The current crisis in the government, one of the many that the present DAN III coalition has faced in this tenure has now finally reached the doors of the courts for interpretation of one the most contested subject. It pertains to the discretionary powers of the Governor and at the same time the relationship between the centre and the states especially when Article 356 is enforced by the Centre on the advice of the Governor. Nagaland is known to land itself into unique situations when it comes to governance and the various laid down procedures and guidelines. The unconstitutionality of Para 7 of the Tenth Schedule that earlier prevented the courts from interfering into the Speaker’s decision was ruled by the Supreme Court in the landmark judgement of Kihoto Hollohan vs Zachillhu and Others(1991). The reason why the courts thereafter permit cases of members disqualified under the anti defection law. In the present case, the discretionary powers of the Governor is being contested by the incumbent chief minister based on the Supreme Court judgement during the Arunachal crises. In the case of Arunachal Pradesh the Governor had already convened the Assembly but later preponed it by a month and also inserted items in the conduct of business in the House to remove the Speaker. The Supreme Court came down heavily on the unconstitutional practice of the Governor who claimed that he was only trying to save democracy. On the other hand another landmark judgement in the S.R. Bommai vs Union Of India case, the Supreme Court ruled that the test of majority should happen only in the floor of the House through a floor test curbing the usual practice then of Governors deciding by themselves. It however also mentioned the recommendation of the committee of Governors appointed by the President that observed that when the Governor is satisfied that the Ministry no longer enjoys majority support, he should ask the Chief Minister to face the Assembly and prove his majority in the shortest possible time. If the Chief Minister is not willing to comply then the Governor would be duty bound to initiate steps to form an alternative ministry. This observation is very similar to the recommendation of the Sarkaria commission that is yet to be incorporated in the Constitution. However in the present case in Nagaland the tussle is within the party and the dissidents are yet to merge with a party or form a new legislature party. Nor is there any other party or legislator that had moved a no confidence motion against the chief minister. In a similar case, that of VK Sasikala versus OP Panneerselvam in Tamil Nadu an innovation of the Supreme Court was suggested where the majority of the contenders can be tested through secret ballot also known as the composite floor test. However, instead OP Panneerselvam resigned paving way for the other group to stake claim. The first composite floor test was tried in the UP Assembly by the Supreme Court in the case between Kalyan Singh and Jagadambika Pal to test who commands majority. Later it was also conducted in Jharkhand Assembly on the direction of the Supreme Court and its precedent was referred to in the Uttarakhand case when the Supreme Court ordered a vote of confidence. Some judges of the Supreme Court are of the view that the courts directing the House is unconstitutional but it has come in quite effective and handy those few times. As the judgement by the Kohima Bench of the Gauhati High Court on the petition filed against the Governor’s direction to the Chief Minister to prove his majority at the earliest is awaited, a similar remedy may be on the cards for Nagaland too.
