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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discretionaiy powers, specially in the ongoing exceptional circumstances, 
and the sensitivity of the State of Arunachal Pradesh. 
127. Even though we have not highlighted and repeated the 
different sequence of facts relied upon by the learned senior counsel, 
yet it may be mentioned, that the Governor was allegedly in possession 
of material indicating that the Speaker was under a serious cloud, and 
did not command the confidence of the majority of the,MLAs. 
Additionally, there were serious allegations of complicity between the 
Chief Minister and the Speaker. In the above factual situation, it was 
submitted, that the Governor was fully justified in not consulting the 
Speaker and/or the Chief Minister (or the Council of Ministers). It was 
asserted, that consulting the Speaker was out of question, as the Speaker 
cannot be a judge in his own cause. Insofar as consultation with the 
Chief Minister is concerned, it was submitted, that there was sufficient 
material before the Governor to suggest, that the Chief Minister and the 
Speaker were partners in an illegal conspiracy, to subvert the democratic 
process in the State. In the ~hove view of the matter, it was reiterated, 
thatthe Governor was fully vindicated in having exercised his independent 
judgment, in not consulting the Chief Minister. It was also pointed out, 
that the complicity between the Chief Minister and the Speaker stands
established, from the fact that the Chief Minister- Nabam Tuki, and the 
Speaker - Nabam Rebia are first cousins. Therefore, the principle of 
conflict of interest/bias is clearly applicable even in the case on hand. In 
the above view of the matter, it was urged, that an expeditious disposal 
of the notice of resolution for the removal of the Speaker ~ Nabam 
Rebia was fully justified, having regard to the fact that a number of 
legislators forming more than l/Sth of the MLAs, had expressed their 
want of confidence in the Speaker. 
128. Besides the submissions noticed hereinabove, it was also 
the contention ofMr. Ashok H. Desai, learned senior counsel, that the 
exercise of discretion by the Governor was final and binding. The Court's 
attention was invited to Article 163(2) which mandates, that " ... the 
decision of the Go.vernor in his discretion shall be final, and the validity 
of anything done by the Governor shall not be called in question on the 
gr9und that he ought orought not to have acted in his discretion.". While 
it was acknowledged, that there is no bar to judicial review, learned 
senior counsel was emphatic, that judicial review was permissible only 
in situations where the Governor had exercised his discretion in a wanton
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manner. It was submitted, that the exercise of power by the Governor 
can legitimately be placed in the following categories. Firstly, the exercise 
of executive powers in consonance with the provisions of the Constitution, 
by or under the order of the Governor, wherein full judicial review is 
. available. Secondly, orders passed by the Governor on the aid and advice 
of the Council of Ministers headed by the Chief Minister, wherein also 
full judicial review is available. Thirdly, orders like the grant of pardon 
under Article 161, and orders passed by the President based on a report 
submitted by the Governor under Article 356, wherein limited judicial 
revie.w is available. And fourthly, where the Governor acts without the 
aid and advice of the Council of Ministers headed by the Chief Minister, 
in his own discretion. It was submitted, that in the fourth situation, no 
judicial review is permissible, as is explicit from a plain reading of Article 
163(2). 
129. To support his aforesaid contention, with reference•to 
assailability of the order of the Governor dated 9.12.2015, as well as, the 
message of the Governor dated 9.12.2015, learned counsel placed reliance 
on the PratapsingRaojirao Rane case
1 ~, and invited the Court's attention 
to tJie following: · 
"43. While dealing with Full Benchjucfgment of the Madras High 
Court the noted Constitutional Expe.rt H.M. Seervai in
"Constitutional Law oflndia". 4th Edition. Vo.fume I. at page 2070. 
Note 18.79 has opined that the-view taken by Full Bench that in 
respect of his official acts, the Governor is not answerable to the 
Court even in respect of a charge of ma)a tides is correct. 
44. We concur with this position. We also_agree 'with the learned 
author that in such eventuality Governor cannot be said to be 
under duty to deal with allegatfons of mala tides-in order to assist 
the Court. which in effect would mean that he "is answerable to 
the Court. 
45. The Governor in terms of Article I 56 of the Constitution holds 
office during the pleasure of the President. Any mala fide actions 
of the Governor may, therefore, conceivably be gone into by the 
President. Another effective check is that the Ministry will fall if 
it fails to command a majority in the Legislature Assembly. 
46. Thus. the position in law is clear that the Governor. while _ 
·taking decisions in his sole discretion. enjoys immunity under 
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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 discr~tion. In both the situations, namely, the 
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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 information and material on 
the basis of which he acts. The resu It, therefore, would be that 
such actions cannot be subjected to judicial scrutiny at all." 
And on Mahabir Prasad Sharma v. Prafulla Chandra Ghose"0, wherefrom 
the Court's attention was drawn to the following conclusions: 
"44. There are other provisions in the Constitution which empower 
the Governor to make an appointment to an office. As for example, 
the power under Article 165(1) to appoint a person as the 
Advocate-General of the State. This power, however, has been 
conditioned by the restrictions imposed thereby, namely, that a 
person can be appointed Advocate-General ifhe is qualified to be 
a Judge of a High Court. If this condition is violated, and a person 
is appointed who is not qualified to be a Judge of a High Court, 
the appointment can certainly be questioned in writ proceedings, 
as was done in the writ petition filed in the
Nagpur High Court. 
Then again under Article 310(1) various public servants mentioned 
therein hold office during the pleasure of the President and a 
Governor. Article 31 0(1) opens with the words: "except as 
expressly provided by this Constitution." Article 311 provides for 
dismissal, removal or reduction in rank of person employed in civil 
capacities under the Union or the States, and the pleasure of the 
President or the Governor contemplated by Article 310(1) is 
conditioned by the limitations prescribed by Article 311 of the 
Constitution. lfthe conditions and the limitations created by Article 
311 are violated in dismissing, removing or reducing in rank a 
servant of the Union or a State, the order of the President or the 
Governor can be questioned in appropriate proceedings. But there 
is no such limitation or condition to the pleasure of the Governor 
prescribed by Article 164( 1) and it must, therefore, be held that 
the right of the Governor to withdraw the pleasure, during which 
'" (1968) 72 C.W.N. 328
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the Ministers hold office, is absolute and unrestricted. Furthermore 
having regard to the provisions in Clause (2) of Article 163 the 
exercise of the discretion by the Governor in withdrawing the 
pleasure cannot be called in question in this proceedings." 
Reliance was also placed on Constitutional Law oflndia (Fourth Edition) 
Volume II, authored by H.M. Seervai, and the Court's attention was 
_drawn to paragraph 18. 78 on page 2070 thereof, which is extracted 
below: 
"18.78 As to Brief Note (A), it is submitted that after the Sup. 
Ct. 's decision in Samsher Singh's Case the proposition that the 
Governor is required to act in his discretion only by express 
provision is no longer good law, for, as we have seen, both the 
judgments in that case held that in some cases the Governor had 
· power to act in his discretion as a matter ofnecessary implication. 
Again, the statement that the words "in his discretion" have the 
technical meaning given to them under the G.I. Act, 35, is also not 
good law, for the Sup. Ct. gave those words their plain natural 
meaning, namely, that where the Governor acts "in his discretion" 
· he is not obliged to follow the advice given to him by the Council 
of Ministers. The Full Bench did not give weight to the language 
of Art. 163(2) which postulates that a question might arise whether 
by or under the Constitution the Governor is required to act
in his 
discretion; and Art. 163(2) provides an answer by making the 
Governor the sole and final judge of that question, and by further 
providing that no action of the Governor shall be called in question 
on the ground that he ought or ought not to have acted in his 
discretion. It is submitted that in view of Art. 163(2) the court 
had no jurisdiction to decide whether the Governor ought or ought 
not to act in his discretion as rightly held by the Calcutta High 
Court in M.P. Sharma's Case (1968) 72 C.W.N. 328. It was 
unfortunate that this decision was not cited to, or considered by, 
'the Full Bench. Secondly, when the petition raised a question 
whether the Governor acted on the advice of his Chief Minister 
and whether such advice was misleading. the petition raised 
questions which the court could not inquire into. because Art. 
163(3) provides that "The question whether any, and if so what, 
advice was tendered by Ministers to the Governor shall not be 
inquired into in any court". 
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Based on the two judgments referred to hereinabove, as also, the opinion 
expressed by the jurist, it was asserted, that in the facts and circumstances 
of the present controversy, since it could not be concluded or inferred, 
that the Governor had acted in a wanton manner, it must necessarily be 
held, that there was no scope to invoke judicial review, as against the 
order of the Governor dated 9.12.2015, as also, the message of the 
Governor dated 9.12.2015. 
The consideration and the conclusions: 
I. 
Article 163 of the Constitution 
I p3. "Council of Ministers to aid and advise Governor.-( l) There 
shall be a Council of Ministers with the Chief Minister at the head 
to aid and advise the Governor in the exercise of his functions, 
except in so far as he is by or under this Constitution required to 
exercise his functions or any of them in his discretion. 
(2) If any question arises whether any matter is or is not a matter 
as respects which the Governor is by or under this Constitution 
required to act in his discretion, 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 i.n his discretion. 
(3) The question whether any, and if so what, advice was tendered 
by Ministers to the Governor shall not be inquired into in any · 
court." 
130. To
demonstrate, that the order and message of the Governor 
dated 9.12.2015 were well within the domain and authority of the 
Governor, learned counsel for the respondents were emphatic in pointing 
out, the distinction between Article 74 and Article 163. It was pointed 
out, that in consonance with Article 74 the Council of Ministers with the 
Prime Minister as the head, is to aid and advise the President. And that, 
the President is to exercise all his functions in consonance with the advice 
tendered to him. It was highlighted, that no discretionary power 
whatsoever has been conferred with the President, to enable him to 
exercise his functions in his own discretion. At best, the President can 
require the Council of Ministers to reconsider the advice tendered to 
him. And on such reconsideration, if the position is reiterated, the 
President is bound to act in consonance with the desire of the Council of 
Ministers. In contrast to the above, even though Article 163 similarly
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provides, that the Governor of a State is to exercise his functions in 
consonance with the aid and advice tendered to him by the Council of 
Ministers with the Chief Minister as the head, yet Article 163(1) confers 
discretionary power with the Governor, when it is so expressly mandated 
by or under the Constitution. There can therefore be no doubt, that to a 
limited extent, Article 163(1) authorizes the Governor to act in his own 
discretion. And in that sense, there is a clear distinction between the 
power vested with the President, and the power vested with the Governor. 
131. According to the respondents, the scope and ambit of the 
discretionary power of the Governor, must necessarily be traced from 
Article 163(2). It was urged, that even the simple dictionary meaning 
assigned to the language adopted in Article 163(2) would reveal, that the 
above provision allows the Governor to choose matters on which he 
needs to exercise his own discretion. Such choice made by the Governor, 
according to learned counsel for the respondents, has been accorded 
finality, and is beyond the purview of being questioned. lt was clarified, 
that the validity of an action taken by the Governor in exercise of his 
own discretion, has been assigned a constitutional protection. Inasmuch 
as, the same cannot be called in question, even by way of judicial review, 
on the ground whether the Governor
ought or ought not to have acted in 
his discretion. Based on the interpretation emerging from a plain reading 
of Article 163, it was a~serted on behalf of the respondents, that the 
order of the Governor.dated 9.12.2015, as well as, his message dated 
9.12.2015, were actions taken by the Governor in his own independent 
discretion, under Article 163(2). It was accordingly urged, that the same 
enjoyed absolute constitutional immunity/protection, which placed the 
said order and message beyond the scope of being questioned. 
132. It was also submitted on behalf of the respondents, that there 
are judicially recognized situations, wherein the Governor can function 
without any aid and advice. These were illustratively referred to, by 
adverting to Articles 200, 239(2), 356, 371(2), 37 lA(I )(b), 371C(1) and 
3 71 F(g), as also, the power vested with the Governor under Paragraph 
9 of the Sixth Schedule. It was also pointed out, that~ontrary to the plain 
reading of Article 163(1 ), namely, that the Governor can exercise his 
functions in his own discretion, only in situations provided for "by or 
under" the Constitution, this Court has held, that in certain situations the 
Gove!'Ilor can still act in his own discretion (without any aid or advice), 
even though the Governor has not been so expressly required to act in 
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A . his own discretion. Insofar as the situations where there is no such express 
provision, and yet the Governor has been held to be authorized to exercise 
the same in his own discretion, reference was made to Article 164, 
whereunder the Governor is required to choose the person to be sworn 
as the Chief Minister, after fresh elections are held. Similarly, wherein 
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the Government in power, appears to have lost its majority in the 
Legislature. The Governor can require, the party holding the reins of 
Government, or the party desirous to form Government, to demonstrate 
their majority by way of a floor test. Reference Was aiso made to 
situations wherein, there is a conflict of interest between the Council of 
Ministers on the one hand, and the issue under consideration on the 
other. In such matters also, even though there is no express provision 
allowing the Governor to act in his own discretion, this Court has 
repeatedly declared the right of the Governor, to act on his own, without 
any aid and advice. 
133. Based on the declared position of law by this Court, it was 
also submitted on behalf of the respondents, that where constitutional 
issues arise, because of an unacceptable and constitutionally impermissible 
conduct of the Government, or in cases of a disputation relating to the 
choice of the Chief Minister, or with reference to an undemocratic 
resolution of the House, or on account of the
democratic process being 
otherwise undermined, it is open to the Governor to act on his own, 
without any aid and advice. It was urged, that the individual determination 
of the Governor, would additionally extend to issues, where propriety 
required, that the Governor should discharge his functions in his own 
discretion. 
134. Insofar as the question of judicial review is concerned, it 
was submitted, that this Court in the Kesavananda Bharati case 17 had 
recognized judicial review, as a part of the 'basic structure' of the 
Constitution. It was also acknowledged, that a series of judgments 
rendered by this Court thereafter, have reiterated the above position. It 
was however submitted, that a challenge can only be raised under the 
'basic structure doctrine' to assail an amended provision of the 
Constitution. It was contended, that the aforesaid doctrine is not applicable 
to the provisions of the original Constitution. It was emphasized, that 
Article 163(2), as it presently exists, is in the same format in which it 
was originally expressed, by the framers of the Constitution. It was 
therefore asserted, that if and when the Governor exercises his
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constitutional functions in his own discretion, the same are protected 
through a constitutional immunity (postulated through, sub-article (2) of 
Article 163 ), even from judicial review. In view of the above, it was 
contended, that this Court should not entertain a challenge raised by the 
appellants, to the order of the Governor dated 9.12.2015, and his message 
dated 9.12.2015, since both were decisions of the Governor taken under 
Article 163(2), in his own discretion, without any aid and advice. 
135. Even tlJough the position expressed in the preceding 
paragraph is clear and explicit, yet learned counsel representing the 
respondents, at his own acceded to one exception to the proposition 
canvassed by him, namely, that a determination at the hands of the 
Governor in his own discretion, would be subject to judicial review, when 
it can be shown that the discretion exercisea by the Governor was not 
bona fide, or not on due consideration. It was illustratively submitted, 
that the Governor's exercise of discretion, would be open to challerige, 
where it can be shown to be perverse, or capricious, or fallacious, or 
extraneous, or for a motivated consideration, and in situations of the like 
nature. Stated simply, it is conceded, that an order passed by the Governor 
in exercise of his own discretion (without any aid or advice) can be 
successfully assailed, ifit can be
shown, that in the discretion exercised 
by the Governor, he had acted wantonly, whimsically or arbitrarily. 
136. The aforestated submissions at the hands of the learned 
counsel for the respondents, though extremely attractive, and seemingly 
emerging from a plain reading of Article 163(2), cannot be accepted. 
The reasons for our determination are being narrated in the following 
paragraphs. 
137. First of all, it is extremely essential to understand, the nature 
of powers and the functions of the Governor, under the provisions of the 
Constitution. Insofar as the instant aspect of the matter is concerned, it 
is apparent that the Governor has been assigned functions and powers, 
concerning the executive and the legislative affairs of the State. The 
executive functioning of the States is provided for under Part VI Chapter 
JI of the Constitution, which includes Articles 153 to 167. Article 154 
mandates, that the executive power of the State is vested with the 
Governor, and is to be exercised by him either directly or through officers 
subordinate to him "in accordance with this Constitution". Article 163 
further warrants, that the Governor would exercise his functions, on the 
aid and advice of the Council of Ministers with the Chief Minister as the 
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head. The above edict is not applicable, in situations where the Governqr 
is expressly required to exercise his functions, " ... by or under this 
Constitution ... "," ... in his discretion ... ". The question that will need ', 
determination at our hands is, whether the underlying cardinal principle, 
with reference to the discretionary power of the Governor, is to be traced 
from Article 163( 1) or from Article 163(2). Whilst it was the contention 
of the learned counsel for the appellants, that the same is expressed in 
sub-article (I) of Article 163, the contention on behalfof the respondents 
was, that the amplitude of the discretionary power of the Governor is 
evinced and manifested in sub-article (2) of Article 163. Undoubtedly, 
all executive actions of the Government of a State are expressed in the 
name of the Governor, under Article 166. That, however, does not per 
se add to the functions and powers of the Governor. It is also necessary 
to appreciate, that in the discharge of executive functions, the Governor 
of a State has the power to grant pardons, reprieves, respites or remissions 
of punishments or to suspend, remit or commute sentences (under Article 
161 ). The Governor's power under Article 161, is undisputedly exercised 
on the aid and advice of the Chief Minister and his Council of Ministers. 
The Governor has power to frame rules for the convenient transaction 
of executive
business of the Government, under Article I 66. The instant 
responsibility is also discharged, on aid and advice. All in all, it is apparent, 
that the Governor is not assigned any significant role in the executive 
functioning of the State. We would also endeavour to examine the duties 
and responsibilities of the Governor in the legislative functioning of a 
State. Details with reference to the same are found incorporated in 
Part VI Chapter III of the Constitution, which includes Articles 168 to 
212. Even though Article 168 postulates, that the legislature of a State 
would comprise of the Governor, yet the Governor is not assigned any 
legislative responsibility in any Ho11se(s) of the State Legislature, 
irrespective of whether it is the legislative process relating to Ordinary 
Bills or Money Bills. Article 158 (dealing with the conditions of the 
Governor's office) provides, that the" ... Governor shall not be a member 
of either House of Parliament or of a House of the Legislature of any 
State specified in the First Schedule ... ".Insofar as the legislative process 
is concerned, the only function vested with the Governor is expressed 
through Article 200 which inter alia provides, that a Bill passed by the 
State Legislature, is to be presented to the Governor for his assent. And 
its ancillary provision, namely, Article 201 wherein a Bill passed by the 
State Legislature and presented to the Governor, may be reserved by
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 
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the Governor for consideration by the President. The only exception to 
the non-participation of the Governor in legislative functions, is postulated 
under Article 213 (contained in Part VI Chapter IV of the Constitution), 
which apparently vests with the Governor, some legislative power. The 
Governor under Article 213 can promulgate Ordinances, during the period 
·~ when the House(s) of the State Legislature, is/are not in session. This 
function is exercised by the Governor, undisputedly, on the aid and advice 
of the Council of Ministers with the Chief Minister as the head. The 
Governor is also required to summon the House or Houses of State 
Legislature, or to prorogue or dissolve them under Article 174. We shall 
exclusively deal with the connotations of the instant responsibility entrusted 
with the Governor, immediately after drawing our conclusions with 
reference to Article 163. Articles 178 to 187 deal with the officers of the 
State Legislature, including the Speaker and the Deputy Speaker, as 
well as, the secretariat of the State Legislature. The above Articles are 
on the subject ofappointment and removal of the Speaker and the Deputy 
·Speaker of the Legislative Assembly, as also, the Chairman and Deputy 
Chairman of the Legislative Council, as well as, other ancillary matters. 
WhilstArticle 179 provides for vacation, resignation and removal of the 
Speaker (and
the Deputy Speaker) of the Legislative Assembly. Article 
I 83 provides for vacation, resignation and removal of the Chairman (and 
the Deputy Chairman) of the Legislative Council. In neither of the above 
Articles, the Governor has any assigned role. The only responsibility 
allocated to the Governor under Article 208, is of making rules as to the 
procedure with respect to communications between the two Houses of 
State Legislature. All in all, it is apparent, that the Governor is not assigned 
any significant role even in the legislative functioning of the State. 
