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Court unhappy over divergent stand on immunity for Governor

Court tells Attorney-General, Additional Solicitor-General to speak in one voice

  • Governor answerable for mala fide actions: ASG
  • Not answerable for legal mala fides, but could be answerable for personal actions: A-G

    NEW DELHI: The Supreme Court on Tuesday expressed its displeasure over the divergent stand of Attorney-General Milon Banerjee and Additional Solicitor-General Gopal Subramaniam on the extent of immunity enjoyed by a Governor under Article 361 of the Constitution.

    Justice Y.K. Sabharwal, heading the five-Judge Bench hearing five questions relating to the Governor's immunity, told the Attorney-General: "I don't think this can be permitted that one stand is taken by the Attorney-General and another by the Additional Solicitor-General [appearing for the Centre]."

    The Bench was also hearing arguments on petitions challenging the dissolution of the Bihar Assembly on May 23. The other Judges in the Bench are: Justice K.G. Balakrishnan, Justice B.N. Agarwal, Justice Ashok Bhan and Justice Arijit Pasayat.

    The ASJ conceded that the expression "purporting to be done by the Governor in his personal capacity" under Article 361 of the Constitution "does not cover acts which are mala fide or ultra vires," implying that the Governor was answerable for mala fide actions. However, the Attorney-General submitted that a Governor was not answerable for legal mala fides but could be answerable for personal actions.

    Appearing for whom?

    It was in this context that the Bench conveyed its dissatisfaction over the divergent stand taken by the two law officers and asked: "The Attorney-General is appearing for whom?" When the Attorney-General said he was not appearing for the Union of India but was arguing in his capacity as the AG, the court said: "You are the first law officer of the Government and both of you have to speak in one voice."

    "No absolute immunity"

    Senior counsel Soli Sorabjee, appearing for the petitioners, maintained that there could not be any absolute immunity for the Governor when allegations of mala fide were raised. The conferment of absolute immunity would amount to denial or in any event impair effective exercise of judicial review. He pointed out that if a Governor could not be asked to explain personal mala fide alleged against him then these allegations could not be levelled on the ground that no notice had been issued to the Governor.

    Subject to judicial scrutiny

    The Bench indicating its mind told the Attorney-General that legal, factual and personal mala fide allegations against the Governor could be the subject matter of judicial scrutiny even though the question remained whether notice could be issued to him in view of the bar under Article 361 of the Constitution.

    The AG said that if the personal allegations were prima facie proved against the Governor, the Court could issue notice to him but no notice could go to him even if the legal mala fides were proved. In case of legal mala fide, it was the Union Government or the State concerned to defend the Governor's action by obtaining necessary information from the Governor without making him a party to the proceedings.

    The Bench told the AG: "We do not understand why the Union Government cannot go the whole hog on an issue. The difficulty with the Attorney-General is that he goes 80 per cent and comes back 50 per cent."

    Further arguments will continue on Thursday.

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