Governor from office at any time without assigning any reason and without giving any opportunity to show cause(ii) Though no reason need be assigned for discontinuance of the pleasure resulting in removal, the power under Article156(1) cannot be exercised in an arbitrary, capricious or unreasonable manner. The power will have to be exercised in rare and exceptional circumstances for valid and compelling reasons. The compelling reasons are not restricted to those enumerated by the petitioner (that is physical/mental disability, corruption and behaviour unbecoming of a Governor) but are of a wider amplitude. What would be compelling reasons would depend upon the facts and circumstances of each case(iii) A Governor cannot be removed on the ground that he is out of sync with the policies and ideologies of the Union Government or the party in power at the Centre. Nor can he be removed on the ground that the Union Government has lost confidence in him. It follows therefore that change in government at Centre is not a ground for removal of Governors holding office to make way for others favoured by the new government(iv) As there is no need to assign reasons, any removal as a consequence of withdrawal of the pleasure will be assumed to be valid and will be open to only a limited judicial review. If the aggrieved person is able to demonstrate prima facie that his removal was either arbitrary, malafide, capricious or whimsical, the Court will call upon the Union Government to disclose to the Court, the material upon which the President had taken the decision to withdraw the pleasure. If the Union Government does not disclose any reason, or if the reasons disclosed are found to be irrelevant, arbitrary, whimsical, or malafide, the Court will interfere. However, the court will not interfere merely on the ground that a different view is possible or that the material or reasons are insufficient.?154. We declare the law of this branch of our Constitution to be that the President and Governor, custodians of all executive and other powers under various Articles, shall, by virtue of these provisions, exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well-known exceptional situations. Without being dogmatic or exhaustive, these situations relate to (a) the choice of Prime Minister (Chief Minister), restricted though this choice is by the paramount consideration that he should command a majority in the House; (b) the dismissal of a Government which has lost its majority in the House, but refuses to quit office; (c) the dissolution of the House where an appeal to the country is necessitous, although in this area the Head of State should avoid getting involved in politics and must be advised by his Prime Minister (Chief Minister) who will eventually take the responsibility for the step. We do not examine in detail the constitutional proprieties in these predicaments except to utter the caution that even here the action must be compelled by the peril to democracy and the appeal to the House or to the country must become blatantly obligatory137. First of all, it is extremely essential to understand, the nature of powers and the functions of the Governor, under the provisions of the Constitution. Insofar as the instant aspect of the matter is concerned, it is apparent that the Governor has been assigned functions and powers, concerning the executive and the legislative affairs of the State. The executive functioning of the States is provided for under Part VI Chapter II of the Constitution, which includes Articles 153 to 167. Article 154 mandates, that the executive power of the State is vested with the Governor, and is to be exercised by him either directly or through officers subordinate to him ?in accordance with this Constitution?. Article 163 further warrants, that the Governor would exercise his functions, on the aid and advice of the Council of Ministers with the Chief Minister as the head. The above edict is not applicable, in situations where the Governor is expressly required to exercise his functions, ?…by or under this Constitution…?, ?… in his discretion...?. The question that will need determination at our hands is, whether the underlying cardinal principle, with reference to the discretionary power of the Governor, is to be traced from Article 163(1) or from Article 163(2). Whilst it was the contention of the learned counsel for the appellants, that the same is expressed in sub-article (1) of Article 163, the contention on behalf of the respondents was, that the amplitude of the discretionary power of the Governor is evinced and manifested in sub-article (2) of Article 163. Undoubtedly, all executive actions of the Government of a State are expressed in the name of the Governor, under Article 166. That, however, does not per se add to the functions and powers of the GovernorIt is also necessary to appreciate, that in the discharge of executive functions, the Governor of a State has the power to grant pardons, reprieves, respites or remissions of punishments or to suspend, remit or commute sentences (under Article 161). The Governor?s power under Article 161, is undisputedly exercised on the aid and advice of the Chief Minister and his Council of Ministers. The