138. The above position, leaves no room for any doubt, that the 
Governor cannot be seen to have such powers and functions, as would 
assign to him a dominating position, over the State executive and the 
State legislature. The interpretation placed on Article 163(2), on behalf 
of the respondents, has just that effect, because of the following 
contentions advanced on behalf of the respondents. Firstly, whenever a 
question arises, whether in discharging a particular function, the Governor 
can or cannot act in his own discretion. According to the' respondents, 
the discretion of the Governor, on the above question, is final. Secondly, 
since the provision itself postulates, that" ... the decision of the Governor 
in his discretion shall be final, and the validity of anything done by the 
Governor shall not be called in question on the ground that he ought or 
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ought not to have acted in his discretion ... ", according to the respondents, 
makes the Governor's orders based on his own discretion, immune from 
judicial review. Accepting the above position, will convert the Governor 
into an all-pervading super-constitutional authority. Th.is position is not 
acceptable because an examination of the executive and legislative 
functions of the Governor, from the surrounding provisions of the 
Constitution clearly brings out, that the Governor has not been assigned 
any significant role either in the executive or the legislative functioning 
of the State. The position adopted on behalf of the appe11ants, on the 
other hand, augurs well in an overall harmonious construction of the 
provisions of the Constitution. Even on a cursory examination of the 
relevant provisions of the Constitution, we are inclined to accept the 
contention advanced on behalf of the appellants. 
139. In our considered view,.a clear answer to the· query raised 
above, can inter alia emerge from the Constituent Assembly debates 
with reference to draft Article 143, which eventually came to be 
renumbered as Article 163 in the Constitution. It would be relevant to 
record, that from the queries raised by H.V. Karnath, T.T. 
Krishnamachari, Alladi Krishnaswami Ayyar, and from the response to 
the same by Dr. B.R. Ambedkar, it clearly emerges, that the general 
principle with reference to the scope
and extent of the discretionary 
power of the Governor, is provided for through Article 163(1). It also 
becomes apparent from Article 163(1 ), which provides for the principle 
of ministerial responsibility. The crucial position that gets clarified from 
a perusal of the Constituent Assembly debates, arises from the answer 
to the query, whether the Governor should have any discretionary power· 
at all? The debates expound, that the retention of discretionary power 
with the Governor was not, in any way, contrary to the power of 
responsible Government, nor should the same be assumed as a power 
akin to that vested with a Governor under the Government oflndia Act, 
1935. And from that, emerges the answer that the retention and vesting 
of discretionary powers with the Governor, should not be taken in the 
sense of being contrary to, or having the effect of negating, the powers 
of responsible Government. Significantly, with reference to the Governor's 
discretionary powers, it was emphasized by Dr. B.R. Ambedkar, that 
"the clause is a very limited clause; it says: 'except insofar as he is by or 
under this Constitutioi1'. Th~refure, Article 163 will have to be read in 
conjunction with such other Articles which specifically reserve the powers 
to the Governor". "It is not a general clause giving the Governor power
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to disregard the advice of his Ministers, in any matter in which he finds 
he ought to disregard. There, I think, lies the fallacy of the argument of 
my Hon 'hie friend ... ". In our considered view, the Constituent Assembly 
debates, leave no room for any doubt, that the framers of the Constitution 
desired to embody the general and basic principle, describing the extent 
and scope of the discretionary power of the Governor, in sub-article ( 1) 
of Article 163, and not in sub-article (2) thereof, as suggested by the 
learned counsel for the respondents. 
140. Insofar as the instant issue is concerned, reference may 
also be made to the Justice Sarkaria Commission report on "Centre -
State Relations" and the Justice M.M. Punchhi Commission report on 
"Constitutional Governance and Management of Centre - State 
Relations". The conclusions drawn in both the above reports are clear 
and explicit. In paragraph 4.1.03 of the Justice M.M. Punchhi 
Commission report, the-observations of Dr. B.R. Ambedkar have been 
highlighted to the effect, that insofar as the constitutional role of the 
Governor is concerned," ..... the Governor under the Constitution has no 
function which he can discharge by himself; no functions at all. While he 
has no functic:ms, he has certain duties to perform, and I think the House 
will do well to bear in mind this distinction.". " ..... This Article,·nowhere,
either in clause (a) or clause (b) or clause (c), says that the Governor in 
any particular circumstances may overrule the Ministry. Therefore, the 
criticism that has been made that this Article somehow enables the 
Governor to interfere or to upset the decision of the Cabinet is entirely 
beside the point, and completely mistaken." And thereafter, in paragraph 
4.2.14 of the Justice M.M. Punchhi Commission report, it is observed as 
under: 
"4.2.14 In a very limited field, however. the Governor may exercise 
certain functions in his discretion. as provided in Article 163(1). 
)he first part of Article 163(1) requires the Governor to act on 
the advice of his Council of Ministers. There is, however, an 
exception in the latter part of the clause in regard to matters where 
he is by or under the Constitution required to function in his 
discretion. The expression "required" signifies that the Governor 
can exercise his discretionary powers only ifthere is a compelling 
necessity to do so. It has been held that the expression "by or 
under the Constitution" means that the necessity to exercise such 
powers may arise from any express provision of the Constitution 
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or by necessary implication. We would like to add that such 
necessity may also arise from rules and orders made "under" the 
Constitution." 
4.2.15 Thus, the scope of discretionary powers as provided in the 
exception in clause ( 1) and in clause (2) of Article 163 has been 
limited by the clear language of the two clauses. It is an accepted 
principle that in a parliamentary democracy with a responsible 
form of government, the powers of the Governor as Constitutional 
or formal head of the State should not be enlarged at the cost of 
the real executive. viz. the Council of Ministers. 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. The 
area forthe exercise ofhis discretion is limited. Even this limited 
area, his choice of action should not be arbitrary or fanciful. It 
_ must be a choice dictated by reason, actuated by good faith and 
tempered by caution." 
The important observations in the Justice M.M. Punchhi Commission 
report, with reference to Article 163(2), are contained in paragraph 4.3.03. 
Relevant extract of the same is reproduced below:
"Article 163(2) gives an impression that the Governor has a wide. 
undefined area of discretionary powers even outside situations an 
impression needs to be dispelled. The Commission is of the view 
that the scope of discretionary powers under Article 163(2) has 
to be narrowly construed. effectively dispelling the apprehension, 
if any, that the so-called discretionary powers extends to all the 
functions that the Governor is empowered under the Constitution. 
Article 163 does not give the Governor a general discretionary 
power to act against or without the advice of his Council of 
Ministers. In fact. the area for the exercise of discretion is limited 
and even in this limited area, his choice·ofaction should not be nor 
appear to be arbitrary or fanciful. It must be a choice dictated by 
reason, actlv~ted by good faith and tempered by caution. 
· 
The Governor's discretionary powers are the following: to give 
assent or withhold or refer a Bill for Presidential assent under
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 177 
AND OTHERS [JAGDISH SINGH KHEHAR, J.] 
Article 200; the appointment of the Chief Minister under Article 
A 
164; dismissal of a Government which has lost confidence but 
refuses to quit, since the Chief Minister holds office during the 
pleasure of the Governor; dissolution of the House under Article 
174; Governor's report under Article 356; Governor's responsibility 
for certain regions under Article 371-A, 371-C, 371-E, 371-H etc. 
.. These aspects are now considered below: ... " 
We are of the considered view; that the inferences drawn in the Justice 
M. M. Punchhi Commission report extracted hereinabove, are in 
consonance with the scheme of the functions and powers assigned to 
the Governor, with reference to the executive and legislative functioning 
of the State, and more particularly with reference to the interpretation of 
Article 163. We endorse and adoptthe S!lme, as a correct expression of 
the constitutional interpretation, with reference to the issue under 
consideration. 
. 
141. Though the debate could be endless, yet we would consider 
it apposite to advert to the decisions rendered by this Court in the Sardari 
Lal case1 and the Samsher Singh case 1• Insofar as the Sardafi Lal 
case~ is co11cerned, this Court had held therein, that the President or the 
Governor, as the case may qe, would pass an order only on his personal 
satisfaction. In the above case, this Court while examining the case of 
an
employee under Article 311(2) (more particularly, under proviso (c) 
therecit), recorded its conclusions, in the manner expressed above. The 
same issue. was placed before a seven-Judge Bench constituted to re-
examine the position adopted in the Sardari Lal case~. The position came 
to be reversed. This Court in the Samsher Singh case 1 declared, that 
wherever the Constitution required the satisfaction of the President or 
the Governor, for the exercise of any power or function, as for example 
under Articles 123, 213, 311(2), 317, 352(1), 356 and 360, the satisfaction 
required by the Constitution was not the personal satisfaction of the 
President or the Governor. " ... but is the satisfaction of the President or 
of the Governor in the constitutional sense under the Cabinet system of 
Government ... ". It is therefore clear, that even though the Governor 
may be authorized to exercise some functions, under different provisions 
of the Constitution, the same are required to be exercised only on the 
basis of the aid and advice tendered to him under Article 163, unless the 
Governor has been expressly authorized, by or under a constitutional 
provision, to discharge the concerned function, in his own discretion. 
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142. We are therefore of the considered view, that insofar as the 
exercise of discretionary powers vested with the Governor is concerned, 
the same is limited to situations, wherein a constitutional provision 
expressly so provides, that the Governor should act in his own discretion. 
Additionally, a Governor can exercise his functions in his own discretion, 
in situations where an interpretation of the concerned constitutional 
provision, could not be construed otherwise. We therefore hereby reject 
the contention advanced on behalf of the respondents, that the Governor 
has the freedom to determine when and in which situation, he should 
take a decision in his OWJl discretion, without the aid and advice of the 
Chief Minister and his Council of Ministers. We accordingly, also turn 
down the contention, that whenever the Governor in the discharge of his 
functions, takes a decision in his own discretion, the same would be final 
and binding, and beyond the purview of judicial review. We are of the 
view, that finality expressed in Article 163(2) would apply to functions 
exercised by the Governor in his own discretion, as are permissible within 
the framework of Article 163(1 ), and additionally, in situations where the 
clear intent underlying a constitutional provision, so requires i.e., where 
the exercise of such power on the aid and advice, would run contrary to 
the constitutional scheme, or would be
contradictory in tenns. 
143. We may therefore summarise our conclusions as under: 
E 
Firstly, the measure of discretionary power of the Governor, is limited to 
the scope postulated therefor, under Article 163( I). 
Secondly, under Article 163(1) the discretionary power of the Governor 
extends to situations, wherein a constitutional provision expressly requires 
the Governor to act in his own discretion. 
F 
Thirdly, the Governor can additionally discharge functions in his own 
discretion, where such intent emerges from a legitimate interpretation of 
the concerned provision, and the same cannot be construed otherwise. 
Fourthly, in situations where this Court has declared, that the Governor 
should exercise the particular function at his own and without any aid or 
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advice, because of the impennissibility of the other alternative, by reason 
of conflict of interest. 
Fifthly, the submission advanced on behalf of the respondents, that the 
exercise of discretion under Article 163(2) is final and beyond the scope 
of judicial review cannot be accepted. Firstly, because we have rejected 
H 
the submission advanced by the respondents, that the scope and extent
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 179 
AND OTHERS [JAGDISH SINGH KHEHAR, J.] 
of discretion vested with the Governor has to be ascertained from Article 
A 
163(2), on the basis whereof the submission was canvassed. And 
secondly, any discretion exercised beyond the Governor'sjurisdictional 
authority, would certainly be subject to judicial review. 
Sixthly, in view of the conclusion drawn at Fifthly above, the judgments 
rendered in the Mahabir Prasad Sharma case:0, and the Pratapsing 
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Raojirao Rane case1', by the High Courts of Calcutta and Bombay, 
respectively, do not lay down the correct legal position. The constitutional 
position declared therein, with reference to Article 163(2), is accordingly 
hereby set aside. 
144. The conclusions recorded hereinabove will constitute the 
C 
_foundational baSfs for determining some of the other important issues, 
that arise for consideration in the present controversy. 
IL 
Article 174 of the Constitution 
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. 
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(2)The Governor may from time to time -
(a)prorogue the House or either House; 
(b )dissolve the Legislative Assembly." 
145. A forceful
and determined contention was advanced by the 
.learned counsel for the respondents, that the process of summoning the 
Assembly can never be considered as anti-democratic. It was asserted, 
thatthe summoning a Legislature, can only further the democratic process, 
as it opens the House for carrying out legislative activity. As against the 
above, it was pointed out, that when the Assembly is prorogued or 
dissolved, the democratic/legislative processes are placed in suspended 
animation. An action which prorogues or dissolves the Legislature, 
according to learned counsel, can be taken to be actions whereby the 
democratic/legislative process is either temporarily stalled, or brought to 
an end. According to learned counsel for the respondents, there can 
therefore be no justification, to find fault with the order of the Governor 
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dated 9.12.2015, or with his message dated 9.12.2015, by which the 
summoning of the 6th session of the Assembly, was preponed from 
14.1.2016 to 16.12.2015, and thereby the democratic/legislative process 
was brought into active animation, from a date earlier than originally 
detennined. 
146. Adverting to the plain reading of Article 174, it was submitted, 
that the Governor has not only been vested with the authority to summon 
the House, but has also been vested with the authority to determine, at 
which venue and at what time, the House should be summoned. For this, 
reference was made to the words "as he thinks fit" in Article 174(1), 
which signify and imply, that the Governor, would exercise his discretion 
and power to summon the Assembly, on his own, and without any aid or 
advice. It was contended on behalf of the respondents, by inviting the 
Court's attention to sub-article (2) of Article 174, that even the question 
of proroguing and dissolving the House, had been left to the free will and 
discretion of the Governor. 
14 7. ln connection with the interpretation of Article I 74(1) which · 
pertains to the power of the Governor, to summon the House, it was 
urged, that the words "as he thinks fit" satisfy the requirement of Article 
163(1), inasmuch as it fulfills the constitutional stipulation, that the 
Governor would exercise functions in his discretion, which he is expressly . 
required,
"by or under" the Constitution, to exercise on his own. It was 
therefore asserted, that it being clearly and expressly mandated under 
Article 174( 1) itself, that the Governor could summon the State 
Legislature "as he thinks fit" the requirement of Article 163(1) stands 
satisfied. 
148. Yet again, the contention advanced at the hands of the 
learned counsel for the respondents, at first blush seems to be most 
acceptable. But, the Constituent Assembly debates in connection with 
Article 174, the historical background depicting the manner in which 
Article 174 came to be drafted, and treatises on the issue, clearly lead to 
the conclusion, that the submission advanced at the behest of the 
respondents, cannot be accepted. We shall hereinafter, detail our reasons, 
for not accepting the respondents' contention. 
149. It would be relevant to mention, that draft Article 153 
eventually came to be renumbered as Article 174 of the Constitution. 
draft Article 153 has been extracted in paragraph xxx 48 xxx, above. A 
perusal of the draft Article I 53(2) would reveal, that the same through
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 
181 
AND OTHERS [JAGDISH SINGH KHEHAR, J.) 
the words "as he thinks fit", vested discretion with the.Governor to choose 
the time and p_lace at which the House(s) were to be summoned. The 
above words have been retained in Article 174. The retention of the 
said words, would lean in favour of the submission canvassed on behalf 
of the respondents. It is however relevant to notice, that the power to 
summon the House or Houses of the State Legislature was postulated 
under draft Article 153(2)(a), whereas the power to prorogue and dissolve 
the House or Houses of the State Legislature was expressed in draft 
Articles 153(2)(b) and (c) respectively. The most significant feature of 
draft Article 153 was expressed in sub-article (3) thereof, wherein it 
was provided, that the functions of the Governor with reference to sub-
clauses (a) and (c), namely, the power to summon and dissolve the House 
or Houses of the State Legislature " ... shall be exercised by him in his 
discretion." The words used in sub-article (3) of draft Article 153, were 
in consonance with the requirements postulated under Article 163(1). 
Needless to mention, that under Article 163( I), the Governor can exercise 
only such functions in his own discretion which he is expressly required, 
by or under the Constitution, to exercise in his discretion. The manner in 
which draft Article 153(3) was originally drawn, would have left no room 
for any doubt, that the
Governor would definitely have had the discretion 
to summon or dissolve the House or Houses of the State Legislature, 
without any aid or advice. After the debate, draft Article 153 came to 
be renumbered as Article 174. Article 174 reveals, that sub-article (3) 
contained in draft Article 153 was omitted. The omission of sub-article 
(3) of draft Article 153, is a matter of extreme significance, for a 
purposeful confirmation of the correct intent underlying the drafting of 
Article 174. The only legitimate and rightful inference, that can be drawn 
in the final analysis is, that the framers of the Constitution altered their 
original contemplation, and consciously decided not to vest discretion 
with the Governor, in the matter of summoning and dissolving the House, 
or Houses of the State Legislature, by omitting sub-article (3), which 
authorized the Governor to summon or dissolve, the House or Houses of 
Legislature at his own, by engaging the words" ... shall be exercised by 
him in his discretion ... ". In such view of the matter, we are satisfied in 
concluding, that the Governor can summon, prorogue and dissolve the 
House, only on the aid and advice of the Council of Ministers with the 
Chief Minister as the head. And not at his own. 
150. The historical reason relevant for the present determination, 
emerges from the fact, that a Governor under the Constitution, is not an 
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elected representative. A Governor is appointed by a warrant issued 
under the hand and seal of the President under Article 15~, and his term 
of office enures under Article 156, during the pleasure of the President. 
A Governor is an executive nominee, and his appointment flows from 
the aid and advice tendered by the Council of Ministers with the Prime 
Minister as the head, to the President. The President, on receipt of the 
above advice, appoints the Governor. Likewise, the tenure of the Governor 
rightfully subsists, till it is acceptable to the Council of Ministers with the 
Prime Minister as its head, as the Governor under Article 156 holds 
office, during the pleasure of the President. Jn our considered view, 
such a nominee, cannot have an overriding authority, over the 
representatives of the people, who constitute the House or Houses of 
the State Legislature (on being duly elected from~their respective 
constituencies) and/or even the executive Government functioning_ under 
the Council of Ministers with the Chief Minister as the head. Allowing 
the Governor to overrule the resolve and determination-of the State 
legislature or the State executive, would not harmoniously augur with 
the strong democratic principles enshrined in the provisions of the 
Constitution. Specially so, because the Constitution is founded on the 
principle of ministerial responsibility. The acceptance of the submission
advanced on behalf of the respondents, would obviously negate the 
concept of responsible Government. Summoning of the Legislature, 
initiates the commencement of the legislative process; prorogation of 
the Legislature temporarily defers the legislative process; and the 
dissolution of the Legislature brings to an end, the legislative process. In 
the absence of any legislative responsibility, acceptance of the contention 
advanced on behalf of the respondents, would seriously interfere with 
the responsibility entrusted to the popular Government, which operates 
through the Council of Ministers with the Chief Minister as the head. It 
is for the instant reasons also, that.the submission advanced on behalf of 
the respondents, with reference to the interpretation of Article 174, does 
not merit acceptance. 
151. For an insight into Article 174, reference may also be made 
to the observations recorded in the Justice Sarkaria Coi;nmission report 
on "Centre-State Relations", and the Justice M.M. Punchhi Commission 
report on "Constitutional Governance and Management of Centre - State 
Relations". With reference to Article 174, the Justice M.M. Punchhi 
Commission report makes the following remarks:
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 183 
AND OTHERS [JAGDISH SINGH KHEHAR, J.] 
