The Supreme Court hearing in the political row in Arunachal Pradesh has thrown up three interesting issues concerning a Governor’s role under the Constitution. The first is about a Governor’s powers. Though it is too early to draw any conclusions, what a Bench headed by Justice J.S. Khehar has said makes it clear that a Governor cannot have unbridled powers. It was contended on behalf of the BJP MLAs who had joined hands with the Congress rebels to remove an elected government leading to President’s rule in the border state that (1) a Governor enjoys absolute immunity for his actions while in office (2) his actions cannot be questioned in court and (3) that he is answerable to the President only.
While agreeing that a Governor cannot be made a party before a court, the Bench has said the court can intervene if there is an allegation of mala fide to examine whether it is personal or legal mala fide. The second point the court has made is that a Governor’s actions can be reviewed in court. In reply to the argument that a Governor has a discretionary power to summon, prorogue or convene a House which is not subject to judicial review, the Bench observed, “Article 163 (2) does not say anything done by the Governor is not justiciable”. The Constitution does not give a Governor unlimited powers. Otherwise it would mean, as the court said, he could even “trample upon democracy”. The Gauhati High Court has upheld the Arunachal Governor’s decision to convene a session before time to test the government’s majority.
The third outcome of the hearing on Wednesday is that all gubernatorial appointments are political. The Congress has alleged that the Arunachal Governor has acted as an agent of the BJP government at the Centre. The argument made on behalf of the Arunachal Governor that, being a former Chief Secretary (of Assam), he was not a political appointee led the court to assert that: “Every Governor is a political appointee”. This contradicts the commonly held view that a Governor is a fair and objective Central representative in a state.