NEW DELHI: Making it clear that there could be no absolute immunity to a Governor for his mala fide and ultra vires actions, the Supreme Court on Thursday said it would examine the alleged mala fide action of Bihar Governor Buta Singh in recommending dissolution of the Assembly, without giving him notice to reply to the allegations.

A five-judge Constitution Bench, comprising Justice Y. K. Sabharwal, Justice K. G. Balakrishnan, Justice B. N. Agrawal, Justice Ashok Bhan and Justice Arijit Pasayat, decided not to implead Mr. Buta Singh in the light of the contention by Attorney-General Milon Banerjee and Additional Solicitor-General Gopal Subramaniam that a Governor could not be made party in view of the immunity from court proceedings granted to him under Article 361.

Brushing aside the plea that even mala fide actions could not be gone into by the court, the Bench said these were outside the purview of immunity enjoyed by the Governor under Article 361 and the courts were certainly entitled to scrutinise them.

It was for the Centre to defend the Bihar Governor's action in sending two reports for the dissolution of the House. "If it [Centre] fails to meet the challenge, the consequences would follow," the Bench said.

"A mala fide act of the Governor has no sanction under Article 361 and the immunity also does not cover any unconstitutional action of the Governor."

The Bench said that supporting the presidential Proclamation to dissolve the House would be a challenge to the Union Government without the Governor being made party to the proceedings. At this stage the court had not examined the issue of mala fide. It would have to be dealt with in the main petitions.

Time schedule

The Bench, after hearing senior counsel Soli Sorabjee, P.S. Narasimha and advocate Viplav Sharma, made it clear that it did not want the hearing of the petitions to become an academic exercise. It would deliver the judgment on the legality of the Proclamation before the commencement of the first phase of the polls on October 18. Accordingly, it advanced the date of hearing to September 20 from September 27.

The Bench fixed a strict time schedule for the hearing, which should conclude on September 29.

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