"4.5.04 Summoning,_ proroguing and dissolution of the legislative 
A 
assembly 
Article 174 of the Constitution empowers the Governor to summon, 
prorogue or dissolve the House. It is a well-recognised principle 
that, so long as the Council of Ministers enjoys the confidence of 
the Assembly, its advice in these m~tters, unless patently 
unconstitutional.must be deemed as binding on the Governor. It is 
only where such advice, if acted upon, would lead to an 
infringement of a constitutional provision, or where the Council of 
Ministers has ceased to enjoy the confidence of the Assembly, 
that the guestion arises whether the Governor may act in the 
exercise of his discretion. The Sarkaria Commission recommended 
that, if the Chief Minister neglects or refuses to summon the 
Assembly for holding a "Floor Test", the Governor should summon 
the Assembly for the purpose. As regards proroguing a House of 
Legislature, the Governor should normally act on the advice of 
the Chief Minister. But where the latter advises prorogation when 
a notice ofno-confidence motion against the Ministry is pending, 
the Governor should not straightaway accept the advice. If he 
finds that the no-confidence motion represents a legitimate 
challenge from the Opposition, he should advice the Chief Minister 
to postpone prorogation and face the motion. As far as dissolution 
of the House is concerned, the
Governor is bound by the decision 
taken by the Chief Minister who has majority. However, if the 
advice is rendered by a Chief Minister who doesn't have majority, 
then the Governor can try to see if an alternate government can 
be formed and only if that isn't possible, should the house be 
dissolved. This Commission reiterates the recommendations of 
the Sarkatia Commission in this regard." 
The extract of the report reproduced above, makes it abundantly clear, 
that as long as the Council of Ministers enjoys the confidence of the 
House, the aid and advice of the Council of Ministers headed by the 
Chief Minister is binding on the Governor, on the subject of summoning, 
proroguing or dissolving the House or Houses of the State Legislature. 
The above position would stand altered, ifthe Government in power has 
lost the confidence of the House. As and when the Chief Minister does 
not enjoy the support from the majority of the House, it is open to the 
Governor to act at his own, without any aid and advice. Aid and advice 
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sustains and subsists, till the Government enjoys the confidence of the 
Legislature. We find no justification in taking a different view, than the 
one expressed by the Justice Sarkaria Commission report, conclusions 
whereof were reiterated by the Justice M.M. Punchhi Commission report. 
We endorse and adopt the same, as a correct expression of the 
constitutional interpretation, insofar as the present issue is concerned. 
152. In addition to the above, reference may also be made to the 
treatise by M.N Kaul and S.L. Shakdher - "Practice and Procedure of 
Parliament" (5th Edition) published by the Lok ~Qhha Secretariat. In 
the above text, Chapter IX bears the heading- "Summoning, Prorogation 
of the Houses of Parliament and the Dissolution of the Lok Sabha". 
Relevant portion of the above chapter, has been extracted in paragraph 
xxx 4 7 xxx, above. The same clearly expresses the view of the authors, 
that the Governor would summon or prorogue the House or Houses of 
the State Legislature, on the aid and advice of the Chief Minister." The 
narration by the authors reveals, that it would be open to the Governor to 
suggest an alternative date for summoning or proroguing the House or 
Houses of the State Legislature, but the final determination on the above 
issue rests with the Chief Minister or the Cabinet, which may decide to 
accept or not to accept, the alternate date suggested by the Governor. 
The
opinion ofM.N Kaul and S.L. Shakdher is in consonance with the 
Constituent Assembly debates. The position only gets altered, when the 
Government in power loses its majority in the House. With reference to 
prorogation, the opinion expressed by the authors is, that the same is 
also to be detennined by the Council of Ministers with the Chief Minister 
as the head, except in a situation wherein the Government's majority in 
the House, is under challenge. From the above exposition it emerges, 
that the Chief Minister and his Council of Ministers lose their right to aid 
and advise the Governor, to summon or prorogue or dissolve the House, 
when the issue of the Government's support by a majority of the members 
of the House, has beeff rendered debatable. We have no hesitation in 
endorsing the above view. But, what is of significance and importance 
in the opinion expressed by M.N Kaul and S.L. Shakdher, which needs 
to be highlighted is, that the mere fact that some members of the ruling 
party have defected, does not necessarily prove that the party has lost 
confidence of the House. And in such a situation, if there is a no 
confidence motion againstthe Chief Minister, who instead of facing the 
Assembly, advises the Governor to prorogue or dissolve the Assembly, 
the Governor need not accept such advice. In the above situation, the
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 
185 
AND OTHERS [JAGDISH SINGH KHEHAR, J.] 
Governor would be well within his right, to ask the Chief Minister to get 
the verdict of the Assembly, on the no confidence motion. The above 
authors also express the view, that if the Chief Minister recommends 
dissolution of the Assembly, when the budget has not been voted, whilst 
the Ministry claims majority support, the Ministry in such a situation 
should face the Assembly and get the budget passed, before seeking 
dissolution for whatever reasons. However, where there is reason to 
believe, that the Government in power no longer enjoys majority support, 
it is open to the Governor, to take steps to determine the issue of majority 
by a floor test. And in case the Government in power fails to succeed in 
the same, to take steps to ascertain the possibility of installing another 
Government, which is in a position to command majority support, so as 
to get the budget passed. Not taking the aforesaid course, would lead to 
a financial impasse, in which situation, it would be open to the Governor, 
to move the President under Articles 356 or 360. In the instant situation 
also, M.N Kaul and S.L.Shakdher have opined, that it would be open to 
the Governor to act at his own, without any aid and advice of the Council 
of Ministers headed by the Chief Minister. Neither of the aforesaid two 
situations emerge in the facts and circumstances of the present case. 
153. In view of the
consideration recorded hereinabove, we are 
of the view, that in ordinary circumstances during the period when the 
Chief Minister and his Council of Ministers enjoy the confidence of the 
majority of the House, the power vested with the Governor under Article 
174, to summon, prorogue and dissolve the House(s) must be exercised 
in consonance with the aid and advice of the Chief Minister and his 
Council of Ministers. In the above situation, he is precluded to take an 
individual call on the issue at his own will, or in his own discretion. In a 
situation where the Governor has reasons to believe, that the Chief 
Minister and his Council of Ministers have lost the confidence of the 
House, it is open to the Governor, to require the Chief Minister and his 
Council of Ministers to prove their majority in the House, by a floor test. 
Only in a situation, where the Government in power on the holding of 
such floor test is seen to have lost the confidence of the majority, it 
would be open to the Governor to exercise the powers vested with him 
under Article 174 at his own, and without any aid and advice. 
? 
154. Since it is not a matter of dispute, that the Governor never 
called for a floor test, it is reasonable for us to infer, that the Governor 
did not ever' entertain any doubt, that the Chief Minister and his Council 
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of Ministers were still enjoying the confidence of the majority, in the 
House. Nor was a motion of no confidence moved against the-
Government. In the above situation, the Governor just could not have 
summoned the House, vide his order dated 9.12.2015, in his own discretion, 
by preponing the 6th session of the Legislative Assembly from 14.1.2016 
to 16.12.2015. This, for the simple reason, that the Governor neither 
had the jurisdiction nor the power to do so, without the aid and advice of 
the Council of Ministers with the Chief Minister as the head. · 
m. 
A11icle 175 of the Constitution 
175. "Right of Governor to address and send messages to the 
House or Houses -( 1) The Governor may address the Legislative 
Assembly or, in the case of a State having a Legislative Council, 
either House of the Legislature of the State, or both Houses 
assembled together, and may for that purpose require tlie 
attendance of members. 
(2) The Governor may send messages to the House or Houses of 
the Legislature of the State, whether with respect of a Bill then 
pending in the Legislature or otherwise, and a House to which 
any message is so sent shall with all convenient despatch consider 
any matter required by the message to be taken into consideration." 
155. On the ambit and scope of messages which can be 
addressed by the Governor to the House or Houses of State Legislatures 
under Article 175, it was submitted on behalf
of the respondents, that the 
.same can be with respect to" ... a Bill then pending in the Legislature or 
F . otherwise". Based Oil the use of the above expression in Article 175(2), . 
it was asserted on behalf of the respondents, that the text of the message 
need not necessarily be limited to a Bill then pending before the 
Legislature. It was submitted, that a message can extend to additional 
and ancillary issues, as was apparent from the words "or otherwise" 
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used in conjunction with the words "with respect to a Bill then pending in 
the Legislature". It was also sought to be clarified, that the power vested 
with the Governor to address a message to the House or Houses of the 
State Legislature, should not be confused with the power vested with 
the Governor under Article 200, which authorizes the Governor inter 
alia to accord his assent to a Bill, or to return a Bill (if it is not a Money 
Bill) together with a message requesting the House or Houses of the
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 
187 
AND OTHERS [JAGDISH SINGH KHEHAR, J.] 
State Legislature to reconsider the Bill, or any specified provisions thereof, 
and/or the desirability of introducing such amendments in theBill, as the 
Governor m;ay recommend in his message. It was submitted, that the 
power exercised by the Governor under Article 200, relates to a Bill 
passed by the State Legislature, whereas the message referred to in 
Article 175, is expressly relatable to a Bill then pending before the State 
Legislature. It was pointed out, that the use of the words "or otherwise" 
in Article 175(2) has the consequence of extending and enlarging the 
subject and context on which a message can be addressed by the 
Governor, to the State Legislature. 
156. It was further submitted on behalf of the respondents, that 
the message of the Governor dated 9.12.2015 (which has been impugned 
by the appellants before this Court), contained three directions. Firstly, 
the Assembly should not be adjourned, till the notice ofresolution forthe 
removal of the Speaker - Nabam Rebia dated 19.11.2015, was finally 
determined, one way or the other. Secondly, the notice ofresolution for 
the removal of the Speaker - Nabam Rebia, should be taken up for 
consideration in the list of business of the Assembly, before any other 
business of the day is taken up. And thirdly, until the 6th session of the 
Assembly was prorogued, the Presiding Officer "shall" not alter the 
party
composition in the House. Insofar as the directions contained in 
the impugned message dated 9.12.2015 are concerned, it was asserted, 
that the same merely brought to the notice of the members of the 
Assembly, the provisions of the Constitution, supplemented by the 
'Conduct of Business Rules', to ensure that the functioning of the House, 
in a situation of turmoil and turbulence, was carried out in consonance 
with established norms. Insofar as the first direction is concerned, 
reference was made to Rule 151 of the 'Conduct of Business Rules', 
which provides, that after a notice of resolution for the removal of a 
Speaker is tabled, the House shall not be adjourned till the motion ofno 
confidence has been finally disposed of. Insofar as the second direction 
is concerned, it was pointed out, that the same is postulated under Rule 
153 of the 'Conduct of Business Rules', which provides, that a notice of 
resolution for the r~moval of the Speaker would be included in the list of 
business, before any other business of the day is taken up. And insofar 
as the third direction is concerned, reference was made to Article 179( c ), 
which provides that a Speaker may be removed from his office by a 
resolution of the Assembly " ... passed by a majority of all the then 
members of the Assembly". It was therefore contended on behalf of 
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the respondents, that the alleged directions contained in the message 
addressed by the Governor to the Assembly, dated 9.12.2015, were not 
matters emerging out of any independent will or fancy of the Governor, 
but were in consonance with the prescribed and postulated rules of 
procedure, which were in any case bound to be followed, while considering 
a notice ofresolution for the removal of the Speaker. It was accordingly 
asserted, that the impugned message dated 9.12.2015 should be viewed 
as advice and guidance, tendered by the Governor to the Assembly, so 
as to preserve recognized constitutional norms. 
157. Based on the assertions recorded hereinabove, it was 
submitted on behalf of the respondents, that save and except, the ultimate 
desire of the Governor to preserve the democratic process, the impugned 
message dated 9.12.2015, had no other fallout/consequence, nor was 
the same aimed at a gain or loss, for one or the other political party. It 
was contended, that no extraneous motive, could be attributed to the 
Governor, with reference to the message dated 9.12.2015. It was also 
urged, that any action taken by the Assembly, in breach of the message 
dated 9.12.2015, would have constituted a serious constitutional 
impropriety. In conclusion, it was submitted, that the message dated 
9.12.2015, should be taken as a bona fide gesture at the hands of the 
Governor, to require the Assembly to
carry out its functions, in the peculiar 
circumstances which prevailed at that juncture, in accordance with the 
provisions of the Constitution. It was also pointed out, that the message 
dated 9.12.2015 was addressed by the Governor, by taking note of the 
actions of the Speaker, who was manipulating the situation, so as to 
defer consideration on the notice ofresolution, for his own removal. 
158. We must yet again acknowledge, that the submissions 
advanced at the behest of the respondents, emerge from common sense, 
rationale and acceptable logic. The question which arises for our 
consideration, however is, whether a message addressed by the Governor, 
could extend to subjects on which the above message dated 9.12.2015 
was addressed. And also whether, the Governor could address a message 
to the Assembly in his own discretion, without seeking the aid and advice 
of the Chief Minister and his Council of Ministers. Having given our 
thoughtful consideration to the above, it is not possible for us to accept 
the submissions advanced on behalf of the respondents. Our reasons 
for not agreeing with the respondents are recorded hereinafter. 
159. It is not disputed, that Section 63 of the Government oflndia
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 189 
AND OTHERS [JAGDISH SINGH KHEHAR, J.] 
Act, 1935 was a precursor to Article 175. Section 63 aforementioned 
has been extracted in paragraph xxx 50 xxx, herein above. A perusal of 
Section 63 of the Government oflndiaAct, 1935, reveals that sub-section 
(2) thereof had the words "in his discretion", incorporated therein, with 
reference to the scope and ambit of the Governor's messages, to the 
Legislature. It is therefore apparent, that under the Government oflndia 
Act, 1935, the discretion to send messages to the Legislature, was clearly 
and precisely bestowed on the Governor, as he may consider appropriate, 
in his own wisdom. Article 175 has no such or similar expression. It is 
apparent therefore, that the framers of the Constitution did not intend to 
follow the regimen, which was prevalent under Section 63 of the 
Government oflndiaAct, 1935. It must have been forthe above reason, 
that the Constituent Assembly framed Article 175, by excluding and 
omitting the discretion which was vested with the Governor, in the matter 
of sending messages, under the Government of India Act, 1935. Had it 
been otherwise, the phrase "in his discretion" would have been retained 
by the Constituent Assembly in Article 175. It was also the contention 
on behalf of the appellants, that the messages addressed by the Governor 
should be construed by accepting, that the Go1 :rnor is in no manner 
associated with the legislative process,
except under Article 200. A 
detailed consideration in this behalf has already been recorded 
hereinabove. In our considered view, the Governor's connectivity to the 
House in the matter of sending messages, must be deemed to be limited 
to the extent considered appropriate by the Council of Ministers headed 
by the Chief Minister. In fact, it is not possible for us to conclude 
otherwise, because Article 175 does not expressly provide, in consonance 
with Article 163( 1 ), that the Governor would exercise his above functions 
"in his discretion". Thus viewed, we have no hesitation in concluding, 
that messages addressed by the Governor to the House(s) have to be in 
consonance with the aid and advice tendered to him. 
160. During the course of hearing it emerged, that one of the 
primary reasons for addressing the message dated 9.12.2015, was the 
fact, that a notice of resolution forthe removal of the Speaker-Nabam 
Rebia, dated 19.11.2015, was addressed by 13 MLAs (-11 belonging to 
the BJP, and 2 Independent MLAs), to the Secretary of the Legislative 
Assembly. Accordingly, in the understanding of the Governor, it would 
constitute a constitutional impropriety, ifthe above notice ofresolution 
for the removal of the Speaker, was not taken up for consideration 
forthwith, namely, immediately after the expiry of 14 days, provided for 
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in the first proviso under Article 179. Insofar as the instant aspect of the 
matter is concerned, whilst we do not doubt the bona /ides of the 
Governor, it cannot be overlooked that the Governor has no express or 
implied role under Article 179 on the subject of"the removal of Speaker 
or Deputy Speaker". The aforesaid issue of removal of the Speaker (or 
Deputy Speaker), squarely rests under the jurisdictional authority of the 
Members of the Legislative Assembly, who must determine at their own, 
whether the notice of resolution for the removal of the Speaker (or the 
Deputy Speaker) should be adopted or rejected. In the instant view of 
the matter, the particip~tory role at the hands of the Governor, in the 
matter concerning the removal of the Speaker, can neither be understood 
nor accepted, and may well be considered as unwarranted. 
161. Another important reason, for addressing the message dated 
9.12.2015 to the House was, that a petition had been preferred by the 
Chief Whip of the Congress Legislature Party - Rajesh Tacho on 
7.12.2015, for disqualification of 14 MLAs belonging to the INC, under 
the Tenth Schedule. It was therefore, that the Governor in his message 
dated 9.12.2015, ventured to inform the Presiding Officer of the Hoose, 
that till the 6th session of the Assembly was prorogued, the party 
composition of the House "shall" not be altered. Once again, for exactly 
the same reasons,
as recorded in the preceding paragraph, it is imperative 
for us to express, that the Governor has no role, in the disqualification of 
members of the Assembly. The exclusive jurisdiction on the above issue, 
rests with the Speaker of the Assembly, under Paragraph 6 of the Tenth 
Schedule. Whether the Speaker's actions fall within the framework of 
the Constitution, or otherwise, does not fall within the realm of 
consideration of the Governor. The remedy for any wrong doing under 
the Tenth Schedule, lies by way of judicial review. Neitherthe provisions 
of the Constitution nor the 'Conduct of Business Rules' assign any such 
role to the Governor. It does not lie within the domain of the Governor, 
to interfere with the functions of the Speaker. The Governor is not a 
guide or mentor to the Speaker. The Governor cannot require the Speaker 
to discharge his functions in the manner he considers constitutionally 
appropriate. Both the Governor and the Speaker have independent 
constitutional responsibilities. The Governor's messages with reference 
to such matters (as were expressed in the message dated 9.12.2015), do 
not flow from the functions assigned to him. The Governor cannot likewise 
interfere in the activities of the Assembly, for the reason that the Chief 
Minister, or the entire Council of Ministers, or an individual Minister in
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 
191 
AND OTHERS [JAGDISH SINGH KHEHAR, J.] 
the Cabinet, or forthat matter even an individual MLA, are not functioning 
in consonance with the provisions of the Constitution, or in the best interest 
of the State. The State Legislature, does not function under the Governor. 
In sum and substance, the Governor just cannot act as the Ombudsman 
of the State Legislature. 
162. In view of the above, we have no hesitation in concluding, 
that the messages addressed by the Governor to the Assembly, must 
abide by the mandate contained in Article 163(1 ), namely, that the same 
can only be addressed to the State Legislature, on the aid and advice of 
the Council ofMfnisters with the Chief Minister as the head. The message 
of the Governor dated 9.12.2015, was therefore beyond the constitutional 
authority vested with the Governor. 
163. For all the reasons recorded hereinabove, we are of the 
considered view, that the impugned message of the Governor dated 
9.12.2015 is liable to be set aside. We order accordingly. 
IV. 
Article 179 of the Constitution 
I 79. "Vacation and resignation of, and removal from, the offices 
of Speaker and Deputy Speaker - A member holding office as 
Speaker or Deputy Speaker of an Assembly -
(a) shall vacate his office if he ceases to be a member of the 
Assembly; 
(b) may at any time by writing under his hand addressed, if such 
member is the Speaker, to the Deputy Speaker, and if such member 
is the
Deputy Speaker, to the Speaker, resign his office; and 
( c) may be removed from his office by a resolution of the Assembly 
passed by a majority of all the then members of the Assembly: 
Provided that no resolution for the purpose of clause ( c) shall be 
moved unless at least fourteen days' notice has been given of the 
intention to move the resolution: 
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Provided further that, whenever the Assembly is dissolved, the 
Speaker shall not vacate his office until immediately before the 
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first meeting of the Assembly after the dissolution." 
164. The deliberations and the discussions recorded hereinabove 
substantiate, that even though in terms of Article 154, the executive 
power of the State vests in the Governor, and further, the executive 
power vested with the Gov_emor would be exercised by him either directly 
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or through officers subordinate to him "in accordance with this 
Constitution", and further, the mandate contained in Article 166 enjoins, 
that all executive actions of the Government of a State are expressed in 
the name of the Governor, yet Article J.63( I) leaves no room for any 
doubt, that the Governor is ordained, to exercise his functions on the aid 
and advice of the Cquncil of Ministers with the Chief Minister as the 
head. Articles 154, 163 and 166 referred to above, are contained in 
Chapter II of Part VLof the Constitution, which relate to the State 
Executive. It is therefore apparent, that the exercise of executive power 
by the Governor, is by and large notional. All in all, the Governor had a 
limited scope ofauthority, relating to the exercise of executive functions, 
in his own discretion, i.e., without ahy aid and advice. The aforesaid 
limited power of the Governor is exercisable in situations, expressly 
provided for "by or under" the provisions of the Constitution. The position 
which has briefly been recorded above, has been examined in some 
detail in paragraph xxx 139 xxx of this judgment. . 