Governor has power to frame rules for the convenient transaction of executive business of the Government, under Article 166. The instant responsibility is also discharged, on aid and advice. All in all, it is apparent, that the Governor is not assigned any significant role in the executive functioning of the State. We would also endeavour to examine the duties and responsibilities of the Governor in the legislative functioning of a State. Details with reference to the same are found incorporated in Part VI Chapter III of the Constitution, which includes Articles 168 to 212. Even though Article 168 postulates, that the legislature of a State would comprise of the Governor, yet the Governor is not assigned any legislative responsibility in any House(s) of the State Legislature, irrespective of whether it is the legislative process relating to Ordinary Bills or Money Bills. Article 158 (dealing with the conditions of the Governor?s office) provides, that the ?… Governor shall not be a member of either House of Parliament or of a House of the Legislature of any State specified in the First Schedule …?. Insofar as the legislative process is concerned, the only function vested with the Governor is expressed through Article 200 which inter alia provides, that a Bill passed by the State Legislature, is to be presented to the Governor for his assent. And its ancillary provision, namely, Article 201 wherein a Bill passed by the State Legislature and presented to the Governor, may be reserved by the Governor for consideration by the President. The only exception to the non-participation of the Governor in legislative functions, is postulated under Article 213 (contained in Part VI Chapter IV of the Constitution), which apparently vests with the Governor, some legislative power. The Governor under Article 213 can promulgate Ordinances, during the period when the House(s) of the State Legislature, is/are not in session. This function is exercised by the Governor, undisputedly, on the aid and advice of the Council of Ministers with the Chief Minister as the head. The Governor is also required to summon the House or Houses of State Legislature, or to prorogue or dissolve them under Article 174. We shall exclusively deal with the connotations of the instant responsibility entrusted with the Governor, immediately after drawing our conclusions with reference to Article 163. Articles 178 to 187 deal with the officers of the State Legislature, including the Speaker and the Deputy Speaker, as well as, the secretariat of the State Legislature. The above Articles are on the subject of appointment and removal of the Speaker and the Deputy Speaker of the Legislative Assembly, as also, the Chairman and Deputy Chairman of the Legislative Council, as well as, other ancillary matters. Whilst Article 179 provides for vacation, resignation and removal of the Speaker (and the Deputy Speaker) of the Legislative Assembly. Article 183 provides for vacation, resignation and removal of the Chairman (and the Deputy Chairman) of the Legislative Council. In neither of the above Articles, the Governor has any assigned role. The only responsibility allocated to the Governor under Article 208, is of making rules as to the procedure with respect to communications between the two Houses of State Legislature. All in all, it is apparent, that the Governor is not assigned any significant role even in the legislative functioning of the State138. The above position, leaves no room for any doubt, that the Governor cannot be seen to have such powers and functions, as would assign to him a dominating position, over the State executive and the State legislature. The interpretation placed on Article 163(2), on behalf of the respondents, has just that effect, because of the following contentions advanced on behalf of the respondents. Firstly, whenever a question arises, whether in discharging a particular function, the Governor can or cannot act in his own discretion. According to the respondents, the discretion of the Governor, on the above question, is final. Secondly, since the provision itself postulates, that ? … the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion…?, according to the respondents, makes the Governor?s orders based on his own discretion, immune from judicial review. Accepting the above position, will convert the Governor into an all-pervading super-constitutional authority. This position is not acceptable because an examination of the executive and legislative functions of the Governor, from the surrounding provisions of the Constitution clearly brings out, that the Governor has not been assigned any significant role either in the executive or the legislative functioning of the State. The position adopted on behalf of the appellants, on the other hand, augurs well in an overall harmonious construction of the provisions of the Constitution. Even on a cursory examination of the relevant provisions of the Constitution, we are inclined to accept the contention advanced on behalf of the appellants139. In our considered view, a clear answer to the query raised above, can inter alia emerge from the Constituent Assembly debates with reference to draft Article 143, which eventually