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Guv lobs dual-post ball into EC court

SHILLONG: Ending all speculations, Meghalaya Governor V Shanmuganathan has referred the pending dual-post issue to the Election Commission of India bringing an end to the tussle between the judiciary and Governor’s Secretariat.
A day before the hearing on the PIL related to the dual-post, the Special Secretary, Law department LM Sangma on Monday filed an affidavit before the High Court of Meghalaya stating that the Governor has referred the issue to the Election Commission of India for appropriate decision.
An official source said that the Governor had referred the matter to the Election Commission on Friday.
It was as per Article 192 of the Constitution of India that the Governor wanted the opinion of the Election Commission on the dual-post issue.
The Article 192 refers to the question of disqualifications of elected members for holding office of profit.
Section 1 of the Article 192 says that if any question arises as to “whether a member of a House of the Legislature of a State has become subject to any of the disqualifications, ” the question shall be referred for the decision of the Governor and his decision shall be final”.
However, the Section 2 says that “before giving any decision on any such question, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion”.
The special secretary, Law Department, L M Sangma in his affidavit filed on Monday said that the  Governor has made a reference to the Election Commission of India for its opinion under Article 192(2) of the Constitution of India.
“The  decision of the Governor on the matter under Article 192 of the Constitution will be placed before this Court after receiving the opinion of Election Commission of India”, the affidavit said.
The special secretary filed the response while referring to the order of the High Court of Meghalaya on November 24 which said that neither the secretary of the Governor nor Advocate General informed the Court whether the matter has been referred to the Election Commission.
During the last hearing on November 24, the Full Bench of the High Court of Meghalaya had referred to Article 192, of the Constitution of India to suggest that the Governor can take a decision on the matter after getting the opinion of the Election Commission of India.
For the hearing on Tuesday, the Governor has also appointed senior Supreme Court lawyer M N Krishnamani   to represent the Governor’s Secretariat in the High Court.
The lawyer will take up the issue whether the Governor is answerable to the Court as per Article 361 since earlier the High Court had insisted that Governor should make clear his stand on the dual post issue whereas the Principal Secretary to the Governor had conveyed to the Court through   the Advocate General on November 19 that the Governor had not permitted him to appear before the Court along with the related file.
Article  361 states that the “President, or the Governor of a state, shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties”
However, the order of the High Court had said that prima facie, the court did not find any ground for the Governor to restrain his Secretary from furnishing information to the Court for assistance well within the parameters of the Constitution.

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