Arguments Advanced .docx

ARGUMENTS ADVANCED I. THAT THE POWER OF THE PRESIDENT UNDER ARTICLE 365 CAN BE SUBJECTED TO JUDICIAL REVIEW. It is humbly submitted before this Hon’ble Court that the power of the president under article 365 can be subjected to judicial review. Article 365 of the Indian Constitution read as: “Effect of failure to comply with, or to give effect to, directions given by the Union Where any State has failed to comply with or to give effect to any directions given in the exercise of the executive power of the Union under any directions given in the exercise of the executive power of the Union under any of the provisions of this Constitution, it shall be lawful for the President to hold that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution.” Though this article is necessary but it should be exercised with great caution and in extreme cases. A close reading of the provisions of Articles 356 and 365 would clearly show that the two Articles together are intended to achieve a common purpose. The former stipulates the duty of the Union towards the States to protect them against any external and internal disturbances to ensure that the Government of every State is carried on in accordance with provision of the Constitution. The Governor plays a very vital role under Article 356. His report is normally the ground for the President to arrive at the satisfaction mandated by Article 356. Article 356 is normally put into operation following the Governor’s report. Thus, the Governor plays a crucial role. His role was aptly explained by India’s first Attorney General M.C. Setalvad in his Tagore Law Lectures in 1974 on “Union State Relations". In State of Rajasthan v. Union of India1, the Supreme Court upheld the action of the Centre and held it to be a valid exercise of Article 356 as the rout of the ruling party in these States did mean that the government of the State cannot be carried on in accordance of the provisions of the Constitution. However, it made a sharp departure from the views of the different High Courts regarding judicial review of proclamation under certain circumstances. In State of Karnataka v. Union of India2, Justice Bhagwati and Gupta JJ elaborated the limited grounds on which article 365 can be subjected to judicial review. The Court thus allowed judicial review on limited grounds. It also made a difference between ‘satisfaction’ 1

State of Rajasthan v. Union of India, 1977 A.I.R. 1361. State of Karnataka v. Union of India , 1978 A.I.R. 68.

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and ‘existence of satisfaction’ appearing in Article 361(1) that provided immunity for Presidential action, wherein the later could not exist in mala fide or irrelevant grounds. The decision will be examined critically in the project. In A.K. v. Union of India3, that "the 44th Constitution Amendment Act leaves no doubt that judicial review is not totally excluded in regard to the question relating to the President's satisfaction. In Syed T.A. Haqshbandi v State of J&K 4, the Supreme Court observed that: “Judicial review is permissible only to the extent of finding whether the process in reaching the decision has been observed correctly and not the decision itself, as such. Critical or independent analysis or appraisal of the materials by the court exercising powers of judicial review unlike the case of an appellate court would neither be permissible nor conducive to the interests of either the officer concerned or the system and institutions. Grievances must be sufficiently substantiated to have firm or concrete basis on properly established facts and further proved to be well justified in law, for being countenanced by the court in exercise of its powers of judicial review. Unless the exercise of power is shown to violate any other provision of the Constitution of India or any of the statutory rules, the same cannot be challenged by making it a justiciable issue before the court”. In Epuru Sudhakar v. Union of India, 5the immunity of the pardoning power of governor from judicial review came up. SC aside a decision of then Andhra Pradesh Governor Sushil Kumar Shinde, remitting the sentence of a Congress activist who faced ten years in prison in connection with the killing of two persons including a TDP activist, the SC bench of Justices S H Kapadia and Arijit Pasayat warned that the exercise of the power would be tested by the court against the maintenance of Rule of Law. In S.R. Bommai v. Union of India6, the Supreme Court said that the Proclamation under Article 356(1) is not immune from judicial review. The Supreme Court or the High Court can strike down the Proclamation if it is found to be mala fide or based on wholly irrelevant or extraneous grounds. The deletion of clause (5) [which was introduced by 38th (Amendment) Act] by the 44th (Amendment) Act, removes the cloud on the

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A.K. v. Union of India, A.I.R. 1982 S.C. 710. Syed T.A. Haqshbandi v. State of J&K, (2003) 9 S.C.C. 592. 5 Epuru Sudhakar v. Union of India, (2008) 9 S.C.C. 241. 4

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S.R. Bommai v. Union of India, A.I.R. 1994 S.C. 1918 .

