The biggest takeaway from the Uttarakhand high court’s judgement — which may or may not be vindicated by the Supreme Court on April 27th — is its comment on the judicial accountability of the President of India. During the court proceedings, the chief justice of the high court came down heavily on the governor for acting on extraneous considerations and for misleading the union council of ministers. That is when the Attorney General of India, Mukul Rohtagi, told the court that if the president of India, the elder statesman, in exercise of his wisdom, found the governor’s recommendation tenable, then the charge against the governor that he acted on extraneous considerations would not hold good. It was then that the chief justice made a candid observation – that there are situations when even the President, with all his wisdom, can go wrong. And when the President goes wrong, it is the task of the higher judiciary to point out his mistakes and take corrective action.
The BJP has found this remark highly objectionable. Both its spokesmen, Nalin Kohli and Sambit Patra, expressed their anguish at the unsavoury portrayal of the President which, they felt, undermined the highest office of our land. They told the television viewers that the BJP was prepared to accept brickbats on account of the imposition of the Article 356 in Uttarakhand, but the party would not tolerate the erosion of the prestige of the institution of the presidency. When the anchors and other panelists reminded the BJP spokesmen that the President was amenable to the judicial review, these gentlemen waved the copy of the Constitution to argue that the Article 361 clearly envisaged the Presidential action immune from the judicial interference.
These party spokesmen were either ignorant or feigned ignorance about a spate of the Supreme Court judgements on this issue in the last two decades. It is true that for almost three decades after the enforcement of the Indian Constitution, the high courts had gone by the letter, not spirit, of the provision enshrined in Article 361 and had upheld the imposition of the President’s Rule on that ground. Instances abound. The Kerala High Court, in K K Aboo Vs Union of India case, refused to go into the constitutionality of the proclamation of the President’s Rule. In Rao Birinder Singh Vs State of Haryana case, the high court held that the President, while exercising power under Article 356, did not act on behalf of the Executive of the Union but in a constitutional capacity and hence exercise of the power by the President was not amenable to the jurisdiction of the court. In A Sreeramulu case, the court held that judicial review was barred for a proclamation under Article 356 as the presidential satisfaction is basically a political issue and the court did not want to go into what was patently a political question. Almost similar views were expressed by the Andhra High Court in Hanumantha Rao Vs State of Andhra Pradesh and by Orissa High Court in Bijayanand Patnaik Vs President of India case. It is noteworthy that none of these cases came up for consideration of the Supreme Court.
In 1977, the Supreme Court was approached when nine state governmentss were dismissed and fresh elections ordered by the Janata Party government at the Centre. The Supreme Court upheld the dissolution of the state assemblies, but for the first time, asserted that the President’s Rule can be subjected to the judicial review (contrary to the position hitherto taken by the High Courts). In Assam assembly dissolution case (Vamuzo Vs Union Of India), the Chief justice of the high court did not allow judicial review but his brother judge in the bench did say that judicial review option was available. In SR Bommai Vs Union of India case (1989), the full bench of the Karnataka high court held that Presidential proclamation was justiciable. In 1992, the Madhya Pradesh High court heard the case of the dissolution of the state assembly and for the first time in India’s constitutional history, the HC struck down the Presidential proclamation as unconstitutional.
President of India promulgated President’s rule in six states between 1989 and 1992. They were heard together by the Supreme Court and is popularly known as S R Bommai Vs Union of India case (1994). The court found that there was no ‘reasonable nexus’ between the reasons disclosed and the satisfaction of the President. Justice P B Sawant put it down categorically: “ Whether it is ‘subjective’ or ‘objective’ satisfaction of the President or it is his ‘discretion’ or ‘opinion’, this much is quite clear that the President cannot exercise his powers under the Constitution on wish or whim. He has to have facts, circumstances which can lead a person of his status to form an intelligent opinion requiring exercise of discretion of such a grave nature that the representatives of the people who are primarily entrusted with the duty of running the affairs of the state are removed with a stroke of the pen. His action must appear to be called for and justifiable under the Constitution if challenged in the court of law. No doubt, the courts would be chary to interfere in his ‘discretion’ or formation of the ‘opinion’ about the ‘situation’, but if there be no basis or justification for the order under the Constitution, the courts will have to perform their duty cast on them under the Constitution.”
In the Ranmeshwar Prasad Vs Union of India case (2005), the supreme Court reiterated this position: “The President’s satisfaction has to be based on objective material. The objective material must vindicate that the government of the state cannot be carried on in accordance with the provision of the Constitution. That is a condition precedent before the issue of the proclamation.”
In that case, the Supreme Court pointed out that no objective material was placed before President Kalam in Moscow (he was on a State visit) to justify his signing of the proclamation to dissolve the Bihar assembly. There was an implied censure of the President, couched in polite language.
The Uttarakhand High Court has said exactly the same about the action of President Pranab Mukherjee what the Supreme Court had said about the actions of President Kalam.
President Kalam had seriously discussed the option of resignation after the SC snub (but he was apparently dissuaded by the then prime minister Manmohan Singh), as revealed by Dr Kalam’s Press Secretary. But President Pranab Mukherjee is a hard-boiled politician who, for sure, does not believe in resignations on moral or ethical grounds.
Will President Mukherjee take a cue from President Narayanan who had the courage of conviction to turn down the government’s proposal to impose President’s Rule twice – first in 1997 when he returned the United Front government’s recommendation to dismiss the BJP government in Uttar Pradesh and again in 1998 when he returned the Vajpayee government’s proposal to dismiss the Rabri Devi government in Bihar?
The President will have to choose – if he wants to be loyal to the Constitution or to the Powers-that-be.