Uttarakhand crisis: Proclamation is not immune from judicial scrutiny, says High Court

“Supreme Court in a catena of decisions has held that judicial review of administrative action is permissible in such cases under Article 226 of the Constitution of India," said Justice U C Dhyani.

Written by Lalmani Verma | Dehradun | Updated: March 30, 2016 7:29 am
Congress workers cheer after the HC order. Virender Singh Negi Congress workers cheer after the HC order. Virender Singh Negi

Noting that imposition of President’s rule in the state was a “subject matter of challenge” before his court, Justice U C Dhyani of Uttarakhand High Court, while issuing directions Tuesday for a floor test on March 31, said the “Supreme Court in a catena of decisions has held that judicial review of administrative action is permissible in such cases under Article 226 of the Constitution of India.”

He cited the State of Rajasthan vs Union of India, (1997) 3 SCC 592, “where there was a broad consensus among five of the seven Judges that the Court can interfere if it is satisfied that the power has been exercised malafide or on ‘wholly extraneous or irrelevant grounds’.”

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“Some Hon’ble Judges have stated the rule in narrow terms and some others in little less narrow terms, but not a single Hon’ble Judge held that the proclamation is immune from judicial scrutiny. It must be remembered that at that time clause (5) was there barring judicial review of the proclamation and yet they said that the Court can interfere on the ground of malafides. Surely, the deletion of clause (5) has not restricted the scope of judicial review but has widened it.”

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Justice Dhyani quoted what the Supreme Court had to say in the S R Bommai and Others vs Union of India and Others: “…the correct and the proper course for him (Governor) to adopt was to await the test on the floor of the House which test the Chief Minster had willingly undertaken to go through on any day that the Governor chose… the undue haste made by the Governor in inviting the President to issue the Proclamation under Article 356(1) clearly smacked of malafides. The Proclamation issue by the President on the basis of the said report of the Governor and in the circumstances so obtaining, therefore, equally suffered from malafides.”

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“A duly constituted Ministry was dismissed on the basis of material which was neither tested nor allowed to be tested and was no more than the ipse dixit of the Governor… it is necessary to stress that in all cases where the support to the Ministry is claimed to have been withdrawn by some legislators, the proper course for testing the strength of the Ministry is holding the test on the floor of the House… The assessment of the strength of the Ministry is not a matter of private opinion of any individual, be he the Governor or the President.”

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