NABAM REBIA, AND BAMANG FELIX versus DEPUTY SPEAKER AND OTHERS
[2016] 6 S.C.R. 1, Supreme Court of India, 2016
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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[2016] 6 S.C.R. 
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with Independence, the executive and other powers, functions and 
responsibilities of the Governor earlier appointed by His Majesty needed 
an overhaul. This is what Article 153 of the draft Constitution sought to 
achieve. 
24. In the Constituent Assembly, Article 153 of the draft 
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Constitution as on 21" February, 1948 substituted Section 62 of the 
Government of India Act, 1935 with the following: 
153. (I) The House or Houses of the Legislature of the State 
shall be summoned to meet twice at least in every year, and six 
months shall not intervene between their last sitting in one session 
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and the date appointed for their first sitting in the next session. 
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(2) Subject to provisions of this article, the Governor may from 
time to time -
(a) summon the House or either House to meet at such time and 
place as he thinks fit; 
(b) prorogue the House or Houses; 
( c) dissolve the Legislative Assembly. 
(3) The functions of the Governor under sub-clauses (a) and (c) 
of clause (2) of this article shall be exercised by him in his discretion. 
25. The expression "in his discretion" finds mention in clause (3) of 
Article 153 of the draft Constitution. It could be said, on a consideration 
of the debate on this expression in the House of Commons and in the 
Constituent Assembly, that the Governor's powers under Article 153 of 
the draft Constitution were sought to be kept outside the purview of the 
Council of
Ministers and exercisable "in his discretion". In other words, 
it could be said that while exercising his powers under Article 153 of the 
draft Constitution, the Governor was not obliged to consult or take the 
aid and advice of his Council of Ministers. 
26. This Article was very briefly debated in the Constituent 
Assembly on 2"ct June, 1949 and Dr. Ambedkar moved for the omission 
of clause (3) in thisA1ticle. The amendment proposed by Dr. Ambedkar 
was adopted without much discussion. Thereby, the Governor was 
disentitled from summoning the House or either House "in his discretion". 
Article 153 as amended was then adopted· and formed a part of the 
Constitution. What was the reason for this omission? The answer is to 
be found in the debate on Article 69 of the draft Constitution on l 81h 
May, 1949 (to which a reference was made in the debates).
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 241 
AND OTHERS [MADAN B. LOKUR, J.] 
27. Article 69 of the draft Constitution is more or less similar to 
A 
Article 153 of the draft Constitution [except as regards the omitted clause 
(3)] and it provides as follows: 
69. (1) The Houses of Parliament shall be summoned to meet 
twice at least in every year, and six months shall not intervene 
between their last sitting in one session and the date appointed for 
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their first sitting in the next session. 
(2) Subject to provisions of this article, the President may from 
time to time -
(a) summon the Houses or either House of Parliament to meet at 
such time and place as he thinks fit; 
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(b) prorogue the Houses; 
(c) dissolve the House of the People. 
28. During the course of the debate on Article 69 of the draft 
Constitution, Prof. K.T. Shah suggested two amendments. Dr. Ambedkar 
responded to the amendments proposed by stating, inter alia, that the 
business of the House has to be provided by the Executive and if the 
President does not summon the House, the necessary implication is that 
the Executive has no business top lace before the House for transaction. 
Therefore, if anybody other than the Prime Minister required the 
President to summon the House, there would be no business to transact 
and summoning the House without any business to transact would be a 
futile operation. I would imagine that for the same reason, the President 
cannot suo 111010 summon the
House, for there would be no business to 
transact and suo 111010 summoning the House without any business to 
transact would also be a futile operation. On the other hand, ifthe Prime 
Minister proposed to the President to summon the Legislature and he 
did not do so, the President would be violating the Constitution and would 
need to be displaced. This is what Dr. Ambedkar said: 
"Then I take the two other amendments of Prof. Shah (Nos. 1473 
and 14 78). The amendments as they are worded are rather 
complicated. The gist of the amendments is this. Prof. Shah seems 
to think that the President may fail to summon the Parliament 
either in ordinary times in accordance with the article or that he 
may not even summon the legislature when there is an emergency. 
Therefore he says that the power to summon the legislature where 
the President has failed to perform his duty must be vested either 
in the Speaker of the lower House or in the Chairman or the 
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Deputy Chairman of the Upper House. That is, if! have understood 
it correctly, the proposition of Prof. K.T. Shah. It seems to me 
that here again Prof. Shah has entirely misunderstood the whole 
position. First of all, I do not understand why the President should 
fail to perfonn an obligation which has been imposed upon him by 
law. If the Prime Minister proposes to the President that the 
Legislature be summoned and the President, for no reason, purely 
out of wantonness or cussedness, refuses to summon it, I think 
we have already got very good remedy in our own Constitution to 
displace such a President. We have the right to impeach him, 
because such a refusal on the part of the President to perform 
obligations ~hich have been imposed upon him would be 
undoubtedly violation of the Constitution. There is therefore ample 
remedy contained in that pa1iicular clause. 
But, another difficulty arises if we are to accept the suggestion of 
Professor K.T. Shah. Suppose for instance the President for good 
reasons does not summon the Legislature and the Speaker and 
the Chairman do summon the Legislature. What is going to 
happen? If the President does not summon the Legislature it means 
that the Executive Government has no business which it can place 
before the House for transaction. Because, that is the only ground 
on which the President, on the advic;e of the Prime Minister, may 
not call the Assembly
in session. Now, the Speaker cannot provide 
business for the Assembly, nor can the Chairman provide it. The 
business has to be provided by the Executive, that is to say, by the 
Prime Minister who is going to advise the President to summon 
the Legislature. Therefore, merely to give the power to the 
Speaker or the Chairman to summon the Legislature without 
making proper provisions for the placing of business to be 
transacted by such an Assembly called for in a session by the 
Speaker or the Chairman would to my mind be a futile operation 
and therefore no purp9se will be served by accepting that 
amendment." 1" 
29. Keeping the debate on Article 69 of the draft Constitution in mind 
(particularly since the business of the House is to be provided by the 
Executive) Article 153 of the draft Constitution did not provide for any 
discretion to the Governor, as proposed by Dr. Ambedkar, to summon 
the House for a "futile operation". 
" Constituent Assembly Debates. Vol.8. I 949. p. I 06
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 243 
AND OTHERS [MADAN B. LOKUR, J.) 
30. Article 69 of the draft Constitution was adopted as Article 85 
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of the Constitution and this reads as follows: 
"85. Sessions of Parliament, Prorogation and dissolution -
(1) The Houses of Parliament shall be summoned to meet twice 
at least in every year, and six months shall not intervene between 
their last sitting in one session and the date appointed for their 
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first sitting in the next session. 
(2) Subject to the provisions of clause (1 ), the President may from 
time to time -
(a) summon the Houses or either House to meet at such time and 
place as he thinks fit; 
(b) prorogue the Houses; 
(c) dissolve the House of the People." 
31. Similarly, Article 153 of the draft Constitution was adopted as 
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Article 174 of the Constitution in the following form: 
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"174. Sessions of the State Legislature, Prorogation and 
dissolution -(1) The House or Houses of the Legislature of the 
State shall be summoned to meet twice at least in every year, and 
six months shall not intervene between their last sitting in one 
session and the date appointed for their first sitting in the next 
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session. 
(2) Subject to the provisions of clause (1 ), the Governor may from 
time to time -
(a) summon the House or either House to meet at such time and 
place as he th inks fit ; 
(b) prorogue the House or Houses; 
( c) dissolve the Legislative Assembly." 
32. The absence of any discretion in the
President to summon or 
prorogue the House or dissolve the House of the People and the deletion 
of clause (3) in Article 153 of the draft Constitution makes it quite clear 
that the President and the Governor can act underA1iicle 85 of the 
Constitution and Article 174 of the Constitution respectively only on the 
aid and advise of the Council of Ministers. No independent authority is ' 
given either to the President or the Governor in this regard. 
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Need to amend Article 85 and Article 174 of the Constitution 
33. As luck would have it, the then Members of Parliament took 
their parliamentary duties and obligations with utmost sincerity and 
seriousness and so the actual working of Article 85 of the Constitution 
posed some problems. This led to the First Amendment to the 
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Constitution. 
34. The parliamentary debate of I 61h May, 1951 shows that when 
the Constitution (First Amendment) Bill was moved by Prime Minister 
Jawaharlal Nehru, he pointed out that Parliament had been in continuous 
session since November ( 1950) and the session was likely to carry on. 
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Under these circumstances, some "acute interpreters" might hold the 
view that Parliament had not met in J 951 strictly in terms of the 
Constitution since Parliament had not been prorogued and the President 
had not addressed it. This would lead to a curious situation that if 
Parliament met continuously, then it could be interpreted that Parliament 
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had not met at all! This is what he said: 
"[O]ne of the articles - for the moment - I forget the number -
lays down that this House should meet twice a year and the 
President should address it. Now a possible interpretation of that 
is that this House has not met at all this year. It is an extraordinary 
position considering that time this House has labored more than 
probably at any time in the previous history of this or the preceding
Parliament in this country. We have been practically sitting with 
an interval round about Xmas since November and we are likely 
to carry on and yet it may be held by some acute interpreters that 
we have not met at all this year strictly in terms of the Constitution 
because we started meeting in November and we have not met 
again - it has not been prorogued -the President has not addressed 
Parliament this year. Put it in the extreme way, suppose this 
House met for the fu II year without break except short breaks, it 
worked for 12 months, then it may be said under the strict letter 
of the law that is has not met at all this year. Of course that 
article was mean not to come in the way of our work but to come 
in the way of our leisure. It was indeed meant and it must meet at 
least twice a year and there should not be more than six months' 
interval between the meetings. It did not want any Government 
of the day simply to sit tight without the House meeting. Therefore 
it wanted to compel it by the force of the Constitution and meet at
NABAM REB!A, AND BAMANG FELIX v. DEPUTY SPEAKER 245 
AND OTHERS [MADAN B. LOKUR, J.] 
least twice a year but without a big gap. That again by 
interpretation leaves the curious situation that if you continue 
meeting, you do not meet at all!"" 
35. When Prime Minister Jawaharlal Nehru replied to the debate on 
this aspect on 2"ct June, 1951 he reiterated that according to the strict 
meaning of Article 85 of the Constitution, Parliament had not "met" at 
all in 1951 since it had been summoned in 1950. It was to overcome this 
difficulty that an amendment was proposed to Article 85 of the 
Constitution. In another context, it was pointed out that Article 85 of the 
Constitution raises the questions-who should summon Parliament; who 
can summon Parliament and who only can summon Parliament. Giving 
a reply, he said that under the Constitution, only the President can summon 
Parliament and if he does not do his duty, then other consequences may 
well arise. Similarly, if Parliament is not summoned within six months, it 
is a deliberate breach of the Constitution by the President and the 
Government of the day. It must be presumed that some final authority 
will function according to the Constitution and if it does not "then you 
pick the axe and cut off the head, whether he is a President or anybody." 
This is what was said by Prime Minister Jawaharlal Nehru: 
''It was because of this actual difficulty, that it was thought that 
this article might be changed so that this
question of being 
summoned twice a year need not be there, because if we are 
meeting all the time, then are we to break up simply to be 
summoned again? Of course, we may be summoned twice a year 
or more .......... .. 
That is to say, this article 85 actually deals, in the passive and the 
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active, in both the voices, with who should summon, who can 
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summon and who only can summon - there is no other authority 
which can summon, unless of course there is a breach of the 
Constitution and other things come into play. Therefore, as the 
Constitution is, it is only the President who can summon it, and if 
the President does not do his duty then other consequences may 
well arise. .. .. .. .. . 
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............ [O]ur saying, "the President shall summon" is much 
more mandatory on the President than saying, as it is said here, 
" Parliamentary Debates Part ll - Proceedings other than Questions and Answers. 
Onicial Rcpon Volume XII, 1951 ( 15 May 1951 -6 June 1951). Third Session (Second 
Part) of Parliament of India. 1951 =(First Amendment) Bill 16 May 1951 p.8819 
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"'The Houses of Parliament shall be summoned" and the President 
shall do so. The meaning is the same but if the President does not 
summon within six months it is a deliberate breach of the 
Constitution by the President and the Government of the day. It 
does not require any argument - you catch him immediately he 
has not done a duty laid down, which is here an indirect duty. 
May be some minor excuse the President may advance, or not. 
Therefore, in a sense you bind down the President - and when l 
say the President l mean the Government of the day which is also 
bound down by the Constitution to do a certain thing. lfthey do 
not do it then other consequences follow. They have deliberately 
flouted the Constitution. What happens then? Well, many things 
may happen. Parliament then presumably comes into conflict 
with the usurping Government, or the Government that carries on 
without the goodwill of Parliament and the people. Well, a conflict 
occurs. That kind of a thing would, if it occurs, presumably be 
decided by the normal constitutional means - other means may 
come into play, one does not know ........ . 
. . . . . . . . . . . . After all you have ultimately to have some final 
authority which you presume will function according to the 
Constitution. If it does not then you pick the axe and cut 
off the head, whether he is a President or anybody. That is 
the normal practice in Constitutions:
that is the normal 
practice in revolutions. I do not understand the middle practice 
ofconfusing a Constitution with a revolution and a revolution with 
a Constitution. I therefore, submit that the wording suggested is 
the right wording. It does not endanger the Constitution; it does 
not give any special or additional powers to the President to come 
in the way. Such powers as he gets, such mischief as the future 
President might do, is always inherent in the nature of things and 
inherent also in the power of the people to put an end to the 
President who does that mischief." (Emphasis is given by me). 16 
36. The amendment proposed by Prime Minister Jawaharlal Nehru 
was then accepted and Article 85 of the Constitution was amended to 
read as follows: 
11' Parliamentary Debates Part II - Proceedings other than Questions and Answers. 
Official Report Volume XII. 1951 ( 15 May 1951 - 6 June 1951 ). Third Session (Second 
Part) of Parliament of India. 1951 =(First Amendment) Bill 2 June 1951 p.9957 and 
9959
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 247 
AND OTHERS [MADAN B. LOKUR, J.] 
