New Delhi: Arunachal Pradesh Governor was not the aggrieved party, the Supreme Court said on Monday as it focussed on the decisions of Governor JP Rajkhowa to advance the assembly session and fix the agenda of the House.
"In the facts of the case, the aggrieved party is either the Congress party or the MLAs (who had been disqualified by Speaker Nabam Rebia), then how does the Governor comes into picture, he is not aggrieved by anything," a five-judge constitution bench headed by Justice JS Khehar said.
The bench did not agree with the submission that the Speaker was under clout and hence, Governor was justified in fixing the agenda that the House should first decide as to whether Rebia enjoyed majority support as the Speaker or not.
"If Speaker was under clout, then these persons (disqualified MLAs) were also under clout. The Speaker had the complaints from the (Congress) Party and he acted on it," the bench, also comprising justices Dipak Misra, MB Lokur, PC Ghose and NV Ramana, said.
Senior advocate Ashok Desai, who represented 10 MLAs including the Leader of Opposition, said the Governor is not an aggrieved party but a "decision making authority" which has discretionary powers under the Constitution.
During the hearing, the court wondered as to which of the two incidents — running a minority government or running the House by a Speaker who has lost majority support, was more harmful to the democracy.
"We have to see which of these two incidents are more harmful to democracy, whether it's running of the government which is in minority or the running of the House by the Speaker who has lost its confidence," it said.
The observation came after Desai justified the actions of Rajkhowa, saying he was compelled to act after the allegation against the Speaker came that he was "hand in glove with the Chief Minister and Congress party".
"There was an apprehension that the Speaker may disqualify the revolting MLAs who have expressed no confidence in him," Desai said.
The bench, hearing a batch of pleas on constitutional powers of the Governors, also observed during the hearing that it is in "dilemma" at this juncture as to who is correct.
The bench said, "Here are 14 MLAs who are subject to disqualification, and on the other side is the Speaker who is also subject to disqualification. Action can be taken either way but at this juncture we don't know."
The court further said it is also not very clear whether the Governor has the discreationary power to summon the House or not.
"We are not very clear, whether he (governor) has the power to summon the House or was there an exceptional situation like a constitutional breakdown. We don't know at this juncture as in that way he will be the legislative in-charge," the bench said.
Desai submitted that even if it is not mentioned in the Constitution, the discretionary powers of the Governor are recognised.
"This is a power with the Governor which is not exercised regularly but it is available with him. Normal rule is that he acts on aid and advice of chief minister and council of ministers. Even if the power is not mentioned in the Constitution, it is recognised," Desai argued and concluded his argument.
To this, the bench observed, "the discretionary powers of the Governor cannot be blatant or absolute."
On 11 February, the apex court had critically examined a decision of Arunachal Pradesh Governor JP Rajkhowa ordering maintenance of the party-wise position of MLAs in the assembly and said he had "no role to play" in it, as the anti-defection aspect fell under the domain of the Speaker.
Observing that democracy was part of the basic structure of the Constitution, the bench had said, hence, any "undemocratic" decision would be open to judicial review.
Senior advocate TR Andhyarijuna, appearing for Rajkhowa, had defended the Governor's decisions saying when the Speaker was under clout and part of a conspiracy with the state government, the Governor exercised his discretionary power which is "undefined" in the Constitution.