‘Governor Can’t Delay Decision On ECI’s Opinion About MLAs Disqualification’: SC

The Supreme Court on Tuesday orally observed that the Governor of Manipur cannot delay taking a decision on the opinion given by the Election Commission by the Election Commission of India regarding the disqualification of 12 BJP MLAs of Manipur Assembly in the “office of profit” issue.

A bench comprising Justices L Nageswara Rao, BR Gavai and BV Nagarathna made this observation after noting that the Governor is yet to take a decision on the opinion furnished by the Election Commission on January 13, 2021.

The bench was hearing a writ petition filed by D. D. Thaisii, Congress MLA from Manipur, who sought for disqualification of these 12 MLAs on the ground that they were holding the posts of Parliamentary Secretaries, which amounted to “offices of profit”.

Senior Advocate Kapil Sibal, appearing for the petitioner, submitted that the Governor cannot keep the decision pending. He highlighted that the term of the assembly was expiring within a month.

The Constitutional Authority bound by the Election Commission cannot say that he will not convey the opinion. If he’s not conveying, he’s not discharging his constitutional obligation. 1 month will pass & the game will be over. We’re entitled to know what the opinion is…. We should know what the Constitutional Authority is doing in the country,” Senior Counsel added. “We agree with you…he cannot skip away the decision”, Justice Rao, the presiding judge of the bench, said.

Senior Advocate Rajeev Dhavan, appearing for one of respondents, relied on Article 192 of the Constitution of India to submit that the opinion of the Election Commission is binding on the Governor.

Opinion of EC is binding on the Governor. Only 1 month is left. You cannot challenge the decision of the Governor. You cannot attack the opinion of the EC,” Senior Counsel further submitted. Justice Rao said that there are instances where the Court has nudged Governor to take time-bound decision. The judge referred to the case of Rajiv Gandhi assassination case convict Perarivalan, where the Tamil Nadu Governor was asked to take a decision on the recommendation made by the State Government for remission of his sentence.

The counsel representing the State Government sought for adjournment saying that the Solicitor General of India was engaged before another bench,

“You can’t make this petition infructous by taking adjournments, only one month is left…..nobody representing the state!”,

, Justice Rao expressed displeasure. Though the matter was passed over to 2 PM, the Solicitor General did not make appearance. The SG’s colleague informed that his hearing before the other bench was going on. Therefore, the bench posted the matter to Thursday, November 11.

The bench issued notice to the Secretary of the Governor on an application filed by the petitioner seeking the production of the Governor’s decision before the Court.

The writ petition has stated that 12 members of the Legislative Assembly of Manipur were appointed as Parliamentary Secretaries for the State of Manipur. The Offices titled as Parliamentary Secretary for the State of Manipur, are Offices of Profit, as the said appointment elevated the 12 members of the Legislative Assemble of Manipur to the rank and status of Minister of State and also entitled them to draw higher Salary and Allowances. The 12 members of the Legislative Assembly, who were appointed and who accepted appointment as Parliamentary Secretaries, therefore, occupied Office of Profit and thus automatically incurred the disqualification under Article 191 of the Constitution of India and are not entitled to continue as Members of the Manipur Legislative Assembly, the petitioner argued.

Courtesy: Live Law

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