came to be renumbered as Article 163 in the Constitution. It would be relevant to record, that from the queries raised by H.V. Kamath, T.T. Krishnamachari, Alladi Krishnaswami Ayyar, and from the response to the same by Dr. B.R. Ambedkar, it clearly emerges, that the general principle with reference to the scope and extent of the discretionary power of the Governor, is provided for through Article 163(1). It also becomes apparent from Article 163(1), which provides for the principle of ministerial responsibility. The crucial position that gets clarified from a perusal of the Constituent Assembly debates, arises from the answer to the query, whether the Governor should have any discretionary power at all? The debates expound, that the retention of discretionary power with the Governor was not, in any way, contrary to the power of responsible Government, nor should the same be assumed as a power akin to that vested with a Governor under the Government of India Act, 1935. And from that, emerges the answer that the retention and vesting of discretionary powers with the Governor, should not be taken in the sense of being contrary to, or having the effect of negating, the powers of responsible Government. Significantly, with reference to the Governor?s discretionary powers, it was emphasized by Dr. B.R. Ambedkar, that ?the clause is a very limited clause; it says: ‘except insofar as he is by or under this Constitution?. Therefore, Article 163 will have to be read in conjunction with such other Articles which specifically reserve the powers to the Governor?. ?It is not a general clause giving the Governor power to disregard the advice of his Ministers, in any matter in which he finds he ought to disregard. There, I think, lies the fallacy of the argument of my Hon?ble friend…?. In our considered view, the Constituent Assembly debates, leave no room for any doubt, that the framers of the Constitution desired to embody the general and basic principle, describing the extent and scope of the discretionary power of the Governor, in sub-article (1) of Article 163, and not in sub-article (2) thereof, as suggested by the learned counsel for the respondents142. We are therefore of the considered view, that insofar as the exercise of discretionary powers vested with the Governor is concerned, the same is limited to situations, wherein a constitutional provision expressly so provides, that the Governor should act in his own discretion. Additionally, a Governor can exercise his functions in his own discretion, in situations where an interpretation of the concerned constitutional provision, could not be construed otherwise. We therefore hereby reject the contention advanced on behalf of the respondents, that the Governor has the freedom to determine when and in which situation, he should take a decision in his own discretion, without the aid and advice of the Chief Minister and his Council of Ministers. We accordingly, also turn down the contention, that whenever the Governor in the discharge of his functions, takes a decision in his own discretion, the same would be final and binding, and beyond the purview of judicial review. We are of the view, that finality expressed in Article 163(2) would apply to functions exercised by the Governor in his own discretion, as are permissible within the framework of Article 163(1), and additionally, in situations where the clear intent underlying a constitutional provision, so requires i.e., where the exercise of such power on the aid and advice, would run contrary to the constitutional scheme, or would be contradictory in terms143. We may therefore summarise our conclusions as under:Firstly, the measure of discretionary power of the Governor, is limited to the scope postulated therefor, under Article 163(1)Secondly, under Article 163(1) the discretionary power of the Governor extends to situations, wherein a constitutional provision expressly requires the Governor to act in his own discretionThirdly, the Governor can additionally discharge functions in his own discretion, where such intent emerges from a legitimate interpretation of the concerned provision, and the same cannot be construed otherwiseFourthly, in situations where this Court has declared, that the Governor should exercise the particular function at his own and without any aid or advice, because of the impermissibility of the other alternative, by reason of conflict of interestFifthly, the submission advanced on behalf of the respondents, that the exercise of discretion under Article 163(2) is final and beyond the scope of judicial review cannot be accepted. Firstly, because we have rejected the submission advanced by the respondents, that the scope and extent of discretion vested with the Governor has to be ascertained from Article 163(2), on the basis whereof the submission was canvassed. And secondly, any discretion exercised beyond the Governor?s jurisdictional authority, would certainly be subject to judicial reviewSixthly, in view of the conclusion drawn at Fifthly above, the judgments rendered in the Mahabir Prasad Sharma case20, and the Pratapsing Raojirao Rane case12, by the High Courts of Calcutta and Bombay, respectively, do not lay down the correct legal