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SC hears 2 governors, in 2 different cases: One perceives self as victim, critics perceive other as villain

The Supreme Court’s two constitution benches in adjacent court rooms of 1 and 3 heard two governors simultaneously at 2pm today: one a former governor, and an alleged victim of political vendetta, and the other a sitting governor, who allegedly conspired with the Centre to topple a duly-elected government by recommending President’s rule.

In Court No 1, the bench comprising the Chief Justice of India (CJI) TS Thakur, justices Fakkir Mohamed Ibrahim Kalifulla, AK Sikri, SA Bobde and R Banumathi, heard former Mizoram Governor, Aziz Qureshi, who was unceremoniously sacked by the Central Government in March last year.

In 2014 Qureshi, as Uttarakhand governor, had alleged that the then Union home secretary, Anil Goswami, had called him over phone on the government’s behalf, asking him to resign or accept a transfer for certain allegedly inappropriate comments on rapes that were attributed to him during his previous tenure as Governor of Uttar Pradesh.

Qureshi had then refused to quit, and challenged the Central Government’s action in the Supreme Court.

This case was later referred to the Constitution bench.

He subsequently accepted his transfer to Mizoram.

Today, Qureshi told the bench through his counsel, that he was concerned with the honour and the dignity of the office of the Governor. The Home Minister had reportedly said he never asked Qureshi to resign.

Attorney general Mukul Rohatgi, however, gave a different spin to the forced resignation/transfer theory. He told the bench that it was the President, who asked the Home Secretary to find out, in view of the controversial statements attributed to the Governor, in the media. The Home Secretary, then sought the Governor’s response in a friendly manner.

To this, Justice Bobde asked whether being friendly is different from being friends.

The AG replied saying that the Governor and the Home Secreary were on familiar terms.

The AG added that the question of asking Qureshi to quit or accept transfer might have come up after prompting by the Governor, who might have wanted to know what course of action the Home Secretary was suggesting to him.

Qureshi denied the statements attributed to him in the media, and wrote to the President immediately.

The CJI asked the AG and the Solicitor General, Ranjit Kumar, who also made submissions, to explain who can demand the resignation of the Governor.

Governor as villain

In Court No 3, the atmosphere was more surcharged, with the petitioners in Nabam Rebia vs Registrar General, Gauhati High Court questioning the proclamation of President’s rule in Arunachal Pradesh on the Republic day and the dubious role of the Governor of the state, Jyoti Prasad Rajkhowa, in sending a recommendatory report to the Centre, to impose President’s rule, even as the bench was hearing the pending case in which he was a party.

Reading from the notification imposing the President’s rule in the state, the bench said the Centre relied on the Governor’s report and other materials to justify the Proclamation.

The date of the Governor’s report was the crucial information, it appeared, which could tilt the scales against the Governor. Both the petitioners and the bench questioned the claim of the respondents that the Governor’s report is confidential. Questions were raised why senior advocate, Harish Salve, representing the Governor, had stated that nothing untoward would be done by the Governor to precipitate the situation, when the case was being heard.

Nariman asked a pointed question why Salve did not disclose that the Governor had already sent a report recommending the President’s rule.

The AG pointed out that there were daily reports from the Governor on the political situation, and doubted whether Article 356 required a single report from the Governor. He raised a technical objection saying the petition, filed before the Proclamation of President's rule in the state, was misconceived as the Cabinet recommendation was immune from scrutiny.

The bench, however, asked him to accept the notice, and respond to it as he deems fit.

There was an interesting discussion whether Article 356 mentions ‘’a” report of the Governor, or just report. While some texts of the Constitution in the court room carried ‘’a”, others didn’t inviting a comment from senior advocate for the petitioners, Rajeev Dhavan to comment that those who do not carry “a” before the report are wrong. The inference is that there ought to be a single recommendatory report from the Governor, on the basis of which the Centre can impose President’s rule.

Senior advocate, Fali Nariman, submitted that not every breakdown merits President’s rule, and that constitutional governance must become an impossibility, as a precondition for President’s rule. Citing the majority view in Bommai case, he said grant of interim relief in such cases would depend on how expeditiously the court is moved to challenge the President’s rule.

He also added that injunction by the court is justified if the President did not take measures short of Article 356, to address the question of Constitutional breakdown. “Such measures were not even tried”, he said.

Even as the hearing was about to conclude for the day, the respondents brought a copy of the Governor’s report, in response to the bench’s direction to obtain it.

The bench asked the respondents to reveal the date of the report to the counsel for the petitioners, in order to amend their petitions accordingly.

The hearing will continue on Monday, 1 February, at 2 pm when more substantial arguments can be expected.

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