(Jagdish Singh Khehar, Dipak Misra, Madan B. Lokur, Pinaki Chandra Ghose and N.V. Ramana, JJ.)
Nabam Rebia _________________________________ Petitioner
v.
Registrar General, Gauhati High Court and Ors. ______ Respondent(s)
Petition(s) for Special Leave to Appeal (C) No(s). 876/2016, decided on February 1, 2016
With
S.L.P.(C)…CC Nos. 779-780/2016, SLP(C) Nos. 1259-1260/2016,WP(C) No. 53/2016, W.P.(C) No. 60/2016, W.P.(C) No. 59/2016
The Order of the court was delivered by
Order
1. In Writ Petition(C) No. 53 of 2016, on 27.01.2016, notice was issued to respondent No. 2 and liberty was granted inter alia to respondent No. 2 to file his counter affidavit, if any, by 29.01.2016. Additionally, Mr. Satya Pal Jain, learned senior counsel representing the Governor of Arunachal Pradesh, undertook, on the Court’s asking, to furnish a copy of the Governor’s Report and other material, recommending issuance of a proclamation under Article 356 of the Constitution of India.
2. During the course of hearing today, learned Attorney General invited our attention to a decision rendered by a Constitution Bench of this Court in Rameshwar Prasad v. Union of India, (2006) 2 SCC 1, and placed reliance on paragraph 173, which is extracted hereunder:
“173. A plain reading of the aforesaid article shows that there is a complete bar to the impleading and issue of notice to the President or the Governor inasmuch as they are not answerable to any court for the exercise and performance of their powers and duties. Most of the actions are taken on the aid and advice of the Council of Ministers. The personal immunity from answerability provided in Article 361 does not bar the challenge that may be made to their actions. Under law, such actions including those actions where the challenge may be based on the allegations of mala fides are required to be defended by the Union of India or the State, as the case may be. Even in cases where personal mala fides are alleged and established, it would not be open to the Governments to urge that the same cannot be satisfactorily answered because of the immunity granted. In such an eventuality, it is for the respondent defending the action to satisfy the Court either on the basis of the material on record or even filing the affidavit of the person against whom such allegation of personal mala fides are made. Article 361 does not bar filing of an affidavit if one wants to file on his own. The bar is only against the power of the Court to issue notice or making the President or the Governor answerable. In view of the bar, the Court cannot issue direction to the President or the Governor for even filing of affidavit to assist the Court. Filing of an affidavit on one’s own volition is one thing than the issue of direction by the Court to file an affidavit. The personal immunity under Article 361(1) is complete and, therefore, there is no question of the President or the Governor being made answerable to the Court in respect of even charges of mala fides.”
3. Based on the conclusion recorded by the Constitution Bench, it was the submission of the learned Attorney General, that there was a complete immunity to the Governor under Article 361 of the Constitution of India, and that, even notice could not be issued to the Governor.
4. Having given our thoughtful consideration to the issue in hand, we consider it just and appropriate to recall the notice issued to respondent No. 2 on 27.01.2016, in Writ Petition (C) No. 53 of 2016. That, however, would not preclude respondent No. 2 to respond, in case he so desires, as he is already participating in collateral proceedings in this Court.
W.P.(C) No. 59 of 2016 and W.P.(C) No. 60 of 2016
5. Issue notice to respondent No. 1.
6. Ms. Sushma Suri, advocate, on our asking, accepts notice on behalf of respondent No. 1.
7. Liberty is granted to respondent No. 1 to file counter affidavit within three days i.e. by 04.02.2016, with a copy in advance to the learned counsel for the petitioner.
8. List after hearing of connected matters.
W.P.(C) No. 53 of 2016
9. After having heard learned counsel for the rival parties at some length, we are of the view, that certain record deserves to be furnished to the former Chief Minister, former Ministers and the former Parliamentary Secretaries, whose offices were sealed and from whose offices files and documents were taken to be kept in safe custody. We accordingly hereby direct the Administrator/the Chief Secretary, to make copies of all official files, documents as were taken into safe custody from the offices of the former Chief Minister, former Ministers and former Parliamentary Secretaries, and furnish the same to them.
10. We also consider it just and appropriate to direct the Administrator/Chief Secretary to make copies of all hard disc drives of computers, seized from the offices of the former Chief Minister, former Ministers and former Parliamentary Secretaries, and to hand over the copies to them.
11. We also direct respondent No. 1 to return all private letters, files, books etc., if any, which were seized or which are in the custody of the authorities from the official premises of the former Chief Minister, former Ministers and former Parliamentary Secretaries.
12. The instant directions be complied with by 05.02.2016.
13. List after hearing of connected matters.
SLP(C) No. 876/2016, SLP(C)…..CC Nos. 779-780/2016 and SLP(C) Nos. 1259-1260/2016
14. For further consideration, list on 02.02.2016 at 10.30 A.M.
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