position. The constitutional position declared therein, with reference to Article 163(2), is accordingly hereby set aside144. The conclusions recorded hereinabove will constitute the foundational basis for determining some of the other important issues, that arise for consideration in the present controversy154. Since it is not a matter of dispute, that the Governor never called for a floor test, it is reasonable for us to infer, that the Governor did not ever entertain any doubt, that the Chief Minister and his Council of Ministers were still enjoying the confidence of the majority, in the House. Nor was a motion of no confidence moved against the Government. In the above situation, the Governor just could not have summoned the House, vide his order dated 9.12.2015, in his own discretion, by preponing the 6th session of the Legislative Assembly from 14.1.2016 to 16.12.2015. This, for the simple reason, that the Governor neither had the jurisdiction nor the power to do so, without the aid and advice of the Council of Ministers with the Chief Minister as the head162. In view of the above, we have no hesitation in concluding, that the messages addressed by the Governor to the Assembly, must abide by the mandate contained in Article 163(1), namely, that the same can only be addressed to the State Legislature, on the aid and advice of the Council of Ministers with the Chief Minister as the head. The message of the Governor dated 9.12.2015, was therefore beyond the constitutional authority vested with the Governor163. For all the reasons recorded hereinabove, we are of the considered view, that the impugned message of the Governor dated 9.12.2015 is liable to be set aside. We order accordingly164. The deliberations and the discussions recorded hereinabove substantiate, that even though in terms of Article 154, the executive power of the State vests in the Governor, and further, the executive power vested with the Governor would be exercised by him either directly or through officers subordinate to him ?in accordance with this Constitution?, and further, the mandate contained in Article 166 enjoins, that all executive actions of the Government of a State are expressed in the name of the Governor, yet Article 163(1) leaves no room for any doubt, that the Governor is ordained, to exercise his functions on the aid and advice of the Council of Ministers with the Chief Minister as the head. Articles 154, 163 and 166 referred to above, are contained in Chapter II of Part VI of the Constitution, which relate to the State Executive. It is therefore apparent, that the exercise of executive power by the Governor, is by and large notional. All in all, the Governor had a limited scope of authority, relating to the exercise of executive functions, in his own discretion, i.e., without any aid and advice. The aforesaid limited power of the Governor is exercisable in situations, expressly provided for ?by or under? the provisions of the Constitution. The position which has briefly been recorded above, has been examined in some detail in paragraph xxx 139 xxx of this judgment165. Likewise, even though Article 168 includes the Governor, and pronounces him to be a part of the State Legislature, the provisions of the Constitution extend no legislative responsibility to him, within the precincts of the House or Houses of the State Legislature. Article 158 provides, that the ?… Governor shall not be a member of either House of Parliament or of a House of the Legislature of any State specified in the First Schedule …?. The Governor does not participate in debates within the Legislature, nor does he have any role in any activity which would result in the passing of a Bill, on the floor of the House. All in all, the legislative functionality constitutionally extended to the Governor, is extremely limited. The role assigned to a Governor in the entire gamut of the legislative process, is as ascribed under Article 200. Needless to mention, that when the House or Houses of the State Legislature are not in session, the Governor has the power to promulgate Ordinances under Article 213. No such legislative power is vested with the Governor, while the House or Houses of the State Legislature are in session. But even the power to issue Ordinances, cannot be exercised by the Governor, on his own. Ordinances can be issued by the Governor, only on the aid and advice of the Council of Ministers with the Chief Minister as the head. In sum and substance, the Governor is vested with extremely limited legislative functions. The position which has been recorded above, has been examined in some detail in paragraph xxx 139 xxx of this judgment166. It also needs to be kept in mind, that the appointment of the Governor is made under Article 155, not by way of an electoral process, but by a warrant issued under the hand and seal of the President. The constitutional Governor, is to hold his office under Article 156, during the pleasure of the President. Since the President exercises his functions on the aid and advice of the Prime Minister and his Council of Ministers, the tenure of the office of the Governor has also to coincide with the aid and advice of the Prime Minister and his Council of