165. Likewise, even though Article 168 includes the Governor, 
and pronounces him to be a part oftheState Legislature, the provisions 
of the Constitution extend no legislative responsibility to him, within the 
precincts of the House or Houses of the State Legislature. Article 158 
provides,
that the " ... Governor shall not be a member of either House 
of Parliament or of a House of the Legislature ofany State specified in 
the First Schedule ... ". The Governor does not participate in debates 
within the Legislature, nor does he have any role in any activity which 
would result in the passing ofa Bill, on the floor of the House. All in all, 
the legislative functionality constitutionally extended to the Governor, is 
extremely limited. The role assigned to a Governor in the entire gamut 
of the legislative process; is as ascribed under Article 200. Needless to 
mention, that when the House or Houses of the State Legislature are 
not in session, the Governor has the power to promulgate Ordinances 
under Article 213. No such legislative power is vested with the Governor, 
while the House or Houses of the State Legislature are in session. But 
even the power to issue Ordinances, cannot be exercised by the Governor, 
on his own. Ordinances can be issued by the Governor, only on the aid 
and advice of the Council of MinisterS'with the Chief Minister as the 
head. In sum and substance, the Governor is vested with extremely 
limited legislative functions. The position which has been recorded above, . 
has been examined in some detail in paragraph xxx 139 xxx of this 
judgment.
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 
193 
AND OTHERS [JAGDISH SINGH KHEHAR, J.] 
166. It also needs to be kept in mind, that the appointment of the 
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Governor is made under Article 155, not by way of an electoral process, 
but by a warrant issued under the hand and seal of the President. The 
constitutional Governor, is to hold his office under Article 156, during the 
pleasure of the President. Since the President exercises his functions 
on the aid and advice of the Prime Minister and his Council of Ministers,. 
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the tenure of the office of the Governor has also to coincide with the aid 
and advice of the Prime Minister and his Council of Ministers. 
167. It is in the above background, that the ambit and scope of 
the role of the Governor requires to be examined, with reference to the 
issue of removal of the Speaker (or the Deputy Speaker) under Article 
179(c). Insofar as the issue of the removal of the Speaker is concerned, 
the same would depend on the result of the vote, on the notice of resolution 
for his removal. If the majority votes in favour of the motion, the resolution 
is liable to be adopted. Failing which, it is liable to be rejected. In the 
above situation, it is apparent, that neither the Chief Minister, nor the 
Council of Ministers, has any determinative role on the subject of removal 
of the Speaker(orthe Deputy Speaker). Their individual participation is 
limited to their individual vote, either in favour or against the motion for
the removal of the Speaker (or the Deputy Speaker). Even the above · 
bit, is not available to the Governor. The Governor has no role whatsoever 
in the removal of the Speaker (or the Deputy Speaker). Therefore, in 
our considered view, no role direct or indirect can be assumed by the 
Governor, under Article 179( c ). The assumption of such a role, and the 
fulfillment thereof by addressing a message to the Assembly under Article 
175, can only be ascribed as an ingenuity, without any constitutional 
sanction. In the above view of the niatter, we are of the opinion, that the 
impugned message of the Governor dated 9.12.2015, cannot be endorsed 
as constitutionally acceptable. 
168. Despite the above, the facts and circumstances of the 
present case reveal, that the Governor in his alleged bona fide 
determination issued the impugned message dated 9.12.2015, statedly to 
advise and guide the State Legislature, to carry out its functions in 
consonance with the provisions of the Constitution, and the rules framed 
under Articles 166 and 208. The question which arises for adjudication 
is not, that of the Governor's bona fides. The question is of the 
jurisdictional authority of the Governor, in the above matter. The Governor 
has no direct or indirect constitutionally assigned role, in the matter of 
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removal of the Speaker (or the Deputy Speaker). The Governor is not 
the conscience keeper of the Legislative Assembly, in the matter of 
removal of the Speaker. He does not participate in any executive or 
legislative responsibility, as a marshal. He has no such role assigned to 
him, whereby he can assume the position of advising and guiding the 
Legislative Assembly, on the question of removal of the Speaker (or 
Deputy Speaker). Or to require the Legislative Assembly to follow a 
particular course. The Governor can only perform such functioi1s, in his 
own discretion, as are specifically assigned to him "by or under this 
Constitution", within the framework of Article 163(1 ), and nothing more. 
In our-final analysis, we are satisfied in concluding, that the interjects at 
the hands of the Governor, in the functioning of the State Legislature, 
not expressly assigned to him, however bona.fide, would be extraneous 
and without any constitutional sanction. A challenge to an action beyond 
the authority of the Governor, would fall within the scope of the judicial 
review, and would be liable to be set aside. 
169. For all the reasons recorded hereinabove, we are of the 
considered view, that the impugned order and message of the Governor 
dated 9.12.2015 are liable to be set aside. We order accordingly. 
v. 
Tenth Schedule to the Constitution. 
TENTH SCHEDULE 
[Articles l02(2)and 191(2)] 
"6. Decision
on questions as to disqualification on ground of 
defection.-( l) If any question arises as to whether a member of 
a House has become subject to disqualification under this Schedule, 
the question shall be referred for the decision of the Chairman or, 
as the case may be, the Speaker of such House and his decision 
shall be final: 
Provided that where the question which has arisen is as to whether 
the Chairman or the Speaker of a House has become subject to 
such disqualification, the question shall be referred for the decision 
of such member of the House as the House may elect in this 
behalf and his decision shall be final. 
. 
. - -. 
(2) All proceedings under sub-paragraph ( 1) of this paragraph in 
relation to any question as to disqualification of a member of a 
Hou·se under this Schedule shall be deemed to be proceedings in 
Parliament within the meaning of article 122 or, as the case may
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 
195 
AND OTHERS [JAGDISH SINGH KHEHAR, J.] 
be, proceedings in the Legislature of a State within the meaning 
of article 212." 
170. Paragraph 6 of the Tenth Schedule has been extracted 
a!:>ove. It inter alia postulates, that if a question arises, whether a member 
of the Legislative Assembly has become subject to disqualification, the 
adjudicatory role for determining the above question, will fall within the 
exclusive authority of the Speaker; and in case of a member of the 
Legislative Council, solely on the shoulders of the Chairman. Sub-
paragraph (2) of Paragraph 6, by a constitutional fiction, adopts all 
proceedings carried out by the Speaker or the Chairman under the Tenth 
Sc he du le, as proceedings of the State Legislature. 
171. It is apparent from a perusal of the provisions of the Tenth 
Schedule, that no role whatsoever has been assigned to the Governor, in 
the matter of removal of a member of the Assembly/Council. In the 
above view of the matter, even where a petition is filed for disqualification 
of one or more MLAs under the Tenth Schedule, the Governor's direct 
or indirect participation in the same, is impermissible. The role of the 
Governor in such matters, wou Id fat I beyond the spectrum of constitutional 
sanction. Besides the fact that the Governor has no role whatsoever in 
the proceedings carried out under the Tenth Schedule, he cannot have 
any interest in the outcome of the disqualification
proceedings under the 
Tenth Schedule. The Governor can, therefore, never be concerned with 
the proceedings under the Tenth Schedule, one way or the other. The 
fictional assumption, that the proceedings under the Tenth Schedule have 
a legislative flavour, and are akin to the proceedings before the State 
Legislature, further removes the Governor from any participatory role in 
the same. Accordingly, in our considered view, any exercise of authority 
by the Governor based on pending proceedings against members of the 
Legislative Assembly, under the Tenth Schedule, are clearly beyond his 
constitutional authority. An order or message of the Governor, based on 
an underlying consideration relatable to pending action(s) of 
disqualification, against a member or members of the State Legislature, 
would be constitutionally unsustainable. It was acknowledged by both 
sides, that the. impugned order and message of the Governor dated 
9.12.2015, were prompted by the petition filed on 7.12.2015, by the Chief 
Whip of the Congress Legislature Party, seeking disqualification of 14 
MLAs belonging to the INC. The above position is also evident from a 
perusal of the order and message dated 9.12.2015. In the above view of 
the matter, it is obvious, that the order and message were actuated by a 
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constitutionally impermissible consideration. The same are accordingly 
liable to be set aside. We order accordingly. 
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172. The issue canvassed and answered hereinabove with 
reference to the Tenth Schedule, does not fully answer the controversy 
which has arisen for consideration before us. The proposition canvassed, 
also relates to the propriety of Speaker, in conducting proceedings under 
the Tenth Schedule, when his own position as the Speaker of the 
Legislative Assembly, is under challenge. After all, this was the real 
basis of the Governor having passed the impugned order and message 
dated 9.12.2015. The challenge to the Speaker's position, in the instant 
case, was based on a noticeofresolution for his removal dated 19.11.2015. 
The resolution was moved by 13 MLAs (-11 belonging to the BJP, and 2 
Independent MLAs). Despite the above, unmindful of the challenge raised 
to his own position, the Speaker went on with the disqualification 
proceedings initiated by the Chief Whip of the Congress Legislature 
Party on 7.12.2015, by issuing a notice to them on 7.12.2015 itself, seeking 
their response by 14.12.2015. All the 14 MLAs aforementioned, were 
disqualified by an order passed by the Speakeron 15.12.2015, under the 
Tenth Schedule. Was this action of the Speaker, justified? Learned counsel 
for the rival parties, pointedly addressed us on this issue. We are also of 
the view, that this issue
needs to be determined in view of the directions 
which will eventually emerge on the basis of the consideration recorded 
hereinabove. A repeat performance of the earlier process, would bring 
the parti;s back to the threshold of this Court, for the redressal of the 
same dispute, which is already before us. 
173. When the position of a Speaker is under challenge, through a 
notice of resolution for his removal, it would "seem" just and appropriate, 
that the Speaker first demonstrates his right to continue as such, by 
winning support of the majority in the State Le~islature. The action of 
the Speaker in continuing, with one or more disqualification petitions 
under the Tenth Schedule, whilst a notice of resolution for his own 
removal, from the office of Speaker is pending, would "appear" to be 
unfair. If a Speaker truly and rightfully enjoys support of the majority of 
the MLAs, there would be no difficulty whatsoever, to demonstrate the 
confidence which the members of the State Legislature, repose in him. 
The office of Speaker, with which the Constitution vests the authority to 
deal with disqualification petitions against MLAs, must surely be a 
Speaker who enjoys confidence of the Assembly. After all, disposal of
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 197 
AND OTHERS [JAGDISH SINGH KHEHAR, J.] 
the motion under Article J 79(c), would take no time at all. As soon as 
the motion is moved, on the floor of the House, the decision thereon will 
emerge, forthwith. Why would a Speaker who is confident of his majority, 
fear a floor test? After his position as Speaker is affirmed, he would. 
assuredly and with conviction, deal with the disqualification petitions, 
under the Tenth Schedule. And, why should a Speaker who is not confident 
of facing a motion, for his removal, have the right to adjudicate upon 
disqualification petitions, under the Tenth Schedule? The manner in which 
the matter has been examined hereinabove, is on ethical considerations. 
A constitutional issue, however, must have a constitutional answer. We 
shall endeavour to deal with the constitutional connotation of the instant 
issue, in the following paragraphs. 
174. Just like the other provisions of the Constitution (interpreted 
by us hereinabove), it would be apposite to ascertain the desired intent 
of the framers of the Constitution, emerging from the Constituent 
Assembly debates, with reference to Article l 79(c). In the draft. 
Constitution, the present Article 179 was numbered as draft Article 158. 
One of the issues debated, with reference to draft Article 158(c) was, 
with reference to the words "all the then members of the Assembly", 
used therein. The above words were used to define, those who
would 
participate in the motion, for the removal of the Speaker. Needless to 
mention, that the said words were retained in the final draft, in·Article 
J 79(c). One of the members of the Constituent Assembly had suggested 
substitution of the above words, by the words, "the members of the 
Assembly present and voting'', as under: 
"Mr. Mohd. Tahir: Sir, I beg to move: 
"That in clause ( c) of article 15 8, for the words 'all the then 
members of the Assembly' the words 'the members of the 
Assembly present and voting' be substituted." 
Clause (c) runs as follows: 
"( c) may be removed- from his office for incapacity or want of 
confidence by a resolution of the Assembly passed by a majority 
of all the then members of the Assembly." 
· 
Sir, so far as I can understand the meaning of the wording, "all the 
then members of the Assembly'', it includes all the members of 
the Assembly. Supposing a House is composed of300 members 
then, it will mean all the members of the Assembly, that is 300, 
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Supposing fifty members of the House are not present in the House, 
then, those members will not have the right to give their votes so 
far as this question is concerned. Therefore, I think that it would 
be better that this matter shou Id be considered by only those 
members who are present in the Assembly and who can vote in 
the matter. If this phrase "all the then members of the Assembly" 
means the members who are present in the Assembly, then, I 
have no objection. If it means all the members of which the House 
is composed, I think it is not desirable to keep the clause as it 
stands. 
With these few words, I move my amendment." 
The Constituent Assembly debates, do not appear to have recorded any 
discussion on the above amendment. The decision on the proposed 
amendment was however minuted as under: 
"Mr. President: The question is: 
"That in clause (c) of article 158, for words 'all the then members 
of the Assembly' the words 'the members of the Assembly present 
and voting' be substituted." 
The amendment was negatived." 
It is apparent, that the Constituent Assembly chose to retain the words, 
"all the then members of the Assembly.", and declined to substitute them 
with the words, "the members of the Assembly present and voting". 
We are of the view, that the acceptance of one set of words, and the 
rejection of the suggested substitution, would effectively render a 
constitutional answer to
the issue in hand. 
175.Article l 79(c) provides, that a Speaker(or Deputy Speaker), 
"may be removed from his office by a resolution of the Assembly passed 
by a majority of all the then members of the Assembly". A notice of 
resolution for the removal of the Speaker (or the Deputy Speaker) of 
the Assembly, would therefore, have to be passed by a majority "of all · 
the then members of the Assembly". Th~ words "all the then members" 
included in Article l 79(c), are a conscious adage. If the words "all the 
then members" are excluded from clause (c) of Article 179, it would 
affirm the interpretation which the appellants, wish us to adopt. The 
connotation placed by the appellants, would legitimize the action of the 
Speaker, in going ahead with the proceedings under the Tenth Schedule, 
even though a notice of resolution for his removal from the office of
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 199 
AND OTHERS [JAGDISH SINGH KHEHAR, J.] 
Speaker was pending. The words "all the then members" were 
consciously added to Article 179( c ), and their substitution was not 
accepted by the Constituent Assembly. We are satisfied, that the words 
"passed by a majority of all the then members of the Assembly", would 
prohibit the Speaker from going ahead with the disqualification 
proceedings under the Tenth Schedule, as the same would negate the 
effect of the words "all the then members'', after the disqualification of 
one or more MLAs from the House. The words "all the then members", 
demonstrate an expression of definiteness. Any change in the strength 
and composition of the Assembly, by disqualifying sittingMLAs, forthe 
period during which the notice of resolution forthe removal of the Speaker 
(or the Deputy Speaker) is pending, would conflict with the express 
mandate of Article 179( c ), requiring all "the then members" to determine 
the right of the Speaker to continue. 
176. It would also be relevant to notice, that the Tenth Schedule 
was inserted in the Constitution, by the Constitution (Seventy-third 
Amendment) Act, 1992, with effect from 24.4.199.3. The purpose sought 
to be achieved through the Tenth Schedule, is clear and unambiguous. 
The same is unrelated to; and distinct from, the purpose sought to be 
achieved through Article I 79(c). Neither of the above provisions, can be 
seen as conflicting with the
other. Both, must therefore freely operate, 
within their individual constitutional space. Each of them will have to be 
interpreted, in a manner as would serve the object sought to be achieved, 
without tr!)ading into the constitutional expanse of the other. The 
interpretation would have to be· such, as would maintain constitutional 
purpose and harmony. We would now venture to examine the instant 
issue from the above perspective, in the following paragraph. 
177. If a Speaker survives the vote, on a motion for his removal 
from the office of Speaker, he would still be able to adjudicate upon the 
disqualification petitions filed under the Tenth Schedule. The process of 
judicial review, cannot alter the above position. But, if a disqualification 
petition is accepted by the Speaker, the disqualified MLAs will have no 
rightto participate in the motion moved against the Speaker under Article 
· 119( c ). A disqualified MLA-, as we all know, can assail the order of his 
disqualificati01( by way of judicial review. If he succeeds, and his 
disqualification from the House is set aside, such a disqualified MLA, 
would be deprived of the opportunity to participate in the motion against 
the Speaker, under Article l 79(c). In this situation, the process of judicial 
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review, can also alter the position, if a disqualification order passed by 
the Speaker, is set aside by a Court of competent jurisdiction. In the 
event of an MLA having been disqualified by the Speaker, the notice of 
resolution for the removal of the Speaker, would surely be dealt with, 
and will be disposed of, during the period when the concerned MLA 
stood disqualified. Alternatively, if an MLA has not been disqualified 
when the motion for the removal of the Speaker is taken up, he would 
have the right to vote on the motion pertaining to the removal of the 
Speaker, whereafter, the petition for his own disqualification would 
certainly be considered and decided, by the Speaker. It is apparent, that 
the difficulty arises only, ifthe disqualification petition is taken up first, 
and the motion for the removal of the Speaker is taken up thereafter. 
The possibility of a disqualification petition being decided on political 
considerations, rather than on merits, cannot be ignored. In fact, that is a 
real possibility. Therefore, while it will not adversely affect the Speaker, 
if he faces the motion of his own removal from the office of Speaker, 
before dealing with the disqualification petitions, it could seriously prejudice 
MLAs facing disqualification, if petitions for their disqualification are 
taken up and dealt with first. The adoption of the former course, would 
also result in meaningfully
giving effect to the words "all the then 
members" used in Article 179( c ), as discussed in the foregoing paragraph. 
This interpretation would also purposefully give effect to the rejection of 
the amendment suggested during the Constituent Assembly debates, that 
the motion for removal of the Speaker, should be the majority of"the 
members of the Assembly present and voting". This interpretation would 
also result in disregarding the retention of the words "all the then members 
of the Assembly", in Article l 79(c). If the Speaker faces the motion of 
his own removal first, both the constitutional provisions would have their 
independent operational space preserved. None of the concerned 
constitutional provisions would interfere with the free functionality of 
the other, nor would one usurp the scheme postulated for the other. We 
are therefore of the view, that constitutional purpose and constitutional 
harmony would be maintained and preserved, if a Speaker refrains from 
adjudication ofa petition for disqualification under the Tenth Schedule, 
whilst his own position, as Speaker, is under challenge. This would also, 
allow the two provisions (Article I 79(c), and the Tenth Schedule) to 
operate in their individual constitutional space, without encroaching on 
the other. 
178. For the reasons recorded hereinabove, we hereby hold, that
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 201 
AND OTHERS [JAGDISH SINGH KHEHAR, J.] 
it would be constitutionally impermissible for a Speaker to adjudicate 
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upon disqualification petitions under the Tenth Schedule, while a notice 
ofresolution for his own removal from the office of Speaker, is pending. 
VI. 
The political imbroglio. 
179. The first sequence of facts projected by the appellants, 
discloses the alleged discord and dissension amongst MLAs of the ruling 
INC. It was suggested, that the Governor having taken charge on 
1.6.2015, acted in support ofBJP causes. It would be necessary to record, 
that in the 60-member Arunachal Pradesh State Legislative Assembly, 
47 MLAs had allegiance to the INC, I I MLAs to the BJP, and there 
were 2 Independent MLAs. It was urged, that MLAs owing allegiance 
to the INC, had joined up with non-INC MLAs, to exploit the situation. 
To harness the rebelling MLAs, resignation letters were allegedly taken 
from at least 17 legislators belonging to the INC. Eventually resignation 
letters of two MLAs - were accepted on 6.10.2015, leading to their 
removal from the House. Efforts made by the General Secretary AICC, 
in-charge for North-Eastern States - V. Narayanasamy, President of 
the Arunachal Pradesh Congress Committee - Padi Richo, the Chief 
Minister - Nabam Tuki and others, to reign in the dissident MLAs, did 
not have any positive effect. The dissident MLAs even addressed letters 
to the Governor, in furtherance of
their objective, namely, to change the 
Chief Minister - Nabam Tuki. On 12.10.2015, the President of the 
Congress Legislature Party, issued a show cause notice to 19 MLAs of 
the INC, for indulging in anti-party activities. The same was repulsed by 
a press note issued by 21 MLAs of the iNC, denouncing the leadership 
of the Chief Minister. 
