Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 950 (GAU)

Shurhozelie Liezietsu, S/o Late Khrusietsu Liexietsu v. Nagaland Legislative Assembly

2017-07-19

A.K.GOSWAMI, HRISHIKESH ROY

body2017
JUDGMENT AND ORDER : Hrishikesh Roy, J. On urgent mention, this Writ Appeal is listed today in a supplementary list with due permission. 2. The challenge in the Writ Appeal is to the order dated 18.7.2017 (Annexure-3) in the Kohima Bench, whereby the WP(C) No.124(K)/2017 filed by the appellant was dismissed. The consequential direction issued by the Governor to the Speaker of the Nagaland Legislative Assembly, to convene an emergent special session for the floor test on 19.7.2017 is also challenged by the appellant/writ petitioner Dr. Shurhozelie Liezietsu. 3. We have heard Mr. P.K. Goswami, the learned Senior Counsel for the appellant/writ petitioner. Mr. S.S. Dey, the learned Senior Counsel appears for the Nagaland Legislative Assembly (respondent No.1). The former Chief Minister Mr. T.R. Zeliang (respondent No.2) who claimed majority support of the MLAs and projected that Council of Ministers headed by Dr. Shurhozelie Liezietsu lost his majority, is represented by the learned Senior Counsel Mr. N. Dutta. 4. The Nagaland Legislative Assembly is a 60 Member House but one of the seats is vacant and therefore, along with the Speaker, the current strength of the House is 59 Members. Following the resignation of the then Chief Minister Mr. T.R. Zeliang (respondent No.2), the writ petitioner was the choice of the MLAs and on 22.2.2017 he was sworn in as the Chief Minister. As the chosen leader was not a Member of the Assembly, the bye-election was scheduled on 29.7.2017, whereby the writ petitioner intended to make entry as MLA in the House. 5. The Nagaland Assembly is without any opposition MLA and the ruling group is constituted by 47 MLAs from the Naga Peoples Front (NPF), 4 MLAs from the Bharatiya Janata Party (BJP) and 8 Independent MLAs. The MLAs of the JDU and the NCP had merged with the NPF and the writ petitioner headed a government known as the Democratic Alliance of Nagaland (DAN). 6. The move for replacement of the Chief Minister was started with the meeting held on 4.7.2017 in the residence of Mr. T.R. Zeliang (respondent No.2) where majority of the MLAs withdrew their support for the writ petitioner and authorized the respondent to stake claim for formation of new Government. 6. The move for replacement of the Chief Minister was started with the meeting held on 4.7.2017 in the residence of Mr. T.R. Zeliang (respondent No.2) where majority of the MLAs withdrew their support for the writ petitioner and authorized the respondent to stake claim for formation of new Government. Then the respondent No.2 addressed the letter dated 8.7.2017 (Page-51) to the Governor of Nagaland enclosing the documents to indicate the support of 34 NPF and 7 Independent MLAs (total 41) in the 59 Member House. Thus demand was made for ouster of the Council of Minister headed by the writ petitioner. The respondent No.2 accordingly made a request to the Governor for the invitation to form a new Government with the majority of the MLAs, aligned in his favour. 7. After receiving the letter from the respondent No.2, where the majority support in a 59 Member House was claimed, the Governor felt that the Chief Minister should prove his majority in a floor test in the Legislative Assembly and accordingly under his letter of 11.7.2017 (Page-65), the Governor requested the writ petitioner to secure the vote of confidence on or before 15.7.2017. 8. The writ petitioner in his response letter of 11.7.2017 (Page-66) pleaded that the activities of the 37 NPF MLAs is an internal party matter to be resolved in the party forum and need not be considered in the floor of the House. Referring to the scheduled bye-election for the 10th Northern Angami-I Constituency, the Chief Minister conveyed the views of the Council of Ministers that there is no justification for convening an emergent special session of the Nagaland Assembly. Another letter was addressed by the writ petitioner on 11.7.2017 to the Speaker where it was projected that the Assembly can be summoned only on the advice of the Council of Ministers and since no advice is tendered to the Governor, the summoning of State Assembly at the instance of the Governor, would be unjustified. 