Ministers167. It is in the above background, that the ambit and scope of the role of the Governor requires to be examined, with reference to the issue of removal of the Speaker (or the Deputy Speaker) under Article 179(c). Insofar as the issue of the removal of the Speaker is concerned, the same would depend on the result of the vote, on the notice of resolution for his removal. If the majority votes in favour of the motion, the resolution is liable to be adopted. Failing which, it is liable to be rejected. In the above situation, it is apparent, that neither the Chief Minister, nor the Council of Ministers, has any determinative role on the subject of removal of the Speaker (or the Deputy Speaker). Their individual participation is limited to their individual vote, either in favour or against the motion for the removal of the Speaker (or the Deputy Speaker). Even the above bit, is not available to the Governor. The Governor has no role whatsoever in the removal of the Speaker (or the Deputy Speaker). Therefore, in our considered view, no role direct or indirect can be assumed by the Governor, under Article 179(c). The assumption of such a role, and the fulfillment thereof by addressing a message to the Assembly under Article 175, can only be ascribed as an ingenuity, without any constitutional sanction. In the above view of the matter, we are of the opinion, that the impugned message of the Governor dated 9.12.2015, cannot be endorsed as constitutionally acceptable168. Despite the above, the facts and circumstances of the present case reveal, that the Governor in his alleged bona fide determination issued the impugned message dated 9.12.2015, statedly to advise and guide the State Legislature, to carry out its functions in consonance with the provisions of the Constitution, and the rules framed under Articles 166 and 208. The question which arises for adjudication is not, that of the Governor?s bona fides. The question is of the jurisdictional authority of the Governor, in the above matter. The Governor has no direct or indirect constitutionally assigned role, in the matter of removal of the Speaker (or the Deputy Speaker). The Governor is not the conscience keeper of the Legislative Assembly, in the matter of removal of the Speaker. He does not participate in any executive or legislative responsibility, as a marshal. He has no such role assigned to him, whereby he can assume the position of advising and guiding the Legislative Assembly, on the question of removal of the Speaker (or Deputy Speaker). Or to require the Legislative Assembly to follow a particular course. The Governor can only perform such functions, in his own discretion, as are specifically assigned to him ?by or under this Constitution?, within the framework of Article 163(1), and nothing more. In our final analysis, we are satisfied in concluding, that the interjects at the hands of the Governor, in the functioning of the State Legislature, not expressly assigned to him, however bona fide, would be extraneous and without any constitutional sanction. A challenge to an action beyond the authority of the Governor, would fall within the scope of the judicial review, and would be liable to be set aside169. For all the reasons recorded hereinabove, we are of the considered view, that the impugned order and message of the Governor dated 9.12.2015 are liable to be set aside. We order accordingly173. When the position of a Speaker is under challenge, through a notice of resolution for his removal, it would ?seem? just and appropriate, that the Speaker first demonstrates his right to continue as such, by winning support of the majority in the State Legislature. The action of the Speaker in continuing, with one or more disqualification petitions under the Tenth Schedule, whilst a notice of resolution for his own removal, from the office of Speaker is pending, would ?appear? to be unfair. If a Speaker truly and rightfully enjoys support of the majority of the MLAs, there would be no difficulty whatsoever, to demonstrate the confidence which the members of the State Legislature, repose in him. The office of Speaker, with which the Constitution vests the authority to deal with disqualification petitions against MLAs, must surely be a Speaker who enjoys confidence of the Assembly. After all, disposal of the motion under Article 179(c), would take no time at all. As soon as the motion is moved, on the floor of the House, the decision thereon will emerge, forthwith. Why would a Speaker who is confident of his majority, fear a floor test? After his position as Speaker is affirmed, he would assuredly and with conviction, deal with the disqualification petitions, under the Tenth Schedule. And, why should a Speaker who is not confident of facing a motion, for his removal, have the right to adjudicate upon disqualification petitions, under the Tenth Schedule? The manner in which the matter has been examined hereinabove, is on ethical considerations. A constitutional issue, however, must have a constitutional answer. We shall endeavour to deal with the constitutional connotation of the instant issue, in the following paragraphs175. Article 179(c) provides, that a Speaker (or Deputy Speaker), ?may be removed from