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JUDICIAL REVIEW OF ORDERS BY THE PRESIDENT AND GOVERNOR- PART II

REVIEW OF THE PRESIDENT’S RULE

The Court scrutinizes the imposition of the President’s rule from time to time, when it is challenged and also provides the guidelines for the use of different provisions. The Constitution Bench in case of T. Venkata Reddy v. State of A.P. (1985), ruled that it is impossible to accept the submission that the ordinance can be invalidated on the ground of non-application of mind. The power to issue an ordinance is not an executive power but is the power of the executive to legislate. The Supreme Court widening its scope on the Ordinance Making Power exercised by both the Governor and the President highlighted that the satisfaction of the President under Article 123 and of the Governor under Article 213 is not immune from Judicial Review. Justice Chandrachud observed that the apex court would scrutinise whether the satisfaction of the President or the Governor to promulgate an ordinance was based on relevant material or whether it amounted to a “fraud on power or was actuated by an oblique motive.” Former Chief Justice Thakur also held that the “re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes.” In case of Gurudevdatta VKSSS Maryadit v. State of Maharashtra (2001), Supreme Court held that the ordinance, if, does not infringe the constitutional safeguards, cannot be examined nor can the motive for such a promulgation be in question. The courts cannot interfere with a legislative malice in passing a statute. Interference is restrictive in nature and that too on constitutionality aspect and not beyond the same. Legislative malice is beyond the pale of jurisdiction of the law courts.


In a landmark case of D.C. Wadhwa & others v. State of Bihar (1986), Supreme Court had made some important observations some of which include: (i) power to promulgate an Ordinance is an emergency power which may be used where immediate action may be necessary at a time when the legislature is not in session;(ii) A constitutional authority cannot do indirectly what it is not permitted to do directly;(iii)While the satisfaction of the President as to the existence of circumstances necessitating immediate action by issuing an Ordinance cannot be examined by Court, it is competent for the Court to inquire whether he has exceeded the limits imposed by the Constitution;(iv)Though, in general the motive behind issuing an Ordinance cannot be questioned, the Court cannot allow it to be ‘perverted for political ends’.


For the Pardoning powers of the President, the court in the case of Maru Ram v. Union of India (1980), expressed a view in favour of laying down some guidelines for the purpose of exercising power under Art.72 in order to avoid any allegation of arbitrary exercise of power. In Kehar Singh vs Union of India (1988), the court observed that, the biggest question which could be laid down against the conception of Judicial Review of the power is that, a person pleads for mercy when all the doors of judiciary closes for him, in that case if the President grants pardon on some moral & humanitarian ground whether in that case if Judicial Review is done then how come a judiciary would close its eyes from the previous judgments which it has given right from the lower courts against the pleader. It is more or less clear that it would revoke the pardon & would revert back to its final decision. In Satpal vs State of Haryana (2000), the Supreme Court held that pardoning power being constitutional power conferred upon the Governor by the Constitution is amenable to Judicial Review on certain limited grounds which are: (i) if the Governor is found to have exercised the power himself without being advised by the government; (ii) If the Governor transgresses the jurisdiction in exercising the same; (iii) It is established that the Governor has passed the order without application of mind; (iv) The Governor has passed the order on some extraneous consideration.

In this case, Governor exercised his power to grant pardon without applying his mind. He was not properly advised with all the relevant facts and accordingly Supreme Court quashed the clemency order.


For the Imposition of the President’s rule, as Kameshwari G. indicated in his book “A Boom or a Bane to Federalism” that the Supreme Court and the High Court can strike down the proclamation, if it is found to be mala fide or based on wholly irrelevant or extraneous ground. In the case of K.K. Aboo vs Union of India (1965), the court dismissed the petition on the grounds of frivolous petition as the Governor dismissed the State Legislatures without meeting with all the members and imposed the rule of the President. In another case of Rao Birinder Singh vs. Union of India (1968), it was observed by Panjab & Haryana High Court that: (i) The court cannot go into the validity or legality or propriety of the proclamation because the President had issued the same in pursuance of his constitutional power under Article 356(1), which is not an executive action of the Union and the President himself is not amenable to the jurisdiction of the court in view of Article 361(1); (ii) The consideration of the proclamation has been specifically vested by the Constitution in Parliament and this excludes the jurisdiction of the courts; (iii) The conclusion reached by the Governor in his report to the President cannot be questioned in the court as those are matters for the consideration of the President and Parliament.


In State of Rajasthan vs Union of India (1977), it was viewed that when proclamation is issued under Article 356 then the State Legislature can be dissolved by the Centre without waiting the approval of the proclamation by the Parliament. But the Supreme Court in case of S.R. Bommai vs. Union of India (1994), disapproved this view on the ground that if the proclamation is not approved within two months by the Parliament, it would lapse automatically thereafter and it would be inevitable to revive the dissolved Assembly and no fresh election can be held for the House within the short period of two months.


CONCLUSION

The ultimate conclusion could be derived from the above discussion is that the powers of the President of India and the Governors of the States of India has a very wide discretionary powers as had been defined in the Constitution of India to be exercised in the good faith. But, over the time with the political abusing of these powers by different governments, the Courts setting the Judicial Precedents in various judgements as had been discussed above had limited its powers and subject to Judicial Review to prevent the abuse of the process of law ultimately violating the fundamental rights of the individual citizen of India. If the power is exercised in good faith for the welfare, then the Court may not reverse the order, but somehow, as the Constitution also describe the judiciary as the “Watchdog” has an inherent duty to keep a check on all the policies and decide as in the public interest.



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Juscholars aims to provide legal education and spread legal awareness. Hence, the copyright over this article rests with the author and the Juscholars by publishing the article does not, in any manner, aim to infringe the copyright of the any person concerned. Any concerns regarding the same shall be brought to the knowledge of the Juscholars asap.



Author Details: Vaibhav Goyal is a 3rd Year student of Panjab University and is pursuing BA.LLB (H).

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