The Supreme Court on Wednesday sought response from the Centre and Arunachal Pradesh Governor J.P. Rajkhowa to furnish relevant material backing their claim that there has been a failure of constitutional machinery in the sensitive border State of Arunachal Pradesh, thus warranting the proclamation of emergency by the President on Republic Day.
A five judge Constitution Bench led by J.S. Khehar issued notice to the Centre and the Governor on a petition filed by the Congress party that the proclamation of emergency by President Pranab Mukherjee under Article 356 of the Constitution was a result of a conspiracy by the Centre and the Governor to pull down the ruling Congress party in the State.
The Bench directed the Centre and the Governor to file their respective counter-affidavits by Friday on the Congress petition demanding that they "furnish" records culminating in the Union Cabinet's recommendation for a proclamation of President's Rule. The hearing has been fixed for February 1 at 2 p.m.
The petition at the time of filing on January 25 also foresees the strong possibility of the President giving his approval to the Cabinet recommendation, though at that point of time the President had merely sought clarification from the Union Home Ministry. It was only late afternoon on Republic Day that the President gave his approval and a notification issued declaring state of emergency in Arunachal Pradesh and suspended animation of the Legislative Assembly.
However, Attorney General Mukul Rohatgi presented strong objections regarding the fact that emergency was not yet proclaimed when the petition was filed in the Supreme Court on January 25.
Urging the Bench to dismiss the petition outright, Mr. Rohatgi asked how the Congress could have challenged the legality of the President's proclamation when the same had happened only the next day.
"What was the status of the proclamation when this petition was filed? How can they challenge something that had not occurred at that time of filing? What is the cause of action under challenge? They are asking for a 'super-injunction'... Unless they file a fresh petition today or tomorrow challenging the President's proclamation, I don't have to even reply to the current petition which is completely misconceived," Mr. Rohatgi argued.
Justice Khehar asked the AG to not delve on technicality while opponent lawyer Fali Nariman jibed that the AG has become a "technical individual".
Justice Dipak Misra asked the AG to accept notice and reply.
"You are right. But do file your reply on the petition for whatever it is worth as we have already issued notice," Justice Misra said.
The Congress side hit back now with a counter-argument, demanding the Governor to share with them the date of his report recommending proclamation of emergency.
This was to prove their contention that the Governor double-timed the Supreme Court, pushing for President's Rule even as he had assured the Supreme Court that "nothing untoward or precipitative" would be done without telling the court first.
"If there were developments, it was your duty to tell us," Justice Khehar addressed the Governor's counsel, Satya Pal Jain.
The Governor has been a party in a batch of petitions being heard by the very same Constitution Bench from January 13 to resolve the political turmoil in the State which has seen the impeachment of the Assembly Speaker, legislative sessions held in community halls and a Raj Bhavan under attack for playing partisan.
The Centre and the Governor maintained that there has been a series of reports from the Governor on the situation in the State. But this argument was cut short by Justices Madan B. Lour and N.V. Ramana who referred to the gazette notification of the President's proclamation to point out that the President only refers to "one report" and not a series of them.
Mr. Rohatgi and senior advocate Satya Pal Jain, latter for the Governor, explained that there would have been a "series of inputs culminating in a report".
The court then wasted no time in ordering the Governor to produce the copy of his report at their official residences and further to communicate the dare of the recommendation alone to the Congress lawyers, who were given liberty to amend their petitions accordingly.
"It is only when constitutional governance becomes an 'impossibility' that proclamation under Article 356 is resorted to," Mr. Nairman submitted.