The hearing before the Constitution bench at court number 3 at 2 pm began on a serious note with the Attorney General, Mukul Rohatgi asking the bench whether it was at all required to copy thousands of pages of official correspondence at the chief minister’s office on various trivial matters, when what the petitioners want access to, is something else.

The AG also claimed that the chief minister’s office in Itanagar is not sealed, and the petitioners have not yet made any attempt to claim access to the documents which they want.

Surprise disclosure

This surprised the bench and the petitioners, who were, during the previous hearing, concerned that access was being denied to the ousted chief minister to the documents, which might be of relevance to fight the legal battle in the Supreme Court.

When senior counsel, Kapil Sibal who represents the speaker, Nabam Rebia, pointed out that the petitioners want copies of letters of the chief minister to the Central Government complaining about the Governor, the bench asked he AG to give the whole list of documents available to the petitioners.

Justice Dipak Misra said what the AG had given earlier was only a partial list of documents, and the relevant documents being not mentioned in that list, the petitioners are unable to indicate what they want. The AG replied that he was not deciding the relevancy of any documents.

Meanwhile, Fali Nariman, another counsel for the petitioners, alleged that the Deputy Speaker claims himself to be the Speaker, and wants all the records. As this disturbs the status quo, the AG must instruct all functionaries, including the Governor, to exercise restraint, he said, and suggested anyone wanting to change the status quo must get permission from the court.

To this, Justice JS Khehar quipped: “Our permission is not required for everything.”

The AG mentioned that it was the ousted chief minister’s residential office which remains locked, and as a result some of the files which the respondents wanted to access there remain inaccessible.With the AG’s unexpected intervention taking almost half an hour for the bench to bring about a tentative truce between the warring parties, the time available for Rakesh Dwivedi, senior counsel for the rebel Congress MLAs, suffered erosion, and he could not complete his arguments today as expected.

Governor’s discretion defended

Article 163 became the subject of intense scrutiny with Dwivedi insisting on a conjoint reading of this provision with others. According to him, if the Governor has solid evidence that the chief minister lost the majority, then he should go for floor test.

If the CM refuses, there are three options open to the Governor, namely, Articles 163(1), 356 and 174. While Article 163(1) refers to the scope of Governor’s discretion, Article 356 refers to proclamation of President’s rule on the receipt of a report from the Governor. Article 174 refers to summoning, proroguing, and dissolving the legislative assembly.

At this point, Justice Khehar asked Dwivedi to explain why the Constitution has two separate sub-Articles - one for summoning and another for proroguing and dissolving the assembly. Justice Khehar asked Dwivedi to think and come up with a solid answer, rather than attempt imaginary, off-the-cuff replies.

Justice Madan B Lokur, in his turn, asked Dwivedi who has primacy. Dwivedi replied saying that no chief minister who lost majority would advice the Governor to summon the house. In that event, primacy will be with the Governor. If the Governor called an early assembly session, the chief minister should not grudge, he reasoned.

Here, Article 163(2) will apply, he said. Under this provision, the decision of the Governor, in his discretion, shall be final, and its validity cannot be called in question.

“That much of discretion must be given to him”, Dwivedi argued.

At this point, Justice Khehar realised that the arguments were on a tangent. He reminded Dwivedi that the Governor never contested that the Government did not enjoy majority. “That was not the issue, the issue was the disqualification of the Speaker”, he said.

Taking a cue from his brother judge, Justice Lokur asked Dwivedi, to explain how the agenda of the controversial legislative session held outside the assembly premises on 16-17 December was expanded to take up the no-confidence motion against the Government as well, after passing the no-confidence motion against the Speaker.

Kapil Sibal brought to the notice of the court that the addition to the agenda was not published in the bulletin of the House, but by the Executive.

At this point, senior advocate, Ram Jethmalani, seated on the side of the petitioners, made a brief intervention, saying Section 21 of the General Clauses Act is the relevant provision here. The bench just listened to him with appreciation, and continued to listen to Dwivedi.

Justice Khehar posed a pointed question asking when the Governor summoned the House with a single purpose, namely, passing of the no-confidence motion against the Speaker, could he add to the purposes later.

Nariman said the business of the House has to be determined by the Speaker. When the Deputy Speaker assumes the position of the Speaker or a Protem Speaker, 24-hour notice has to be given to take up the motion of no-confidence against the chief minister, he said.

++Divergence of views within the bench++

A divergence of views among the Judges on the bench was noticeable today with Justice Dipak Misra saying the Governor’s decision to advance the assembly session may be warranted by an emergency situation, and that it is provided in the rules. The chief minister, on such occasions, is expected to maintain constitutional sanctity, he observed.

If the chief minister plays truant, the Governor can step in, he remarked.

++Focus on ‘’otherwise” in Article 175 (2)++

Article 175(2) which enables the Governor to send messages to the House, with respect to a Bill pending or otherwise, became the subject of contention, with Dwivedi arguing that the word “otherwise” in this provision should be construed expansively. According to him, such a message can be in the form of a direction.

He said he had no quarrel with the petitioners’ suggestion that the word “otherwise” here meant Article 200, dealing with a Bill, passed by the Legislature, but returned by the Governor for reconsideration.

But his view is that it can travel beyond Article 200, and should not be limited to it. The word “otherwise” here should be construed as a word of expansion, and could be curtailed by context, interpretation or court compulsion, but widely and liberally, he explained.

The hearing will resume at 11:30 AM tomorrow, 9 February.