"85. Sessions of Parliament, prorogation and dissolution -
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(I) The President shall from time to time summon each House of 
Parliament to meet at such time and place as he thinks fit, but six 
months shall not intervene between its last sitting in one session 
and the date appointed for its first sitting in the next session. 
(2) The President may from time to time -
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(a) prorogue the Houses or either House; 
(b) dissolve the House of the People." 
37. The corresponding provision for the Legislative Assembly for 
the States (Article 174 of the Constitution) was amended to read as 
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"174. Sessions of the State Legislature, prorogation and 
dissolution - (1) The Governor shall from time to time summon 
the House or each House of the Legislature of the State to meet 
at such time and place as he thinks fit, but six months shall not 
intervene between its last sitting in one session and the date 
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appointed for its first sitting in the next session. 
(2) The Governor may from time to time -
(a) prorogue the House or either House; 
(b) dissolve the Legislative Assembly." 
38. Although no authority other than the President or the Governor 
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could summon the House, no discretion was conferred on either of them 
to do so, on his own or suo moto. Clearly, therefore, the President or the 
Governor can summon the House only on the aid and advice of the 
Council of Ministers. 
Conclusions
on Article 174 of the Constitution. 
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39. The historical backgroTffid and the debates pertaining to Article 
174 (and Article 85) of the Constitution lead to the conclusion that it is 
only the Governor who may summon the Legislative Assembly, but only 
on the advice of the Council of Ministers and not suo moto. In other 
words, the Governor cannot summon the Legislative Assembly "in his 
discretion". If the Governor does so, there would be no business to 
transact and summoning the House in such a situation would be a futile 
operation. The Governor cannot manufacture any business for the House 
to transact, through a so-called message or otherwise. If the Governor 
disregards the advice of the Council of Ministers for summoning the 
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House, necessary consequences would follow. In this regard, it may be 
mentioned that ifthe President disregards the advice of the Council of 
Ministers he can impeached. As far as the Governor is concerned, if he 
disregards the advice of the Council of Ministers the pleasure of the 
President can be withdrawn since the Governor holds office during his 
pleasure. On a different note. if the Legislative Assembly does not meet 
once in six months, there would be a breach of the Constitution requiring 
severe sanction. 
40. I-low do the decisions of this Court interpret these provisions 
of the Constitution and is the interpretation in harmoay with the intention 
of the Constitution framers? 
Decisions of this Court 
41. The first decision that needs to be referred to is Rai Saltib 
Ram Jawaya Kapur v. The State of Punjab." The Constitution Bench 
of this Court acknowledged the difficulty in framing an exhaustive 
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definition of 'executive function' or 'executive power'. While 
acknowledging that the separation of powers in our Constitution is not 
rigid, this Court observed that one organ of the State cannot assume the 
functions or powers of another organ. It was held: 
"It may not be possible to frame an exhaustive definition of what 
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executive function means and implies. Ordinarily the executive 
power connotes the residue of governmental functions that remain 
after legislative and judicial functions are taken
away. The Indian 
Constitution has not indeed recognised the doctrine of separation 
of powers in its absolute rigidity but the functions of the different 
parts or branches of the Government have been sufficiently 
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differentiated and consequently it can very well be said that our 
Constitution does not contemplate assumption, by one organ or 
part of the State, of functions that essentially belong to another." 
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42. Proceeding further in this regard, the functions and responsibilities 
of the Executive were briefly mentioned in the following words: 
"Our Constitution, though federal in its structure, is modelled on 
the British Parliamentary system where the executive is deemed 
to have the primary responsibility for the formulation of 
governmental policy and its transmission into law though the 
condition precedent to the exercise of this responsibility is its 
17 [ 1955] 2 SCR 225 (5 Judges)
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 249 
AND OTHERS [MADAN B. LOKUR, J.] 
retaining the ·confidence of the legislative branch of the State. 
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The executive function comprises both the determination of the 
policy as well as carrying it into execution." 
43. With reference to the interplay between the Legislature and the 
Executive, this Court acknowledged the supremacy of the Legislature 
over the Executive and held that, under the Constitution, the Governor 
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who exercises executive power is nevertheless a formal or constitutional 
head of the Executive, with the real executive power vested in the 
Council of Ministers. This is what was said: 
"In India, as in England, the executive has to act subject to the 
control of the legislature; but in what way is this control exercised 
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by the legislature? Under article 53( 1) of our Constitution, the 
executive power of the Union is vested in the President but under 
article 75 there is to be a Council of Minister with the Prime 
Minister atthe head to aid and advise the President in the exercise 
of his functions. The President has thus been made a formal or 
constitutional head of the executive and the real executive powers 
are vested in the Ministers or the Cabinet. The same provisions 
obtain in regard to the Government of States; the Governor or the 
Rajpramukh, as the case may be, occupies the position of the 
head of the executive in the State but it is virtually the Council of 
Ministers in each State
that carries on the executive Government. 
In the Indian Constitution, therefore, we have the same system of 
parliamentary executive as in England and the Council of Ministers 
consisting, as itdoes, of the members of the legislature is, like the 
British Cabinet, "a hyphen which joins, a buckle which fastens 
the legislative part of the State to the executive part." The Cabinet 
enjoying, as it does, a majority in the legislature concentrates in 
itself the virtual control of both legislative and executive functions; 
and as the Ministers constituting the Cabinet are presumably agreed 
on fundamentals and act on the principle of collective responsibility, 
the most important questions of policy are all formulated by them." 
44. The significance of this view is that it recognized that the Governor 
is only a formal or constitutional head. His executive functions are, 
therefore, dependent on the aid and advice given by the Council of 
Ministers. Since there is no provision enabling the Governor to act in 
"his individual judgment" the Governor is bound by the advice of the 
Council ofMinisters with whose aid he acts. This is completely in harmony 
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and consonance with the views of the Constituent Assembly. Moreover, 
there is a recognition and acceptance that since the Council of Ministers 
enjoys a majority in the Legislature, it is in virtual control of both the 
executive and legislative functions of the Governor. Therefore, the 
Governor has little or no authority over the Executive or the Legislature, 
except to the extent specifically provided for in the Constitution. 
45. Soon after the decision rendered in R(li S(l/lib R(lm Jmvay(l 
K(lpur, a rather peculiar situation arose in the Calcutta High Court. In 
Malmbir Pmscul S/i(lrma v. Pra/ul/a Chmulra G/wse18 the facts were 
rather complicated. However, to briefly summarize them it may be stated 
that in the perception of the Governor of the State, Chief Minister Ajoy 
Kumar 1\4.ukherjee had apparently lost the confidence of the Legislative 
Assembly. Accordingly, the Governor requested the Chief Minister to 
call the Legislative Assembly and prove his majority in the House. The 
Chief Minister was more than once requested to call the Legislative 
Assembly in the month ofNovember, 1967 but he declined to do so, on 
the ground that it had been decided to call the Legislative Assembly on 
18'h December, 1967. 
46. In view of the Chief Minister's recalcitrance, the Governor 
dismissed him and his Council of Ministers on 21 "November, 1967 and 
appointed P.C. Ghose as the Chief Minister. The
dismissal of the Chief 
Minister and the appointment of P.C. Ghose by the Governor were in 
apparent exercise of powers conferred by Article 164( I) of the 
Constitution. 
47. A petition was filed in the Calcutta High Court for a writ of 
quo warranto to explain the legal basis for the appointment of P.C. 
Ghose as the Chief Minister. In this context, it was observed that the 
dismissal of Ajoy Kumar Mukherjee as the Chief Minister was beyond 
the scope of the writ application and that the validity of the dismissal 
arose only incidentally. However, it was later held in the judgment that a 
Minister holds office during the pleasure of the Governor and under 
Article 164(1) of the Constituti"on the withdrawal of pleasure is entirely 
the discretion of the Governor and in view of Article 163(2) of the 
Constitution that exercise of discretion cannot be questioned. As far as 
the appointment of P.C. Ghose is concerned, it was held that there was 
no restriction on the Governor in Article 164( I) of the Constitution in the 
matter of the appointment of the Chief Minister. 
" ( 1968) 72 CWN 328
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 251 
AND OTHERS [MADAN B. LOKUR, J.] 
48. The High Court also took the view that if the Chief Minister 
and the Council of Ministers refuse to vacate office after the Legislative 
Assembly had expressed no confidence in them, the Governor is entitled 
to withdraw his pleasure under Article 164( I) of the Constitution. It was 
held that the power of the Governor in this regard is exclusive, absolute 
and unrestricted and cannot be called in question in view of Article 163(2) 
of the Constitution. The High Court also held that if the Council of 
Ministers lost its majority in the Legislative Assembly, the Governor was 
not bound to accept its advice. In this regard, the High Court observed: 
"Can it be said that the Governor is bound to act, in appointing a Chief 
Minister, on the advice of the outgoing Chief Minister who has lost his 
majority in the Legislative Assembly as a result of the General Election? 
I think not." In view of its findings, the High Court held that the 
appointment of P.C. Gl10se as the Chief Minister was in accordance 
with law and the Constitution and could not be called in question. 
49. It may be mentioned that a submission was made in the High 
Court that in the event of a deadlock between the Governor and the 
Chief Minister, a proclamation in terms of Article 356 of the Constitution 
could be issued by the President but that line of thought was not carried 
forward by the High Court. 
50. In some
respects the decision of the Calcutta High Court goes 
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well beyond the law laid down by this Court in Rai Sahib Ram Jmvaya 
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Kapur. Some of the conclusions are in the nature of sweeping 
generalizations and in my opinion Mahabir Prasad Sharma does not 
lay down the correct law. I am in agreement with Justice Khehar in this 
regard. Mahabir Prasad Sh((rma confers excessive powers on the 
Governor, well beyond his status as a formal or constitutional head of 
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the Executive. The decision also enables the Governor to unilaterally 
decide whether a Chief Minister has lost the majority of the Legislative 
Assembly or not, a function exclusively of the Legislative Assembly. 
The decision enables the Governor to take an unch<;:cked decision "in his 
discretion" that a Chief Minister has lost the majority of the Legislative 
Assembly and then dismiss him. 
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51. Reference may now be made to St((/e of Punjab v. Satya Pal 
Dang 19 in which the facts were rather extraordinary. Briefly, the annual 
budget of the State was to be considered by the Legislative Assembly 
and the Financial Statement was discussed in the Assembly on 4'", 5'" 
19 [1969] I SCR 478 (5 Judges) 
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and 6th March, 1968. On the last day, following some disturbance in the 
House and consequent disciplinary action, a Resolution was moved 
expressing no confidence in the Speaker. The House granted leave for 
the discussion and adjourned for the next day. 
52. On 7th March, 1968 the Speaker declared the motion of no 
confidence to be unconstitutional and deemed not to have been moved. 
Following some rowdy scenes, the Speaker then adjourned the Assembly 
for two months that is till 6th May, 1968. Since the annual budget was 
not adopted no expenditure could be made in the State from I" April, 
1968. This led to a political and financial crisis of sorts. 
53. Under these peculiar and extraordinary circumstances, the 
Governor prorogued the Assembly on 11th March, 1968 in exercise of 
his "constitutional powers" under Article 174(2)(a) of the Constitution. 
On 13th March, 1968 the Governor pro mu I gated The Punjab Legislature 
(Regulation of Procedure in relation to Financial Business) Ordinance, 
1968. Thereafter, on 14th March, 1968 the Governor summoned the 
Assembly for] 8th March, 1968 in exercise of his 'constitutional powers' 
under Article 174(1) of the Constitution and directed the Assembly, in 
exercise of his 'constitutional powers' under Article 175(2) of the 
Constitution, to consider certain items. 
54. When the Assembly met, the Speaker ruled that the House 
was not prorogued on 11th March,
1968 but on 18'" March, 1968 and 
ruled that the proclamation of the Governor dated 14'h March, 1968 
summoning the House was illegal and void and that he had no power to 
re-summon the House once adjourned. Therefore, in accordance with 
the earlier ruling dated 7•h March, 1968 the House stood adjourned for 
two months from that date. 
55. Thereafter, following some disturbance, uproar and furore in 
the House, the Deputy Speaker occupied the Speaker's chair and 
declared the adjournment by the Speaker null and void. The financial 
business was then transacted and completed and two Appropriation Bills 
and other financial demands were passed. The Governor gave his assent 
to the Appropriation Bills. 
56. Two writ petitions were filed in the Punjab & Haryana High 
Court challenging, inter ulia, the prorogation and re-summoning of the 
Assembly, the Ordinance issued by the Governor on l 3'h March, 1968 
as well as the Appropriation Acts to which the Governor had given his 
assent. A Full Bench of the High Court unanimously held the prorogation
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 253 
AND OTHERS [MADAN B. LOKUR, J.] 
and re-summoning of the Assembly to be regular and legal and that the 
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two Appropriation Acts were unconstitutional and held by majority that 
tho: Ordinance was also unconstitutional. 
57. The decision of the High Court was the subject matter of 
appeals before this Court. It was observed that the Governor had two 
options before him: (a) To require the Ministers to ask the Speaker to 
B 
recall the Assembly. This Court felt that this was attempting the impossible 
[break-down theory in play] and (b) To prorogue the Assembly and then 
re-summon it. 
58. Referring to Article 174(2) of the Constitution it was held that 
it does not indicate any restrictions on the power of the Governor to 
prorogue the House. However, whether a Governor is justified in 
proroguing the Legislature when it is in session is a question that did not 
fall for consideration. What was more in question than the conduct of 
the Governor was the bonafides of the Speaker's ruling adjourning the 
Assembly for two months when the Financial Statement and the Budget 
were on the agenda and time was running out. No ma/a fides were 
attributed to the Governor and his power being untrammeled by the 
Constitution, an emergency having arisen, the actions taken by the 
Governor were perfectly understandable. It was also held that the 
Governor had not only acted properly but in the only constitutional way 
open to him and
there was no abuse of power nor could his motives be 
described as ma/a fide. 
59. This Court also held that the prorogation of the Assembly 
became effective on 11th March, 1968 when the Governor issued a pub I ic 
notification. It was also held that the re-summoning of the Legislature 
immediately afterwards was also a step in the right direction and it set 
up once again the democratic machinery in the State which had been 
rudely disturbed by the Speaker. In fact, the Governor restored 
parliamentary Government by adopting the course that he did. 