180. On 16.11.2015, a notice ofresolution for the removal of the 
Deputy Speaker-Tenzing Norbu Thongdok, was statedly moved by 16 
MLAs belonging to the INC. The Deputy Speaker, had been elected to 
the House on an INC ticket. On 19.11.2015, 13 MLAs (-11 belonging to 
the BJP, and 2 Independent MLAs), moved a similar notice of resolution 
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for the removal of the Speaker-Nabam Rebia. On 7.12.2015, the Chief 
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Whip of the Congress Legislature Party- Rajesh Tacho, filed a petition 
under the Tenth Schedule, seeking disqualification of 14 dissident MLAs 
of the INC, including the Deputy Speaker-Tenzing Norbu Thongdok, 
on account of their anti-party activities. 
181. On 9.12.2015, to ensure that the notice for the removal of 
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the Speaker was taken up for consideration without any delay, the 
Governor ordered the preponement of the 6th session of the Assembly 
earlier scheduled for 14.1.2016, to 16.12.2015. The above order dated 
9.12.2015, was passed by the Governor,. without consulting the Chief 
Minister and his Council of Ministers or the Speaker. The Governor 
additionally required, that the party composition of the House should not. 
be altered, till the motion on the above notice, was disposed of. This 
was done by the Governor through a message dated 9.12.2015. Through 
the above message, the Governor attempted to forestall the proceedings 
initiated for disqualification of 14 MLAs of the IN2, under the Tenth 
Schedule. The above message dated 9.12.2015, was issued by the 
Governor, without the aid and advice of the Chief Minister and his Council 
of Ministers. 
182. On 14.12.2015, the Chief Minister in a Cabinet meeting, 
resolved that the order of the Governor dated 9.12.2015 was 
unconstitutional. And so also, the message dated 9.12.2015. The Speaker 
through his letter dated 14.12.2015, brought the above position to the 
notice of the Governor. Disregarding the edict of the Governor, the Speaker 
- Nabam Rebia proceeded against the 14 MLAs of the INC under the 
Tenth Schedule on 14.12.2015, and ordered their disqualification and 
consequent removal, from the Assembly on 15.12.2015. On the same 
day - 15.12.2015, the
Deputy Speaker - Tenzing Norbu Thongdok, 
quashed the order of disqualification of the 14 MLAs of the INC, 
including his own disqualification. In the preponed 6th session of the 
Assembly held on 16.12.2015, the resolution for the removal of the 
Speaker - Nabam Rebia was adopted. All the 14 disqualified MLAs, 
participated in the resolution moved against the Speaker. The motion 
was· passed. Nabam Rebia, ceased to be the Speaker of the State 
Legislature, with effect from I 6. I 2.20 I 5. 
183. Tht: third sequence of facts projected by the respondents, 
highlights a factual disputehetween the parties, namely, whether or not 
a notice of resolution for the removal of the Deputy Speaker - Ten zing 
Norbu Thongdok dated 16.11.2015, had actually been moved by 16 MLAs 
belonging to the INC. The instant determination is in addition to the 
consideration and conclusion (in paragraph 69, above) recorded by us 
on the same. aspect of the matter herein before. During the course of 
hearing of the present controversy, we examined the material produced 
before us by the rival parties, to substantiate the respective assertions. 
Based on the above examination, we may record the .following:
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 203 
AND OTHERS [JAGDISH SINGH KHEHAR, J.] 
Firstly, a copy of the above notice dated 16.11.2015 had been called for, 
by the Governor through a communication dated 7.12.2015. Associated 
information about the date of receipt of the notice, and the action taken 
thereon, was also asked for. Even though the associated information 
was furnished, yet a copy of the above notice dated 16.11.2015 was not 
furnished to the Governor. 
Secondly, in the response of the Secretary of the Legislative Assembly 
dated 8.12.2015 (addressed to the office of the Governor), it was asserted, 
that the notice dated 16.11.2015 was under consideration of the Speaker. 
All the same, a copy of the notice for the removal of the Deputy Speaker 
- Tenzing Norbu Thongdok, was not forwarded to the Governor. 
Thirdly, the Superintendent of Police-cum-ADC to the Governor, visited 
. the Secretary of the Legislative Assembly, and other officers of the 
Secretariat of the Legislative Assembly, on 8.12.2015. He recorded the 
entire position in a note dated 8.12.2015. He was informed by the staff, 
that the notice ofresolution for the removal of the Deputy Speaker dated 
16.11::Zo15, was in a file lying at the official residence of the Speaker-
Nabam Rebia, at Itanagar. The removal of the Deputy Speaker, is to be 
dealt with by the Assembly, al1d not by the Speaker. Accordingly, it was 
pointed out on behalf of the respondents, that there was no reason/
occasion for the above file to be at the official residence or custody of 
the Speaker. 
Fourthly, the Speaker- Nabam Rebia is the appellant before us. He has 
not disputed the factual position indicated in the letter of the Secretary 
of the Legislative Assembly dated 8.12.2015, or in the note of the 
Superintendent of Police-cum-ADC to Governor. 
Fifthly, the Speaker- Nabam Rebia did not produce the original of the 
notice dated 16.11.2015, when called for by this Court. The stance 
adopted by him was, that the same is in the custody of the respondents. 
Sixthly, the original notice dated 16.11.2015, was not produced before 
this Court, despite the same having been called for. 
The appellant-Nabam Rebia, has not produced sufficient material before 
this Court to demonstrate, that such a notice was actually issued (or was 
ever received by him). We will therefore have to proceed on the 
assumption, that no such notice of resolution for the removal of the Deputy 
Speaker, was ever issued on 16.11.2015, as alleged. The instant inference 
has been drawn by us, forthe disposal of the present controversy. The 
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above factual disputation, is however left open. If such a question arises 
again, the rival or concerned parties, will have the liberty to lead evidence, 
to enable a Court of competent jurisdiction, to determine the true factual 
position, with respect to the issuance of the aforestated notice of resolution 
for the removal of the Deputy Speaker - Tenzing Norbu Thongdok, 
dated 16.11.2015. 
184. The fourth sequence of facts projected by the respondents 
reveals, that a notice of resolution for the removal of the Speaker -
Nabam Rebia, was moved on 19.11.2015 by 13 MLAs (- 11 belonging 
to the BJP, and 2 Independent MLAs). The above event took place, 
. after the 5th session of the Legislative Assembly was prorogued on 
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21.10.2015. The Governor had originally, by his order dated 3.11.2015, 
summoned the House to meet on 14.1.2016 for the 6th session of the 
Assembly. After issuing the above notice of resolution for the removal 
of the Speaker- Nabam Rebia on 19.11.2015, the concerned 13 MLAs 
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addressed a letter on the same day- 19.11.2015, to the Governor. They 
sought consideration on the notice, immediately on the completion of the 
notice period, provided for in the first proviso under Article 1 79( c ). In 
their letter to the Governor, it was alleged, that the ruling political party 
-did not enjoy confidence and majority of the House, as its strength had 
been reduced to 25 out of the 60-member
Legislative Assembly. 
185. Immediately on receipt of the above letter dated 19.11.2015, 
the Governor sought details about the notice (-dated 19.11.2015) from 
the Secretary of the Legislative Assembly, requiring him to confirm the 
factual position, through a series of communications dated 27.11.2015, 
3.12.2015 and 7.12.2015. While the situation stood thus, the Chief Whip 
of the INC - Rajesh Tacho sought disqualification of 14 MLAs 
(respondent nos. 2 to 15), belonging to his own political party-the INC, 
under the Tenth Schedule, on 7.12.2015. A day thereafter, i.e., on 
8.12.2015, the Secretary of the Legislative Assembly informed the 
Governor, that a notice of resolution for the removal of the Speaker -
Nabam Rebia, had been received in the Legislative Assembly on 
19.11.2015. On confirmation of the above fact, that 13 MLAs had 
actually sought the removal of the Speaker, the Governor sought legal 
opinion about the validity and legitimacy of the Speaker sitting in judgment 
over the removal of 14 MLAs, even though a notice of resolution for the 
removal of the Speaker himself, was pending in the Assembly. Believing 
that there was an attempt to subvert the provisions of the Constitution,
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 205 
AND OTHERS [JAGDISH SINGH KHEHAR, J.] 
the Governor rescheduled the 6th session of the Assembly by preponing 
the same to 16.12.2015, by his order dated 9.12.2015. 
186. The fifth sequence of facts projected by the respondents 
hi_$hlights, that a challenge was raised by the appellants, to the order and. 
message of the Governor dated 9.12.2015, and in respect of other 
connected issues, by filing Writ Petition (C) Nos. 7745of2015 and 7998 
of2015 (on 17:12.2015 and 22.12.2015, respectively) before the Gauhati 
High Court. It was asserted on behalf of the respondents, that appreciation 
of the actual facts would establish, that the challenge raised before the 
High Court through the above petitions, was not only unfair and 
unreasonable, but also illegitimate and constituted a misuse of the 
jurisdiction of the High Court. Relying on the communication addressed 
by and on behalf of the Speaker- Nabam Rebia and the Chief Minister 
- Nabam Tuki, it was pointed out, that their projection through the above 
letters was, thatthe order and message of the Governor dated 9.12.2015 
were unconstitutional. MLAs belonging to the INC who were continuing 
to extend support to the Chief Minister had taken a decision, not to allow 
the House to meet in terms of the order and message dated 9.12.2015. 
In fact, the Speaker of the House, it was pointed out, had addressed a 
letter to the Home Minister to ensure, that no individual be
allowed to 
enter the Legislative Assembly building from 15.12.2015 to 18.12.2015 
(- during the entire duration, of the 6th session of the Legislative 
Assembly). Not even MLAs duly elected to the House, were to be 
allowed entry in the premises of the Legislative Assembly. A request 
was also made by the Speaker - Nabam Rebia, for the deployment of 
IRBn (Indian Reserve Battalion) and CPMF (Central Para Military 
Force) personnel, along with monitoring systems. The respondents desire 
us to infer from the above sequence of events, that if those opposing the 
validity- legal and constitutional, of the order and message of the Governor, 
were certain about their standpoint, they ought to have sought judicial 
redress immediately. If they were right, the High Court would have 
immediately ordered, course correction. It was submitted, that all efforts 
were made to subvert the proceedings of the State Legislature. Only 
when they had failed in their illegitimate action, they approached the 
High Court on 17.12.2015 and 22.12.2015, by which time, due process 
had resulted in the decisions referred to above. 
187. The sixth sequence of facts projected by the respondents, 
was founded on the prevailing political situation inthe State since March/ 
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April 2015, which got worst in September 2015 when 21 MLAs of the 
INC started to oppose their own party leadership, by calling for the 
removal of the Chief Minister- Nabam Tuki, and for the installation of 
Kalikho Pul (a former Finance Minister of the State), in his place. In 
order to quell the above disseiJsions, resignation letters of two MLAs -
Wanglam Sawin and Gabriel D. Wangsu were accepted, as it was felt 
that this would rein in the others. The' above two MLAs approached the 
High Court, which stayed the order accepting their resignations, on 
7.10.2015. It was atthisjuncture, thatt~e above two MLAs amongst ii 
MLAs approached the Governor, on I I.I 0.2015. They made complaints 
against the Chief Minister - Nabam Tuki and the Speaker - Nabam 
Rebia, to the Governor. Shortly thereafter on 19.11.2015, 13 MLAs (- 11 
from the BJP and 2 Independent MLAs) sought the removal of the 
Speaker - Nabam Rebia under Article 179(c). On the same day -
19.11.~015, the above 13 MLAs met the Governor, and sought 
preponement of the 6th session of the House. 
188. The above sequence of facts, according to learned counsel 
for the respondents, and the impressions of the Governor, expressed in 
his letters addressed to the President dated 17. I 0.2015, 19.11.2015 and 
1.12.2015 should be visualized together. It was pointed out, that only 
then, it will be possible to appreciate the Governor's thought process, 
when
he issued the order and message dated 9.12.2015. In the letter 
dated 17.10.2015, the Governor informed the President aboutthe growing 
dissidence amongst the MLAs of the INC, who seemed to be divided 
into two groups, one headed by Nabam Tuki - the Chief Minister, and 
the other by Kalikho Pul - a former Finance Minister of the State. The 
Governor also narrated details of the acceptance of the resignation letters 
of two MLAs cifthe INC, and their intimation to the Governor, that they 
had been coerced to resign. The Governor also disclosed the alleged 
threats issued by unknown miscreants, to the two MLAs who had 
resigned, and to Kalikho Pul. His letter pointed out, that similar threats 
were also allegedly extended to members of their families. In the letter 
dated 19.11.2015, the Governor infonned the President aboutthe prevailing 
political complexity, and growing dissidence amongst MLAs belonging 
to the INC, including some Ministers. In his letter, the Governor also 
narrated the contents of the memorandum issued by MLAs on 12.11.2015 
calling for the removal of the ruling INC Government, for paving the 
way for a new regime to take over. And also, the press statement issued 
by the Peoples Party of Arunachal, calling upon the Governor to require
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 207 
AND OTHERS [JAGDISH SINGH KHEHAR, J.] 
the Chief Minister to prove his majority on the floor of the House, failing· 
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,'which - to step down. In the letter dated 1.12.2015, the Governor 
informed the President about the receipt of a memorandum dated 
I9. l 1.2015, requiring him to prepone the 6th session of the Assembly. 
This request, according to the Governor's letter, was supported by the 
Peoples Party of Arunachal, on the ground that the Government headed 
by Nabam Tuki, had completely lost the confidence of the people, and 
had been reduced to a minority. A notice ofresolu,tion forthe removal of 
the Speaker - Nabam Rebia dated 19. I 1.20 I 5 signed by 13 MLAs, as 
well as, the dissidents within the MLAs of the INC, was again highlighted. 
189. During the course of hearing, learned counsel for the 
respondents, had placed reliance on the first, third, fourth, fifth and sixth 
sequence of facts, to contend that the political turmoil which prevailed in 
the State Legislature was ofa nature, which would render seeking advice 
from the Council of Ministers and the Chief Minister, purposeless and 
futile. It was submitted, that personal interests of constitutional authorities 
- the Chief Minister and the Speaker, had brought political volatility, 
which was having an adverse effect on the_democratic functioning of 
·the State Legislature. Some of the salient features highlighted to 
substantiate the above assertions,
may be summarized below: 
Firstly, the Chief Minister- Nabam Tuki was not being accepted as the 
Leader of the House by at least 2 I dissident MLAs, belonging to his 
own political party - the INC. ·in the 60-member State Legislative 
Assembly, having 47 MLAs from the INC, with the 21 dissident MLAs 
from the INC, the Chief Minister, according to the dissidents, could not 
have mustered a vote of confidence. 
Secondly, efforts made by the party leadership, including the General 
Secretary AICC in-charge for North Eastern States, the President of 
Arunachal Pradesh Congress Committee, and other party leaders, could 
not rein in the 2 I dissident MLAs. 
Thirdly, resignation letters were taken from I 7 MLAs on 6.10.2015. 
Resignation letters of2 MLAs were accepted. The said 2 MLAs from 
the INC - Wanglam Sawin and Gabriel D. Wangsu, alleged that they 
had been coerced into resigning from their membership of the Legislative 
Assembly. The above two MLAs approached the High Court, which 
stayed the order of acceptance of their resignation on 7.10.2015, clearly 
giving the Governor the impression, that their assertion of being coerced 
into resigning from the membership of the Legislative Assembl~, was 
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prima facie correct. 
Fourthly, the political turmoil in the Legislative Assembly, was on account 
of the complicity between the Chief Minister - Nabam Tuki and the 
Speaker - Nabam Rebia. Both were related, and had joined hands to 
frustrate the democratic process, to subvert the action of the rival MLAs, 
aimed attheir removal. The Chief Minister and the Speaker being cousins, 
were adopting all sorts of means, in support of one another. 
Fifthly, on 12. l 0.2015, the President of the Congress Legislature Party 
issued a show cause notice to 19 MLAs of the INC, for indulging in anti-
party activities. The action was denounced by 21 MLAs of the INC, 
through a press note. 
Sixthly, a strong impression was created, that a notice ofresolution for 
the removal of the Deputy Speaker - Tenzing Norbu Thongdok dated 
16.11.2015 had been moved by 16 MLAs belonging to the INC. We 
have already concluded hereinabove, that the appellants have not been 
able to produce sufficient material to establish, that such a no.tice was 
ever issued. 
Seventhly, on 19.11.2015, 13 MLAs (-11 belonging to the BJP, and 2 
Independent MLAs) issued a notice for the removal of the Speaker -
Nabam Rebia. A copy, as also, confirmation of the aforesaid notice 
sought by the Governor, was furnishea to him by the Secretary of the 
Legislative Assembly. 
Eighthly, the 13 MLAs who had signed the notice for the removal of the 
Speaker, by their
letter dated 19.11.2015, sought preponement of the 6th 
session of the House, so as to be convened immediately on the completion 
of the notice period, provided for, in the first proviso under Article 179( c ). 
Ninthly, the Governor addressed three communications to the Secretary 
of the Legislative Assembly dated 27.11.2015, 3.12.2015, and 7.12.2015, 
seeking a copy of the notice of resolution dated 16.11.2015, but the same 
· was never furnished to him. 
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Tenthly, the Governor's letters dated 17.10.2015, 19.11.2015 and 
1.12.2015 to the President, depicting the prevailing political turmoil in the 
State of Arunachal Pradesh, and highlighting the intra-party dispute 
between the MLAs belonging to the INC. 
Eleventhly, a meeting of the Congress Legislature Party was held on 
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3.12.2015. During the said meeting the activities of21 MLAs of the
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 209 
AND OTHERS [JAGDISH SINGH KHEHAR, J.] 
INC were discussed, and their anti-party activities were highlighted. 
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Twelfthly, on 7.12.2015, the Chief Whip of the Congress Legislature 
Party- Rajesh Tacho, sought disqualification of 14 MLAs belonging to 
the INC, under the Tenth Schedule. 
It was further pointed out, that the sequence of facts which transpired 
after 9.12.2015 (after the Governor's order and message, dated 
9.12.2015) reveals, that the inferences drawn by the Governor, about 
the prevailing political imbroglio in the Legislative Assembly, had been · 
correctly appreciated and understood by him. The subsequent events 
are narrated hereunder: 
Thirteenthly, on 12.12.2015, the Advocate General of the State of 
Arunachal Pradesh, on being asked, tendered his opinion with reference 
to the order and·message of the Governor dated 9.12.2015. As per his 
opinion, the above order and message were unconstitutional, and in 
violation of the 'Conduct of Business Rules'. 
F ourteenthly, a Cabinet meeting was held on 14.12.2015, wherein; based 
on the opinion of the Advocate General, the Cabinet resolved·, that the · 
orderofthe Governor dated 9.12.2015 was contrary to Article 174 read 
with Article 163 and Rule 3 of the 'Conduct of Business Rules'. And 
also, that the message of the Governor dated 9.12.2015 was contrary to 
Article 175 and Rule 245 of the 'Conduct of Business Rules'. 
Fifteenthly, the Secreta·ry of the
Legislative Assembly wrote a letter to 
the Governor dated 14.12.2015, indicating that Article 174 did not 
contemplate preponement or postponement of an Assembly session, 
without consultation with the Government and the Speaker. A reference 
was also made to Article 175, so as to point out, that a message can be 
addressed by the Governor, only when the House is in session. 
Sixteenthly, the Officer-on-Special Duty to the Chief Minister addressed 
a letter dated 14.12.2015 on behalfofthe Chief Minister and his Council 
of Ministers and some other MLAs, requesting for a meeting with the 
Governor. Nine Ministers including the Chief Minister met the Governor 
on 15.12.2015, and allegedly committed acts of serious misbehaviour, at 
the office/residence of the Governor, details whereof were disclosed by 
the Governor to the High Court, through I.A. No.29 of2016. 
