Today, the Hon’ble High Court of Uttarakhand made its landmark judgment online that quashed the Presidential Rule in Uttarakhand which was imposed under Article 356 of the Constitution of India.
The petitioner had alleged that the ruling BJP at the Centre, in pursuit of its objective to overthrow the Indian National Congress led Government of the State, had taken recourse to the emergency provisions of Article 356 in its desperation to topple the elected Government.
Case Law Details:
Writ Petition (M/S) No. 795 of 2016
Shri Harish Chandra Singh Rawat…. Petitioner vs. Union of India & another. …… Respondents
Date when Judgment was Pronounced: 21/04/2016
Coram: Hon’ble K.M. Joseph, C.J. and Hon’ble V.K. Bist, J.
Findings of the Court:
The Hon’ble Court has given the following findings:
Suppression of material facts, misleading statements and twisted facts:
It was alleged by the respondent that petitioner misrepresented the Court by concealing the facts of the representation given by 27 BJP MLAs, the Court observed that the person,approaching the court, must take the court into confidence in respect of material facts and should place all the facts in a fair manner; and leave the decision to the court. However the Court stated that in the present case the stake was not only merely the personal interest of the petitioner but the democracy at large. The soul of the matter was whether, in a federal / quasi-federal set-up, it was open to the Central Government to topple democratically elected State Governments undermining the confidence of the common man who elects such Government. Howver the said representation of BJP MLAs was actually found annexed of which both, the petitioner and the respondents, were unaware of. The Court rightly regarded it as “Comedy of errors” in dismissing the allegation. Similarly, the non-production of one page from the Proclamation was also not regarded as misrepresentation.
Scope of Judicial Review:
Much was said on the Court’s comments on the power of judicial review of the acts of the President. Even it was reported that the harsh comments were uncalled for.
In the para 45 of the judgment, the Court has deliberated on the scope of judicial review of the Presidential Proclamation under Article 356 in quite a length of words with all of them all underlined:
We have already extracted the relevant paragraphs from the judgments in Bommai’s case (supra) and Rameshwar Prasad’s case (supra). It is to be remembered that the power under Article 356 came in for considerable misuse. Incidentally, we may notice that the Party to which the petitioner belongs has not exactly covered itself with glory in actions, which were taken in the first 40 years of the Republic. Nearly 100 cases of dissolution took place. The philosophy of the courts during that era was that, with a Proclamation under Article 356, a political question is being resolved; the highest constitutional authority has applied its mind; and the courts should adopt a hands-off attitude. The courts found solace in the fact that the Proclamation would have to pass muster at the hands of the Parliamentarians for it to continue. It was not a matter, which presented manageable standards for the courts. This was the philosophy, which substantially precluded the courts from practically interfering in action taken under Article 356. The Sarkaria Commission gave its report. It listed various situations and the abuses. It is, then, that the Nine Judges of the Supreme Court in Bommai’s case (supra) sat to consider the true scope of judicial review in matters relating to Proclamation under Article 356. We have already referred to the case-law and the relevant paragraphs. Undoubtedly, under the written Constitution, in which the Preamble proclaims India to be a democratic, sovereign and socialist republic, there is little space for unreviewable powers. There are areas like the making of a treaty or a decision to go for war or foreign policy, where there are no objective criteria, which would provide the basis for the courts to strike at the executive action. It was in this strain that, in Bommai’s case (supra), the learned Judges proclaimed a new approach to judicial review. Our understanding is that the power under Article 356 is, indeed, extra-ordinary. It is to be used as a matter of last resort. It can be used only when the Government cannot be run in accordance with the Constitution. It points to a certain level, where it is quite impossible to run the Government in the manner provided in the Constitution. There must be material. The material must be verified. It is not any material that will suffice. The material must be relevant for the formation of the satisfaction. The satisfaction, undoubtedly, is subjective satisfaction. It is the subjective satisfaction not of the President, but of the Cabinet for all legal purposes. No doubt, there is a modicum of power with the President having regard to Article 74 to always ask the Cabinet to reconsider any advice. If, after reconsideration, the same advice is retendered, it binds the President. The material cannot be irrelevant or extraneous. It cannot be mala fide. Every act of a public functionary at any level must be bona fide. It is, therefore, that, even in an action under Article 356, the action is liable to be visited with invalidation if it is done mala fide. When mala fide is attributed to the Government, the mala fide is malice in law or legal malice. Attainment of a collateral purpose, though it may appear to be intended to secure a legitimate purpose, is impermissible. The issue of judicial review of action under Article 356 must also be seen on a larger canvas. This is because India, i.e. Bharat, is the Union of States, declares Article 1 of the Constitution. Running as a golden thread through the provisions of the Constitution is the spirit of federalism. In a federal structure, the authority at the Centre and the States, are virtually sovereign in their own respective areas. In fact, Article 356 is a foray into the pure form of federalism, as, in a pure form of federalism, there would be no power, ordinarily, to interfere in the affairs of the State Government. But, the founding fathers, in their wisdom, have thought that there would, indeed, be rare occasions, where the Government cannot be conducted in accordance with the provisions of the Constitution. In the Sarkaria Commission’s report, there is reference to situations caused by internal rebellion, internal disturbances, political issues, among the situations, which may warrant imposition of Article 356. We also understand that Article 356 is not confined in its employment to a situation arising from disregard by a State to the direction issued by the Central Government under Article 257 leading to the emergence of a situation under Article 365. We cannot, in fact, exhaustively lay down the situations. But, one thing is clear that it should be used as a matter of last resort and it should be used with the greatest care. This we say for the reason as we deem it appropriate to deal with another argument of the learned Attorney General, as also Mr. Harish Salve, that what is involved in this case is only a suspension of the Assembly and not the dissolution. We are of the view that, be it suspension or dissolution, the fact is that toppling of a democratically elected Government breeds cynicism in the hearts of the citizens, who had participated in the democratic process. It undermines the foundations of federalism. A Government in a State, which has been democratically elected, is usually engaged in the enunciation of policy and the transmission of policy into legislation. The carrying out of the policies, ordinarily, in accordance with the manifesto, which Parties may take to an electorate, is an important function, which is to be carried out by the persons, who are elected. They stand in the danger of being worsted at the hustings should they fail before the people during the time they have been given. Any interference, which is not made legitimately, therefore, will essentially work out as an interference with the life of the common man, who has trusted his destiny with his representatives whom he has elected. It is this democratic principle, which would become the first victim when action under Article 356 is not legally and constitutionally premised.
