The Centre may have got a breather with the stay of the 21 April Uttarakhand High Court decision quashing imposition of President’s Rule in the Congress-ruled state but it will not be easy to pass judicial scrutiny when the matter is taken up for consideration on merits.
Though the reasoning recorded in the judgment (copy of which is yet to be released) by the high court will decide the actual course of the case, the focus might shift to malafide exercise of power and scrutiny of material relied upon by the Centre if the high court is found to have stuck to the 1994 SR Bommai ruling — which allows interference if the exercise of power by the Centre is malafide or based on extraneous material but bars courts from going into adequacy of material or the wisdom of the decision to invoke Article 356 in the given circumstances.
While the Supreme Court on Friday adjourned the matter to 27 April to ensure availability of copies of the impugned judgment before it considers the case on merits, the Centre had already filed a 64-page petition in which it argued at length as to how — by reviewing the satisfaction of the cabinet, looking into sufficiency/authenticity of material relied upon by the Centre etc — the high court had exceeded the limited right of judicial review in violation of Bommai and other judgments.
The petition has further pointed to the alleged decision of the Speaker not to call for division of votes during the passage of the Appropriation Bill — despite doubts being raised over the Harish Rawat government commanding majority in the Assembly — and material pointing towards horse-trading as the grounds for imposition of the President’s Rule.
While several questions might crop up during the hearing on the material which have already been rejected by the high court, the Centre may also have to deal with allegations of malafide which in itself could be a ground to set aside a proclamation.
The haste, circumstances and the manner in which the President’s Rule was imposed after the Governor had already called for a floor test would be crucial factors backing allegations of the action being taken with malafide intentions. On Friday, the Supreme Court, while staying the order, recorded an undertaking that the Centre would not revoke the proclamation before the next date of hearing. It would be significant to note that if the proclamation is revoked, the Governor can call upon BJP (with 28 MLAs) to form the government. But for the proclamation, Rawat, as the Chief Minister, would have first got a chance to prove majority in view of doubts.
With horse-trading being cited as a ground justifying invocation of President’s Rule, mere statement might not do. The court will inquire into the material on the basis of which such a conclusion was drawn. Though the Centre has relied on a sting operation and also on the statement of an MLA featuring in the video, it might have to justify the haste as it did not wait for the result of the CFSL report on authenticity of the video.
Though this case may be viewed differently in view of evidence in the form of a sting operation, similar grounds were cited by the Governor in the case of Karnataka and Nagaland (Bommai case) and later in the case of Bihar (2006 Rameshwar Prasad case) but the Supreme Court quashed the proclamation in all the cases.
“Even assuming that it was so, the correct and the proper course for him to adopt was to await the test on the floor of the House which test the Chief Minister had willingly undertaken to go through on any day that the Governor chose,” the Supreme Court observed, while dealing with the issue of horse-trading in the case of Karnataka.
Going by the number of paragraphs dealing with the subject in the petition by the Centre, there is heavy reliance on alleged decision of the Speaker not to call for division of votes during the passage of the Appropriation Bill in violation of rules.
Though the Centre is stressing that passage of the Bill in violation of rules amounted to breakdown of constitutional machinery, it would not be easy to convince the court on this being a ground for invocation of Article 356. With the decision of the Speaker deemed to be final with regard to proceedings of the assembly, acceptance of the argument would amount to allowing the the Governor or the President to sit in appeal to decide whether the decision was right or wrong. The validity of such action or law can always be challenged in court.
If the conduct of the Speaker raised doubts on Rawat commanding majority, the proper course as per Bommai judgment would have been to call for a floor test.
The case throws up a challenge for the Supreme Court as well. With the term of the state assembly ending early next year, the court needs to dispose of the matter expeditiously as delay would render the hearing a mere academic exercise as in cases in the past.
Though the judicial worth of the high court order would depend on the finding of the Supreme Court, the high court may have already set a precedent of sorts by giving an expeditious hearing to the parties to ensure that judicial review did not remain a mere academic exercise which only encourages invocation of Article 356 to achieve political ends.