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.”

Also read | Parliament session to be prorogued, AG Mukul Rohatgi in Nainital

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.”

Also read | HC allows floor test on March 31, Congress rebels to vote

“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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  1. A
    Arjun
    Mar 29, 2016 at 11:40 pm
    Modi is shame and now he has gone abroad to enjoy white women. He has done nothing in last two years only traveled abroad and come to India for rest. He is shameless man. He is after grudge against congress not interested in Nation or public. We will never vote again for Modi or BJP. Uttrakhand President rule was Modi shameless act and thinks he is above law/. He got shoe beating by High Court and he should be given shoes garland when he returns to India after enjyoing white girls.
    Reply
    1. M
      mmj
      Mar 30, 2016 at 4:29 am
      Congress party is itself responsible for this mess. Moreover there are some fundamental problems in uttarakhand which do not allow any government or CM to last for full term. I do not know how many of you are from UK. I am a uttarakhandi and shall share the problem as followed:lt;br/gt;1. Kumaon and Garhwal rivalrylt;br/gt;2. Brahaman and Thakur problem . In hindi they call this "KHA" Vs "Ba" . Kha means Khansia ( for Thakurs) and Ba for Brahmins.lt;br/gt;lt;br/gt;FoR Ex. N D Tiwari ( Ba) Vs Harish Rawat ( kha)lt;br/gt;Khanduri ( Ba as well as Garwal) Vs Koshyari ( Kha and Kumaoni)lt;br/gt;Bahuguana ( Ba and Garwahli) Vs Rawat ( Kha and Kumaoni)lt;br/gt;lt;br/gt;This is malice and We need some uniting leader who can really serve UK.
      Reply
      1. M
        mmj
        Mar 30, 2016 at 4:33 am
        So blaming Modi is no solution. He did what he has to do being PM of India as budget ped was legally doubtful and after 31st March government would have come to an styandstill. Do not forget President is a former congressi and very respected . If he has signed the recommendation there must be some strong basis.
        Reply
        1. P
          Pankaj
          Mar 30, 2016 at 3:00 am
          Very nice and analytical judgment.
          Reply
          1. F
            funnygirl
            Mar 30, 2016 at 4:29 am
            Modi thinks he is invincible because of the these online ,PR made hysteria about him and because BJP got majority. Arrogance doesn't stay for ever.
            Reply
            1. S
              Sridhar
              Mar 30, 2016 at 6:45 am
              Wow! Democracy... don't you just love it when it is allowed to work as it should!!
              Reply
              1. A
                anonymous
                Mar 30, 2016 at 12:45 am
                What a haste and a precipitous step , the Modi Govt. embarked on by influencing the Uttarkhund Governor. This judiciary action to stem the misadventure Of Modi Baba, is consutional and based on law with precedent. I do not think it can be appealed against. BJP has to learn a lesson and stomach it. It is a victory of Democracy. System has worked. So there will be a show of who has the majority on the floor of the House on the 31st.
                Reply
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