The bench allows petitioners to amend their plea after attorney general's objection that the notification on promulgation of President’s rule has not been challenged in the fresh plea.
The imposition of President’s rule in crisis-hit Arunachal Pradesh on came under the scanner of the Supreme Court which sought the report of Governor Jyoti Prasad Rajkhowa recommending central rule in the state, saying ‘it is too serious a matter’.
The remark by a five-judge bench headed by Justice J S Khehar came when Attorney General Mukul Rohatgi raised a preliminary objection contending that the notification on promulgation of President’s rule has not been challenged in the fresh plea.
The bench asked the attorney general not to raise ‘technical objections’ when he persisted with his plea arguing that ‘rules are rules’ and they apply equally to all.
It posted the matter for February 1, asking the governor and the ministry of home affairs to file responses by Friday, January 29, on petitions filed by Congress leaders including the plea of Rajesh Tacho, chief whip of Congress Legislature party in the state assembly which is now kept under suspended animation.
The bench allowed the petitioners to amend their plea by Friday.
When Additional Solicitor General Satpal Jain, appearing for the governor, sought to maintain secrecy of the report and the recommendation for the President’s rule, the bench said, “He will only mention the date of report recommending President’s rule to opposite parties during the course of the day.”
However, the bench for its own perusal sought in a sealed cover the report and recommendation on imposition of the President’s rule.
“Unless we get the grounds for recommending the President's rule, we cannot proceed. If grounds are not same in the proclamation then it is totally a different ball game,” the bench, also comprising justices Dipak Misra, M B Lokur, P C Ghose and N V Ramana, said during the hearing.
The bench was also of the view that no interim order can be obtained unless the parties see the grounds for proclamation for President’s rule.
A battery of senior lawyers including Fali S Nariman, Kapil Sibal, Rajeev Dhawan and Vivek Tankha opposed the plea of governor, seeking to maintain secrecy of his report and recommendations, saying that larger bench of more than five judges have already laid down the proposition on this aspect.
However, Jain, who was asked at the beginning of the hearing to bring to court within 15 minutes the governor’s report, claimed that the confidentiality of the document was required to be maintained.
He said there are photographs to suggest that the governor was under threat as slaughtering of animals, burning of tyres and posters took place outside the Raj Bhawan.
The fact that the notification of President’s rule was not challenged in the fresh plea was raised in a big way by the attorney general who said that they should be asked to file another petition.
When Rohatgi said there were reports on which the President has acted, the bench drew his attention to Tuesday’s notification in which there was reference to only one report.
“You (A-G) have been saying there have been series of recommendations. Look at the President’s proclamation. It only speaks about one report and information,” it said.
At the outset, Nariman explained the sequence of events and said that it was a fit case for an interim relief and the court has to prima facie arrive at a view that a case is made out or not.
He said as the report of the governor was not in hand, it was not known as to what were the grounds taken for recommendation of central rule.
His submission was objected to by senior advocates Ashok Desai and Vikas Singh, appearing for opposite side, saying that no interim order can be passed without hearing them.
“We will not pass any order without hearing all the parties. It is a sensitive issue,” the bench said.
Desai said that reasons for proclamation may be different from what has been given by the governor.
“Yes, that is why we want to see the report and that is why we want to hear the attorney general,” the bench said.
Explaining the urgency and importance of the matter, Sibal said that the issue of proclamation of President’s rule will come before the Lok Sabha and the Rajya Sabha in the coming session for affirmation and they may lose it in the Upper House as the National Democratic Alliance does not have a majority there.
Further, he said even if there is no affirmation, the court has to look into the legality of the actions taken by the Centre and even if there is new chief minister, he will have to prove his majority before February 23.
While the bench was taking note of the possibilities, Sibal said that if no government is formed then there is no option but to dissolve the house and go for fresh elections.
He urged the bench not to declare as infructuous the present petition even if the Opposition forms a new government.
Earlier during the day, the court agreed to hear at 2 pm the plea challenging the Union Cabinet’s recommendation to impose President's Rule when Nariman and Sibal mentioned it for urgent hearing.
The fresh plea assumes significance as the five-judge bench is examining constitutional provisions on the scope of discretionary powers of the governor, amid continuing a month-long impasse over Nabam Tuki-led Congress government in Arunachal Pradesh.
In an earlier plea filed by Nabam Rebia, who was allegedly removed from the post of speaker by rebel Congress and Bharatiya Janata Party MLAs in an assembly session held at a community hall in Itanagar on December 16, has listed out legal questions, including the governor’s power to convene the assembly session without the aid and advice of the government for adjudication by the apex court.
It was also alleged that the governor had advanced the assembly sitting from January 14 to December 16 without the aid and advice of the chief minister and his council of ministers.
Congress, which has 47 MLAs seats in the 60-member assembly, suffered a jolt when 21 of them rebelled. Eleven BJP MLAs backed the rebels in the bid to upstage the Nabam Tuki government. Later, 14 rebel Congress MLAs were disqualified.
The governor then called assembly session on December 16 in which deputy speaker revoked disqualification of 14 rebel Congress MLAs and removed Rebia from the post of speaker. This sitting was held in a community hall in Itanagar.