60. However, while concluding its decisk.1, this Court observed 
that "The situation created in the State of Punjab was unique and was 
reminiscent of the happenings in the age of the Stuai1s." Undoubtedly 
so. The action of the Governor was drastic but constitutional and resulted 
from a desire to set right a "desperate situation". This Court allowed the 
appeals and set aside the judgment of the High Court and ordered the 
dismissal of the two writ petitions filed in the Punjab & Haryana High 
Court. 
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61. The facts in Satya Pal Dang were unique and extraordinary, 
but it is important to note that this Court did not consider or even refer to 
Article 163 of the Constitution. Therefore, this decision really does not 
take this discussion much further and reference to it is really quite futile. 
62. The powers of the Governor, including his discretionary powers, 
came up for consideration in Samsher Singh v. State of Punjab'" which 
decision is of considerable importance. The question before a Bench of 
seven judges was whether the Governor exercises his power of 
appointment and removal of members of the Subordinate Judicial Service 
under A1ticle 234 of the Constitution21 personally or on the aid and advice 
of the Council of Ministers. The appellant Samsher Singh contended 
that the Governor could exercise his power only personally and relied on 
Sardari Lal v. U11io11 of India'' as well as Article 163(3) of the 
Constitution. 
63. Chief Justice A.N. Ray (speaking for himself and four other 
learned Judges) held that the expression "in his discretion" is used in 
those Articles of the Constitution that confer special responsibilities on 
the Governor. Reference was made to the deletion of the expression "in 
his discretion" from the draft Constitution in Articles 144(6) [totally 
omitted], 153(3) [now Article 174], 175 (proviso) [now Article 200], 188 
[totally omitted], 285( I) and (2) [now Article 316]
and paragraph 15(3) 
of the Sixth Schedule [totally omitted]. This was noted to be in stark 
contrast to Articles 371-A(l)(b), 371-A(l)(d), 371-A(2)(b) and 371-
A(2)(f) as well as paragraphs 9(2) and 18(3) [since deleted on 21" 
January, 1971] in the Sixth Schedule to the Constitution which confer 
special responsibilities on the Governor and use the expression "in his 
discretion". Jn this context, it was concluded in paragraph 28 of the 
Report: 
"Under the Cabinet system of Government as embodied in our 
Constitution the Governor is the constitutional or formal head of 
the State and he exercises all his powers and functions conferred 
on him by or under the Constitution on the aid and advice of his 
"'(1974) 2 sec 831 (7 Judges) 
21 234. Recruitment of persons other than district judges to the judicial service.-
Appointments of persons other than district judges to the judicial service of a State 
shall be made by the Governor of the State in accordance with rules made by him in that 
behalf after consultation with the State Public Service Commission and with the High 
Court exercisingjurisdiction in relation to such State. 
H 
"(1971) I SCC411 (5Judges)
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 255 
AND OTHERS [MADAN B. LOKUR, J.] 
Council of Ministers save in spheres where the Governor is 
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required by or under the Constitution to exercise his functions in 
his discretion." 
64. Explaining this, and referring to English constitutional law, which 
is incorporated in our Constitution, it was held in paragraph 32 of the 
Report: 
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"It is a fundamental principle of English Constitutional law that 
Ministers must accept responsibility for every executive act. In 
England the Sovereign never acts on his own responsibility. The 
power of the Sovereign is conditioned by the practical rule that 
the Crown must find advisers to bear responsibility for his action. 
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Those advisers must have the confidence of the House of 
Commons. This rule of English Constitutional law is incorporated 
in our Constitution. The Indian Constitution envisages a 
Parliamentary and responsible form of Government at the Centre 
and in the States and not a Presidential form of Government. The 
powers of the Governor as the constitutional head are not 
different." 
A minor point of departure was noticed in paragraph 44 of the Report 
wherein it was held that there is no distinction between functions of the 
Union (or State) and the functions of the President (or Governor) except 
in respect of those functions that the Governor has to exercise in his 
discretion. This reads as follows: 
"The distinction made by this Court between the executive
functions of the Union and the executive functions ofthc President 
does not lead to miy conclusion that the President is not the 
constitutional head of Government. Article 74(1) provides for the 
Council of Ministers to aid and advise the President in the exercise 
of his functions. Article 163(1) makes similar provision for a 
Council of Ministers to aid and advise the Governor. Therefore, 
whether the functions exercised by the President are functions of 
the Union or the functions of the President they have equally to 
be exercised with the aid and advice of the Council of Ministers, 
and the same is true of the functions of the Governor except 
those which he has to exercise in his discretion." 
65. In this background and context, it was noted that when the 
Governor exercises his functions and powers with the aid and advice of 
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the Council of Ministers, he does so by making rules for the more 
convenient transaction and allocation of business in accordance with 
Article 166(3) oftlrn Constitution. Consequently, the decision rendered 
in Sardari Lal was required to be overruled (and it was overruled) and 
it was held in paragraph 48 of the Report after referring to Rai Sahib 
Ram Jawaya Kapur: 
"The President as well as the Governor is the constitutional or 
formal head. The President as well as the Governor exercises his 
powers and functions conferred on him by or under the Constitution 
on the aid and advice of his Council of Ministers, save in spheres 
where the Governor is required by or under the Constitution to 
exercise his functions in his discretion. Wherever the Constitution 
requires the satisfaction of the President or the Governor for the 
exercise by the President or the Governor of any power or function, 
the satisfaction required by the Constitution is not the personal 
satisfaction of the President or Governor but the satisfaction of 
the President or Governor in the constitutional sense in the Cabinet 
system of Government, that is, satisfaction of his Council of 
Ministers on whose aid and advice the President or the Governor 
generally exercises all his powers and functions. The decision of 
any Minister or officer under Rules of Business made under any 
of these two Articles 77(3) and 166(3) is the decision of
the 
President or the Governor respectively. These articles did not 
provide for any delegation. Therefore, the decision ofa Minister 
or officer under the Rules of Business is the decision of the 
President or the Governor." 
66. On the issue of discretionary powers ofthe Governor, paragraph 
54 of the Report is important and the shift in bearing responsibility is 
referred to in paragraph 55 of the Report in the context of Article 356 of 
the Constitution with the final decision on the report of the Governor 
being with the President acting on the aid and advice of his Council of 
Ministers. In this overall context, it was, in a sense, reiterated that: "The 
Constitution does not aim at providing a parallel administration within the 
State by allowing the Governor to go against the advice of the Council of 
Ministers." 
67. Since a reference was earlier made to Article 3 71-A of the 
Constitution in the conkxt of the discretionary powers of the Governor, 
it is necessary to mention that that Article was inserted in the Constitution 
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NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 257 
AND OTHERS [MADAN B. LOKUR, J.] 
to notice in the said Article is that the draftsman and Parliament 
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maintained the distinction between "in his discretion" and "his individual 
judgment". This is clear from the use of the expression "in his discretion" 
in some paragraphs of the Sixth Schedule as mentioned above and the 
use of the expression "his individual judgment" occurring in Article 371-
A( 1 )(b) of the Constitution. Therefore, a distinction between "in his 
discretion" and "his individual judgment" was recognized and appreciated. 
Sadly, as the submissions made before us indicate, this differentiation is 
slowly losing ground as the framers of the Government of India Act, 
1935 presumably foresaw and which was adverted to by Sir B.N. Rau. 
68. In their concurringjudgment, Justice P. N. Bhagwati and Justice 
Krishna Iyer endorsed the view (in paragraph 139 of the Report) that 
the discretionary powers of the Govenior have been expressly spelt out 
in the Constitution (as noticed above) and also endorsed the extension of 
'discretion' to Article 356 of the Constitution. The learned judges observed 
that "limited free-wheeling" is available to the Governor in the choice of 
the Chief Minister and the dismissal of the Ministry (and later in paragraph 
154 of the Report to the dissolution of the House). 
69. It appears that the "limited free-wheeling" concept is based 
on the discretion given to the Governor under
Article 163(2) of the 
Constitution, although it is not specifically discussed in the concurring 
judgment. 
70. Be that as it may, the learned judges observed that if the 
Governor was held entitled to exercise his powers personally, then that 
interpretation would extend to several Articles of the Constitution, 
including the power to grant pardon or to remit or commute a sentence 
(Article 161 ), the power to make appointments including of the Chief 
Minister(Article 164), the Advocate-General (Article 165), District Judges 
(Article 233), Members of the Public Service Commission (Article 316), 
the power to prorogue either House of Legislature or to dissolve the 
Legislative Assembly (Article 174 ), the right to address or send messages 
to the Houses of the Legislature (Article 175 and A1ticle 176), the power 
to assent to Bills or withhold such assent (Article 200), the power to 
make recommendations for demands of grants [Article 203(3)], and the 
duty to cause to be laid every year the annual budget (Article 202), the 
power to promulgate ordinances during recesses of the Legislature 
(Article 213), the obligation to make available to the Election Commission 
the requisite staff for discharging the functions conferred by Article 324( I) 
on the Commission [Article 324(6)], the power to nominate a member 
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of the Anglo-Indian Community to the Assembly in certain situations 
(Article 333) and the power to 'authorize the use of Hindi in the 
proceedings in the High Court [Article 348(2)]. (One could add Article 
239(2) of the Constitution to this list). It was held that if the ratio of 
Sardari Lal and Jayantila/ Amritlal S/zodlum v. F.N. Rana23 was 
.ll!ade applicable: 
" ........ to every function which the various articles of the 
Constitution confer on the President or the Governor, Parliamentary 
democracy will become a dope and national elections a numerical 
exercise in expensive futility. We will be compelled to hold that 
there are two parallel authorities exercising powers of governance 
of the country, as in the dyarchy days, except that Whitehall is 
substituted by Rashtrapati Bhavan and Raj Bhavan. The Cabinet 
will shrink at Union and State levels in political and administrative 
authority and, having solemn regard to the gamut of his powers 
and responsibilities, the Head of State will be reincarnation of 
Her Majesty's Secretary of State for India. untroubled by even 
the British Par! iament- a little taller in power than the American 
President. Such a distortion, by interpretation, it appears to lJS, 
would virtually amount to a subversion of the structure, substance 
and vitality of our Republic, particularly when we rememberthat 
Governors are but appointed functionaries and the President
himself is elected on a limited indirect basis. As we have already 
indicated, the overwhelming catena of authorities of this Court 
have established over the decades that the cabinet form of 
Government and the Parliamentary system have been adopted in 
India and the contrary concept must be rejected as incredibly 
allergic to our political genius, constitutional creed and Cl!lture." 
71. All the seven learned judges constituting the Bench were explicit 
and unequivocal in their view that the principle of Cabinet responsibility 
is firmly entrenched in our constitutional democracy and that our 
Constitution does not accept any "para I lei administration" or "dyarchy". 
Afortiorari the discretion available to the Governor under Article 163 
of the Constitution is not all-pervasive but is circumscribed by the 
provisions of the Constitution, with a small ventilator available, in some 
given exceptional situations by or under the Constitution. In this context, 
it is interesting to note that this Court did not even advert to the 
comparatively recent decision rendered in Satya Pal Dang which virtually 
" ( 1964) 5 SCR 29 (5 Judges)
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 259 
AND OTHERS [MADAN B. LOKUR, J.] 
sanctified the vast exercise of power by the Governor. Therefore, it 
must be assumed that Satya Pal Dang should be confined to its unique 
and extraordinary facts reminiscent of the happenings in the age of the 
Stuarts or did not necessarily lay down the correct law given the more 
than blanket powers of the Governor that that decision approved or had 
nothing to do with Article 163 of the Constitution. 
72. Pmtllpsi11f(il Rao]imo Rtme v. Governor of Goll~• was yet 
another peculiar case in which the Governor dismissed the ChiefM inister 
and appointed another person (Dr. Wilfred Anthony D'Souza) as the 
Chief Minister of Goa in exercise of powers conferred by Article 164(1) 
of the Constitution. Both decisions were challenged by way of a writ 
petition in the Bombay High Court. 
73. In that case the Governor was of opinion that the Chief Minister 
had lost the confidence of the Legislative Assembly. Accordingly, he 
sent a communication to the Chief Minister on 28'h July, 1998 at about 
2.00 p.m. requiring him to seek a vote of confidence from the Legislative 
Assembly before 3.30 p.m. on the same day. In response, the Chief 
Minister did seek a vote of confidence from the Legislative Assembly 
and was successful in doing so. (There was some controversy about 
this). 
74. Notwithstanding the confidence expressed by the Legislative 
Assembly in the Chief Minister, the Governor prorogued
the Assembly 
at about 8.35 p.m. on 29'h July, 1998 and appointed Dr. D'Souza as the 
Chief Minister at about I 0.00 p.m. 
75. The questions before the High Court were whether the 
Governor had the power to prorogue the Legislative Assembly and to 
dismiss the ChiefMinister. As regards the dismissal of the Chief Minister, 
it was held in paragraph 37 of the Report that the Governor was entitled 
to exercise his individual discretion in appointing the Chief Minister and 
that this was not subject to judicial review. In coming to this conclusion, 
the High Court proceeded on the basis that the Governor could withdra\Y 
his pleasure and thereby require the Chief Minister to vacate his office. 
The High Court referred to Ma/whir Prasad Slwrma and concluded 
that if the Council of Ministers refused to vacate its office then the 
Governor could withdraw his pleasure and that withdrawal of pleasure 
by the Governor was not open to judicial review .. Carrying this a little 
further, the Coutt held in paragraph 46 of the Report: 
"Thus, the position in law is clear that the Governor, while taking 
"AIR 1999 Bombay 53 
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decisions in his sole discretion, enjoys immunity under Article 
361 and the discretion exercised by him in the performance of 
such functions is final in terms of Article 163(2). The position 
insofar as the dismissal of the Chief Minister is concerned would 
be the same, since when the Governor acts in such a matter he 
acts in his sole discretion. In both the situations, namely the 
appointment of the Chief Minister and the dismissal of the Chief 
Minister. the Governor is the best judge of the situation and he 
alone is in possession of the relevant i1iformation and material on 
the basis of which he acts. The result, therefore, would be that 
such actions cannot be subjected to judicial scrutiny at all." 