his office by a resolution of the Assembly passed by a majority of all the then members of the Assembly?. A notice of resolution for the removal of the Speaker (or the Deputy Speaker) of the Assembly, would therefore, have to be passed by a majority ?of all the then members of the Assembly?. The words ?all the then members? included in Article 179(c), are a conscious adage. If the words ?all the then members? are excluded from clause (c) of Article 179, it would affirm the interpretation which the appellants, wish us to adopt. The connotation placed by the appellants, would legitimize the action of the Speaker, in going ahead with the proceedings under the Tenth Schedule, even though a notice of resolution for his removal from the office of Speaker was pending. The words ?all the then members? were consciously added to Article 179(c), and their substitution was not accepted by the Constituent Assembly. We are satisfied, that the words ?passed by a majority of all the then members of the Assembly?, would prohibit the Speaker from going ahead with the disqualification proceedings under the Tenth Schedule, as the same would negate the effect of the words ?all the then members?, after the disqualification of one or more MLAs from the House. The words ?all the then members?, demonstrate an expression of definiteness. Any change in the strength and composition of the Assembly, by disqualifying sitting MLAs, for the period during which the notice of resolution for the removal of the Speaker (or the Deputy Speaker) is pending, would conflict with the express mandate of Article 179(c), requiring all ?the then members? to determine the right of the Speaker to continue176. It would also be relevant to notice, that the Tenth Schedule was inserted in the Constitution, by the Constitution (Seventy-third Amendment) Act, 1992, with effect from 24.4.1993. The purpose sought to be achieved through the Tenth Schedule, is clear and unambiguous. The same is unrelated to, and distinct from, the purpose sought to be achieved through Article 179(c). Neither of the above provisions, can be seen as conflicting with the other. Both, must therefore freely operate, within their individual constitutional space. Each of them will have to be interpreted, in a manner as would serve the object sought to be achieved, without treading into the constitutional expanse of the other. The interpretation would have to be such, as would maintain constitutional purpose and harmony. We would now venture to examine the instant issue from the above perspective, in the following paragraph177. If a Speaker survives the vote, on a motion for his removal from the office of Speaker, he would still be able to adjudicate upon the disqualification petitions filed under the Tenth Schedule. The process of judicial review, cannot alter the above position. But, if a disqualification petition is accepted by the Speaker, the disqualified MLAs will have no right to participate in the motion moved against the Speaker under Article 179(c). A disqualified MLA, as we all know, can assail the order of his disqualification, by way of judicial review. If he succeeds, and his disqualification from the House is set aside, such a disqualified MLA, would be deprived of the opportunity to participate in the motion against the Speaker, under Article 179(c). In this situation, the process of judicial review, can also alter the position, if a disqualification order passed by the Speaker, is set aside by a Court of competent jurisdiction. In the event of an MLA having been disqualified by the Speaker, the notice of resolution for the removal of the Speaker, would surely be dealt with, and will be disposed of, during the period when the concerned MLA stood disqualified. Alternatively, if an MLA has not been disqualified when the motion for the removal of the Speaker is taken up, he would have the right to vote on the motion pertaining to the removal of the Speaker, whereafter, the petition for his own disqualification would certainly be considered and decided, by the Speaker. It is apparent, that the difficulty arises only, if the disqualification petition is taken up first, and the motion for the removal of the Speaker is taken up thereafter. The possibility of a disqualification petition being decided on political considerations, rather than on merits, cannot be ignored. In fact, that is a real possibility. Therefore, while it will not adversely affect the Speaker, if he faces the motion of his own removal from the office of Speaker, before dealing with the disqualification petitions, it could seriously prejudice MLAs facing disqualification, if petitions for their disqualification are taken up and dealt with first. The adoption of the former course, would also result in meaningfully giving effect to the words ?all the then members? used in Article 179(c), as discussed in the foregoing paragraph. This interpretation would also purposefully give effect to the rejection of the amendment suggested during the Constituent Assembly debates, that the motion for removal of the Speaker, should be the majority of ?the members of the Assembly present and voting?. This interpretation would also result in disregarding the retention of