HC: Guv can take decision with EC view

Shanmuganathan seeks Attorney General opinion on dual-post issue

SHILLONG: After the Meghalaya Governor  V. Shanmuganathan sought the opinion of Attorney General of India on the issue of dual post, the Full Bench of the High Court on Tuesday referred to the Article 192, sub-article 2 of the Constitution of India to convey that the Governor can take a decision on the matter after getting the opinion of the Election Commission of India.
The matter has been listed for further hearing on December 8.
During the hearing, the Advocate General produced a letter written by the Governor on November 23 which said that since “the issue, in the light of High Court’s order is a sensitive matter, involving constitutional authorities and also involves the interpretation of Article 361 of the Constitution of India, “I am referring the matter to the learned Attorney General of India”,
It may be mentioned that the Article 361 states that the “President, or the Governor of a state, shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties: Provided further that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Governor”
The Governor in his letter also said that the Advocate General was well conversant with the current status of the case and hence he was asked to present the status of the case before the Court.
According to the Court, though the letter of Governor on November 23 indicates that the Advocate General is well conversant with the current status of the case, “he, as usual, maintained complete silence”.
However, the High Court was of the opinion that the Article 192 Sub Article (2), provides that  “there is obligation on the part of the Governor to obtain the opinion of the Election Commission before giving any decision on disqualification of the member of the Legislative Assembly in case he is found to occupy another office of profit”.
According to the Court, the Governor’s decision under the provisions of this Article has to be based on the opinion of Election Commission, “but neither the Secretary of the Governor nor the Advocate General has informed the Court as to whether the matter has been referred to Election Commission so that the Court can wait to have the benefit of opinion of the Election Commission and the decision of the Governor before taking up the issue for final decision”.
The Court further observed that if the matter remains pending with the Governor for a long time, “the very purpose of filing of the petition may be defeated with efflux of time”.
Earlier, during the hearing of the case on November 19, the Principal Secretary to the Governor   M S Rao had conveyed to the Court through the Advocate General that the Governor had not permitted  him to appear before the Court  along with the related file.
“There was no occasion for the Governor to show us the protection provided under Article 361 of the Constitution of India against the referral order of Division Bench apprising him of his Constitutional obligations. Rather, this kind of stand may disturb the constitutional scheme of checks and balances”, the Court observed
However, the order of the High Court on Tuesday said,” Prima facie, we do not find any ground for the Governor to restrain his Secretary from furnishing information to the Court for assistance well within the parameters of the Constitution as discussed”.
Thus, the Court said that the Governor is expected to direct his Secretary to respond to the power of judicial review, a basic feature of the Constitution, by assisting the Court by furnishing information in person, if so required, for the well established legal principle that the orders of the Court cause prejudice to none.
“As far as the immunity pleaded for the Secretary to the Governor, it is reiterated that he is not entitled to claim any. Though under Article 122 of the Constitution of India, the officer or Member of Parliament, in whom powers are vested for regulating 7 proceeding or conduct of business or for maintaining order in Parliament is exempted from jurisdiction of Court in respect of such exercise of powers; but, that is not available under Article 361 of the Constitution to the Secretary and other officers of the office of Governor
Hence, the Court made a direction to send the copy of the order to the office of Governor for information and guidance.

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