reviewability of the action. When called upon, the Union of India has to produce the material on the basis of which action was taken. It cannot refuse to do so, if it seeks to defend the action. The court will not go into the correctness of the material or its adequacy. Its enquiry is limited to see whether the material was relevant to the action. Even if part of the material is irrelevant, the court cannot interfere so long as there is some material which is relevant to the action taken. Judicial review of the Presidential Proclamation is not concerned with the merits of the decision but to the manner in which the decision had been reached. The satisfaction of the President cannot be equated with the discretion conferred upon an administrative agency, of his subjective satisfaction upon objective material like in detention cases.7 Therefore, it is submitted that the Governors should act in a responsible manner and should minimize the use of Article 356 and Article 365, making its use only in rarest of rare cases, thus acting in consonance with the spirit of the framers while including Article 356 in the Constitution. Therefore, the presidential powers of president under Article 365 should be subjected to judicial review when the circumstances of the case represents that injustice has been done to the people in exercise of these powers

II. THAT THE DEPRIVATION OF FLOOR TEST IS IN BLATANT VIOLATION OF CONSTITUTION UNDER ARTICLE 356. It is humbly submitted before this Hon’ble Court that the deprivation of floor test is in blatant violation of constitution under article 356, considering the facts in the present case. The crucial expressions in Article 356(1) are - if the President, "on the receipt of report from the Governor of a State or otherwise" "is satisfied" that "the situation has arisen in which the Government of the State cannot be carried on "in accordance with the provisions of the Constitution". The conditions precedent to the issuance of the Proclamation, therefore, are: (a) that the President should be satisfied either on the basis of a report form the Governor of the State or otherwise,

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M.P. Jain, Indian Constituional Law ( 7th ed. LexisNexis 2014).

(b) that in fact a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution.8 In other words, the President's satisfaction has to be based on objective material. Further, the objective material so available must indicate that the Government of the State cannot be carried on in accordance with the provisions of the Constitution. Thus the existence of the objective material showing that the Government of the State cannot be carried on in accordance with the provisions of the Constitution is a condition precedent before the President issued the Proclamation. Once such material is shown to exist, the satisfaction of the President based on the material is not open to question.9 In the present case, there is no material whatsoever except the ipse dixit of the Governor. The action which results in preventing a political party from staking claim to form a Government after election, on such fanciful assumptions, if allowed to stand, would be destructive of the democratic fabric as Democracy and federalism are the essential features of our Constitution and are part of its basic structure. Any interpretation that we may place on Article 356 must, therefore help to preserve and not subvert their fabric.10 The power vested de jure in the President but de facto in the Council of Ministers under Article 356 has all the latent capacity to emasculate the two basic features of the Constitution and hence it is necessary to scrutinise the material on the basis of which the advice is given and the President forms his satisfaction more closely and circumspectly. It is one thing to come to the conclusion that the majority staking claim to form the Government, would not be able to provide stable Government to the State but it is altogether different thing to say that they the government has lost majority, therefore, their claim to form the Government cannot be accepted. In the latter case, the matter may have to be left to the wisdom and will of the people, either in the same House it being taken up by the opposition or left to be determined by the people in the elections to follow, thus by directing a Floor Test. 11

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Barium Chemicals Ltd. and Anr. v. The Co. Law Board and Ors. [1966] Supp. 3 S.C.R. 31. M.A. Rashid and Ors. v. State of Kerala, (1975) 2 S.C.R. 93. 10 8 Durga Das Basu, Commentary on the Consitutuion of India (8th ed. ButterWorths Wadhwa 2012). 9

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Union of India v.Sh. Harish Chandra Singh Rawat and Anr., (2016) S.C.C. OnLine S.C. 442.

Without highly cogent material, it would be wholly irrational for constitutional authority to deny the claim made by a majority to form the Government only on the ground that the party has lost the majority just because some of its members have defecated. The extra-ordinary emergency power of recommending dissolution of a Legislative Assembly is not a matter of course to be resorted to for good governance or cleansing of the politics for the stated reasons without any authentic material. These are the matters better left to the wisdom of others including opposition and electorate.12 Thus, if there is no such objective material before the President, or the material before him cannot reasonably suggest that the Government of the State cannot be carried on in accordance with the provisions of the Constitution, the Proclamation issued is open to challenge. Thus, it is contended in the present case, that the ruling APP at the Centre, in pursuance of its scheme to overthrow the Government of the State, as it slogan is “ANP free Apelonia” decided to take recourse to the emergency provisions contained in Article 356 of the Constitution in its desperation to topple the Government in the state. Further, a doctored video on the basis of a purported sting operation was released and thus it is contended that it was to portray a case for imposition of President's Rule. Also, the contents of the video tended to show that the respondent indulged in horse trading, it is submitted that it is absolutely preposterous, as the veracity of the video was in dispute and completely unauthenticated. Moreover, by the recordings of the assembly submitted to the Governor of the state were broadcasted on a news channel and published in various newspapers which is the direct infringement of the privileges of the house, thus the imposition of the presidents rule should be quashed. Further, it is submitted that power under Article 356 is an emergency power to be exercised rarely. It is an exceptional power. The floor test is the only test when it comes to assessing the question whether a person commands the majority and the confidence of the House. Thus this is a case which involves a double whammy. It is an extra-ordinary case, where, by the impugned Proclamation, a blow has been dealt, unconstitutional as it is, to the powers of the Speaker on the one hand and, on the other hand, to the authority of the Governor himself. Expatiating on this point, it is submitted that the Proclamation was directed against the power 12

