Governor's action "tainted", 'unworthy of constitutional head'

The Gauhati High Court has come down heavily on Arunachal Pradesh Governor J P Rajkhowa saying he is required to perform his duty with the aid of the Council of Ministers but his action of preponing the Assembly session on the demand of Opposition MLAs "taints" the decision and renders it "unworthy of the state's constitutional head".
Justice Hrishikesh Roy, who was yesterday hearing a writ petition filed by the "ousted" Speaker Nabam Rebia against the notification of the Governor preponing the Assembly "session", also observed that the decision of the Governor "reflects the non neutral role of the constitutional head and this is undermining the democratic process".

"The Governor while summoning the House of the State Legislature, is required to perform his duty with the aid of the Council of Ministers and the Chief Minister in consultation with the Speaker is made competent to advice the Governor, for summoning the Assembly, under the Rules of Procedure and Conduct of Business of the Arunachal Pradesh Legislative Assembly
"In discharging this function, the Governor acts as a constitutional head and therefore his decision to prepone the assembly session without advice of the Chief Minister and primarily on requisition made by the opposition MLAs, taints the Governor's order and renders it unworthy of the State's constitutional head," Justice Hrishikesh Roy observed in his order yesterday.

Justice Roy passed the order while staying the Governor's notification and the Deputy Speaker's action in convening the Assembly in whose "proceedings" the Speaker was "removed", Chief Minister was "voted out" and the a new CM "elected".
The judge also observed that the power of the Governor to send message to the House was with respect to a pending bill in the House and this power under Article 175(2) cannot be utilised to send message on a pending resolution for removal of the Speaker and "hence this appears to be an act of exceeding the jurisdiction."

"Moreover, the resolution for removal of the Deputy Speaker was moved prior to the similar resolution of the Speaker and yet the Governor has fixed the later resolution as the first agenda," the Judge said.

Justice Roy said in the constitutional scheme of
democratic India, the President or the Governor has a well-defined role and when the Governor acts on his own direction in certain situation, his action must be for the furtherance of the constitutional goals.
"In our legal framework the de facto authority of the State vest on the elected Government and not on the constitutional head", he said.
The Court observed that the "disturbing" developments in noticed from the various steps taken since November, 2015 indicated the tussle for power by opposing groups and it was clear that the Speaker and the Deputy Speaker were heading the opposite sides.

"Understandably the actions of the MLAs are motivated by political exigencies and a manifestation of this can be seen from the FIR dated 20.12.2015. In such situation, the Governor as the constitutional head, is expected to discharge his role with dispassion and within the constitutional framework", Justice Roy said.
"But the impugned steps taken by the State's Governor which facilitated the political battle to move in certain direction in the tussle for power, reflects the non neutral role of the constitutional head and this is undermining the democratic process", he observed.
Justice Roy issued notice returnable on 1.2.2016 to respondent not represented in the hearing yesterday. D.

"Taking all the above factors into account, meanwhile, the impugned decision (s) are ordered to be kept in abeyance until the case is considered next. List on 1.2.2016", Justice Roy said.
Petitioner's counsel Kapil Sibal contended that the Governor, under Article 174 of the Constitution, as a Constitutional head must exercise his power for permitted purpose and in the manner indicated and it "can't be misutilised to undermine the position of the other constitutional functionaries of the state".