Seventeenthly, on 14.12.2015, a Cabinet meeting was held, wherein a 
resolution was passed by the Council of Ministers and the ChiefMinister, 
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requesting the Governor to recall and cancel, the order and message 
dated 9.12.2015, and allow the session to be convened on 14.1.2016, as 
earlier scheduled. 
Eighteenthly, the Speaker - Nabam Rebia, through a communication 
dated 14.12.2015, requested the Minister (Home)- Tanga Byaling, to 
provide foolproof security, in and around the Legislative Assembly 
building, from 15.12.2015 to 18.12.2015, and to ensure that no individual 
including MLAs, enter the Assembly building, during the above period. 
Nineteenthly, on 15.12.2016, the Speaker- Nabam Rebia, disqualified 
14 members of the Assembly belonging to the INC, including the Deputy 
Speaker- Tenzing Norbu Thongdok. 
Twentiethly, the Deputy ,Speaker on 15.12.2015 itself, set aside the 
disqualification order (-dated 15.12.2016), including his own 
disqualification order. 
Twenty-firstly, the notice ofresolution for the removal of the Speaker-
Nabam Rebia, was taken up for consideration as the first item, in the 
agenda of the Assembly on 16.12.2015. The resolution was adopted 
resulting in the removal ofNabam Rebia, from the office of Speaker. 
Twenty-secondly, during the course of the proceedings of the House 
held on 17.12.2015, the Government headed by the Chief Mini-ster -
Nabam Tuki, was declared as having lost confidence of the Legislative 
Assembly. Kalikho Pul, another INC MLA, was chosen to replace the 
Chief Minister. 
· 
190. Premised on
the aforesaid factual position, it was asserted 
on behalf of the respondents, that it was wholly unjustified for the 
Governor to remain silent. It was submitted that the prevailing situation 
called for immediate redressal, so as to preserve the democratic process 
in the State Legislature, and more particularly, to prevent high 
constitutional functionaries including the ChiefMinister, the Speaker, and 
Cabinet Ministers, from acting with constitutional impropriety. 
191. We have given our thoughtful consideration to the 
submissions advanced at the hands of the learned counsel for the 
respondents. We shall now endeavour to deal with the position highlighted 
through the factual narration summarized above. It is apparent from the 
discussion and reflection recorded by us, that a Governor of a State, has 
clearly defined duties, functions and responsibilities. The parameters of
NABAM REBlA, AND BAMANG FELIX v. DEPUTY SPEAKER 211 
'. AND OTHERS [JAGDISH SINGH KHEHAR, J.] 
the Governor's powers with reference to Articles 163, 174, 175, 179 and 
the Tenth Schedule, have been dealt with by us hereinabove, and need 
not be repeated. We are of the view, that it needs to be asserted as a 
constitutional detennination, that it is not within the realm of the Governor 
to embroil himself in any political thicket. The Goverhor must remain 
aloof from any disagreement, discord, disharmony, discontent or 
dissension, within individual political pruties. The activities within a political 
party,_confirming turbulence, or unrest within its ranks, are beyond the 
concern of the Governor. The Governor must keep clear of any political 
horse-trading, and even unsavoury political manipulations, irrespective 
of the degree of their ethical repulsiveness. Who should or should not 
be a leader ofa political party, is a political question, to be dealt with and 
resolved privately by the political party itself. The Governor cannot, 
make such issues, a matter of his concern. The provisions of the 
Constitution do not enjoin upon the Governor, the authority to resolve 
disputes within a political party, or between rival political parties. The, 
action of the Governor, in bringing the aforesaid factual position to the 
notice of the President, in his monthly communications, may well have 
been justified for drawing the President's attention to the political scenario 
of the
State. But, it is clearly beyond the scope of the Governor's authority, 
to engage through his constitutional position, and exercise his co,nstitutional 
authority, to resolve the same. 
192. It is open to the Governor to take into consideration, views 
of a breakaway group. Under Paragraph 4 of the Tenth .Schedule, 
legitimacy is bestowed on a breakaway group which comprises of not 
less than two thirds of the members of the concerned legislature party. 
In the present case, the breakaway group belonging to the ruling INC 
comprised of 21 members, whereas the INC had 4 7 MLAs in the 
prevailing 60-member Legislative Assembly. 21 MLAs belonging to the 
INC did not constitute a legitimate and recognizable breakaway group. 
The Governor could not in support of the protests and assertions of an 
invalid breakaway group, adopt a constitutional course, recourse whereof 
could be taken only in case of a constitutional crisis. As for instance, 
when the Government is seen to have lost the confidence of the House. 
It has never been the position of the Governor, thatthe ChiefMinister-
Nabam Tuki, had lost the confidence of the House. Nor, that the INC 
could not sustain its majority in the Assembly. Had that been the position, 
the Governor would have called for a floor test. Admittedly, the Governor 
never called for a floor test, nor did he ever require the Chief Minister to 
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establish his majority in the House. The Governor's actions, based on 
feuds and wrangles ofa breakaway group, which is not recognized under 
the Tenth Schedule, cannot be constitutionally condescended. 
193. The Governor has no role whatsoever, in the removal of the 
Speaker (or the Deputy Speaker) under Article 179. The question of 
adoption or rejection of a notice of resolution, for the removal of the 
Speaker, is to be determined by the legislators. Ifthe resolution for the 
Speaker's removal is supported by a simple majority of the members of 
the House, the motion has to be adopted, and the Speaker has to be 
removed. Failing which, the motion has to be rejected. Any action taken 
by the Governor, based on disputations, with reference to activities in 
which he has no role to play, is liable to be considered as extraneous. It 
is not for the Governor to schedule the functioning of the Assembly. It is 
also not in the Governor's domain, to schedule the agenda of the House. 
The Governor has no role with reference to the ongoings in the Assembly. 
The Governor must keep away, from all that goes on, within the House. 
194. As long as the democratic process in the Assembly functions 
through a Government, which has the support of the majority, there can 
be no interference at the behest of the Governor. A constitutional failure 
as contemplated under Article 356, is quite another matter. So also, a
constitutional failure under Article 360. Herein, the Governor has not 
treaded the procedure postulated for a constitutional breakdown. 
195. There is no justification for a Governor to be disturbed about 
proceedings in connection with the disqualification ofMLAs under the 
Tenth Schedule. Because, the Governor has no role therein. Even the 
Chief Minister and his Council of Ministers, have no concern with the 
disqualification proceedings contemplated under the Tenth Schedule. 
Therefore, the legitimacy or illegitimacy thereof, is beyond consideration 
of the Governor. That being the constitutional position, there can be no 
justification in the Governor initiating action, based on proceedings 
commenced against MLAs, under the Tenth Schedule. Any action taken 
by the Governor, based on the proceedings being carried on under the 
Tenth Schedule, would be a constitutional impropriety. It is open to 
individual MLAs, against whom disqualification proceedings are taken 
(or who have been disqualified, and consequently have lost their 
membership of the House), to seek judicial review thereof. The fact 
that 14 MLAs who were disqualified by the Speaker - Nabam Rebia, 
on 15.12.2015, had approached the Gauhati High Court, which had stayed
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 213 
AND OTHERS 
the order of their disqualification, demonstrates that there are appropriate 
A 
remedies in place. The Governor need not worry about, or involve himself 
in, issues which are within the realm of other constitutional authorities. 
The Indian Constitution provides for checks and balances, and a regime 
oi redressal, for all situations. 
The decision: 
B 
196. Based on the consideration and the conclusions recorded 
hereinabove, it is inevitable to conclude as under: 
(i) 
The order of the Governor dated 9.12.2015 preponing the 
6th session of the Arunachal Pradesh Legislative Assembly, c 
from 14.1.2016, to 16.12.2015 is violative of Article 163 
read with Article 174 of the Constitution of India, and as 
such, is liable to be quashed. The same is accordingly hereby 
quashed. 
(ii) 
The message of the Governor dated 9.12.2015, directing 
the manner of conducting proceedings during the 6th session 
D 
of the Arunachal Pradesh Legislative Assembly, from 
16.12.2015 to 18.12.2015, is violative of Article 163 read 
with Article 175 of the Constitution oflndia, and as such, is 
liable to be quashed. The same is accordingly hereby 
quashed. 
E 
(iii) 
All steps and decisions taken by the Arunachal Pradesh 
Legislative Assembly, pursuant to the Governor's order and 
message dated 9.12.2015, are unsustainable in view of the 
decisions at (i) and (ii) above. The same are accordingly 
set aside. 
F 
(iv) 
In view of the
decisions at (i) to (iii) above, the status quo 
ante as it prevailed on 15.12.2015, is ordered to be restored. 
DIPAK MISRA, J. 
1. I respectfully concur with the views 
expressed on each of the aspects by my respected learned brother 
Khehar, J. However, I intend to add something pertaining to the 
G 
interpretation of Article 179( c) of the Constitution oflndia especially in 
the context of the Tenth Schedule to the Constitution. 
2. Article l 79(a) postulates that a Speaker or a Deputy Speaker 
of the Assembly shall vacate his office if he ceases to be a member of 
the Assembly. Article l 79(b) deals with resignation from the office. In 
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the case at hand, neither clause (a) nor clause (b) of Article 179 is 
attracted. In the obtaining fact situation, the controversy pertains 
singularly to the understanding of clause (c ). 
B 
3. Article 179 reads as follows:-
"179. A member holding office as Speaker or Deputy Speaker of 
an Assembly -
(a) shall vacate his office if he ceases to be a member of the 
Assembly; 
(b) may at any time by writing under his hand addressed, if such 
member is the Speaker, to the Deputy Speaker, and if such member 
C 
is the Deputy Speaker, to the Speaker, resign his office; and 
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(c) may be removed from his office by a resolution of the Assembly 
passed by a majority of all the then members of the Assembly: 
Provided that no resolution for the purpose of clause (c) 
shall be moved unless at least fom1een days' notice has been 
given of the intention to move the resolution. 
Provided further that, whenever the Assembly is dissolved, 
the Speaker shall not vacate his office until immediately before 
the first meeting of the Assembly after the dissolution." 
[underlining by me] 
Be it immediately clarified, we are not concerned with the second 
proviso. 
4. The thrust of the matter is what interpretation is to be placed on 
Article 179( c) and the first proviso, being diligently and respectfully 
adherent to the nonns of the constitutional interpretation. I may state 
with quite promptitude the purpose of adherence should not
convey that 
I am confined to any kind of static principle but the principles that flow 
from our organic, vibrant, flexible, inclusive and compassionate 
Constitution. There are precedential guides and, ifl allow myself to say, 
constitutional precepts those serve as light posts without causing any 
violen9e even remotely, to the language employed in the Constitution. 
5. Jn St(lfe of K(lrn{lf(lka v. Union of India and another1 Beg, 
C.J. posed the question with regard to understanding of special rules 
relating to the construction of Constitution in general or of our Constitution 
in particular. In that context, the learned Chief Justice spoke thus:-
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1 ( 1 977) 4 sec 608
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 215 
AND OTHERS [DIPAK MISRA, J.] 
"83. A written Constitution, like any other enactment, is embodied 
in a document. There are certain general rules of interpretation 
and construction of all documents which, no doubt, apply to the 
Constitution as well. Nevertheless, the nature of a Constitution of 
a sovereign Republic, which is meant to endure and stand the test 
of time, the strains and stresses of changing circumstances, to 
govern the exercise of all governmental powers, continuously, and 
to determine the destiny of a nation, could be said to require a 
special approach so that judicial intervention does not unduly thwart 
the march of the nation towards the goals it has set before itself. 
x 
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x 
x 
85. Although, a written Constitution, which is always embodied in 
a document, must necessarily be subject to the basic canons of 
construction of documents, yet, its very nature as the embodiment 
of the fundamental law of the land, which has to be adapted to the 
changing needs of a nation, makes it imperative for Courts to 
determine the meanings of its parts in keeping with its broad and 
basic purposes and objectives. This approach seems to flow from 
what may be cal led a basic principle of construction of documents 
of this type; that the· paramount or predominant objects and 
purposes, evident from the contents, must prevai I over lesser ones 
obscurely embedded here and there. The Constitutional document, 
in
other words, must be read as a whole and construed in keeping 
with its declared objects and its functions. The dynamic needs of 
the nation, which a Constitution must fulfil, leave no room for 
merely pedantic hairsplitting play with words or semantic 
quibblings. This, however, does not mean that the Courts, acting 
under the guise of a judicial power, which certainly extends to 
even making the Constitution, in the sense that they may 
supplement it in those parts of it where the letter of the Constitution 
is silent or may leave room for its development by either ordinary 
legislation or judicial interpretation, can actually nullify, defeat, or 
distort the reasonably clear meaning of any part of the Constitution 
in order to give expression to some theories of their own about 
the broad or basic scheme of the Constitution. 
86. The theory behind the Constitution which can be taken into 
account for purposes of interpretation, by going even so far as to 
fill what have been called the "interstices" or spaces left unfit led, 
due perhaps to some deliberate vagueness or indefiniteness in the 
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letter of the Constitution, must itself be gathered from express 
provisions of the Constitution. The dubiousness of expressions 
used may be cured by Courts by making their meanings clear and 
definite if necessary in the light of the broad and basic purposes 
set before themselves by the Constitution-makers. And, these 
meanings may, in keeping with the objectives or ends which the 
Constitution of every nation must serve, change with changing 
requirements of the times. The power of judicial interpretation, 
even if it includes what, may be termed «> "intersticial" law 
making, cannot extend to direct conflict with express provisions 
of the Constitution or to ruling them out of existence." 
r emphasis added] 
The aforesaid paragraphs clearly convey that judicial interpretation 
cannot nullify, defeat or distort a constitutional provision or the 
interpretative process cannot be in direct conflict with the express 
provision of the Constitution. However, the learned Chief Justice has 
observed that constitutional document has to be read a whole and 
construed keeping in view the declared objects and functions. In the 
said judgment, a distinction has been drawn between "the constitutional 
law" or "the fundamental law" and other laws which may be important 
to constitutional matters. I think it appropriate to reproduce the said 
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passage:-
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" ... The "fundamental distinction" between "the constitutional 
law"
or "the fundamental law" and the ordinary laws, referred to 
there, was meant to bring out only this difference in the uses 
made of laws which, being "fundamental", can test the validity of 
all other laws on a lower normative level and these other laws 
which are so tested. In that very special or restricted sense, the 
law not found in "the Constitution'' could not be ''constitutional," 
or "fundamental" law .... " 
6. In S.R. Clumdhuri v. State of Pw~jab mu/ others2, a three-
Judge Bench while dwelling upon the manner in which the constitutional 
provisions are to be interpreted had observed thus:-
"Constitutional provisions are required to be understood and 
interpreted with an object-oriented approach. A Constitution must 
not be construed in a narrow and pedantic sense. The words used 
H 
'(2001 J 7 sec 126
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 217 
AND OTHERS [DIPAK MISRA, J.] 
may be ge11eral in terms but, their full import and true meaning, 
A 
has to be appreciated considering the true context in which the 
same are used and the purpose which they seek to achieve." 
And, again:-
"lt is a settled position that debates in the Constituent Assembly 
may be relied upon as an aid to interpret a constitutional provision 
B 
because it is the function of the court to find out the intention of 
the framers of the Constitution. We must remember that a 
Constitution is not just a document in solemn form, but a living 
framework forthe Government of the people exhibiting a sufficient 
degree of cohesion and its successful working depends upon the 
democratic spirit underlying it being respected in letter and in 
spirit..." 
7. In this regard, I th ink it apt to reproduce a passage from the 
Constitution Bench decision in M. Nagaraj am/ others v. Union of 
India and others3 :-
"The Constituti"On is not an ephemeral legal document embodying 
a set of legal rules for the passing hour. It sets out principles for 
an expanding future and is intended to endure for ages to come 
and consequently to be adapted to the various crises of human 
affairs. Therefore, a purposive rather than a strict literal approach 
to the interpretation should be adopted. A constitutional provision 
must be construed not in a narrow and constricted sense but in a 
wide and liberal manner so as to
anticipate and take account of 
changing conditions and purposes so that a constitutional provision 
does not get fossilised but remains flexible enough to meet the 
newly emerging problems and challenges." 
[emphasis supplied] 
8. I have referred to the aforesaid pronouncements as they have 
laid down the guidelines for understanding the text, context, the words 
and the purpose of a constitutional provision. Emphasis is on flexibility, 
adaptability and durability, and also not to import or implant an 
interpretation which would be in conflict with the express language of 
the Constitution. 
9. Having perceived the guidance from the precedents and keeping 
in view the cohesive constitutional precepts, I shal I proceed to analyse 
the language employed in Article l 79(c). Prior to that, I think it condign 
'(2006J s sec 212 
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to dwell upon the importance of the office of the Speaker. There is no 
shadow of doubt in my mind that to appreciate the significance of the 
provision, namely, Article 179( c ), in the context of constitutional 
\ 
supremacy and constitutional consciousness, it is necessary to understand 
the position of the Speaker in the Constitution. Office of the Speaker in 
our history had its origin in 1921 when the Central Legislative Assembly 
was constituted under the Montague-Chelmsford reforms. At that time, 
office of the Speaker did not enjoy much importance. But, a significant 
one, after the Constitution came into force, as is ", :.:!ent from the 
constitutional scheme of ours, the Speaker enjoys high COilStitutional status 
and the Constitution reposes immense faith in him. For this reason alone, 
the Speaker is expected to have a sense of elevated independence, 
impeccable objectivity and irreproachable fairness, and above all absolute 
impartiality. Th is expectation is the constitutional warrant; not a fond 
hope and expectation of any individual or group. 
I 0. The Speaker has the duty to see that business of the House is 
carried out in a decorous and disciplined manner. This functioning requires 
him to have unimpeachable faith in the intrinsic marrows of the 
Constitution, constitutionalism and, "Rule of Law". The faith, needless 
to emphasise, should be a visible and apparent one. That is why,
possibly, 
former Speaker of the House of Commons of the United Kingdom, 
Baroness Boothroyd", stated:-
"When you have been committed all your adult life to the ideals 
and policies of one party, impartiality is a quality that you have to 
work at. But if you cannot put aside pa11isanship you have no 
right to even think of becoming Speaker." 
· 
I have referred to the aforesaid only to stress upon the impartial 
functioning and the constitutional neutrality of the Speaker. 
l 1. The expression can be different if one wishes to choose the 
metaphor of the ancients. The ancient wisdom would require the Speaker 
to abandon his "purbashrama" and get wedded to "parashrama". To 
elucidate, a Speaker has to constantly remain in company with the 
cherished values of incarnation of his office and not deviate even slightly 
from the constitutional conscience and philosophy. His detachment has 
to have perceptibility. 
'THE RT HON. BARONESS BOOTHROYD. The Role of the Speaker in the 20'' 
Century. The Parliamentary History Yearbook Trust, Vol. 29, Issue I, Feb 2010, page 
136
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 219 
AND OTHERS [DIPAK MISRA, J.] 
12. For apposite appreciation, I may refer to the Constitutional 
Assembly debates. The position of the Speaker being different, the 
procedure for removal is different and, the debate in the Constituen.t 
Assembly is indicative of the same:-
To quote:-
"Mr. Mohd. Tahir: Sir, I beg to move: 
"That in clause (c) of article 158, for the words 'all the then 
members of the Assembly' the words 'the members of the 
Assembly present and voting' be substituted." 
Clause (c) runs as follows: 
"(c) may be removed from his office for incapacity or want of 
confidence by a resolution of the Assembly passed by a 
majority of all the then members of the Assembly". 
Sir, so far as I can understand the meaning of the wording, "all the 
then members of the Assembly", it includes all the members of 
the Assembly. Supposing a House is composed of300 members 
then, it will mean all the members of the Assembly, that is 300. 
Supposing fifty members of the House are not present in the House, 
then, those members will not have the right to give their votes so 
far as this question is concerned. Therefore, I think that it would 
be better that this matter should be considered by only those 
members who are present in the Assembly and who can vote in 
the matter. If this phrase "all the then members of the Assembly" 
means the members who are present in the Assembly, then, I 
have no objection. If it means all the
members of which the 
House is composed, I think it is not desirable to keep the clause as 
it stands. 
With these few words, I move my amendment". 
"Mr. President: The question is : 
"That in clause (c) of article 158, for words 'all the then 
members of the Assembly' the words 'the members of the 
Assembly present and voting' be substituted." 
The amendment was negatived." 