Argument that the Governor has, in this case, not recommended Article 356:
The Court observed that the satisfaction under Article 356 is to be entered by the Central Government. The Governor merely sends report(s) and lack of such expression by the Governor are not decisive nor curtail the jurisdiction of the competent authority
Cabinet Note on Speaker partiality was, in fact, a blatant falsehood.
The Court observed that the Assistant Solicitor General on behalf of Union Government submitted that that as per the Cabinet Note that the Speaker used differential yardsticks in the exercise of power under the Tenth Schedule was a mistake of fact. The Court went on to regard such as “blatant flasehood”.
This means that, what was hotly contested before us by the Attorney General on the basis of there being laxity on the part of the Speaker reflecting double standards and also opening the doors to action under Article 356, was without any basis at all. It was a completely nonexistent material. There was, in other words, no material. We are, in fact, shocked that the decision taken at the highest level and the matter, which, apparently, influenced the decision, and which engaged the counsel and the Court in this litigation, has been done without due care and without any basis. It was totally without any factual foundation. It was, in fact, a blatant falsehood.
Extra-ordinary case and first time in the history of India
The Court was convinced by the arguments of the petitioner;s counsel that it was an extra-ordinary case. In the words of the Court:
Therefore, we cannot brush aside the argument of Mr. Abhishek Manu Singhvi, learned Senior Counsel for the petitioner, that this is an extra-ordinary case and first time in the history of India, by action under Article 356, there is a double whammy by hitting at the authority of the Speaker under the Tenth Schedule, as also the Governor, who had fixed the date of floor test as 28.03.2016
Sting Operation
Regarding the much talked sting operation, the Court dismissed it regarding it unverified material:
In the first place, as on 26.03.2016, when the Cabinet met, the audio-video from the sting had not even been verified through the CFSL, Chandigarh. Clearly, the CFSL received the same only on 27.03.2016. Therefore, it was the unverified material, which was acted upon and was also made the basis for the cabinet decision.
However, the Court expressed its serious concern on the fact that a former Chief Minister was found in the sting operation allegedly. However it added that merely for the reason that the petitioner figures in the alleged sting operation, which was disputed by him, it cannot refuse to pronounce on the validity of the action under Article 356.
In regard to the sting operation, there is another dimension, no doubt, which we cannot overlook that a former Chief Minister is found in the sting operation allegedly. No doubt, there is a verification by the CFSL subsequently. This aspect goes to the standards expected of the writ applicant throughout the case. It is true that corruption is an issue, which we are completely aghast at. It is not to be taken as an endorsement of any kind of wrongdoing. India has had enough of it. It is, no doubt, true that this is an issue, which continues to plague our body polity and we have absolutely no sympathy for those, who indulge in corruption at any level and if, indeed, it has happened, whatever we may say in the judgment otherwise will not preclude any action, which he would be otherwise subjected to in accordance with law. But, that is not to say that the discretion should be declined, as we have noted that it is not an individual fight. We must see it in the larger canvas of values of democracy, federalism and also rule of law. We bear in mind the words of Sri Winston Churchill “it has been said that democracy is the worst form of Government except all the others that have been tried”. Viewed in the said perspective, we would think that, merely for the reason that the petitioner figures in the alleged sting operation, which is disputed by him we cannot refuse to pronounce on the validity of the action under Article 356. There are cases, where Judges are confronted with the plight of not having black and white issues. Individuals pale into relative insignificance and what emerge as more relevant are the greater values, which, in this case, include democracy and federalism. In the light of this, the upshot of the above discussion is that we would not dismiss the writ petition on the basis of the said dimension present.
Held:
The Court held that in view of what was laid down in Bommai’s case, the Proclamation dated 27.03.2016 issued under Article 356 stood quashed and status quo, as on the date of the Proclamation, must necessarily be restored. It further clarified that the Government led by the petitioner will revive. However, since we the position was restored status quo ante, the petitioner was obliged and would must seek the vote of confidence, 29.04.2016
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