76. The High Court did not address itself to the issue of prorogation 
of the Legislative Assembly since in view of the above it was held that 
the writ petition was not maintainable. 
77. This decision too proceeds on the incorrect basis and 
assumption that the Governor is the best person to know whether the 
Chief Minister of a State has lost the confidence of the Legislative 
Assembly and is, therefore, entitled to exercise vast powers regarding 
withdrawal of his pleasure in dismissing the Chief Minister of a State. 
To this extent, Pratapsingh Raojirao Rane does not lay down the correct 
law and I agree with Justice Khehar in this regard. 
78. The interpretation of Article 163(2) of the
Constitution again 
came up for consideration in M.P. Special Police Establis/i111e111 v. 
Slate of M.P.'; ln that case the Lokayukta had given a repo11 that there 
was sufficient ground for prosecuting two Ministers for offences under 
the Prevention of Corruption Act, 1988 and/or under the Indian Penal 
Code, 1860. The Council of Ministers of the State of Madhya Pradesh 
declined to grant sanction to prosecute, but the Governor disregarded 
the advice of the Council of Ministers and granted sanction to prosecute. 
The question that arose for consideration was whether a Governor could 
act in his discretion under Article 163(2) of the Constitution and against 
the aid and advice of the Council of Ministers in the matter of grant of 
sanction for the prosecution of two Ministers for offences under the 
Prevention of Corruption Act, 1988 and/or under the Indian Penal Code, 
1860. 
79. Adding to the exceptions already noted by this Cow1 where 
the Governor could act despite the advice of the Council of Ministers, 
yet another exclusionary situation was carved out by the Constitution 
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';(2004) 8 sec 788 (5 Judges)
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 261 
AND OTHERS [MADAN B. LOKUR, J.] 
Bench - in this case, on the ground of propriety. lt was held: 
"Undoubtedly, in a matter of grant of sanction to prosecute, the 
Governor is normally required to act on aid and advice of the 
Council of Ministers and not in his discretion. However, an 
exception may arise whilst considering grant of sanction to 
prosecute a Chief Minister or a Minister where as a matter of 
propriety the Governor may have to act in his own discretion." 
80. It was observed that in such a case, if the Governor cannot 
act in his discretion then there could be a complete breakdown of the 
rule of law. It was observed (with respect, in an exaggerated manner) 
that democracy itself would be at stake. It was said: 
"If, on these facts and circumstances, the Governor cannot act in 
his own discretion there would be a complete breakdown of the 
rule of law inasmuch as it would then be open for Governments to 
refuse sanction in spite of overwhelming material showing that a 
prima facie case is made out. If, in cases where a prima facie 
case is clearly made out, sanction to prosecute high functionaries 
is refused or withheld, democracy itself will be at stake. It would 
then lead to a situation where people in power may break the law 
with impunity safe in the knowledge that they will not be prosecuted 
as the requisite sanction will not be granted." 
81.Thc decision in the case of Pu Myllai Hlycll/10 v. State
of 
Mizoram'" is equally instructive on the subject of the Governor's 
discretion under Article 163(2) of the Constitution. The issue related to 
the Governor's discretion in the nomination of four members of the Mara 
Autonomous District Council (MADC) in terms of paragraph 2( I) read 
with paragraph 20-BB of the Sixth Schedule to the Constitution. 27 It 
"' (2005) 2 sec 92 (5 Judges) 
27 2. Cunstitntion of District Councils and Regional Councils.- (I) There shall be 
a District Council for each autonomous <listrict consisting of not 1norc than thirty members. 
of whom not 1norc than four persons shall be nominated by the Governor and the rest shall 
be elected on the basis of adult suffrage: 
XXX X\'.X XXX 
20-BB. Exercise of discretionary powers by the GoYcrnor in the discharge of his 
functions.-The Governor. in the discharge of his functions under sub-paragraphs (2) and 
(3) of paragraph I. sub-paragraphs (I) and ( 7) of paragraph 2. sub-paragraph (3) of 
paragraph 3, sub-paragraph (4) of paragraph 4, paragraph 5, sub-paragraph (I) or paragraph 
6. sub-paragraph (2) of paragraph 7. sub-paragraph (3) or paragraph 9. sub-paragraph (I) 
of paragraph 14. sub-paragraph (I) of paragraph 15 and sub-paragraphs (I) and (2) of 
paragraph 16 of this Scheuule. shall. alter consulting the Council of Ministers. and if he 
thinks it necessary. the District Council or thl.! Regional Council concerned. take such 
action us he c<..msider!:. necessary in his discretion. 
Paragraph 20-1313
was inserted by The Sixth Scheuulc to the Cunstitution (Amendment) 
Act. 1988. 
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was held that the Governor is entitled to act in his discretion in the matter 
of nomination of four members to the MADC even though he is obliged 
to consult the Council of Ministers. In this case, the Governor did consult 
the Council of Ministers, but that advice was not binding on him. Merely 
because the Governor consulted the Council of Ministers and acted on 
the advice given does not fault the decision taken by the Governor in the 
exercise of his discretion. It was held: 
"The counsel for the appellants contended that in the case of 
nomination of four members, the Governor accepted the advice 
of his Council of Ministers and he did not exercise the discretionary 
powers vested in him under para 20-88 of the Sixth Schedule. 
This contention was raised on the basis that the initiation for issuing 
the notification dated 6-12-2001 was from the Council of Ministers 
and the Governor acted upon the advice of the Council of Ministers. 
We do not find any force in this contention. Under the provisions 
of para 20-88, the Governor shall consult the Council of Ministers. 
Merely because of the fact that the Governor made consultation 
with the Council of Ministers for nominating four members, it 
cannot be assumed that the Governor failed to exercise the 
discretionary powers. The Governor could have even consulted 
the District Council or the Regional Council in this regard. There 
is nothing to show that the
Governor did not exercise his 
discretionary powers independently. Moreover, as noted above, 
Article 163(2) of the Constitution expressly prohibits challenging 
the validity of the exercise of such discretionary power." 
82. State of Gujarat v. R.A. Mehta28 follows the view expressed 
in Samsher Si11gfl and M.P. Special Police Establisflme11t on the 
discretionary powers of the Governor and adds a few more illustrative 
exceptions to those mentioned in the above decisions. Primarily, the view 
taken is that the Governor can act in his discretion ifthe advice from the 
Council of Ministers is not available to him due to some extraordinary 
situation. It was held: 
G 
"Article 163(2) of the Constitution provides that it would be 
permissible for the Governor to act without ministerial advice in 
certain other situations, depending upon the circumstances therein, 
even though they may not specifically be mentioned in the 
Constitution as discretionary functions e.g. the exercise of power 
H 
28 (2013)3SCCI
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 263 
AND OTHERS [MADAN 8. LOKUR, J.] 
under Article 356( 1 ), as no such advice will be available from the 
Council of Ministers, who are responsible for the breakdown of 
constitutional machinery, or where one Ministry has resigned, and 
the other alternative Ministry cannot be formed. Moreover, clause 
(2) of Article 163 provides that the Governor himself is the fii~al 
authority to decide upon the issue of whether he is required by or 
under the Constitution, to act in his discretion. The Council of 
Ministers, therefore, would be rendered incompetent in the event 
of there being a difference of opinion with respect to such a 
question, and such a decision taken by the Governor would not be 
;usticiable in any court. There may also be circumstances where 
there are matters with respect to which the Constitution does not 
specifically require the Governor to act in his discretion but the 
Governor, despite this, may be fully justified to act so e.g. the 
Council of Ministers may advise the Governor to dissolve a House, 
which may be detrimental to the interests of the nation. In such 
circumstances, the Governor would be justified in refusing to accept 
the advice rendered to him and act in his discretion. There may 
even be circumstances where ministerial advice is not available 
at all i.e. the decision regarding the choice of Chief Minister under· 
Article 164(1) which involves choosing a Chief Minister after a 
fresh
election, or in the event of the death or resignation of the 
ChiefMinister, or dismissal of the ChiefMinisterwho loses majority 
in the House and yet refuses to resign or agree to dissolution." 
83. However, it seems to me that the Bench might be incorrect in 
expanding the discretionary power to include the advice of the Council 
of Ministers "which may be detrimental to the interests of the nation." 
For one, it is difficult to imagine a democratically elected Council of 
Ministers giving advice that "may be detrimental to the interests of the 
nation". Secondly, who is to judge ifthe advice is "detrimental to the 
interests of the nation" and what are the standards for coming to this 
conclusion. Thirdly, our Constitution has not given the Governor arbitrary 
or imperial powers to decide what is or is not detrimental to the interests 
of the nation. The elected representatives are capable of taking that 
call. Fourthly, should such a remarkable situation arise, the Governor 
would be obliged to report to the President, leaving it to him to decide on 
the next course of action. However, ! leave this 'expansion' as it is and 
am mentioning it only by the way. 
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84. As the years have gone by, more and more unusual if not 
extraordinary situations have arisen. These situations have led, in theory, 
to greater discretionary powers being conferred on the Governor through 
decisions rendered by this Court and the High Courts. Jn my view, this is 
really a step backward and contrary to the idea ofresponsible government 
advocated in the Constituent Assembly. 
Justice Sarkaria Commission 
85. Be that as it may, August 1988 saw the rPlease of what is 
commonly known as the Justice Sarkaria Commission Report on Union-
State Relations. In Chapter IV thereof, it is noted that the role of the 
Governor had emerged as one of the key issues in Union-State relations. 
While dealing with the historical background, two extremely significant 
observations were made in paragraphs 4.2.03 and 4.2.04 of the Report. 
It was suggested quite clearly that: (i) The Congress Party which 
commanded a majority in six Provincial Legislatures after the Government 
of India Act, I 935 came into force assumed office only after it was 
assured by the Viceroy that the Governors "wou Id not provoke a conflict 
with the elected Government." The intention was pretty clear - that the 
discretion or the individualjudgrnent available to the Governor under the 
Government oflndia Act, I 935 would be sparingly used, if at all. (ii) This 
intention was carried into effoct when the India (Provisional
Constitution) 
Order, 1947 was promulgated, the expressions 'in his discretion', 'acting 
in his discretion' and "exercising his individual judgement' occurring in 
the Government oflndia Act, I 935 were deleted making it incumbent on 
the Governor to exercise his functions only on the aid and advice of his 
Council of Ministers. This is what the Justice Sarkaria Commission 
observed: 
"4.2.03 In I 937, when the Government of India Act, 1935 came 
into force, the Congress Party commanded a majority in six 
provincial legislatures. They foresaw certain difficulties in 
functioning under the new system which expected Ministers to 
accept, without demur, the censure implied, if the Governor 
exercised his individual judgement for the discharge of his special 
responsibilities. The Congress Party agreed to assume office in 
these Provinces only after it received an assurance from the 
Viceroy that the Governors would not provoke a conflict with the 
elected Government. 
4.2.04 Independence inevitably brought about a change in the role
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 265 
AND OTHERS [MADAN B. LOKUR, J.] 
of the Governor. Until the Constitution came into force, the 
provisions of the Government of India Act, 1935 as adapted by 
the India (Provisional Constitution) Order, 1947 were applicable. 
This Order omitted the expressions 'in his discretion', 'acting in 
his discretion' and 'exercising his individual judgement', wherever 
they occurred in the Act. Whereas, earlier, certain functions were 
to be exercised by the Governor either in his discretion or in his 
individual judgement, the Adaptation Order made it incumbent on 
the Governor to exercise these as well as all other functions only 
on the advice of his Council of Ministers." 
86. The Justice Sarkaria Commission looked at Article 163( I) of 
the Constitution in two parts, nam~ly, the Governor exercising his 
discretion when required by the Constitution and when required under 
the Constitution. The exercise of discretion conferred by the 
Constitution would relate to an express provision of the Constitution 
(such as those relating to the Tribal Areas of Assan1) or by necessary 
implication; while the latter expression would include the exercise of 
discretion from rules and orders made under the Constitution. Given 
this interpretation, according to the Justice Sarkaria Commission, "The 
scope of discretionary powers has to be strictly construed, effectively 
dispelling the apprehension, if any, that the area for the exercise of
discretion covers all or any of the functions to be exercised by the 
Governor under the Constitution. In other words, Article 163 does 
not give the Governor a general discretionary power to act against 
or without the advice of his Council of Ministers."c9 (Emphasis 
given by me). 
87. The Justice Sarkaria Commission studied the Constitution and 
placed the functions of the Governor in four categories: 
(i) 
The Governor acting in his discretion; 
(ii) 
(iii) 
The Governor acting in his individual judgment; 
/ 
. 
The/Governor acting in his discretion independently of the 
Council of Ministers. 
(iv) The.Governor acting in his discretion under the Constitution. 
88. The first category offunctions consists of the Governor acting 
in his discretion only in respect of the Tribal Areas of Assam as per the 
Sixth Schedule of the Constitution. Subsequently, as the Constitution was 
"Parngraph 4.3.08 
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amended, this category expanded to include Article 371-A (1) (d) and 
(2)(f) [relating to Nagaland], Article 371-F (g) [relating to Sikkim],Article 
371-H (a) [relating to Arunachal Pradesh]. To this may also be added 
paragraph 20-BB of the Sixth Schedule, as discussed in Pu Myl/ai. 
89. The second category of functions consists of the Governor 
acting in his individual judgment. This was not provided for in the 
Constitution as originally enacted but was introduced by way of an 
amendment in Article 371-A (1 )(b) [pertaining to Nagaland] and Article 
371-H (a) [pertainingtoArunachal Pradesh]. 
90. With regard to the third category of functions, the Justice 
Sarkaria Commission gave five examples of areas where the Governor 
exercises his discretion independently of the Council of Ministers- all of 
them by necessary implication: 
"(a) Governor has necessarily to act in his discretion where the 
advice of his Council of Ministers is not available, e.g. in the 
appointment of a Chief Minister soon after an election, or where 
the Council of Ministers has resigned or where it has been dismissed 
[,:\rticle 164(1)1. 