9. Reacting to the above plea of the writ petitioner, the Governor in his response on 13.7.2017 (Page-72), noted that the Chief Minister has not refuted the claim of the respondent No.2 that he enjoys the support of 41 MLAs in a House of 59. It was also observed that the main issue is whether the Chief Minister enjoys the support of the majority Members of the House. It was also observed that the main issue is whether the Chief Minister enjoys the support of the majority Members of the House. The Governor conveyed his prima facie view that the Chief Minister lacks the majority support. The issue of the scheduled bye-election on 29.7.2017 was considered to be irrelevant for the proposed floor test and accordingly the appellant was requested under the 2nd communication dated 13.7.2017 from the Governor side, to positively prove his majority, on the floor of the House on or before July 15, 2017. 10. The Chief Minister was aggrieved by the Governor’s direction to face the floor test and accordingly he filed the WP(C) No.124 (K)/2017 to challenge the direction for proving his majority on or before 15.7.2017. Prayer was also made to defer the vote of confidence till 30.7.2017, as the bye-election was scheduled on 29.7.2017. 11. The learned Single Judge, after consideration of the projection made in the writ petition, passed an interim order on 14.7.2017, staying the Governor’s letter of 13.7.2017. However, when the matter was heard finally, in the impugned judgment of 18.7.2017 (Annexure-3), the learned Judge observed that the Governor had bonafide reason to believe that the writ petitioner and his Council of Ministers have lost the confidence of the House and accordingly the writ court held that the Governor was at liberty to urgently convene the House even without the aid and advice of the Council of Ministers. The request of the Governor for the floor test was found to be a legitimate direction and on that basis, the Chief Minister’s writ petition was dismissed under the impugned judgment dated 18.7.2017. 12. Following the yesterday’s dismissal of the case, the Governor wrote the letter dated 18.7.2017 (Annexure-4) to the Speaker to convene an emergent special session of the Nagaland Legislative Assembly on 19.7.2017 at 9:30 A.M. for transacting the single Agenda i.e. to test the majority support of the present Cabinet headed by the Chief Minister Dr. Shurhozelie Liezietsu. 13.1 Assailing the legality of the judgment dated 18.7.2017 (Annexure-3), whereby the WP(C) No.124(K)/2017 was dismissed as also the consequential communication of the Governor for convening the emergent special session of the Nagaland Legislative Assembly for the floor test of the writ petitioner, Mr. Shurhozelie Liezietsu. 13.1 Assailing the legality of the judgment dated 18.7.2017 (Annexure-3), whereby the WP(C) No.124(K)/2017 was dismissed as also the consequential communication of the Governor for convening the emergent special session of the Nagaland Legislative Assembly for the floor test of the writ petitioner, Mr. P.K. Goswami, the learned Senior Counsel submits that the Governor as the constitutional head, cannot summon the House at his own discretion but must be guided by the aid and advice of the Council of Ministers. Since no such advice was tendered, the direction issued for convening the emergent special session of the House by the Governor, is contended to be constitutionally impermissible. 13.2 The writ petitioner submits that he still enjoys the majority support of his party MLAs and if there is any leadership issue in the party, it is an internal matter and it need not be resolved in the floor of the Assembly. Therefore it is argued that the Governor should not have convened the emergent session of the Assembly, by acting on the letter written on 8.7.2017, by the respondent No.2. 13.3 The learned senior counsel cites Nabam Rebia and Bamang Felix vs. Deputy Speaker, Arunachal Pradesh Legislative Assembly, reported in (2016) 8 SCC 1 , to argue that without the advice of the Council of Ministers, the Governor cannot summon the House at his discretion and according to Mr. Goswami, the ratio of this Supreme Court decision supports this contention. 14.1 On the other hand, Mr. N. Dutta, the learned senior counsel for the respondent No.2 points out that the Chief Minister did not refute the claim of switching of loyalty by the majority MLAs in favour of the respondent No.2. Since the functioning of the Chief Minister is dependent upon enjoying the confidence of the majority MLAs in the house, Mr. Dutta submits that floor test was the appropriate option and it was correctly exercised by the Governor. 