Rameshwar Prasad v. Union of India, (2006) 2 S.C.C. 1.

validly wielded and exercised by the Speaker under the Tenth Schedule and the attempt was to deprive him of his legitimate power. 13 The expression used in the Article is "if the President is satisfied". The word "satisfied" has been defined in 4. To furnish with sufficient proof or information, to set free from doubt or uncertainty, to convince; 5. To answer sufficiently [an objection, question]; to fulfil or comply with [a request]; to solve [a doubt, difficulty]; 6. To answer the requirements of [a state of things, hypothesis, etc.]; to accord with [conditions].14 Hence, it is not the personal whim, wish, view or opinion or the ipse dixit of the President de hors the material but a legitimate inference drawn from the material placed before him which is relevant for the purpose. In other words, the President has to be convinced of or has to have sufficient proof of information with regard to or has to be free from doubt or uncertainty about the state of things indicating that the situation in question has arisen. 15 In regard to the issue that the Appropriation Bill had not been passed on the basis of division of votes, which was demanded by the 33 MLAs, including 9 rebel ANP legislators by a written communication addressed to the Governor, it is humbly submitted that having regard to the role of the Governor, forwarding the application to the Speaker asking him to hold voting by division and about video graphing the entire affair, it was completely unauthorised in law. Attention to Articles 174, 175 & 176 of the Constitution of India is drawn. Under Article 174, the Governor has three distinct roles. He is to summon the Assembly; thereafter, he has power to prorogue; and, finally, he has power to dissolve the House. The Governor is expected to act on the advice of the Council of Ministers, except in matters, where, under the Constitution, a discretion is vested in him. Equally, he may enjoy a discretionary authority when the same is lodged in him under a statute. Otherwise, he is essentially a figurehead. The executive power is to be exercised actually by the Council of Ministers. The Governor has, actually, no legislative power. It is submitted that never before in the history of independent India has resort been made to Article 356 purporting to short-circuit the floor test ordered by

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S.R. Bommai v. Union of India, (1989) S.C.C. Onilne Kar. 25. Shorter Oxford English Dictionary [3rd Edition] at page 1792. 15 Mahoharan v. State, (1997) S.C.C. Online Mad. 261. 14

the Governor and also seeking to torpedo the authority of the Speaker under the Tenth Schedule.16 Floor test is the only and the surest way and, the earlier the floor test is done, the chances of horse trading could be obviated. In this connection, he has a case that the date fixed, i.e. 28.08.2016 was reasonable. It is submitted that while a writ applicant can ordinarily be told off the gates if his conduct does not match with that of a person seeking discretionary and extra-ordinary relief under Article 226, the present respondent may not be thrown out. Democracy, with all its faults, is the system of Government, which the people of India have embraced under the written Constitution. There may be pitfalls; but howsoever imperfect it may be, it remains the best possible form of Government. In the context of the need to uphold the values of democracy as also the upkeep of the ideal of federalism, considering this, it is submitted that the Hon’ble Court should not upheld the rule imposed, just on the basis of a disputed sting operation as it is also important to notice that the principle that a person cannot take advantage of his own wrong must also be borne in mind.17 Thus, as Power under Article 356(1) is an emergency power but it is not an absolute power. Emergency means a situation which is not normal, a situation which calls for urgent remedial action. Article 356 confers a power to be exercised by the President in exceptional circumstances to discharge the obligation cast upon him by Article 355. It is a measure to protect and preserve the Constitution. Power under Article 356 is conditional, the condition being formation of satisfaction of the President as contemplated by Article 356(1). The drastic and extreme action under Article 356 cannot be justified on mere ipse dixit, suspicion, whims and fancies of the Governor18, in the instant case as none of the grounds are met, the status quo in the state should be maintained and the floor test be conducted.

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Union of India & others v. Valluri Basavaiah Chowdhary and others, (1979) 3 S.C.C. 324. Arjun Munda v. Governor of Jharkhand, (2005) 3 S.C.C. 399. 18 3 Dr. L.M. Singhvi, Constitution of India (3rd ed. Thomas Reuters 2013). 17