Supreme Court on Wednesday rubbished the BJP’s arguments that governors were not political appointees.
While hearing host of petitions on the dismissal of the elected government of Arunachal Pradesh, A SC bench said that every governor, even if he is a former judge, is a political appointee and did not enjoy unlimited powers as argued by the lawyers representing BJP MLAs.
In a scathing criticism of the assertion that governor Rajkhowa of Arunchal Pradesh enjoyed discretionary power, the five-judge bench wondered if it empowered him to change the sequence of “1, 2, 3, 4” to “4, 3, 2, 1”.
The judges made this observation in response to justification that Rajkhowa had discretionary powers to bring the dates for assembly sessions forward, something that had become hugely controversial in Arunachal resulting in the dismissal of the elected government.
The bench headed by Justice JS Khehar said, “Governor is a political appointee even if he is a judge of the Supreme Court. Every governor is a political appointee.”
The bench’s observation assumes significance in light of the former Chief Justice of India P. Sathasivam’s appointment as the governor of Kerala by the Narendra Modi government. His appointment had evoked angry reactions from the experts.
Representing the BJP MLAs, lawyers Vikas Singh and Shekhar Naphade, said that the governors enjoyed absolute immunity under Articles 163 and 361 of the Constitution as their actions could not be questioned in any court of law.
To which Justice Dipak Misra countered, “The constitution bench has said the governor cannot be made a party before a court. But if there are allegations of mala fide, the court can examine whether it is personal mala fide or legal mala fide. Has the governor violated any of the conditions? You can’t say it is beyond jurisdiction.”
“Now, everything cannot be prescribed in the Constitution that this has to be done or not. The rules shall not be in conflict with the Constitution,” The Telegraph quoted him as saying.
On the question of whether Rajkhowa was well within his right to advance an Assembly session, Justice Madan B. Lokur asked, “The Business Advisory Committee will say that the list of business of the House should be taken in the form of 1, 2, 3, 4, but can the governor say ‘no, it should be taken in the order of 4, 3, 2, 1?”
Singh said, “What can judicial review do? Article 361 puts the power of a governor at a higher pedestal.”
The bench responded, “Can constitutional finality take over the power of judicial review? What you are saying is that irrespective of whatever the governor does, he has discretion under Article 163, (he is) not subject to judicial review, that we cannot accept. You can’t say ‘I am the governor of the state. I can do whatever I want to do. My action cannot be questioned in court’.”
The bench also said that conferring ‘so much power on the governor’ could be a double-edged weapon.
“He may secure democracy or trample upon democracy…. To say we can’t adjudicate is not acceptable.” the bench said.