(b)A Governor may have to act against the advice of the Council 
of Ministers, e.g. dismissal ofa Ministry following its refusal to 
resign on being defeated in the Legislative Assembly on a vote of 
no-confidence [Article 164(1) &(2)]. • 
· 
(c)A Governor may require that any matter decided by a Minister
may be considered by the Council of Ministers (Article 167). 
( d) A Governor may have to make a report to the President under 
Article 356 that a situation has arisen in which the government of 
F 
the State cannot be carried on in accordance with the provisions 
of the Constitution. 
Obviously, in such a situation he may have to act against the aid 
and advice of the Council of Ministers as the situation may be due 
to the various acts of omission or commission on the part of the 
G 
Council of Ministers (Article 356). 
H 
( e) A Governor may have to exercise his discretion in reserving a 
Bill for the consideration of the President (A1iicle 200)." 
To the above example may be added the view of this Court expressed in 
M.P. Special Police Estab/islime11t.
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 267 
AND OTHERS [MADAN B. LOKUR, J.] 
91. While explaining the examples given, the Justice Sarkaria 
Commission also added that the Governor may exercise his discretion 
independently of the Council of Ministers in dissolving the Legislative 
Assembly, but there has been no consistent practice in this regard. It 
was stated as follows: 
"Various Governors have adopted different approaches in similar 
situations in regard to dissolution of the Legislative Assembly. The 
advice of a Chief Minister, enjoying majority support in the 
Assembly, is normally binding on the Governor. However, where 
the Chief Minister had lost such support, some Governors refused 
to dissolve the Legislative Assembly on his advice, while others in 
similar situations, accepted his advice, and dissolved the Assembly. 
The Assembly was dissolved in Kerala ( 1970) and in Punjab ( 1971) 
on the advice of the ChiefMinisterwhose claim to majority support 
was doubtful. However, in more or less similar circumstances in 
Punjab (1967), Uttar Pradesh (1968), Madhya Pradesh (1969) 
·and Orissa (1971) the Legislative Assembly was not dissolved. 
Attempts were made to instal alternative Ministries."30 
92. In specific regard to summoning the Legislative Assembly (an 
issue directly concerning us in the present case), the Justice Sarkaria 
Commission noted that differing views were expressed by the States for 
·different reasons. These have been mentioned in
paragraphs 4.11.16 to 
4.11.20 of the Report.31 The sum and substance of the discussion is that 
the unilateral power to summon the Legislative Assembly may be 
exercised by the Governor only in three situations: 
(i) 
When the Chief Minister designedly fails to advise the 
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summoning of the Assembly within six months of its last 
F 
sitting, or advises its summoning for a date falling beyond 
this period. 
(ii) 
When the Chief Minister, unless he is the leader ofa party 
that has an absolute majority in the Legislative Assembly, 
does not seek a vote of confidence within 30 days of taking 
G 
over. 
(iii) . When it appears to the Governor that the incumbent Ministry 
311 Paragraph 4.4.03 
31 The Yiew expressed regarding proroguing and dissolving the Assembly is not referred 
to since that issue docs not arise in the present case. 
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no longer enjoys the confidence of the Assembly, he may 
ask the Chief Minister to test his majority support on the 
floor of the House within a reasonable time. The reasonable 
time could be within 30 days (unless there is some urgency 
such as passing the annual budget) but shou Id not exceed 
60 days. 
It may be mentioned en passant that none of these situations arise in 
the present case. 
93. With regard to the fourth category of functions, the Justice 
Sarkaria Commission gave the examples of Orders passed by the 
c 
President under Article 3 71 of the Constitution. One such Order issued 
under Article 3 71 (I) of the Constitution is the Pwtjab Regional Committees 
Order, 1957.
3~ Paragraph I 0 of this Order provided that "The Governor 
shall have special responsibility for securing the proper functioning of 
regional committees in accordance with the provisions of this Order." 
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94. Similarly, paragraph I 0 of the Andhra Pradesh Regional 
Committee Order, 195833 issued under A11icle 371 ( 1) of the Constitution 
provided that "The Governor shall have special responsibility for securing 
the proper functioning of the regional committee in accordance with the 
provisions of this Order". 
95. With regard to the State of Gujarat, the President issued the 
State of Gujarat (Special Responsibility of Governor for Kutch) Order, 
1977 dated 28'
11 February, 1977. This was in exercise of powers conferred 
by Article 3
71 (2) of the Constitution. Paragraph 2 if the said Order 
provided as follows: 
"2. Special Responsibility of Governor-( 1) TheGovernorofGujarat 
shall have special responsibility for the establishment of a 
development board for Kutch and for the other matters referred 
to in clause (2) of article 3 71 of the Constitution in respect of that 
area. 
(2) The Governor shall, in the discharge of his special responsibility 
G 
under this Order, act in his discretion." 
96. For the State of Manipur, the Manipur Legislative Assembly 
Hill (Areas Committee) Order, 1972 was issued on 28'h June, 1972 by 
the President in exercise of powers conferred by Article 3 71-C of the 
32 SRO 3524 dated 4'" NO\ ember. 1957 
H 
"SRO 446-A dated \" February. 1958
NABAM REBlA, AND BAMANG FELIX v. DEPUTY SPEAKER 269 
AND OTHERS [MADAN B. LOKUR, J.] 
Constitution. Paragraph 9 of this Order provided for the special 
responsibility of the Governor: "The Governor shall have special 
responsibility for securing the proper functioning of the Hill Areas 
Committee in accordance with the provisions of this Order and shall, in 
the discharge of his special responsibility, act in his discretion." 
97. Finally, in exercise of powers conferred by Clause (2) of Article 
3 7 l of the Constitution, the President issued the State of Maharashtra 
(Special Responsibility of Governor for Vidarbha, Marathwada and the 
rest of Maharashtra) Order, 1994 which came into effect on 1" May, 
1994. This Order confers large discretionary powers on the Governor in 
relation to the functioning of the Development Boards, including allocation 
offunds. 
98. At all times, the Governor may exercise this discretion only to 
ensure that the system ofresponsible government in the State functions 
in accordance with the norms envisaged in the Constitution, and as 
postulated by the Constituent Assembly and Dr. Ambedkar. 
99. There is absolutely no reason to take a view different from 
that expressed by the Justice Sarkaria Commission though coupled with 
the view expressed by this Court in the few decisions mentioned above. 
Justice Punchhi Commission 
100. In March 2000, Justice Punch hi submitted a Report on 
Centre-State Relations. The broad mandate of the Commission was
''to 
review the existing arrangements between the Union and States as per 
the Constitution oflndia in regard to powers, functions and responsibilities 
in all spheres including legislative relations, administrative relations, role 
of Governors, emergency provisions, financial relations, economic and 
social planning, Panchayati Raj institutions, sharing of resources, including 
inter-state river water and recommend such changes as may be 
appropriate keeping in view the practical difficulties". 
101. With reference to the discretionary role of the Governor, 
broadly speaking, the following situations may be culled out from the 
Justice Punchhi Commission Repo11(paragraph4.5 thereof): 
(i) 
To give assent or withhold or refer a Bill [except a Money 
Bill] for Presidential assent under A11icle 200; 
(ii) 
The appointment of the Chief Minister under Article 164; 
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(iii) 
Dismissal of a Government that has lost the confidence of 
the Legislative Assembly but refuses to quit since the.Chief 
Minister holds office during the pleasure of the Governor; 
(iv) 
If the Chief Minister neglects or refuses to summon the 
Assembly for holding a "Floor Test", the Governor should 
B 
summon the Assembly for the purpose. 
(v) 
Dissolution and prorogation of the House under A1ticle 174; 
(vi) 
Governor's report under Article 356; 
(vii) 
Governor's responsibility for certain regions of the country 
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under Articles 3 71-A, 371-C and 371-H of the Constitution. 
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(viii) Where the bias is inherent and/or manifest in the advice of 
the Council of Ministers [as in the case of Madhya Pradesh 
Special Police Establishment]. 
102. The Justice Punchhi Commission did not disagree with the 
Justice Sarkaria Commission on any issue relating to the functions and 
duties of the Governor. It must therefore be taken that the functions, 
duties and powers of the Governor by or under the Constitution are 
"cabined, cribbed, confined". However, if"discretion" is given a broad 
meaning as desired by the respondents and is given greater weightage 
than "his individual judgment" then there would be "saucy doubts and 
fears" 3• of the arbitrary exercise of discretion by the Governor as has 
happened in the present case, and other cases. 
103. From the submissions made by learned counsel for the 
responsents, it
would seem that the functions of the Governor in his 
relations with the Executive arc completely hedged in but in his relations 
with the Legislature and the elected representatives, his discretion is 
virtually unlimited and not subject to judicial review as well. Surely, this 
is not what the Constitution framers had in mind nor do the decisions of 
this Cou1t lead to such an intention or interpretation. 
l 
I 04. Rather than provide so-called untrammeled power and 
authority to the Governor, the Constitution makers gave him an escape 
route in the event the Legislature is recalcitrant. This is by way ofresort 
to Article 356 of the Constitution through which the Governor can make 
a report to the President in the event there is a failure of constitutional 
machinery in the State. This escape route is available in a case where 
" Macbeth. Act II I Scene IV
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 271 
AND OTHERS [MADAN B. LOKUR, J.] 
the Governor dismisses a Government but the Government refuses to 
A 
recognize the dismissal order. 
I 05. Additionally, to ensure that the Governor is not unaccountable 
in his relations with the Legislature, the Constitution provides for the 
Legislature to frame its rules of procedure under Article 208 of the 
Constitution. The Legislature in Arunachal Pradesh has framed such 
B 
rules and these are considered below. 
Rules of Business of the Legislative Assembly 
I 06. First and foremost, it is important to note that the rules of 
procedure framed by the Legislative Assembly for regulating its procedure 
and the conduct of its business under Article 208 of the Constitution do 
C 
not need anybody's approval, including that of the Governor of the State.3; 
107. The Rules of Procedure and Conduct of Business in 
Arunachal Pradesh Legislative Assembly (for short "the Rules") framed 
by the Legislative Assembly of Arunachal Pradesh in exercise of powers 
conferred by Article 208 of the Constitution carry forward the intention 
of the Constituent Assembly as well as the decisions of this Court to the 
effect that the Governor is a constitutional or formal head not only of the 
Executive but, in some respects, also of the Legislature. The Rules give 
the Governor of Arunachal Pradesh limited discretionary powers, but 
more particularly so in the matter of summoning the Legislative Assembly.
I 08. Rule 3 of the Rules provides that for summoning the Assembly 
under Article 174 of the Constitution, the Chief Minister shall, in 
consultation with the Speaker, fix the date of commencement and duration 
of the session of the Assembly and advise the Governor accordingly. 
Rule 3A of the Rules provides that on receipt of such advice, the Assembly 
" 208. Rules of procedure - (I) A House of the Legislature of a State may make rules 
for regulating, subject to the provisions of this Constitution, its procedure and the 
conduct of its business. 
(2) Until rules are made under clause (I), the rules of procedure and standing orders in 
force immediately before the commcnccmc11t of this Constitution with respect to tl1e 
Legislature for the corresponding Province shall have effect in relation to the Legislature 
of the Slate subject to such modifications and adaptations as may be mack therein by 
the Speaker of the Legislative Assembly, or the Chairman of the Legislative Council, as 
the case may be. 
(3) In a State having a Legislative Council the Governor, afler consultation with the 
Speaker of the Legislative Assembly and the Chairman of the Legislative Council, may 
make rules as to the procedure with respect to communications bel\\ ecn the two 
Houses. 
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is summoned by the Governor and the Secretary of the Assembly then 
issues summons to each member of the Assembly specifying the date 
and place for the session at least 30 days before the commencement of 
the session. The Assembly may also be summoned on a short notice in 
terms of the proviso to Rule 3A of the Rules, but we are not concerned 
with that. Rule 3 and Rule 3A of the Rules read as follows:-
"3. The Chief Minister shall, in consultation with the Speaker, fix 
the date of commencement and the duration of the session, advise 
the Governor for summoning the Assembly under Atiicle 174 of 
the Constitution. 
3A. On issue of such summons by the Governor, the Secretary 
shall issue a summon to each member specifying the date and 
place for the session of the House at least thitiy days before the 
date of commencement of the Session: 
Provided that when a Session is called at shoti notice or emergently, 
the summons may not be issued to each member separately but 
an announcement of the date and place of the Session shall be 
published in the Gazette and made on the All-India Radio and the 
members shall also be informed by wireless messages or 
telegrams." 
I 09. It is clear from the above that the Governor can summon the 
Assembly only if the Chief Minister (in consultation with the Speaker) 
so.advises him. There is no exception to this. However, Article 174 of 
the Constitution would be violated
ifthe ChiefMinister does not so advise 
the Governor to summon the Assembly for a period of six months, or if 
the Governor does not summon the Assembly despite the advice of the 
Chief Minister. As mentioned by Pandit Jawaharlal Nehru when the 
First Amendment to the Constitution was discussed in Parliament, either 
the Chief Minister or the Governor (as the case may be) would have to 
bear the consequences of violating the Constitution. 
110. In matters pertaining to the Assembly, the Governor of 
Arunachal Pradesh has been given an additional 'discretionary power'. 
This is with regard to the election of the Speaker of the Assembly. Rule 
7( I) of the Rules provides that when a new Assembly is constituted or 
there is a vacancy in the office of the Speaker and the election of the 
Speaker is necessary, the Governor shall fix a date for holding the election. 
To this extent the Governor has a role to play in the Assembly in his 
capacity as a constituent of the Legislature, as postulated by Article 168
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 273 
AND OTHERS [MADAN B. LOKUR, J.] 
of the Constitution. Rule 7( I) of the Rules is relevant for this purpose 
A 
and it reads as follows: 
"7( I) When at the beginning of the new Assembly or owing to a 
vacancy in the office of the Speaker, the election of a Speaker is 
necessary, the Governor shall fix a date for the holding of the 
election, and the Secretary shall send to every member notice of 
B 
the date so fixed." 