The factum- of negativing the proposed amendment has to be 
appreciated keeping in mind the wisdom of the Founding Fathers. 
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13. Presently to the anatomy of Article 179( c ). The said provision 
lays focus on two aspects, namely, (i) resolution of the Assembly, and 
(ii) the resolution to be passed by a majority of all the then members of 
the Assembly. The first proviso commands that no resolution for the 
purpose of clause ( c) shall be moved unless fourteen days' notice has 
been given of the intention to move the resolution. The fourteen days' 
time as mandated by the constitutional provision gives protection to the 
Speaker. lt has a salutary purpose. The Founding Fathers of the 
Constitution had thought it appropriate that a resolution to be moved for 
removal of the Speaker is a matter of grave constitutional consequence 
and, therefore, the "intention to move the resolution", has to precede the · 
act of moving of the resolution. Be it stated that the Rules are framed 
under Article 208 of the Constitution for regulating the procedure of a 
House of the Legislature of a State and the conduct of its business and 
said procedures prescribe the manner of expressing the intention to move 
the resolution. 
14. While prescribing a resolution to be passed by the majority, 
the framers of the Constitution have also provided for "all the then 
members of the Assembly". It indicates the intention of the Founding 
Fathers that "all the then members of the Assembly" have to be regarded 
as to be the actual or real figure. A
hypothetical argument may be 
advanced that if a member dies within the prescribed period of 14 days, 
it may lead to an absurd situation. Similarly, the issue ofresignation may 
arise or some may stand convicted and thereby become disqualified. 
Death or resignation has to be kept in a different realm. 
15. The fulcrum of the controversy is "disqualification". Different 
disqualifications find mention under Article 19 l ( l) of the Constitution. 
These contingencies are quite different than the situation enshrined under 
Article 19 l (2) which has been inserted by the Constitution (Fifty-second 
Amendment) Act, 1985. The said sub-Article specifically refers to 
disqualification under the Tenth Schedule. Article 19 l, after the 
amendment, reads as follows:-
"191. Disqualifications for membership 
( 1) A person shall be disqualified for being chosen as, and for 
being, a member of the Legislative Assembly or Legislative Council 
of a State -
(a) ifhe holds any office of profit under the Government oflndia 
or the Government of any State specified in the First Schedule,
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 221 
AND OTHERS [DIPAK MISRA, J.] 
other than an office declared by the Legislature of the State by 
A 
law not to disqualify its holder; 
(b) ifhe is of unsound mind and stands so declared by a competent 
court; 
(c) ifhe is an undischarged insolvent; 
(d) if he is not a citizen of India, or has voluntarily acquired the 
citizenship of a foreign State, or is under any acknowledgement_ 
of allegiance or adherence to a foreign State; 
(e) ifhe is so disqualified by or under any law made by Parliament. 
Explanation - For the purposes of this clause, a person shall not 
be deemed to hold an office of profit under the Government of 
India or the Government of any State specified in the First Schedule 
by reason only that he is a Minister either for the Union or for 
such State. 
(2) A person shall be disqualified for being a member of the 
Legislative Assembly or Legislative Council of a State ifhe is so 
disqualified under the Tenth Schedule". 
Article 191 (2) stipulates that a person shall be disqualified for 
being a member of the Legislative Assembly or Legislative Council ofa 
State, ifhe is so disqualified under the Tenth Schedule. It is absolutely 
different than what has been envisaged under Article 191 ( 1 ). Tenth 
Schedule pertains to disqualification on ground of defection. Paragraph 
2 of the Tenth Schedule deals with decision on questions as to 
disqualification on ground of defection. The said paragraph is as
follows:-
"6. Decision on questions as to disqualification on ground 
of defection.- ( l) If any question arises as to whether a member 
of a House has become subject to disqualification under this 
Schedule, the question shall be referred for the decision of the 
Chairman or, as the case may be, the Speaker of such House and 
his decision shall be final: 
Provided that where the question which has arisen is as to 
whether the Chairman or the Speaker of a House has become 
subject to such disqualification, the question shall be referred for 
the decision of such member of the House as the House may 
elect in this behalf and his decision shall be final. 
(2) All proceedings under sub-paragraph (1) of this paragraph in 
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relation to any question as to disqualification of a member of a 
House under this Schedule shall be deemed to be proceedings in 
Parliament within the meaning of Article 122 or, as the case may 
be, proceedings in the Legislature of a State within the meaning 
of Article 212." 
16. Paragraph 8 enables the Chairman or the Speaker of a House 
to make rules for giving effect to the provisions of the Tenth Schedule. 
The power conferred on the Speaker under the Tenth Schedule is 
enormous. It is not to be forgotten that the Constitution of India is a 
controlled constitution. It provides for checks and balances. Some are 
fundamentally inherent. Founding Fathers had desired, as the debate 
would reflect, the Speaker can be removed by the resolution passed by 
majority of all the then members and not by the majority of the members 
present and voting. It is to borne in mind that at the time of framing of 
the Constitution the Tenth Schedule was not in existence in the 
Constitution. Certain grounds were mentioned in the Constitution itself 
and it has also been provided that ifa person is disqualified by or under 
any law made by the Parliament. Therefore, it is necessary to sustain 
the elevated position the Speaker constitutionally enjoys and also have 
room for c'o1istitutional propriety. There can be myriad situations in a 
democracy. The Constitution, as an organic instrument, has to be 
interpreted to
meet all exigencies. It has to have flexibility. Assuming the 
requisite members express their intention to move the resolution for 
removal of the Speaker from the office and immediately the Speaker on 
a complaint initiates action under the Tenth Schedule, and as the resolution 
against th~ Speaker cannot be moved unless 14 days' notice period 
expires, the members can be disqualified within the said period and the 
Speaker would gain an advantage. Thus, it can result in a situation of 
constitutional conflict, that is, the conflict between the status of the 
Speaker conferred by the Constitution and the position he has been given 
after the constitutional amendment. The final arbiters have trusted him 
regard being had to his constitutional status. It is the "constitutional trust". 
Therefore, there should be perceptibility of absence of conflict. That 
apai1, it will not be in harmony with Article 179( c) or the constitutional 
norm. It would also cause discord with the language employed in the 
said Article. The founding fathers had deliberately retained the words 
"all the then members", by negativing the proposed amendment. The 
purpose of not accepting the amendment is to preserve the constitutional 
control over the situation.
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 223 
AND OTHERS [DJPAK MISRA, J.] 
17. In this regard, I may usefully refer to Article 189 of the 
Constitution. It provides for voting in Houses, power of Houses to act 
notwithstanding vacancies and quorum. Sub-Article ( 1) of Article 189 
stipulates that save as otherwise provided in the Constitution, all questions 
at any sitting of a House of the legislature of a State shall be determined 
by a majority of votes of the members present and voting, other than the 
Speaker or Chairman, or person acting as such. The said sub-Article 
also provides that Speaker or Chairman or person acting as such shall 
not vote in the first instance, but shall have and exercise a casting vote in 
the case of an equality of votes. The said sub-Article, thus, clearly states 
about the majority of votes of the members present and voting and 
secondly, it empowers the Speaker to exercise his power of voting in 
case of equality of votes. In contradistinction to the same, Article 181 
provides that Speaker or the Deputy Speaker not to preside while resolution 
for his removal from office is under consideration and he is entitled to 
vote in the first instance on such resolution but not in the case of an 
equality of votes. Article 181 (2) which is relevant forthe present purpose 
reads as follows:-
"(2) The Speaker shall have the right to speak in, and otherwise 
to take part in the proceedings of, the Legislative Assembly while 
any resolution
for his r~oval from office is under consideration 
in the Assembly and shall, notwithstanding anything in Article 189, 
be entitled to vote only in the first instance on such resolution or 
on any other matter during such proceedings but not in the case 
of an equality of votes." 
18. The purpose of referring to the said Article is to highlight the 
nature of participation of the Speaker when the question of his removal 
arises. It is clearly different. Under the Constitution· he is entitled to take 
part in the proceedings and speak. Therefore, he is in a position to contest. 
Appreciating the scheme of the Constitution and especially keeping in 
view the language employed in the first proviso to Article l 79(c) it is 
quite clear that it is the constitutional design that the Speaker should not 
do any act in furtherance of his interest till the resolution is moved. 
19. In this regard, it is essential to understand the character of the 
Tenth Schedule. The Tenth Schedule to the Constitution has conferred 
adjudicatory powers on the speaker. While deliberating on the 
constitutionality of the said Schedule, the majority in Kihota Hol/olwn 
v. Zac/1ilhu and others5, has stated that:-
'(1992) 1sec309 
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"[G] The Speakers/Chairmen while exercising powers and 
discharging functions under the Tenth Schedule act as Tribunal 
adjudicating rights and obligations under the Tenth Schedule and 
their decisions in that capacity are amenable to judicial review. 
However, having regard to the Constitutional Scheme in the Tenth 
Schedulc,judicial review should not cover any stage prior to the 
making of a decision by the Speakers/Chairmen. Having regard 
to the constitutional intendment and the status of the repository of 
the adjudicatory power, no quia timer actions are permissible, the 
only exception for any interlocutory interference being cases of 
interlocutory disqualifications or suspensions which may have 
grave, immediate and irreversible repercussions and consequence. 
[H] That paragraph 6( 1) of the Tenth Schedule, to the extent it 
seeks to impart finality to the decision of the Speakers/Chairmen 
is valid. But the concept of statutory finality embodied in paragraph 
6( 1) does not detract from or abrogate judicial review under Articles 
136, 226 and 227 of the Constitution insofar as infirmities based 
on violations of constitutional mandates, mala tides, non-compliance 
with rules of Natural Justice and perversity, are concerned. 
[I] That the deeming provision in paragraph 6(2) of the Tenth 
Schedule attracts an immunity analogous to that in Articles 122(1) 
and 212(1) of the Constitution as understood
and explained in 
Keshav Singh case" to protect the validity of proceedings from 
mere irregularities of procedure. The deeming provision, having 
regard to the words "be deemed to be proceedings in Parliament" 
or "proceedings in the legislature of a State" confines the scope 
of the fiction accordingly. 
[J] That contention that the investiture of adjudicatory functions 
in the Speakers/Chairmen would by itself vitiate the provision on 
the ground oflikelihood of political bias is unsound and is rejected. 
The Speakers/Chairmen hold a pivotal position in the scheme of 
narliamentaiy democracy and are guardians of the rights and 
privileges of the House. They are expected to and do take far 
reaching decisions in the functioning of parliamentary democracy. 
Vestiture of power to adjudicate questions under the Tenth 
Schedule in such constitutional functionaries should not be 
considered exceptionable". 
H 
'' (1965) I SCR413: AIR 1965 SC 745 
(Emphasis added)
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 225 
AND OTHERS [DIPAK MISRA, J.] 
20. The aforesaid reasoning eloquently speaks of the power, 
position and the status the office of the Speaker enjoys under the 
Constitution. It also states about the scope of the fiction. The Court has 
constricted the power of judicial review and restricted it to the stage 
carving out ce11ain extreme exceptions. It is because the speaker, while 
exercising the authority/jurisdiction, exercises the power of"constitutional 
adjudication". The concept of constitutional adjudication has constitutional 
value in a parliamentary democracy; and constitutional values sustain 
the democracy in a sovereign Republic. The Speaker is expected to 
maintain propriety as an adjudicator. The Speaker when functions as a 
tribunal has the jurisdiction/authority to pass adverse orders. It is 
therefore, required that his conduct sliould not only be impartial but such 
impartiality should be perceptible. It should be beyond any reproach. It 
must reflect the trust reposed in him under the Constitution. Therefore, 
the power which flows from the introduction of Tenth Schedule by 
constitutional amendment is required to be hannoniously construed with 
Article 1 79( c ). Both the provisions of the Constitution are meant to 
subserve the purpose of sustenance of democracy which is a basic feature 
of the Constitution. The majority in Mano} Narula v. Union of Imli<t7 
where speaking about democracy has opined that
democracy in India is 
a product of the rule of law and it is not only a political philosophy but 
also an embodiment of constitutional philosophy. 
21. Thus, regard being had to the language employed in the Article 
179 ( c) of the Constitution and the role ascribed to the Speaker under 
the Tenth Schedule, it is necessary tliat the Speaker as a tribunal has to 
have complete detachment and perceivable impartiality. When there is 
· an expression of intention to move the resolution to remove him, it is 
requisite that he should stand the test and then proceed. That is the 
intendment of Article 179( c) and the said interpretation serves the litmus 
test of sustained democracy founded on Rule of Law; and the founding 
fathers had so intended and the constitutional value, trust and morality 
unequivocally so suggest. It would be an anathema to the concept of 
constitutional adjudication, ifthe Speaker is allowed to initiate proceeding 
under the Tenth Schedule of the Constitution after intention to remove 
him from his office is moved. The fourteen days period being mandatory, 
the words "all the then members" gain more significance. The Constitution 
has confidence in the Speaker. I would like to call it "repose of 
constitutional confidence". Simultaneously, the command is to have the 
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confidence of the majority of the "actual or real figure". This understanding 
is gatherable from the express provisions of the Constitution and it clearly 
brings in harmony between "constitutional confidence" or trust and the 
"constitutional control". Be it stated, the position has to remain the same 
even after introduction of the Tenth Schedule to sustain the robust vitality 
of our growing Constitution. And it embraces the seminal spirit of the 
"Rule of Law" that controls all powers, even the prerogative powers. 
22. Before parting, l may state that constitutional restraint and 
discipline are revealed from the words of the Constitution and the high 
constitutional functionary should remain embedded to the same with 
humility, because it is humility that forms the "foundation ofregard"8• It 
is the ultimate constitutional vi11ue. 
MADAN B. LOKUR, J. I. Leave granted. 
2. The draft judgment prepared by my learned Brother Justice 
Khehar details all the facts of the case and considers all the submissions 
made by learned counsel for the parties. I have had the benefit of going 
through the detailed draft judgment. I am in general agreement with the 
conclusions arrived at on the interpretation of Article 163 and Article 
174 of the Constitution. However, my reasons for arriving at the same 
conclusions are somewhat different and partly additional or supplementary, 
necessitating an expression of my views.
I have also gone through the 
draft judgment of my learned Brother Justice Dipak Misra and in the 
view that I have taken, it is not necessary for me to expression any 
opinion on his conclusions. 
3. As far as the interpretation of Article I 75 of the Constitution is 
concerned, I am of opinion that in view of the conclusions arrived at 
with regard to the interpretation of Article I 63 and Article I 74 of the 
Constitution, the interpretation of Article I 75 of the Constitution and the 
actions of the Governor of Arunachal Pradesh in this regard are rendered 
academic. It is therefore not necessary or advisable to comment, one 
way or the other, on the interpretation of Article I 75 of the Constitution 
and the actions of the Governor of Arunachal Pradesh in this regard. 
4. The interpretation of Article 179 of the Constitution also does 
not arise in view of the conclusions arrived at on the interpretation of 
A11icle 163 and Article 174 of the Constitution and the consequence 
thereof. 
H 
' Laozi, 570-490 BCE
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 227 
AND OTHERS [MADAN B. LOKUR, J.] 
5. With regard to the interpretation of the Tenth Schedule of the 
Constitution and the decision of the Speakerofthe Legislative Assembly 
of Arunachal Pradesh, that too is unnecessary in view of the decision 
rendered by the Gauhati High Coui1 in Pema Klumdu v. Tile Speaker, 
Arunacltal Pradesh Legislative Assembly' - the decision having been 
delivered after judgment was reserved in these appeals. 
6. The questions that arise for consideration, in my opinion, are 
the following: 
· 
I. Whether, after having notified the dates of sitting of the 
Legislative Assembly in consultation with the Chief Minister 
and the Speaker of the House, the Governor of Arunachal 
Pradesh could cancel those dates in the exercise of 'power' 
under A11icle 174(1) of the Constitution and in the exercise of 
discretion under Article 163 of the Constitution? 
2. Whether, after having notified the dates of sitting of the 
Legislative Assembly in consultation with the Chief Minister 
and the Speaker of the House, the Governor of Arunachal 
Pradesh could unilaterally alter and reschedule those notified 
dates in the exercise of 'power' under Article 174(1) of the· 
Constitution read with Article 163 of the Constitution by issuing 
a fresh notification? 
3. Whether generally, in the exercise of discretion under Article 
163(1) of the Constitution read with Article 174(1) of the 
Constitution and notwithstanding the
relevant rules framed by 
the Legislative Assembly under Article 208 of the Constitution, 
the Governor of Arunachal Pradesh could summon the 
Legislative Assembly without consulting the Chief Minister and 
the Speaker of the House? 
4. Whether the message sent by the Governor of Arunachal 
Pradesh on 91h December, 2015 under Article 175(2) of the 
Constitution was a constitutionally valid message that ought to 
have been (and was) acted upon by the Legislative Assembly? 
Historical background of Article 163 of the Constitution 
7. Article 163 of the Constitution traces its origins first to Section 
50 of the Government oflndiaAct, 1935 and then to Article 143 in the 
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draft Constitution. Section 50 of the Government of India Act, 1935 
reads as follows: 
"50. (I) There shall be a council of ministers to aid and advise the 
Governor in the exercise of his functions, except in so far as he is 
by or under this Act required to exercise his functions or any of 
them in his discretion: 
Provided that nothing in this sub-section shall be construed as 
preventing the Governor from exercising his individual judgment 
in any case where by or under this Act he is required so to do. 
(2) The Governor in his discretion may preside at meetings of the 
council of ministers. 
(3) If any question arises whether any matter is or is not a matter 
as respects which the Governor is by or under this Act required to 
act in his discretion or to exercise 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 
his discretion, or ought or ought not to have exercised his individual 
judgment." 
8. Two impo11ant expressions find mention in Section 50 of the 
Government of India Act, 1935 namely, "in his discretion" and "his 
individual judgment". These expressions are noticed in several Sections 
of the Government of India Act, 1935 and came up for discussion when 
Section 9 of the Government oflndia Act, 1935 (relating to
the Council 
of Ministers)' was discussed in the House of Commons on 28'h February, 
1935.3 In the debate, the view expressed by one of the Members of 
' 9.( I) There shall be a council of ministers; not exceeding ten in number, to aid and advise 
the Governor-General in the exercise of his functions, except in so far as he is by or under 
this Act required to exercise his functions or any of them in his discretion : 
Provided that nothing in this sub-Section shall be construed as preventing the Governor-
General from exercising his individual judgn1ent in any case where by or under this Act he 
is required so to do. 
(2) The Governor-General in his discretion may preside at meetings of the council of 
111inisters. 
(3) If any question arises whether any matter is or is not a matter as respects which the 
Governor-General is by or under this Act required to act in his discretion or to exercise his 
individual judgment, the decision of the Governor-General in his discretion shall be final, 
and the validity of anything done by the Governor-General shall not be called in question 
on the ground that he ought or ought not to have acted in his discretion, or ought or ought 
not to have exercised his individual judgment. 
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NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 229 
AND OTHERS [MADAN B. LOKUR, J.] 
Parliament was that the Governor-General acts "in his discretion" when 
A 
he is not obliged to consult the Council ofMinisters. On the other hand, 
he acts in "his individual judgment" when he consults the Council of 
Ministers but does not necessarily accept its advice. This was the view 
expressed by Mr. Herbert Williams: 
"l beg to move, in page 7, line 3, to leave out Sub-section (3). 
