Official faction of Arunachal Pradesh Congress loses Round Two to rebels [Read Order]

In the ongoing legal battle of wits between the ousted Speaker of the Arunachal Pradesh assembly and the former Deputy Speaker of the assembly, the Supreme court’s Constitution bench today, decided Round Two in favour of the rebels, by lifting the status quo on the political situation in the state, which it imposed yesterday.

Round One was in favour of the official faction of the Congress in Arunachal Pradesh when the Constitution bench directed maintenance of status quo by all parties before it on 17 February, till it examined the records pertaining to disqualification of 14 rebel MLAs by the ousted Speaker in December, which led to a political crisis in the state.

Today, the Court opened the sealed covers carrying the records of the disqualification proceedings, sent by the Gauhati High Court and the Arunachal Pradesh assembly secretariat, as directed by it.  The five judges began to read the records, after the counsel for the ousted Speaker, Kapil Sibal completed his submissions.

As the judges were reading the records, and conversing among themselves, suspense was building up as to the possible outcome.

The petitioners were concerned that if the bench were to vacate the status quo order imposed the previous day on the parties, the Governor would go ahead and swear-in the rebel faction, with the Central Government having already decided to lift the President’s rule.

The invitation to the rebel faction to form the Government would be on the ground that it claims the majority support in the assembly, now kept under suspended animation. No doubt, the Governor would ask the new Chief Minister to prove his majority on the floor of the house, despite his claims.

Sensing the bench’s possible decision before it began reading the report of the disqualification proceedings sent by the High Court, Kapil Sibal pleaded with the bench - before he concluded his submissions - that the concept of floor test has changed completely with the amendment of the Tenth Schedule to the Constitution in 2003, to make splits illegal.

The 2003 amendment, made splits caused by one-third of the strength of the legislature party illegal by deleting Paragraph 3. But it did not touch paragraph 4 of the Tenth Schedule, which made mergers brought about by two-thirds of a legislature party, with another party or a faction of another party, legal.

Therefore, he submitted that if the Governor orders a floor test, without deciding the disqualification issues under the Tenth Schedule, it would be a mockery of the Constitution.

Essentially, Kapil Sibal made two significant submissions today.

First, he suggested that the Governor has no business to write to the Speaker, just as the Speaker cannot directly communicate to the Governor; therefore, whatever communication that the Governor might have sent to the Speaker directly with regard to the House business must be ignored and treated a nullity.

Second, he gave a new twist to the interpretation of the Tenth Schedule by suggesting that the Governor cannot decide whether there is a merger of a faction of a political party with another party.  This is because, he said, under Paragraph 4 of the Tenth Schedule, the merger of the original political party of a member must have taken place [that is, the organisational wing of the party as opposed to the two-thirds of the members of the legislature party].

The bench asked him how he could so interpret it, when paragraph 4 (2) of the Tenth Schedule expressly says that the merger of the original political party shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger.

To this, Kapil Sibal answered that he could cite judgments of the Supreme Court in support of his claim, and he would do so at the next hearing.

The lifting of status quo clears the road for Governor J.P. Rajkhowa to recommend to the President for withdrawal of emergency in the State and further a move for the swearing in of a new government, senior advocate Satya Pal Jain, for the Governor, told the media on the consequences of Thursday’s order, reports The Hindu.

Jain has reportedly said the 14 disqualified MLAS have every right to vote in the House as their disqualification had been stayed by the Gauhati High Court. It was against this stay that the ousted Speaker, Nabam Rebia and Arunachal Congress leaders had moved the Supreme Court.

Dissident Congress leader Kalikho Pul, one of the 14 disqualified MLAs, can now stake a claim to form the new government with his majority of 32 MLAs in the presently 58-strong House, The Hindu reports.

Lifting its status quo order passed on Wednesday, the Bench said the High Court should hear the cases on the legality of their disqualification expeditiously. The MLAs, it said, would be bound by whatever decision the HC takes, according to The Hindu.

The Congress party had reportedly sought the apex court to restrain Governor Rajkhowa from swearing in a new government till the court decides the constitutionality of the President's rule imposed on January 26.

The Bench had on Tuesday refused to pass any order on the Congress plea even as the Centre gave a strong indication that it wanted withdrawal of the President's rule to swear in a new government under Mr. Pul who claims to have a majority of 32 MLAs, including 13 other Congress rebels, reports The Hindu.

The Centre had said that a constitutional vacuum and a state of “dormancy” cannot prevail in Arunachal Pradesh because the Supreme Court is testing the legality of the proclamation of emergency, The Hindu adds.

Attorney-General Mukul Rohatgi had assured the Bench that even if a new government was formed, the Supreme Court could later on “annul everything” if it struck down the proclamation of emergency as unconstitutional, The Hindu report said.

Sibal had reportedly countered that by submitting that when the President’s rule is withdrawn, the government earlier in power automatically revives.

Today’s order shows that the bench is prima facie satisfied with the Gauhati High Court order staying the disqualification of the 14 rebel Congress MLAs.

The bench had reportedly held that the interim order of the High Court came on the ground that these 14 MLAs were not served notice.

The hearing will continue tomorrow.

Read the order here.