New Delhi : The Supreme Court on Tuesday said Manipur Governor cannot “sit over” the opinion given by the Election Commission (EC) regarding the disqualification of 12 BJP MLAs in the “office of profit” issue. A three-judge bench headed by Justice L Nageswara Rao made the observation after it was apprised that the Governor is yet to take a decision on the EC’s opinion furnished on January 13, 2021.
“Reference has been passed by the Election Commission. Why can’t the Governor pass an order? The government should ask the Governor. Something must be done. The Election Commission had submitted its opinion in the matter in January. The Governor cannot sit over the decision,” said the bench, also comprising Justices B R Gavai and B V Nagarathna. The top court was hearing a plea filed by Karong MLA D D Thaisii and others seeking disqualification of 12 MLAs on the ground that they were holding the posts of Parliamentary Secretaries, which amounted to “offices of profit”.
Senior counsel Kapil Sibal, representing Thaisii, complained that even after the Election Commission submitted its recommendation to the Governor in January , the constitutional head of the state is yet to decide on the plea for disqualifying the 12 MLAs, some of whom are ministers in the state cabinet.
Sibal argued that the Governor is obligated under Article 192 of the Constitution to take a decision on questions as to disqualifications of members of the assembly after obtaining the opinion of the Election Commission.
The bench, which included justices BR Gavai and BV Nagarathna, agreed with Sibal: “You are right. He (Governor) cannot skip the decision. There has to be a decision.”
Sibal pointed out that the term of the assembly is ending soon and the endeavour seems to render the petition infructuous by not taking a call.
“The Election Commission gave its opinion to the Governor way back in January. We don’t know what has the Governor done after receiving this opinion. We are entitled to know how the constitutional functionaries in the country are acting,” added the senior counsel.
At this, the bench observed that it was earlier of the opinion that the Election Commission has been “dragging its feet” by not submitting the opinion to the Governor but the situation is different since the Governor is in receipt of this report for almost 10 months.
Appearing for the Election Commission, senior advocate Rajeev Dhavan submitted that Article 192 makes the opinion of the apex poll panel binding on the Governor, whose decision can also be challenged only on very limited grounds.
To this, the bench cited a case relating to commutation of punishment of a convict in the Rajiv Gandhi assassination case where the Tamil Nadu Governor was not taking a decision on the state government’s recommendation to remit the sentence of convict AG Perarivalan.
“We passed an innocuous order and the Governor did take a decision soon thereafter. We did not have to give any direction there. But here we are again faced with a situation where the Governor has not taken a decision,” rued the bench.
The counsel for the Manipur government requested for an adjournment, saying solicitor general Tushar Mehta was to appear for the state but he was arguing before a different bench.
“You cannot hoodwink the court like this by taking adjournments. They say that the term of the assembly is getting over in a month or so. You cannot render the petition infructuous by taking adjournments,” retorted the bench.
The court decided to take up the matter after around an hour but the S-G remained unavailable, following which the case was adjourned to Thursday for passing orders. “If we have to pass any order, we will need somebody from the respondent to be here. Let somebody be here so that directions can be passed,” the bench told Sibal. It also asked Sibal to serve a copy of the plea on the secretary of the Manipur Governor to apprise him of the developments in the apex court.
The tenure of 60 members Manipur Legislative Assembly is scheduled to end on March 19, 2022. After the election in 2017, a coalition of the BJP, National People’s Party, Naga People’s Front and Lok Janshakti Party formed the government, with N Biren Singh becoming Chief Minister.
In the 2017 Assembly polls, the ruling Congress won 28 seats in the 60 member House. The BJP got 21 seats. With the support of the splinter parties, Biren formed the coalition government. Since then, there have been floor crossings, resignations and disqualifications. The Congress claims it will have a clear-cut majority if these 12 MLAs stand disqualified.
These 12 MLAs were appointed as parliamentary secretaries in March 2017, giving them the status of a minister apart from other financial benefits and perks. By a judgment in September 2020, the Manipur high court quashed these appointments after declaring the law on appointment of parliamentary secretary as unconstitutional.
The HC decision prompted the Manipur Congress to approach the Governor for disqualifying these 12 MLAs for holding the office of profit. The Governor then sought the Election Commission’s view on it.
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