New Delhi: The Supreme Court on Wednesday questioned the constitutional legitimacy of Arunachal Pradesh Governor Jyoti Prasad Rajkhowa's direction that there should not be any tinkering with the party position in the state assembly, asking how could he clip the constitutional powers of the speaker to disqualify lawmakers on grounds of defection.
"Is it not an order of restraint on the speaker not to act under schedule 10 of the constitution (which provides for disqualification of lawmakers on grounds of defection). Could the governor issue a direction to the speaker clipping his powers to act under schedule 10," asked the constitution bench of Justice Jagdish Singh Khehar, Justice Dipak Misra, Justice Madan B Lokur, Justice Pinaki Chandra Ghosh and Justice NV Ramana.
The "governor may have some role in the functioning of the assembly, but he has no role to play in the Tenth Schedule (anti-defection provision)", it added as senior counsel TR Andhyarijnua, appearing for Rajkhowa, defended the governor's action saying that his apprehensions that the speaker Nabam Rebia may disqualify the rebel legislators was borne out by the subsequent events.
"It is a constitutional imperative, obligation and duty of the governor to see that the constitutional powers under Schedule 10 is exercised in a right manner," Andhyarijuna told the court.
Described his client as a "conscientious and impartial" person whose acts could not be described a "capricious and malafide", he said: "What were the options before the governor? There were apprehensions in the mind of the governor that the total complexion of the assembly would be changed."
Pointing out that Rajkhowa's "apprehensions" were proved to be correct, Andhyarijuna said: "Governor is not a great constitutional lawyer. He has good instinct. (With) Politicians (belonging to ruling Congress) fighting like anything in the sensitive border state, he asked the President to step in."
But expressing its doubts on Rajkhowa's conduct, the court asked "whether whatever the governor has done was in furtherance of democracy or to create a dent in it".
Andhyarijuna held Rajkhowa's advancing the assembly session from 14 January, 2016, to 16 December, 2015 directing that the resolution expressing no confidence in the speaker be taken as a first item, and the composition of the house not be changed was to thwart Rebia from exercising his powers under anti-defection law to create majority for the Congress.
"(Exercise of) Discretion was founded strong basis and the necessity to act that way," he said, arguing the governor could not have allowed the speaker, who was acting in close proximity with Chief Minister Nabam Tuki, to have 42 days to exercise his powers under anti-defection law to disqualify 14 rebel Congress lawmakers.
But the court was not convinced.
"You are blaming the speaker. Speaker could turn around and blame you," the bench observed noting that Rebia acted only after the governor did.
As Andhyarijuna took the court through the sequence of political events leading to the imposition of president's rule, the bench, holding said that a "constitutional discretion has to be based on constitutional principle", asking him: "What was the constitutional principle that was invoked by the governor in preponing the assembly session and sending the message. What constitutional objective the governor was seeking to achieve?"
Posing a hypothetical situation, the court asked Andhyarijuna that if an assembly is in session and a resolution seeking the removal of speaker is moved, could the governor on the expiry of 14 days ask the house to consider the resolution on the 15th day.
As Andhyarijuna said that the governor may not, the court said: "When he (governor) can't do when the house is in session, how can he do when the house is off."
Clause (C) of the constitution's article 179 says that no resolution for the removal of speaker or deputy speaker of an assembly "shall be moved unless at least fourteen days' notice has been given of the intention to move the resolution".
Hearing will continue on Thursday.