Court can't decide on validity of advancing assembly session, SC told

Arunachal Pradesh Governor Jyoti Prasad Rajkhowa on Thursday told the Supreme Court that his decision to advance the assembly session coupled with direction that a no-confidence resolution against Speaker Naram Rebia be take up as first item was in exercise of his discretionary powers and the legitimacy of the same could not be examined by a court.

"Summoning the legislative assembly is a part of the discretion referred to in article 163 (1) of the constitution where the governor can act without the aid and advice of the council of ministers and under article 163(2), the governor's decision is final and can't be questioned (by the courts)" senior counsel T.R.Andhyarijuna appearing for Rajkhowa told the apex court constitution bench.

But at this, the bench, headed by Justic Jagdish Singh Khehar, asked if the the exercise of the discretionary powers by the governor is anti-democratic, is it subject to judicial review.

"Then it would not be exercise of discretionary powers but would be acts of whims and fancies," Andhyarijuna told the constitution bench also comprising Justice Dipak Misra, Justice Madan B. Lokur, Justice Pinaki Chandra Ghosh and Justice N.V. Ramana.

Rajkhowa had on December 9, 2015, advanced the assembly session from scheduled January 14 to December 16, 2015. He had also directed that the resolution expressing no confidence in speaker be taken as a first item and barred him from upsetting the party composition of the assembly.

Andhyarijuna told the court that in exercise of its power of judicial review it could examine the validity of constitutional amendment as it did by striking down one providing for National Judicial Appointment Commission Act, 2014 or a law passed by parliament or state legislature, but the same can't be done in the case of the provisions of original constitution.

He said that article 163 (1) and 163 (2) are part of the original constitution and thus the actions of the governor in exercise of the discretionary powers vested in him under them could not be gone into by the court.

Dwelling on the width of the governor's discretionary powers, Andhyarijuna said besides specified areas where he could exercise his discretionary powers, there are undefined areas also where he could act on his own without the aid and advise of the council of ministers headed by the chief minister.

Telling the court that even the president, who was bound to act on the aid and advice of the council of ministers headed by the prime minister, did not have any such powers as was vested in governor, he said that article 163(2) was a unique provision and puts a bar on the courts to examine the validity of action done under it.

"Court can strike down an amendment by invoking the basic structure doctrine but can't examine the provisions of original constitution. You can't get over the provisions of the original constitution," Andhyarijuna argued.

Appearing for the leader of opposition in assembly Tamiyo Taga and other BJP lawmakers, senior counsel Ashok Desai defended Rajkhowa's action in advancing the assembly session, saying that "he is not a mechanical part of the State set-up. He has to apply his mind" and see what was emerging from the "constellation of facts".

Desai said that all that BJP lawmakers did was to put the governor on alert that Chief Minister Nabam Tuki and Speaker Rebia were in conspiracy.

Reiterating Andhyarijuna's position, Desai said there was a limit to the intensity of court examining the actions of governor under his discretionary powers.

The hearing would continue on Monday.