The Supreme Court on Monday conceded its ‘mistake’ and recalled a notice to Arunachal Pradesh Governor Jyoti Prasad Rajkhowa seeking his report to the President recommending central rule even as it rejected the Centre’s opposition to giving documents seized from the deposed chief minister and his cabinet colleagues.
At the outset of the day’s proceedings, a five-judge Constitutional bench headed by Justice J S Khehar said ‘that (issuing notice) is our mistake’ after considering an earlier verdict and the legal position that the Governor enjoys ‘complete immunity’ in court proceedings.
The bench made the remarks when Attorney General Mukul Rohatgi pointed out the legal position and referred to a 2006 judgement which had held that governors cannot be asked to join legal proceedings.
Referring to Rohatgi’s contention that governors have ‘complete immunity’ under Article 361 of the Constitution, it said, “We consider it just and appropriate to recall the notice issued to Respondent 2 (the governor).”
The bench, also comprising Justices Dipak Misra, M B Lokur, P C Ghose and N V Ramana, however, clarified that its order recalling the notice would not ‘preclude’ the Arunachal governor from filing or putting forth his views before it.
It also said that earlier senior advocate Satpal Jain, appearing for the governor, had undertaken, in pursuance of court’s direction, to file materials leading to recommendation of President’s Rule.
The attorney general said either the leaders including Rajesh Tacho and Speaker Nabam Rebia should agree to delete the name of the governor from their respective pleas or he would cite the legal position and the case law on the issue.
“We can recall the notice, if we have committed the mistake,” the bench said.
“Having given a thoughtful consideration to the issue in hand, we are inclined to recall the notice. That, however, would not preclude the governor from filing or putting forth his views before it,” the bench said.
It, meanwhile, issued notice to the Centre on fresh pleas of former Chief Minister Nabam Tuki and Congress leader Bamang Felix against imposition of President’s Rule.
Rejecting Centre’s opposition to giving Tuki, his cabinet colleagues and officials certain documents seized after President’s rule was imposed, the court said ‘this is the basic fairness level required for them to assail’ the promulgation.
The court also directed the Centre to make copies and return ‘forthwith’ by Friday all the seized private letters, files and documents to the former CM, ministers and parliamentary secretaries and those which are in the custody of the administrator through the chief secretary.
“After hearing counsel for parties at some length, we are of the view that certain records/documents deserve to be furnished to the former chief minister, ministers and parliamentary secretaries whose offices have been sealed and from whose offices files/documents have been kept in safe custody,” the five-judge constitution bench said.
The bench, also comprising Justices Dipak Misra, M B Lokur, P C Ghosh and N V Ramana, accordingly directed the Centre to make copies of all files/documents that were taken from the custody of the former CM, ministers and parliamentary secretaries and furnish them the copies.
Further, it said the Centre would furnish the copies of the hard disks of computers, laptops seized from them.
After the bench did not accept the contention of attorney general Mukul Rohatgi that the request by Tuki and other Congress leaders were not genuine, he agreed to its suggestions to provide the copies of the documents.
“You are on technicalities and we are on fairness and only on basic fairness,” the bench told the attorney general and added that at the moment they are only contesting that they should have opportunity to defend.
“How can you say you will have the sword and he will not have it,” the bench remarked.
Rohatgi submitted that Tuki’s colleagues filed the petition and never protested that they were handicapped in the absence of the copies of the letters exchanged between Rajkhowa and the then CM.
During the hearing, the bench also asked the attorney general ‘can you contradict that as proposition of law, declaration of promulgation can be assailed as malafide. They want to establish there is malafide. They want to establish malafide from the communications between the governor and the then chief minister.’
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