14.2 Referring to the situations under which the Governor can act, without the aid and advise of the Council of Ministers, the respondent No.2 contends that since majority support of the Cabinet headed by the writ petitioner had to be confirmed, the advice of the Council of Ministers to convene the House, may not be forthcoming and therefore it is argued that the Governor correctly acted on his personal discretion. 14.3 Reading the paragraphs 166 and 210 of the Nabam Rebia (Supra) judgment, Mr. Dutta submits that when the Governor prima facie believed that the Chief Minister and his Council of Ministers have lost the confidence of the house, it was logical for the Governor to require the Chief Minister, to face the floor test, as per the democratic norms. 15.1 The Nagaland Legislative Assembly (respondent No.1) is represented by the learned senior counsel Mr. S.S. Dey and he submits that in pursuant to the Governor’s communication dated 18.7.2017, the emergent session of the 12th Nagaland Legislative Assembly was convened today at 9:30 A.M., but in the 58 Member House (excluding the Speaker), only 47 Members were present whereas, the Chief Minister and his 10 Cabinet colleagues remained absent. Therefore the house could not decide on the vote of confidence for the Chief Minister and accordingly it was adjourned sine die and a report in this regard was forwarded by the Speaker, to the Governor. 15.2 The learned counsel for the respondent No.1 further submits that following the failure of the writ petitioner to face the vote of confidence in the emergent session, today a notification was issued whereby, through invocation of the power under Article 164(1) of the Constitution, the Governor has withdrawn his pleasure from the incumbent Chief Minister and the Ministry headed by Dr. Shurhozelie Liezietsu was accordingly dismissed. 16. We have carefully weighed the submissions made by the learned counsel for the parties. 17. The Governor, in exercise of his constitutional duties under Article 174, should normally act on the aid and advice of the Council of Ministers when the Council enjoys the majority support in the House. But the situation is different when majority support may be lacking and in such exigencies, the Governor can discharge his functioning in his own discretion. In certain situation of conflict of interest, the Council of Minister may decline to tender advice to the Governor for their own reason and in that scenario, the House may have to be convened by the Governor by acting on his own discretion. However the power will have to be exercised for bonafide reason and it must be actuated by good faith to achieve the democratic and constitutional goals. 18. However the power will have to be exercised for bonafide reason and it must be actuated by good faith to achieve the democratic and constitutional goals. 18. Under the ratio of Nabam Rebia (supra), the switching of loyalty by a breakaway group of the ruling party comprising of not less than 2/3rd Members will have to be considered by the Governor as it is his constitutional duty to ensure that the Government of the day enjoy the majority support in the House. However when the breakaway group claims a right to form the Government, the Governor need not trouble himself with the political fallout but he is surely entitled to call for a floor test to require the Chief Minister, to establish his majority. 19. The direction of the Governor of Arunachal Pradesh which led to the Nabam Rebia (supra) case, was however different in as much as the Governor never called for a floor test, nor did he ever require the Chief Minister to establish his majority in the House. In that context, the Supreme Court opined that the Governor’s actions, based on feuds and wrangles of a breakaway group, which is not recognized under the 10th Schedule, cannot be constitutionally condescended. But in paragraph 166 of the judgment, the Supreme Court observed that when the Governor has reason to believe that the Chief Minister and his Council of Ministers have lost the confidence of the House, the Governor, can on his own discretion, direct the Chief Minister to prove his majority in a floor test. In such situations, the Governor is entitled to exercise his power vested upon him under Article 174 of the Constitution, at his own discretion, without the aid and advice of the Council of Ministers. 