111. The Governor has yet another discretionary duty to perform 
which is when the office of the Speaker as well as the Deputy Speaker 
is vacant, even when the Assembly is not a new Assembly. In that 
event the Governor has the discretionary duty to appoint a member of c 
the Assembly as a Speaker. This is provided for in Article 180( I) of the 
Constitution as well as Rule SB of the Rules which reads as follows: 
"8B. While the Offices of both the Speaker and the Deputy 
Speaker are vacant, the duties of the Office of the Speaker shall 
be performed by such member of the Assembly as the Governor 
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may appoint for the purpose." 
Over the years a convention has developed in most Legislatures in respect 
of filling up such vacancies and the 'discretion' of the Governor has 
been limited thereby. 
112. This may be contrasted with Article 180(2) of the 
E 
Constitution which provides that when the Speaker and the Deputy 
Speaker are both absent (not because of any vacancy) then the Legislative 
Assembly and
not the Governor shall determine, by rules or otherwise, 
the person who shall act as the Speaker. 
113. Article 200 of the Constitution postulates that the Governor 
F 
may (in exercise of his discretion) withhold assent to a Bill passed by the 
Legislature. This too is the subject matter of the Rules and Rule 82 
thereof makes a provision in this regard which reads as follows: 
"82. The orders of the President or the Governor granting or 
withholding the sanction or recommendation to an amendment to 
G 
a Bill shall be communicated to the Secretaiy by the Minister 
concerned in writing." 
114. Of course, the Governor cannot withhold assent to a Bill 
indefinitely but must return it to the Assembly with a message and this 
could include his recommendation for amendments to the Bill. This is 
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the subject matter of Rule 102 and Rule I 03 of the Rules which read as 
follows: 
"102 ( 1) When a B ii l passed by the Assembly is returned to the 
Assembly by the Governor with a message requesting that the 
Assembly do reconsider the Bill or any specified provisions thereof 
or any such amendments as are recommended in his message, 
the Speaker shall read the message of the Governor in the 
Assembly if in session, or ifthe Assembly is not in session, direct 
that it may be circulated for the information of the members. 
(2) The Bill as passed by the Assembly and returned by the 
Governor for reconsideration sh al I thereafter be laid on the Table. 
103. At any time after the Bill has been so laid on the Table, any 
Minister in the case of a Government Bill, or, in any other case, 
any member may give notice of his intention to move that the 
amendments recommended by the Governor be taken into 
consideration." 
115. It will be seen from the above that the discretion given to the 
Governor in respect of his relations with the Legislative Assembly is not 
only limited and circumscribed by the Constitution but also by the Rules 
framed by the Legislative Assembly under Article 208 of the Constitution. 
So much so that even the procedure for exchange of communications 
between the Governor and the Assembly is regulated. The Governor 
shall transmit his messages to the'Assembly through the Speaker in writing
signed by him or ifhe is absent from the place of meeting of the Assembly, 
it shall be conveyed to the Speaker through the leader of the House or 
through such person as the leader may delegate. This is provided in 
Rule 203 which reads as follows: 
"203 (I) Communications from the Governor to the Assembly 
shall be made to the Speaker by written message signed by the 
Governor or if the Governor is absent from the place of meeting 
of the Assembly, his message shall be conveyed to the Speaker 
through the Leader of the House or through such person as the 
Leader may delegate. 
(2) Communication from the Assembly to the Governor shall be 
made:-
(i) by formal address after motion made and carried in the 
Assembly; 
(ii) through the Speaker."
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 275 
AND OTHERS [MADAN B. LOKUR, J.] 
There can be no doubt that the Governor would need to respect the 
A 
Rules at least in his relations with the Legislature and cannot override 
their terms. 
Arunachal Pradesh Rules of Executive Business 
116. In exercise of powers conferred by Clause (2) and Clause 
(3) of Article 166 of the Constitution, the Governor of Arunachal Pradesh 
has framed the Arunachal Pradesh Rules of Executive Business, 1987. 
117. In terms of Rule 8, all cases referred to inthe Schedule are 
mandated to be brought before the Cabinet in accordance with the 
provisions contained in Part II thereof. Rule 8 reads as follows: 
"8. Subject to the orders of the Chief Minister under Rule 14, all 
cases referred to in the Schedule to these rules shall be brought 
before the Cabinet in accordance with the provisions of the rules 
contained in Part-II." 
118. As will be noticed from the above, Rule 8 is subject to the 
orders of the Chief Minister under Rule 14 which is in Part II. In this 
regard, as per Rule 14, the Chief Minister is entitled to refer any case 
mentioned in the Schedul.e for consideration at a meeting of the Cabinet. 
Rule 14 reads as follows: 
"14. All cases referred to as in the schedule shall, after 
consideration by the Minister be sent to the Secretary with a view 
to obtaining orders of the Chief Minister for circulation of the 
case under Rule 16 or for bringing it for consideration at a
meeting 
of the Cabinet." 
119. Rule 33 gives a list of classes of cases required to be placed 
before the Governor before the issuance of orders, with the approval of 
the concerned Minister and the Chief Minister. This includes, in Rule 
33(i) the Governor's address and message to the Legislative Assembly 
and in Rule 33(p) the summoning, prorogation or dissolution of the State 
Assembly. In other words, before summoning the Legislative Assembly, 
the case has to be considered by the Chief Minister and then placed 
before the Governor of Arunachal Pradesh for issuance of appropriate 
orders. This is fully in consonance with the Rules of Procedure and 
Conduct of Business in Arunachal Pradesh Legislative Assembly framed 
under Article 208 of the Constitution. 
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120. The Schedule to the Arunachal Pradesh Rules of Executive 
Business provides in item no. 4 (with reference to Rule 8 and Rule 14) 
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for proposals to summon, prorogue or dissolve the Legislature of the 
State. 
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Conclusions on the Rules of Business 
121. It is clear from the above, that though summoning the 
Legislative Assembly might be an executive function of the Governor, 
that function can be exercised by him only after such a proposal is seen 
by the Chief Minister and sent to him. Reading this with the Rules of 
Procedure and Conduct of Business in Arunachal Pradesh Legislative 
Assembly, the Chief Minister can make a proposa! '":he Governor for 
summoning the Legislative Assembly only in co11sultafa'n with the Speaker 
of the Legislative Assembly who is, in a sense, the Master of the House. 
In other words, the Governor has no independent discretion or authority 
to summon the Legislative Assembly, in terms of the Rules of Procedure 
and Conduct of Business in Arunachal Pradesh Legislative Assembly 
framed under Article 208 of the Constitution or the Arunachal Pradesh 
Rules of Executive Business, 1987 framed under Article 166 of the 
Constitution to summon the Legislative Assembly in his discretion. 
122. As already mentioned above, in case the Chief Minister fails 
in his duty to put forward a proposal before the Governor for summoning 
the Legislative Assembly or ifthe Governor does not accept the proposal 
of the Chief Minister of Arunachal Pradesh for summoning the 
Legislative Assembly, necessary consequences will follow as
mentioned 
in the debates in Parliament when the first amendment to the Constitution 
was considered. 
Article 371-H of the Constitution 
123. Apart from the views of the Constituent Assembly, the 
provisions of the Constitution, decisions of this Com1 and the views of 
eminent jurists on the functions, duties and powers of the Governor, the 
Constitution has a special provision with respect to Arunachal Pradesh. 
Article 371-H of the Constitution provides for the Governor exercising 
"his individual judgment" in the discharge of his functions relating to law 
and order in Arunachal Pradesh. Specifically, therefore, the exercise of 
individual judgment by the Governor of Arunachal Pradesh is permitted 
by the Constitution, but is limited to issues oflaw and order only. Article 
371-H of the Constitution reads as follows: 
"371-H. Special provision with respect to the State of 
Arunachal Pradesh.-Notwithstanding anything in this
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 277 
AND OTHERS [MADAN B. LOKUR, J.] 
Constitution,-
(a) the Governor of Arunachal Pradesh shall have special 
responsibility with respect to law and order in the State of 
Arunachal Pradesh and in the discharge of his functions in relation 
thereto, the Governor shall, after consulting the Council of 
Ministers, exercise his individual judgment as to the action to be 
taken: 
Provided that if any question arises whether any matter is or is 
not a matter as respects which the Governor is under this clause 
required to act in the exercise of his individual judgment, 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 the exercise 
ofhis individual judgment: 
. Provided further that ifthe President on receipt of a report from 
the Governor or otherwise is satisfied that it is no longer necessary 
for the Governor to have special responsibility with respect to law 
and order in the State of Arunachal Pradesh, he may by order 
direct that the Governor shall cease to have such responsibility 
with effect from such date as may be specified in the order; 
(b) the Legislative Assembly of the State of Arunachal Pradesh 
shall consist of not less than thirty members." 
I 24. It is quite clear from the above discussion and particularly from 
the provisions of the Constitution that the
concept of"in his discretion" 
and "his individual judgment" is very much alive and the distinction 
continues to be real. Once this is appreciated the extent and scope of 
Article I 63 of the Constitution becomes obvious. 
Conclusions 
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125. Under Article 163(1) of the Constitution, the Governor is 
bound by the advice of his Council of Ministers. There are only three 
exceptions ["except in so far as"] to this: ( i) The Governor may, in the 
exercise of his functions, act in his discretion as conferred by the 
G 
Constitution; (ii) The Governor may, in the exercise of his functions, 
act in his discretion as conferred under the Constitution; and (iii) The 
Governor may, in the exercise of his functions, act in his individual 
judgment in instances specified by the Constitution. 
126. The development of constitutional law in India and some 
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rather peculiar and extraordinary situations have led to the evolution of a 
distinct category off unctions, in addition to those postlllated or imagined 
by the Constitution and identified above. These are functions in which 
the Governor acts by the Constitution and of constitutional necessity in 
view of the peculiar and extFaordinary situation SUCh as that which arose 
in M.P. Special Police Establishment and as arise in situations relating 
to Article 356 of the Constitution or in choosing a person to be the leader 
of the Legislative Assembly and the Chief Minister of the State by proving 
his majority in the Legislative Assembly. 
127. However, these limitations do not preclude the Legislative 
Assembly from framing its Rules of Legislative Business under Article 
208 of the Constitution with reference to the functions of the Governor, 
nor do they preclude the Governor from framing Rules of Executive 
Business under Article 166 of the Constitution for the smooth functionfng 
of the government, as long as the Rules are framed in consonance with 
the constitutional requirements and within constitutional boundaries. 
Understanding the facts ..... 
128. The facts presented to us show that on 3rd November, 2015 
the Governor issued an Order whereby, in exercise of powers conferred 
on him by Clause (1) of Article 174 of the Constitution, the Sixth Session 
of the Legislative Assembly was summoned to meet
at 10.00 a.m. on 
l 4'h January, 2016 to l 81h January, 2016 in the Legislative Assembly 
Chamber at Naharlagun. The Order was in accordance with the 
constitutional provision (Article 174) for summoning the Assembly and 
in accordance with the Rules of Procedure and Conduct of Business in 
Ar.unachal Pradesh Legislative Assembly framed in exercise of powers 
granted by Article 208 of the Constitution. In other words, the Order 
was in consultation with the Speaker of the Assembly and the Chief 
Minister of Arunachal Pradesh. 
129. Thereafter, on l 9'hNovember, 2015 notice of a resolution for 
the removal of the Speaker was received in the Secretariat of the 
Legislative Assembly. This resolution was in terms of Article 179 of the 
Constitution. A copy of this resolution was also independently made 
available to the Governor by the signatories to the resolution along with 
a request to advance the date of the session of the Assembly to consider 
and vote on the resolution for the removal of the Speaker. 
130. By an Order issued on 91h December, 2015 the Order of 3rd
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 279 
AND OTHERS [MADAN B. LOKUR, J.] 
November, 2015 summoning the Assembly was modified by the Governor 
on the ground, i/1/er a/ia, of his constitutional obi igation "to ensure that 
the resolution for removal of Speaker is expeditiously placed before the 
Legislative Assembly." The modification Order modified the date of 141h 
January, 2016 to read 16'" December, 2015 and the date of I 81h January, 
2016 to 1 S'h December, 2015. 
131. The modification Order also recorded that expeditious 
consideration was necessary in view of (i) past precedents in the Lok 
Sabha (none of the learned counsel could enlighten us on any such 
precedent); (ii) paragraph 2 of Rule 151 of the Rules of Procedure and 
Conduct of Business in Arunachal Pradesh Legislative Assembly 
required expedition;'6(iii) utmost immediacy for clearing the cloud cast 
on the continuance of the incumbent Speaker; (iv) the personal satisfaction 
of the Governor that the time gap till the next session of the Assembly 
was long and unreasonable and "may cause damage to the goals and 
ideals of provisions in the Constitution oflndia and the Rules of Procedure 
of the House concerning speedy dispos_al of such resolutions" and; (v) in 
advancing the date of the sixth session of the Assembly, he "may not be 
bound by the advice of the Council of Ministers, si11ce the subject matter 
of the notice for removal of the Speaker is not a matter falling under the 
executive
jurisdiction of the Chief Minister, Arunachal Pradesh nor such 
a subject matter finds a mention in the Rules of Executive Business of 
the Government of Arunachal Pradesh framed under Article 166 of the 
Constitution oflndia ... " The relevant extract of the modification Order 
reads as follows: 
" 151. Any resolution to remove the Speaker or the Deputy Speaker from otiice. of which 
at least fourteen days notice as required under Article 179 of the Constitution has been 
given shall be read to the Assembly by the person presiding who shall then request the 
members who are in favour of leave being granted to move the Resolution to rise in their 
places. and if not less than cine fifth of the total numbers of member of the House rise 
accordingly, the person presiding shall allow the Resolution to be moved. If less than one-
fifth of the total numbers of member of the House rise, the person presiding shall inform 
the member who may have given the notice. that he has not the leave of the Assembly to 
move it. 
If notice of a Resolution against the Speaker or the Deputy Speaker is tabled, the House 
shall not be adjourned till the provisions of these Rules are complied with and the motion 
on no confidence is disposed of finally. 
The charges in the Resolution moved by a mover.against Speaker or Deputy Speaker 
should be substantially and precisely expressed. 
The nature of the charges should be within the conduct of Speaker or Deputy Speaker in 
the House for the inability
to conduct the business in the House or misappropriation of 
· Assembly property or finance. 