B 
J take it, Sir Dennis, that you have selected this particular 
Amendment because it enables us to discuss all the major problems 
which arise under this Clause-the problems of the relationship 
of the Governor-General to his ministers. There are in the Sub-
section the words "in his discretion," and also the words "his 
individual judgment." I want to be clear that I have interpreted 
the significance of these words accurately, and perhaps the 
Secretary of State will be good enough to contradict me if l am 
inaccurate. I gather that when the Governor-General acts in his 
discretion it is a case where he acts without being under the 
obligation of consulting his ministers at all, and that he acts perfectly 
freely. On the other hand, when he exercises his individual 
judgment, that is a case where he consults his ministers but is not 
obliged to take their advice, and, therefore, his final decision may 
or may not disagree with the advice tendered to him by his 
ministers. I hope that I have got the
correct interpretation, because 
it is necessary in discussing this most important constitutional issue 
that we should be all quite clear as to the meaning of the words 
we are using. As my interpretation has not been challenged, I 
assume that I have correctly interpreted the significance of these 
words."4 
9. This view was sought to be made more explicit by Mr. Bailey by 
adding sub-section (4) to Section 9 of the Government of India Act, 
1935 in the following words: 
"I beg to move, in page 7, line J 2, at the end, to add: "( 4) (i) In this 
Act the expression 'in his discretion' when applied to any act of 
the Governor-General or any exercise of his functions or powers 
means that such act may be done and such functions and powers 
may be exercised by the Governor-General without consultation 
with his Ministers." "(ii) In this Act the expression 'his individual 
judgment,' when applied to any act of the Governor-General or 
'HC Deb 28 February 1935 vol 298 ccl327-63 
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any exercise of his functions or powers, means that such act may 
be done and such functions and powers may be exercised by the 
Governor-General only after consultation with his Ministers but 
notwithstanding any advice given to him by his Ministers." I do 
not want to occupy any length of time in moving this Amendment, 
the point of which shortly is this: It seeks to clarify the possible 
distinction between "discretion" and "individual judgment." I should 
be very grateful ifthe learned Attorney-General would say what 
is the view of the Government's legal advisers as to the distinction, 
if any, between discretion and individual judgment, and whether 
or not-this is most important of all-the Governor-General may 
use his individual judgment without consulting his Ministers."' 
I 0. The discussion was responded to by the Solicitor-General (Sir 
Donald Somervell) confirming the distinction between "in his discretion" 
and "his individual judgment" as mentioned above. The opinion expressed 
by the Solicitor-General was accepted by Mr. Churchill as the following 
discussion will demonstrate: 
"The SOLICITOR- GENERAL (Sir Donald Somervell) 
In moving this Amendment, my hon. Friend has confined himself 
to asking two specific questions. He asks what is the distinction 
between individual judgment and discretion. The Bill has been 
drafted in this way: The words "individual judgment" are used in 
relation to
actions by the Governor-General on his individual 
judgment in the ordinary sense of the word within the ambit in 
which normally he would be acting on the advice of his Ministers. 
If within that ambit it is soughtto give the Governor-General special 
powers or responsibilities, then the words "individual judgment" 
are used. They are found, for example, in Clause 12. The words 
"in his discretion" are used where the Governor-General will be 
acting on his own judgment but in an area outside that field. For 
example, in Clause 11 the functions of the Governor-General in 
respect of defence are to be exercised by him in his discretion. It 
is a matter of drafting which, once apprehended, I think it will be 
agreed, is convenient and useful. 
My hon. Friend asked one further point, whether when the words 
"individual judgment" are used the Governor-General can act 
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ministers
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 231 
AND OTHERS [MADAN 8. LOKUR, J.] 
without consulting his Ministers. The answer is that as quite 
obviously that action is in the field where normally he would be 
acting on the advice of his Ministers, no cleavage between them 
as to right actions can possibly have arisen, except of course as a 
result of something that has happened and has been discussed; 
but, of course, once he had decided that within that field action 
must be taken, he would take it. Take quite an impossible case. 
Suppose that Ministers simply do not turn up. Then, of course, he 
must take the action in order to carry out the obligations conferred 
upon him. I do not think that the sort of test of consultation or non-
consultation is really the clue to the meaning. The clue is that the 
words "individual judgment" are used in respect of powers within 
the area in which normally in ordinary times he would be acting 
on the advice of his Ministers. The words "in his discretion" are 
used in respect of powers and functions outside that area. 
Mr. CHURCHILL 
It is, of course, a very convenient distinction between the two 
functions, and, if my memory serves me right, it is fully explained 
in the report of the Joint Select Committee. Undoubtedly there is 
great difficulty in describing this action and the rights of a 
Governor-General under the two specific and separate methods. 
I am bound to say that I agree with the Solicitor-General that if 
there is
a difference between the Governor-General and his 
Ministers and he exercises his individual judgment because previous 
consultation with them has broken down, he will not be under 
the need of consulting them any more. All parleys having come to 
an end he will take the matter into his own hands and act freely. I 
gather that that is so? 
The SOLICITOR-GENERAL 
Yes. Of course he can, if he thinks proper and if all friendly 
relations have broken down, proceed to act on his own 
responsibility. I do hot mean to imply that in those circumstances 
he is precluded from consulting his Ministers. At any point he 
may think it right to consuh them."6 
11. The view expressed was reiterated a week later when Section 
12 of the Government of India Act, 1935 (relating to the special 
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responsibilities of the Governor-General) was discussed. During the 
debate on 5'h March, 1935 Mr. Somerville adverted to the opinion of the 
Solicitor-General and said: 
"We are dealing here with a very weighty and special responsibility 
of the Governor-General. Sub-section (2) of the Clause provides 
that the Governor-General shall in the exercise of his powers "use 
his individual judgment," and according to the definition given to 
us by the Solicitor-General last week, exercising his individual 
judgment means that before he comes to a decisiv1. :;e must consult 
his Indian advisers."' 
12. This makes it abundantly clear that the expression "his individual 
judgment" obliges the Governor to take the aid and advice of his Council 
of Ministers but he is not bound by that advice and may act in his 
judgment. Mr. Churchill sought a clarification to the effect that ifthere is 
a break-down of communications between the Governor-General and 
his Ministers, then the Governor-General could "act freely" that is to 
say that he would be discharged of the obligation to seek the aid and 
advise of the Ministers. The Solicitor-General affirmed that this is so 
and that he could "proceed to act on his own responsibility."8 
Independence and the Constituent Assembly 
13. After Independence, there was no intention to permit the 
Governor to exercise any discretion or to take any decision in his individual 
judgment.
This is clear from the India (Provisional Constitution) Order, 
1947 issued in exercise of powers conferred by Section 9(l)(c) of the 
Indian Independence Act, 194 7. Paragraph 3(2) of the India (Provisional 
Constitution) Order, 1947 explicitly deletes the expressions "in his 
discretion", "acting in his discretion" and "exercising his individual 
judgment" wherever they occur in the Government of India Act, 1935. 
Paragraph 3( 1) and paragraph 3(2) of the India (Provisional Constitution) 
Order, 194 7 read as follows: 
"3( 1) As from the appointed day, the Government of India Act, 
1935, including the provisions of that Act which have not come 
into force before the appointed day and the India (Central 
Government and Legislature)Act. 1946, shall, until other provision 
7 HC Deb 05 March 1935 vol 298cc1787-887 to be found at 
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responsibi I ities-of 
'Sir Alladi Krishnaswarny Aiyar also refers to the "breakdown provisions" as brought 
out subsequently in this judgment.
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 233 
AND OTHERS [MADAN B. LOKUR, J.] 
is made by or in accordance with a law made by the Constituent 
Assembly oflndia, apply to India with the omissions, additions, 
adaptations and modifications directed in the following provisions 
of this paragraph and in the Schedule to this Order. 
(2) The following expressions shall be omitted wherever they occur, 
namely, "in his discretion", "acting in his discretion" and "exercising 
his individual judgment"." 
14. Apart from this explicit expression of intent, the overal 1 distinction 
between the two expressions "in his discretion" and "his individual 
judgment" was understood and accepted by Sir B.N. Rau9 who, in his 
address to I.A.S. probationers in New Delhi in June, 1948 said in the 
context of the Government of India Act, 1935: 
"There were, however, certain matters in respect of which the 
Governor was required to act in his discretion without having to 
consult his ministers at all and certain other matters in respect of 
which he was required to exercise his individual judgment, though 
bound to consult his ministers. In regard to both these classes of 
matters, the Governor was under the general control of the 
Governor-General, who, in his turn, was under the general control 
of the Secretary of State and, therefore, of the Parliament in 
England. The area of responsible government in the provinces 
was thus restricted to some extent, though not to the same extent 
as
under the Government of India Act of 1919 ." 
Later, in his address, he added: 
"The framers of the Government oflndia Act of 1935 presumably 
foresaw that the distinction, which they had attempted to draw 
between the matters in respect of which the Governor was 
required to act on the advice of his Council of Ministers and those 
in respect of which he was not so required, would disappear in 
practice, unless special provision was made to resolve any 
consequential deadlocks. Accordingly, the Act gave power to the 
Governor, acting with the concurrence of the Governor-General 
and subject to certain other safeguards, to proclaim - what 
amounted to a suspension of responsible government in the 
province-that government could not be carried on in accordance 
with the provisions of the Act." 10 
' Constitutional Adviser to the Constituent Assembly 
'" These quotations have been taken from ··1ndia"s Constitution in the Making•· by Sir 
Benegal Rau (Edited by B. Shiva Rao). Allied Publishers Private Limited. pages 351 and 
352 
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corresponds to Section 50 of the Government oflndiaAct, 1935 and this 
reads as follows: 
"Article 143 (1) There shall be a Council of Ministers with the 
Chief Minister at the head to aid and advise the Governor in the 
exercise of his functions, except in so far as he is by or under this 
Constitution required to exercise his functions or any of them in 
his discretion. 
(2) If any question arises whether any matter is or is not a matter 
as respects which the Governor is by or under this Constitution 
required to act in his discretion, 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 have acted in his discretion. 
(3) The question whether any, and if so what, advice was tendered 
by Ministers to the Governor shall not be inquired into in any court." 
I 6. It is significant and necessary to note that (as expected) the 
expression "his individual judgment" did not find mention in Article I 43 
in the draft Constitution. This is as clear an indication as any that the 
framers of our Constitution did not intend that the Governor could 
disregard the aid and advice of the Council of Ministers. The absence of 
the expression "his individual judgment" makes it apparent that the 
Constitution framers were clear
that the Governor would always be 
bound by the aid and advice of the Council of Ministers. Limited elbow 
room was, however, given to the Governor to act "in his discretion" in 
matters permitted by or under the Constitution. 
17. Article 143 of the draft Constitution was the subject matter of 
discussion in the Constituent Assembly on 1 ''June, 1949. In response to 
the ongoing debate, Mr. Krishnamachari expressed the view that the 
retention of discretionary powers with the Governor was necessary, 
subject to discussion at the appropriate stage, when other Articles of the 
draft Constitution would be discussed. The only issue was whether the 
mention of discretionary powers should be in Article 143 of the draft 
Constitution or in the specific Article(s). He was of opinion that it should 
be mentioned in Article 143 of the draft Constitution. The view expressed 
by Mr. Krishnamachari is as follows: 
"Sir, it is no doubt true that certain words from this article may be 
removed, namely, those which refer to the exercise by the·
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 235 
AND OTHERS [MADAN 8. LOKUR, J.] 
Governor of his functions where he has to use his discretion 
irrespective of the advice tendered by his Ministers. Actually, I 
think this is more by way of a safeguard, because there are specific 
provisions in this Draft Constitution which occur subsequently 
where the Governor is empowered to act in his discretion 
irrespective of the advice tendered by his Council of Ministers. 
There are two ways of formulating the idea underlying it. One is 
to make a mention of this exception in this article 143 and 
enumerating the specific power of the Governor where he can 
exercise his discretion in the articles that occur subsequently, or 
to leave out any mention of this power here and only state it in the 
appropriate article. The former method has been followed. Here 
the general proposition is stated that the Governor has normally to 
act on the advice of his Ministers except in so far as the exercise 
of his discretions covered by those articles in the Constitution in 
which he is specifically empowered to act in his discretion. So 
long as there are articles occurring subsequently in the Constitution 
where he is asked to act in his discretion, which completely cover 
all cases of departure from the normal practice to which I see my 
honourable Friend Mr. Karnath has no objection, I may refer to 
article 188, I see no harm in the provision in this article being as it 
is. If it happens
that this House decides that in all the subsequent 
articles, the discretionary power should not be there. as it may 
conceivably do, this particular provision will be ofno use and will 
fall into desuetude ......... If it is necessary for the House either 
to limit the discretionary power of the Governor or completely do 
away with it, it could be done in the articles that occur subsequently 
where specific mention is made without which this power that is 
mentioned here cannot at all be exercised. That is the point that I 
would like to draw the attention of the House to and I think the 
article had better be passed as it is."" 
18. Dr. Ambedkar suppo1ied the view of Mr. Kris11namachari and in 
response to the debate, he stated as follows: 
"The Honourable Dr. B. R. Ambedkar: Mr. President, Sir, I 
did not think that it would have been necessary for me to speak 
and take part in this debate after what my Friend, Mr. T. T. 
Krishnamachari, had said on this amendment of Mr. Karnath, but 
11 Constituent Assembly Debates. Vol.8. 1949. pp.490-491 
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as my Friend, Pandit Kunzru, pointedly asked me the question 
and demanded a reply, I thought that out of courtesy I should say 
a few words. Sir, the main and the crucial question is, should the 
Governor have discretionary powers? It is that question which is 
the main and the principal question. After we come to some decision 
on this question, the other question whether the words used in the 
last part of clause (I) of article 143 should be retained in that 
article or should be transferred somewhere else could be usefully 
considered. The first thing, therefore, that I propose to do is to 
devote myself to this question which, as I said, is the crucial 
question. It has been said in the course of the debate that the 
retention of discretionary power in the Governor is contrary to 
responsible government in the provinces. It has also been said 
that the retention of discretionary power in the Governor smells 
of the Government of India Act, 1935, which in the main was 
undemocratic. Now, speaking for myself, I have no doubt in my 
mind that the retention in on the vesting the Governor with certain 
discretionary powers is in no sense contrary to or in no sense a 
negation of responsible government. I do not wish to rake up the 
point because on this point I can very well satisfy the House by 
reference to the provisions in the Constitution of Canada and the 
Constitution of Australia. I do not think anybody
in this House 
would dispute that the Canadian system of government is not a 
fully responsible system of government, nor will anybody in this 
House challenge that the Australian Government is not a 
responsible form of government. ......... . 
Pandit Hirday Nath Kunzru: Well, Dr. Ambedkar has missed 
the point of the criticism altogether. The criticism is not that in 
miicle 175 some powers might not be given to the Governor, the 
criticism is against vesting the Governor with certain discretionary 
powers of a general nature in the article under discussion. 
The Honourable Dr. B. R. Ambedkar: I think he has misread 
G 
the article. I am sorry I do not have the Draft Constitution with 
me. "Except in so far as he is by or under this Constitution," those 
are the words. If the words were ''except whenever he thinks 
that he should exercise this power of discretion against the wishes 
or against the advice of the ministers", then I think the criticism 
made by my honourable Friend Pandit Kunzru would have been 
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 237 
AND OTHERS [MADAN B. LOKUR, J.] 
valid. The clause is a very limited clause; it says: "except in 
so far as he is by or under this Constitution". Therefore, 
article 143 will have to be read in conjunction with such 
other articles which specifically reserve the power to the 
Governor. It is not a general clause giving the Governor 
power to disregard the advice of his ministers in any matter 
in which he finds he ought to disregard. There, I think, lies 
the fallacy of the argument of my honourable Friend, Pandit 
Kunzru. (Emphasis is given by me). 
Therefore, as I said, having stated that there is nothing incompatible 
with the retention of the discretionary power in the Governor in 
specified cases with the system of responsible Government, the 
only question that arises is, how should we provide for the mention 
of this discretionary power? It seems to me that there are three 
ways by which this could be done. One way is to omit the words 
from article 143 as my honourable Friend, Pandit Kunzru, and 
others desire and to add to such articles as 175, or 188 or such 
other provisions which the House may hereafter introduce, vesting 
the Governor with the discretionary power, saying notwithstanding 
article 143, the Governor shall have this or that power. The other 
way would be to say in a1ticle 143, "that except as provided in 
articles so and so specifically mentioned-articles 175, 188, 200 or 
whatever they are". But
the point 1 am trying to submit to the 
House is that the House cannot escape from mentioning in some 
manner that the Governor shal I have discretion. 
Now the matter which seems to find some kind of favour with my 
honourable Friend, Pandit Kunzru and those who have spoken in 
the same way is that the words should be on1itted from here and 
should be transferred somewhere else or that the specific articles 
should be mentioned in article 143. It seems to me that this is a 
mere method of drafting. There is no question of substance and 
no question of principle. I personally myself would be quite willing 
to amend the last portion of clause (I) of aiticle 143 if I knew at 
this stage what are the provisions that this Constituent Assembly 
proposes to make with regard to the vesting of the Governor with 
discretionary power. My difficulty is that we have not as yet come 
either to article 175 or 188 nor have we exhausted all the 
possibilities of other provisions being made, vesting the Governor 
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SUPREME COURT REPORTS 
[2016] 6 S.C.R. 
with discretionary power. If I knew that, I would very readily 
agree to amend aiticle 143 and to mention the specific article, but 
that cannot be done now. Therefore, my submission is that no 
wrong could be done ifthe words as they stand in article 143 
remain as they are. They are certainly not inconsistent. 
Shri H. V. Karnath: ls there no material difference between article 
61(1) relating to the President vis-a-vis his ministers and this 
article? 
The Honourable Dr. B. R. Ambedkar: Of course there is, 
because we do not want to vest the President with any 
discretionary power. Because the provincial Governments are 
required to work in subordination to the Central Government, and 
therefore, in order to see that they do act in subordination to the 
Central Government the Governor will reserve certain things in 
order to give the President the opportunity to see that the rules 
under which the provincial Governments are supposed to act 
according to the Constitution or in subordination to the Central 
Government are observed."' 2 
19. On the basis of the above discussion, Article 143 of the draft 
Constitut i,111 was approved as it is and is now Article 163 in the 
Constituticn. 
Conclusions on Article 163 of the Constitution 
20. The sum and substance of the historical background leading 
to Article 163 of the Constitution, as enacted, is this: (i) The Council of 
Ministers will aid and advise the
Governor in the exercise of his functions. 
This is the first part of Article 163 (I) of the Constitution. The Governor 
then has two options -(a) To reject the aid and advice of the Council of 
Ministers and act in "his individual judgment". This is an illusory and 
non-existent option since the Constitution does not permit it. (b) To act 
on the aid and advice of the Council of Ministers. By default this is the 
only real option available to him. (ii) lfthe exercise of function is beyond 
the purview of the aid and advice of the Council of Ministers but is by or 
under the Constitution, the Governor can act "in his discretion". Article 
163(2) of the Constitution will have reference only to the last part of 
Attic le 163( I) of the Constitution and is not all-pervasive. 
"Constituent Assembly Debates. Vol.8. 1949. pp.500-502
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 239 
AND OTHERS [MADAN B. LOKUR, J.] 
21. If there is a break-down in communications between the 
Council of Ministers and the Governor (as imagined by Mr. Churchill), 
then the Governor will not have the benefit of the aid and advice of the 
Counci 1 of Ministers. In that event, the Governor may "take the matter 
into his own hands and act freely." The break-down of communications 
was a possibility under the Government of India Act, 1935 since it was 
"in the main undemocratic" and there could be a break-down of 
communications between the representative of His Majesty and the 
Council of Ministers. However, if such a situation were to arise today in 
independent India, namely, a break-down of communications between 
the Governor of a State and the Council of Ministers, it would be most 
unfortunate and detrimental to our democracy. In the unlikely event of a 
complete break-down of communications, the President can and must 
intervene to bring in constitutional order. 
Historical background of Article 174 of the Constitution 
22. Article I 74(I) of the Constitution has its historical origin in 
Section 62 of the Government of India Act, 193 5. This section reads as 
follows: 
62. (I) The Chamber or Chambers of each Provincial Legislature 
shall be summoned to meet once at least in every year, and twelve 
months shall not intervene between their last sitting in one session 
and the date appointed for their first sitting in
the next session 
(2) Subject to the provisions of this section, the Governor may in 
his discretion from time to time-
( a) summon the Chambers or either Chamber to meet at such 
time and place as he thinks fit; 
(b) prorogue the Chamber or Chambers; 
( c) dissolve the Legislative Assembly. 
(3) The Chamber or Chambers shall he summoned to meet for 
the first session of the Legislature on a day not later than six 
months after the commencement of this Part of this.Act. 
23. In the Government oflndiaAct, 1935 the Governor of a Province 
had vast powers, including for example, the power to preside over a 
meeting of the Council ofMinisters. 13 However, for the present purposes 
it is not necessary to research into that issue since it is quite clear that 
13 Section 50(2) of the Government of India Act, 1935 which reads: The Governor in 
his discretion may preside at meetings of the council of ministers. 
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