20. An important facet of this case is the absence of any opposition MLA in the Nagaland Assembly since the ruling group includes all the 58 MLAs (barring the Speaker). The letter of the respondent No.2, addressed to the Governor on 8.7.2017, referred to the switchover of loyalty by 34 NPF MLAs plus 7 independent MLAs, away from the writ petitioner towards the leadership of the respondent No.2. Thus the Governor, as the Constitutional head, could not have ignored the fact that more than 2/3rd of the MLAs in the House, do not support the Chief Minister. Thus the Governor, as the Constitutional head, could not have ignored the fact that more than 2/3rd of the MLAs in the House, do not support the Chief Minister. When there is no opposition MLAs, the numbers in the ruling political entity and in the House will be same and therefore the developments in the political forum which reflects switchover of a major chunk of MLAs, could not have been legitimately ignored by the State’s constitutional head. 21. In those circumstances, the Governor requiring the writ petitioner to prove his majority in the floor of the Nagaland Legislative Assembly, cannot be said to be inconsistent with the ratio laid down in Nabam Rebia (Supra). The refusal by the writ petitioner to accede to the request made by the Governor to convene a Special Session, to establish his majority in the floor test, in our perception, is not convincing, in as much as, the pertinent issue here was not an internal matter of the ruling party but is whether, the Council of Ministers headed by the writ petitioner enjoys the majority support in the House. Therefore the request made by the Governor for the floor test, cannot be faulted, since the Constitutional head must satisfy himself that the Chief Minister has the numbers to run the Government. 22. When the Governor tentatively concluded from the materials available that the Chief Minister may no longer enjoy the support of the majority members of the Assembly, it was logical for the Governor to request the Chief Minister to face a floor test to establish his majority. Therefore the refusal by the Writ Court to interfere with the Governor’s direction, in our considered opinion, appears to be consistent with the judicial pronouncement, the constitutional mandate and also the democratic norms. 23. In the specially convened emergency session of the Assembly, scheduled today at 9:30 A.M., 47 MLAs were present but the Chief Minister and 10 of his Cabinet colleagues were absent. While it is not possible for anyone to say that those present would support the leadership of respondent No.2, it cannot be ignored that the writ petitioner who was required to prove his majority in the floor test, stayed away and failed to establish his majority support to justify his continuance as the Chief Minister. While it is not possible for anyone to say that those present would support the leadership of respondent No.2, it cannot be ignored that the writ petitioner who was required to prove his majority in the floor test, stayed away and failed to establish his majority support to justify his continuance as the Chief Minister. The writ petitioner never agreed to prove his majority in a floor test by acceding to the request of the Governor and when his challenge in the Court was dismissed and the Governor gave the direction for convening the emergency session of the House, 11 Ministers including the Chief Minister remained absent. Therefore it can reasonably be concluded that the Chief Minister was aware that he lost the majority support of the MLAs. 24. Be that as it may, the Nagaland Assembly Speaker had forwarded his report on the failure of the House to conduct the floor test in the absence of the Chief Minister and therefore consequential decision will have to be taken in the matter. We are informed by the counsel that the Governor has done so by withdrawing his pleasure, from the writ petitioner and his cabinet and thus the ministry headed by the writ petitioner has been dismissed. 25. Under the Constitutional framework, the Chief Minister is appointed by the Governor under Article 164 of the Constitution and the Chief Minister and his Council of Ministers are entitled to hold office during the pleasure of the Governor. Therefore, the Governor is not only empowered but is also under a constitutional obligation to verify whether the Chief Minister enjoys the majority support of the Members of the Legislative Assembly. From this perspective, the exercise ordered by the Governor, appears to us to be lawful and consistent with the constitutional position of the Governor. Therefore, no infirmity is found with the impugned judgment, whereby, the learned Judge has rejected the challenge to the Governor’s action. 26. Following the above discussion and conclusion, this Writ Appeal is found devoid of merit and the same is accordingly dismissed. No cost.