The Resolution duly signed by the mover should be handed over to Secretary, Legislative 
Assembly for s_crutiny. 
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"WHEREAS any such notice of resolution in relation to an Officer 
of the Legislative Assembly (Speaker or Deputy Speaker) needs 
to be expeditiously considered by the Legislative Assembly in view 
of (i) past precedents in the Lok Sabha and (ii) the seriousness 
and urgency accorded to such resolutions in paragraph 2 of Rule 
15 l of the Rules of Procedure and Conduct of Business in the 
Arunachal Pradesh Legislative Assembly and (iii) the utmost 
immediacy with which the cloud cast by the notice of resolution 
over the continuance of the incumbent in the office of the Speaker 
has to be cleared: 
WHEREAS I am personally satisfied that the time gap between 
the date of compliance of the notice with the notice period 
prescribed in the first proviso to article 179 ( c) of the Constitution 
of India and the date of the intended first sitting of the ensuing 
session, as computed in the aforesaid manner, is long and 
unreasonable and may cause damage to the goals and ideals of 
provisions in the Constitution oflndiaand the Rules of Procedure 
of the House concerning speedy disposal of such resolutions: 
WHEREAS I am further satisfied that, for any exercise of 
advancing the date of the sixth session under clause (I) of article 
174 of the Constitution of India to a date earlier than the date 
mentioned in the summons dated 3'd November, 2015 for facilitating 
the House to expeditiously consider resolutions for
removal of 
Speaker, I may not be bound by the advice of the Council of 
Ministers, since the subject matter of the notice for removal of 
the Speaker is not a matter falling under the executive jurisdiction 
of the Chief Minister, Arunachal Pradesh nor such a subject matter 
finds a mention in the Rules of Executive Business of the 
Government of Arunachal Pradesh framed under article 166 of 
the Constitution of India thereby restricting the role of the Chief 
Minister in advising me in exercise of my powers under article 
I 74( I) of the Constitution of India only to matters for which the 
Chief Minister, under the Constitution oflndia, is responsible:" 
132. Effectively, the Governor not only modified the dates of the 
session of the Assembly but also cancelled or revoked the dates of the 
session of the Assembly earlier decided upon in consultation with the 
Speaker of the Assembly and the Chief Minister of Arunachal Pradesh. 
133. On 14'h December, 2015 that is two days before the Assembly
NABAM REBJA, AND BAMANG FELIX v. DEPUTY SPEAKER 281 
. 
AND OTHERS [MADAN B. LOKUR, J.] 
was to meet, the Council of Ministers of Arunachal Pradesh met and 
considered Agenda Item No. 1 being "Discussion on the message dated 
91h December, 2015 of the Governor of Arunachal Pradesh for pre-
ponement of the Assembly session from 14
1
" January, 2016 to 16'" 
December, 2015". The Minutes of the Cabinet reco.rd as follows: 
"The Cabinet has discussed the opinion rendered by the Learned 
Advocate General dated 12.12.2015 on the constitutionality of 
the order and message of HE, the Governor. After careful 
examination, the Cabinet has resolved as under: 
The State Cabi11et at its meeting held on 141" December, 2015 at 
I 000 hrs in CMs conference hall again discussed in detail the 
Order and the Message dated 09.12.2015 of His Excellency the 
Governor of Arunachal Pradesh. 
Cabinet has received the opinion of the Ld. Advocate General 
dated 12.12.2015 and other legal experts on the said Order and 
Message. The Cabinet has perused the said opinion and is in 
complete agreement with views of the Ld. Advocate General. 
The said Order dated 09.12.2015 issued by His Excellency the 
Governor of Arunachal Pradesh is in contradiction to Article 174 
read with Article 163 of the Constitution of India and Rule 3 and 
3A of the Rules of Procedure and Conduct of Business of the 
Arunachal Pradesh Legislative Assembly. Similarly, the Message 
is contrary to Article 175 of the Constitution
read with Rule 245 
of the Rules. Moreover, the Hon'ble High Court ofGauhati has 
fixed the hearing of the case of resignation of2 MLAs from the 
Assembly on I 611t December, 2015. 
Therefore, the Cabinet resolves and advises, His Excellency, the 
Governor of Arunachal Pradesh to recall and cancel the Order 
and Message dated 911t December, 2015 and allow the Session to 
be convened on 1411t January, 2016 as already ordered and 
scheduled. 
The Cabinet also resolves to endorse a copy of this resolution and 
legal advice of the Ld. Advocate General to the Hon'ble Speaker." 
134. As per the list of dates and events supplied to us, the Speaker 
urged the Governor by a communication of I 411t December, 2015 ·'to 
uphold and preserve the sanctity of the constitutional framework and let 
the House function as per its original schedule without any undue 
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interference." This communication was not acknowledged nor replied 
to. It has also not been placed before us . 
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..... and the applicable law 
13 5. It does appear to me. on facts, that the Governor acted 
unilaterally in issuing the modification Order and did not consult either 
the Chief Minister or the Speaker. In any event, no such consultation 
was shown to us. Under these circumstances, the legitimate question 
that arises is whether the Governor could modify ~h 0 notified dates of 
the session of the Assembly and simultaneously cancel and revoke the 
dates earlier fixed by an appropriate Order in exercise of his powers 
under Article 174 of the Constitution and (as suggested by learned counsel 
appearing on his behalf and the movers of the resolution) in the exercise 
of his discretion under Article 163 of the Constitution? What further 
complicates the matter is that the Governor ignored the resolution of the 
Cabinet of 141" December. 20 15 even assuming the communication of 
the Speaker did not reach him. 
136. Our Constitution expects all constitutional authorities to act 
in harmony and there must be comity_ between them to further the 
constitutional vision of democracy in the larger interests of the nation. In 
other words. conflicts between them should be completely.avoided but if 
there arc any differences ofopinion or perception. they should be narrowed · 
to the maximum extent possible and
ironed out through dialogue and 
discus5ion. It must he appreciated tlrnt no one is above the law and 
equally. no one is not answerable to the law and the debate on the First 
Amendment to the Constitution clearly indicates so. 
137 As i> evident from our constitutional history. there are three 
areas in which a Governor might function: 
a) 
Area' in 11 hich he can act only on the aid and advice of the 
Council of Ministers This is in all areas of the executi\e 
function> of the State Cn11'crnmcnt [/\rt ii: le 166]. 
b) 
Areas in which he can act in his discretion by or under the 
Constitution and in which he does not need to take the advice 
of the Council of Ministers [ A11icle 163 - "'except in so far 
as he is by or under this Constitution required to exercise 
his functions or any of them in his discretion."] or, areas in 
which he might take the advice of the Council of Ministers 
but is not hound by it enabling him to act in his individual
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 283 
AND OTHERS [MADAN 8. LOKUR, J.] 
judgment by or under the Constitution. 
c) 
Areas that have no concern with the Constitution. For 
example, where he is acting ea no mine. We are not 
concerned with this area at all. 
For our purposes, a distinction needs to be drawn between the relationship 
of the Governor vis-a-vis the Executive and the relationship of the 
Governor vis-a-vis the Legislature. Article 163 deals with the relationship 
of the first category and Article 174 (among others) deals with the 
relationship of the second category. We are concerned with the second 
category, although the· submissions of learned counsel have roped in 
Article 163 of the Constitution by contending that summoning the 
Legislative Assembly is an executive act or function. 
13 8. It is not at all necessary to enter into a debate on whether the 
act or function of summoning the Assembly is an executive act or function. 
Assuming it to be an executive function, summoning the Assembly cannot 
be read as a 'power' conferred by the Constitution on the Governor - it 
remains a function that the Governor performs in accordance with the 
mandate of the Rules of Procedure and Conduct of Business in Arunachal 
Pradesh Legislative Assembly on the advice of the Cliief Minister and in 
consultation with the Speakerofthe Assembly. The unarticulated premise 
is that the Governor cannot ·act' in an unregulated manner de hors any 
rules of procedure in
matters concerning the Legislative Assembly. The 
Governor is expected to function in accordance with the provisions of 
the Constitution (and the history behind the enactment of its provisions), 
the law and the rules regulating his functions. It is easy to forget that the 
Governor is a constitutional or fonnal head- nevertheless like everybody 
else. he has to play the game in accordance with the rules of the game -
whether it is in relation to the Executi\e (aid and advise of the Council of 
Ministers) or the Legislature (Rules of Procedure and Conduct of 
Business of the Arunachal Pradesh Legislative Assembly). This is not 
to say that the GO\ernor has no powers - he docs .. but these too are 
de!inc<lled by the Constitution either specifically or by necessary 
implicati0n. Failure to adhere to these basic principles is an invitation to 
enter the highway to the danger zone. 
139. Assuming hO\\ ever. that the Governor has the 'constitutional 
power· to summon the Assembly (and that it is not merely an executive 
function) the considerations at law become quite different. Undoubtedly, 
no power. constitutional or othcrn isc. can be exercised in an arbitrary 
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manner though the exercise of power, in some situations is undoubtedly 
beyond judicial consideration or judicial review and at best an academic 
discussion, for example the legality of using the armed forces of the 
Union internationally. If the functions of the Governor were to be read 
as his power, and an untrammeled one at that (in view of Article 163 of 
the Constitution, as contended), then the Governor has the power to 
literally summon the Assembly to meet "at such time and place as he 
thinks fit" that is in any city and at any place other than the Legislative 
Assembly building and at any odd time. This is not!~;;.; hut arbitrary and 
surely, an arbitrary exercise of power is not what our Constitution makers 
either contemplated in the hands of the Governor or imagined its wielding 
by any constitutional authority. 
140. In the Case concerning E/ecttronica Sicu/a S.P.A. (ELS/)3 7 
the International Court of Justice described arbitrariness in the following 
words: 
"128. Arbitrariness is not so much something opposed to a rule of 
law, as something opposed to the rule of law. This idea was 
expressed by the Court in the Asylum case, when it spoke of 
"arbitra1y action" being "substituted for the rule of law" (Asylum. 
Judgment, I.C.J. Reports 1950, p. 284). It is a wilful disregard 
of due process of law, an act which shocks, or at least surprises, 
a sense of juridical propriety." 
141. Does the
rule of law in our country permit the Governor to 
throw constitutional principles and the Rules of Procedure and Conduct 
of Business of the Arunachal Pradesh Legislative Assembly to the winds 
and summon the Assembly to meet wherever and whenever he deems 
appropriate? Surely the answer to this must be in the negative and since 
that is so, it must follow.that the 'power' apparently conferred on the 
Governor is arbitrary and must be read down to at least a 'reasonable 
power' to be exercised in accord and consonance with constitutional 
principles, law and the rules. 
142. On merits, it is not possible or even advisable to look into the 
pros and cons of the decision taken by the Governor. All that need be 
said is that the events as they occurred with great rapidity over the days 
and weeks preceding the modified Order appear to be nothing more or 
less than a political circus. However, what is disquieting in constitutional 
"United States of America v. Italy. I.C.J. Reports 1989. p.15
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 285 
AND OTHERS [MADAN B. LOKUR, J.] 
terms (and that has nothing to do with the reasons given by the Governor 
or the merits or otherwise of the decision unilaterally taken by him) is 
the short shrift that the Governor gave to a possible resolution of the 
Cabinet of Arunachal Pradesh. While issuing the modified Order, the 
Governor concluded that that he "may not be bound by the advice the 
Council of Ministers" for whatever reason. From where did the Governor 
derive this principle and how did he dream that he could invoke the 
concept of"individual judgment" should a resolution of the Council of 
Ministers be placed before him - the very concept that our constitution 
framers were not in favour of? 
143. To make matters worse and, in a sense, humiliate the elected 
government of the day, the Governor did ignore the resolution of the 
Council of Ministers taken on 14'" December, 2015 when it was placed 
before him. By this time there was a complete break-down of 
communications between the Governor and the elected Government and 
that, among other things, led to an unsavory confrontation between the 
Governor and some Cabinet Ministers. That interpersonal relationships 
of constitutional functionaries are carried out with such a complete lack 
of cordiality and gay abandon is indeed unfo1iunate. The result is a 
thrashing given to the Constitution and a spanking to governance. It is 
precisely to avoid this that the
Constituent Assembly invoked the "principle 
of responsible government". Sir Alladi Krishnaswamy Aiyar, while 
supporting Dr. Ambedkar's motion for adopting the Constitution ~poke 
of responsible government and the "breakdown provisions" of the 
Constitution (not necessarily Article 356) on 23'd November, 1949 
(virtually echoing Churchi II) as follows: 
''After weighing the pros and cons of the Presidential System as 
obtaining in America and the Cabinet system of Government 
obtaining in England and the Dominions, taking into account also 
the working of responsible Government in the Indian Provinces 
for some years and the difficulty of providing for a purely 
presidential type of Government in the States in Part II, (now pait 
18) this Assembly has deliberately adopted the principle of 
responsible Government both in the States and in the Centre. At 
the same time the Assembly was quite alive to the fact that a 
good number of States in Part IB were unaccustomed to any 
democratic or responsible Government and with a view of ensure 
its success and efficient working the early states of the Union 
Government is entrusted with the power of intervention while there 
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is a failure or deadlock in the working of democratic machinery. 
My honourable Friend Prof. K.T. Shah in expatiating upon the 
merits of the Constitutional system based upon the principle of 
separation, did not fully realize the inevitable conflict and deadlock 
which such a system might result in a country circumstanced as 
India is. The breakdown provisions in the Constitution are not 
intended in any way to hamper the free working of democratic 
institutions or responsible Government in the different units, but 
only to ensure the smooth working of the Government when actual 
difficulties arise in the working of the Constitution. There is no 
analogy between the authority exercised by the Governor or the 
Governor-General under the authority of the British Parliament in 
the Constitution of 1935 and the power vested in the Central 
Government under the new Constitution. The Central Government 
in India in future will be responsible to the Indian Parliament in 
which are represented the people of the different units elected on 
adult franchise and are responsible to Parliament for any act of 
theirs. In one sense the breakdo\vn provision is merely the 
assumption ofresponsibility by the Parliament at Delhi when there 
is an impasse or breakdown in the administration in the Units."38 
144. A further word may be said on "responsible government" in 
addition to the views of the Constituent Assembly. The idea of
a 
responsible government was mentioned in U.N.R. Rao v. lndim 
Grmdhi.3'' However, there was 110 discussion on what constitutes or is 
expected of a responsible government other than an expression of a 
view that the Council of Ministers must enjoy the confidence of the 
House of the People. 