the words ?all the then members of the Assembly?, in Article 179(c). If the Speaker faces the motion of his own removal first, both the constitutional provisions would have their independent operational space preserved. None of the concerned constitutional provisions would interfere with the free functionality of the other, nor would one usurp the scheme postulated for the other. We are therefore of the view, that constitutional purpose and constitutional harmony would be maintained and preserved, if a Speaker refrains from adjudication of a petition for disqualification under the Tenth Schedule, whilst his own position, as Speaker, is under challenge. This would also, allow the two provisions (Article 179(c), and the Tenth Schedule) to operate in their individual constitutional space, without encroaching on the other178. For the reasons recorded hereinabove, we hereby hold, that it would be constitutionally impermissible for a Speaker to adjudicate upon disqualification petitions under the Tenth Schedule, while a notice of resolution for his own removal from the office of Speaker, is pending. We are of the view, that it needs to be asserted as a constitutional determination, that it is not within the realm of the Governor to embroil himself in any political thicket. The Governor must remain aloof from any disagreement, discord, disharmony, discontent or dissension, within individual political parties. The activities within a political party, confirming turbulence, or unrest within its ranks, are beyond the concern of the Governor. The Governor must keep clear of any political horse-trading, and even unsavoury political manipulations, irrespective of the degree of their ethical repulsiveness. Who should or should not be a leader of a political party, is a political question, to be dealt with and resolved privately by the political party itself. The Governor cannot, make such issues, a matter of his concern. The provisions of the Constitution do not enjoin upon the Governor, the authority to resolve disputes within a political party, or between rival political parties. The action of the Governor, in bringing the aforesaid factual position to the notice of the President, in his monthly communications, may well have been justified for drawing the President?s attention to the political scenario of the State. But, it is clearly beyond the scope of the Governor?s authority, to engage through his constitutional position, and exercise his constitutional authority, to resolve the same192. It is open to the Governor to take into consideration, views of a breakaway group. Under Paragraph 4 of the Tenth Schedule, legitimacy is bestowed on a breakaway group which comprises of not less than two thirds of the members of the concerned legislature party. In the present case, the breakaway group belonging to the ruling INC comprised of 21 members, whereas the INC had 47 MLAs in the prevailing 60-member Legislative Assembly. 21 MLAs belonging to the INC did not constitute a legitimate and recognizable breakaway group. The Governor could not in support of the protests and assertions of an invalid breakaway group, adopt a constitutional course, recourse whereof could be taken only in case of a constitutional crisis. As for instance, when the Government is seen to have lost the confidence of the House. It has never been the position of the Governor, that the Chief Minister – Nabam Tuki, had lost the confidence of the House. Nor, that the INC could not sustain its majority in the Assembly. Had that been the position, the Governor would have called for a floor test. Admittedly, the Governor never called for a floor test, nor did he ever require the Chief Minister to establish his majority in the House. The Governor?s actions, based on feuds and wrangles of a breakaway group, which is not recognized under the Tenth Schedule, cannot be constitutionally condescended193. The Governor has no role whatsoever, in the removal of the Speaker (or the Deputy Speaker) under Article 179. The question of adoption or rejection of a notice of resolution, for the removal of the Speaker, is to be determined by the legislators. If the resolution for the Speaker?s removal is supported by a simple majority of the members of the House, the motion has to be adopted, and the Speaker has to be removed. Failing which, the motion has to be rejected. Any action taken by the Governor, based on disputations, with reference to activities in which he has no role to play, is liable to be considered as extraneous. It is not for the Governor to schedule the functioning of the Assembly. It is also not in the Governor?s domain, to schedule the agenda of the House. The Governor has no role with reference to the ongoings in the Assembly. The Governor must keep away, from all that goes on, within the House194. As long as the democratic process in the Assembly functions through a Government, which has the support of the majority, there can be no interference at the behest of the Governor. A constitutional failure as contemplated under Article 356, is quite another matter. So also, a constitutional failure under Article 360. Herein, the Governor has not treaded the procedure postulated for a constitutional breakdown