145. In S.R. C/u11u/1111ri I'. State of Pu11jab"0 it was observed that 
parliamentary democracy generally envisage~ (i) Representation of the 
People, (ii) Responsible government and (iii)Ac.:c1untability of the Council 
of Ministers to the Legislature \Vith regard to the characteristics of a 
responsihle gnn:rnmcnt. lh1-, \ uun referred w the Co11.vtitutio11al law 
of Canada~' and the limited dis..:rction available to the Go\crnor-Cicneral · 
in the following word~: 
\.• hliP.· · J1ar l 1.a!_1J~!lL\1Jlu_lj ia. !_)_i.(.: 1 
r1J::-..·.d.cba!_('.~_ ~l LDG111_J_11111 
· ( 19-1 t 2 "-l '( h3 1 ~ .I udgc-.. '1 
,, {20111) 7 '-,( l 126 
., ( .J1 h l .. ,111 .. r. 243 i. l'cicr \V. Ho!'!' Prnk"or off .a\\. n,g"'''k Hal 11 '"' ~chool. York
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 287 
AND OTHERS [MADAN B. LOKUR, J.] 
"The narrative must start with an exercise by the Govemor-
General of one of his exceptional reserve powers or personal 
prerogatives. In the formation of a Government it is the Governor-
General 's duty to select the Prime Minister. He must select a 
person who can form a Government which will enjoy the 
confidence of the House of Commons. For reasons which will be 
explained later, the Governor-General rarely has any real choice 
as to whom to appoint: he must appoint the parliamentary leader 
of the political party which has a majority of seats in the House of 
Commons. But it is still accurate to describe the Governor-
General's discretion as his own, because unlike nearly all of his 
other decisions it is not made upon ministerial advice. 
When the Prime Minister has been appointed, he selects the other 
Ministers, and advises the Governor-General to appoint them. With 
respect to these appointments, the Governor-General reve11s to 
his normal non-discretionary role and is obliged by convention to 
make the appointments advised by the Prime Minister. If the Prime 
Minister later wishes to make changes in the Ministry, as by moving 
a Minister from one portfolio to another, or by appointing a new 
Minister, or by removing a Minister, then the Governor-General 
will take whatever action is advised by the Prime Minister, including 
if necessary the dismissal ofa Minister who has refused
his Prime 
Minister's request to resign." 
146. In dealing with the situation in Arunachal Pradesh, the 
Governor was obliged to adhere to and follow the constitutional principle, 
that is. to be bound by the advice of the Council or Ministers. In the 
event that advice was not available and responsible government was not 
possiOle. the Governor could have resorted to the ··breakdown provisions" 
and left it to the President to break the impasse. The Governor had the 
advice of the Council of Ministers but dwsc to 1gnllre it; he assumed 
(well before the advice was tendered) that the ad\ice would be such 
that he might not be bound by it the Governor. despite being the 'first 
citizen' of the State. chose to take no steps to break the impasse caused 
by a collapse of communications between him and the Chief Minister: 
final I~. the GLJvcrnor took no steps to resort to th~ breakdm>n provisions 
and obtain impartial a<h 1c·c frnm the Prc<>idcnt. Instead. the Governor 
acted in a 111at11ier not nnl~ opposed lo a rule of law but also oppnscd to 
the rule of law and. therefore, arbitrnril) nnd in a manner that certaml) 
surprises ··a sense ofjuridical rmpriet) ·· 
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14 7. The Governor had yet another option available to him - to 
invoke what is referred in Canada as the "confidence convention" in 
which "'the Prime Minister and the Cabinet are responsible to, or must 
answer to, the House of Commons for their actions and must enjoy the 
support and the confidence ofa majority of the Members of that Chamber 
to remain in office."·c If the Governor had any doubt about the 
continuance ofa responsible government as a result of the shenanigans 
that were going on in Arunachal Pradesh at the relevant time, he could 
very well have required the Chief Minister to prove that he had the 
confidence of the Assembly, but he chose not to exercise this option 
also. In other words, all possible constitutional options were unilaterally 
discarded and disregarded by the Governor in summoning the Assembly 
to meet on l 61h December, 2015 and cancelling the session fixed for 14'h 
January, 2016. The actions of the Governor were certainly not in the 
language of the law or the spirit of par I iamentary democracy and 
responsible government. In these circumstances, it must be held that 
the Governor's unilateral act of summoning the Assembly is 
uncon st itut ion a I. 
Relations between the Governor, the Executive and the 
Legislature 
148. The issue may also be looked at from an entirely different 
perspective based on the provisions of the Constitution. Part VI of the 
Constitution
concerns the States and it consists of six chapters. Chapter 
I is general and consists of one definition. Chapter II relates to the 
Executive, that is, the Governor, the Council of Ministers, the Advocate 
General for the State and conduct of government business. Amongst 
other things, the 'eligibility' of a person to be appointed a Governor is 
provided for in this chapter. Article 158 of the Constitution provides that 
the Governor shall not be a Member of Parliament or of a State 
Legislature and if such a Member is appointed as a Governor, he shall 
be deemed to have vacated his scat in the House when he enters upon 
his office as Governor. This is significant since it insulates the Legislature 
from the Governor. 
149. Article 163 of the Constitution and the discretionary exercise 
of functions of the Governor comes under the heading of Council of 
42 The House of Commons Procedure and Practice. Second Edition. 2009 
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H 
4245-8f5c-dd32f4m19bO I &sbpidx~3
NABAM REBIA, AND BA!'v1ANG FELIX v. DEPUTY SPEAKER 289 
AND OTHERS [MADAN B. LOKUR, J.] 
Ministers and is suggestive of executive governance or executive issues 
concerning the Council of Ministers. In this context, reference may also 
be made to Article I 64 of the Constitution which provides for the 
appointment of the Chief Minister of the State by the Governor and the 
appointment of other Ministers on the advice of the Chief Minister. The 
appointment of the Chief Minister is based on the postulate that he 
commands or is expected to command the support of a majority of 
Members of the Legislative Assembly. Therefore, it is not as if the 
Governor has untrammeled discretion to nominate anyone to be the Chief 
Minister of a State. Similarly, ifthe Governor chooses to 'withdraw his 
pleasure' in respect of a Minister he must exercise his discretion with 
the knowledge of the Chief Minister and not by keeping him in the dark 
or unilaterally. In this context, reference may be also be made to Article 
165 of the Constitution which deals with the appointment of the Advocate 
General for the State. He is appointed by the Governor and holds office 
during the pleasure of the Governor and receives such remuneration as 
the Governor may determine. It cannot be anybody's case that the 
Governor, in exercise of his discretion, may appoint any eligible person 
as the Advocate General without any reference to the Council of Ministers 
and also 'withdraw his pleasure' at any time in
respect of the Advocate 
General thereby removing him from his office. The purpose ofall these 
provisions is to indicate that the discretion given to the Governor is not 
all-pervasive or all-encompassing as is suggested by learned counsel for 
the. respondents. 
150. That the functions of the Governor are limited to matters of 
executive governance or executive issues and the Council of Ministers 
is made explicit through Article 166 of the Constitution which provides 
that all executive action of the Government shall be expressed to be 
taken in the name of the Governor;" orders and instruments shall be 
executed in the name of the Governo1-l• and the Governor shall make 
rules for the more convenient transaction of business of the Government 
and allocation of business among the Ministers "in so far as it is not 
business with respect to which the Governor is by or under th is Constitution 
required to act in his discretion." This clearly has reference to Article 
163 of the Constitution and must be understood as meaning that framing 
the rules under Article 166(3) of the Constitution is not the discretion of 
the Governor but an executive exercise undertaken by the Council of 
43 A11icle 166( I) of the Constitution 
"Article 166(2) of the Constitution 
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Ministers. Article 167 of the Constitution relates to the duty of the Chief 
Minister of a State to communicate the decisions of the Council of 
Ministers to the Governor and furnish information to the Governor. 
Chapter II of Part VI of the Constitution is, therefore, quite compact 
and delineates the relations between the Executive and governance of 
the State. 
151. Chapter Ill concerns itself with the State Legislature and 
several aspects concerning the State Legislature. As far as the Governor 
is concerned, Article 168 in this chapter of the Constitution provides that 
the State Legislature shall consist of the Governor and its House(s). 
[However, in view of Article 158 of the Constitution the Governor is not 
a member of the State Legislature.) His status, therefore, for lack of a 
better word, is that of a constituent of the Legislature. What are his 
functions in this capacity? In R"i S"lzib R"m Jmvay" K"pur the 
Constitution Bench observed that: "It may not be possible to frame an 
exhaustive definition of what executive function means and implies. 
Ordinarily the executive power connotes the residue of governmental 
functions that remain after legislative and judicial functions are taken 
away." In so far as this chapter is concerned, his functions are certainly 
not legislative (those are dealt with in Chapter IV of Part VI of the 
Constitution); his powers in this chapter are also ce1tainly
not judicial, 
and therefore clearly executive in character. What are these executive 
functions? 
152. Amongst others, Article 174 of the Constitution provides that 
the Governor shal 1 summon the Legislative Assembly from time to time 
and may prorogue and dissolve the Legislative Assembly. Summoning 
the House was described by Pandit Jawaharlal Nehru in the debate on 
J 6•h May, 1951 on the FirstAmendmenttothe Constitution as "an indirect 
duty" of the President. He went on to say that by the President, he 
meant the government of the day. Applying this to Article 174 of the 
· ·constitution, the Governor is obliged to perform this indirect duty. Since 
this indirect duty is executive in character, it cannot be performed except 
on the aid and advice of the Council of Ministers so as to avoid a "futile 
operation" and subject to the procedure mentioned in the Rules referred 
to above. Proroguing and dissolving the House must also follow a similar 
procedure as summoning the House. It would be doing violence to all 
canons of interpretation if the discretion of the Governor in Chapter III 
is incorporated in Chapter IV and given a wider and greater interpretation 
than intended in Chapter III. 
t .. I 
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NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 291 
AND OTHERS [MADAN B. LOKUR, J.] 
153. Addressing the House under Article 175( I) of the Constitution 
or making a special address under Article 176 of the Constitution would 
also be executive functions performed by the Governor on the aid and 
advice of the Council of Ministers. There can hardly be any dispute on 
this. Sending a message to the House under Article 175(2) of the 
Constitution might not strictly be an executive function but would fall in 
a separate category altogether which might be described as having a 
quasi-executive or quasi-legislative flavour. This entitlement specifically 
provided for in the Constitution is exercised by the Governor as a 
constituent of the Legislature and therefore not traceable to the aid and 
advise of the Council of Ministers. 
154. There are other executive fµnctions that a Governor is 
required to perform with respect to the Legislature. Some of these are 
provided for in Article 180 of the Constitution (referred to above), Article 
184 of the Constitution (which pertains to the Legislative Council and is 
in pari materia with Article 180 of the Constitution) and recruitment 
and conditions of service of secretarial staff of the Legislative Assembly 
or the Legislative Council as the case may be (Article 187 of the 
Constitution). If the provisions of Article 163 of the Constitution are 
read into all these executive functions relatable to the Legislature and 
the exercise
of discretion of the Governor cannot be questioned (as 
contended by learned counsel for the respondents) then the Legislature 
could and would be dominated by the Governor-something completely 
unthinkable in a parliamentary democracy, where the Governor cannot 
dominate the Executive but could dominate the Legislature! 
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 20 I 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 
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SUPREME COURT REPORTS 
[2016] 6 S.C.R. 
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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 
B 
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.45 
157. Therefore, I answer the first three questions in the negative 
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and hold that the fourth question does not arise in the circutrstances 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 
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Assembly of Arunachal Pradesh by which the Speaker had disqualified 
fourteen Members of the Legislative Assembly of Arunachal Pradesh 
(including the Deputy Sp..:aker) under the Tenth Schedule of the 
Constitution? 
159. The question here is not whether the disqualification of 
E 
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 l 5'h December, 2015 set 
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aside the order of the Speaker also dated 15'h 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 7'11 December, 2015 requiring them to show 
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cause why they should not be disqualified under the Tenth Schedule of 
the Constitution. Thereafter, by an order dated l 5'h 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 
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" Sanjeev Coke Manufacturing Co. v. Bharat Coking Coal Ltd., ( 1983) I SCC 14 7
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 293 
AND OTHERS [MADAN B. LOKUR, J.] 
and the correctness of that decision is not before us. 
161 . The Deputy Speaker passed an order on l 5'h 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 I 9'h 
November, 2015 was pending and was to come up before the Legislative 
Assembly on I 61h December, 2015. In passing his order of l 5'h December, 
20 I 5 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 
I 61h December, 2015. He ce11ain ly had no derivative power from the 
message of the Governor dated 91h December. 2015 to take over the 
functions of the Speaker or to sit in judgment over the decision of the 
Speaker of I 5•h December, 2015. 
162. That apart, it is now well settled by the decision of this Court 
in Kilzoto Hollo/um v. Zac/1i/llrn46 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. 
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It was held in Kasltinatlt Jalmi v. Speaker'7 that even the Speaker 
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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 
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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. 
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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 
" 1992 Supp.(2) sec 651 
"(1993) 2sec103 
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[2016] 6 S.C.R. 
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with regard to the fourteen members of the Legislative Assembly does 
not at all arise in these appeals. 
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Final order 
165. The appeals are allowed. The impugned judgment and order 
of I 3'h Janua1y, 2016 passed by the Gauhati High Court is set aside. 
The modification Order of 91h December, 2015 passed by the Governor 
of Arunachal Pradesh is unconstitutional and is set aside and the order 
of the Deputy Speaker dated 15'h Decembe.r, 2015 setting aside the order 
.of the Speaker of the same date is ·also set aside. 
Devika Gujral 
Appeal sallowed.