New Delhi: In a complete turnaround of events over a couple of days, the Supreme Court on Friday stayed till April 27 the Uttarakhand high court’s order of April 21 that quashed the imposition of president’s rule in the state and restored the Harish Rawat government.
The decision of the apex court meant that the Harish Rawat government has again been ousted in the state, this time just a day after it was restored and within hours of the state cabinet meeting for the first time since the dismissal of the government last month. The apex court order came after the Central Government petitioned it seeking a stay on the high court order.
The day’s proceedings and the interim stay notwithstanding, legal and constitutional experts believe the high court order will ultimately sustain in the apex court since it is in line with it’s the Bommai judgement.
In its appeal, the Centre, represented by Attorney General Mukul Rohatgi, claimed the high court had limited power of judicial review and could not have substituted the president’s satisfaction with its own. The Centre has also challenged the court’s powers in going into the authenticity and justifiability of the advice of the council of ministers on the imposition of President’s rule.
Within hours of the high court’s order on Thursday, the Congress had filed a curative petition in the Supreme Court pre-empting the Centre’s decision to move the apex court seeking a stay on the decision, Disclosing this, Congress leader Abhishek Manu Singhvi, who had also argued the case for the Harish Rawat government in the high court, had described the court’s decision as a clear message to the Centre to “control their greed and understand that power is available only through democratic means and not the misuse of article 356.”
Terming the imposition of President’s rule an assault on federalism, Singhvi had said it was the first time in India’s history that Article 356 was imposed when a chief minister was ready for the floor test.
Meanwhile, the BJP went into a huddle on Thursday to decide its strategy. Senior party leaders and union ministers Arun Jaitley and Rajnath Singh along with top lawyer Harish Salve had met at the residence of party president Amit Shah to discuss how the government should pursue the matter in the Supreme Court. Rohatgi had also announced during the day that the government would move the apex court on Friday morning against the high court’s order.
With the Supreme Court now seized of the matter, legal and constitutional experts are of the view that in all likelihood the high court’s order will be sustained.
Senior advocate Indira Jaising said, “The high court order basically follows the Bommai judgment and there is no departure from the existing law. I don’t see any reason why the order will not be sustained (in the Supreme Court).”
She said while the BJP has been claiming that the order makes unnecessary remarks against the president, “the fact is that though they appear to be against him, he only acts on the aid and advice of the council of ministers. So the court is actually saying that the council of ministers was not justified in recommending the presidents rule.”
Jaising also said if the Uttarakhand situation were to be compared to Arunachal Pradesh (where President’s rule was imposed in January), then it can be said that if the president has doubts he can send the recommendation back to the council of ministers, and if they send it back again then he is bound by that. “But he did not do that. He did not apply his mind individually. He simply put his stamp of approval on what the council did. So the comments are also in that context.”
Jaising said there was no question of this order proving to be a deterrent as the government has already stated that it has not made any mistake and was going to appeal against the order in the Supreme Court.
Constitutional expert and former Secretary General of the Lok Sabha P.D.T. Acharya, however, found the high court judgment absolutely justified on two counts. “The basic question that rose on the whole issue is whether the President’s rule was imposed on valid grounds. Now the point that was raised by the union government was that the Uttarakhand government had not passed the Appropriation Bill and thus could not pass the Budget and such a government could not exist, cannot carry on and that there was a breakdown of Constitutional machinery. The point is who will decide if the Appropriation Bill was passed or not. That is the most crucial question and the answer is, it is only the speaker who has the authority.”
Moreover, he said, the Constitution says that the proceedings of the house, whether it is the state assembly or the parliament, cannot be challenged in a court of law on the ground of procedural irregularity. “Even if you say that by not conceding the demand for a division the speaker committed a procedural irregularity, you still cannot make that as a ground for imposing president’s rule.” In particular, he said, the proceedings of the House are only decided by the Speaker.
Acharya also questioned the BJP’s claim that the Appropriation Bill was not passed. “The second thing is that the Appropriation Bill is always passed by voice vote and there is no division held on that. There are reasons. The Constitution says that members cannot amend any part of the Appropriation Bill, which contains only the amount passed by the house and an authorisation to the government to receive the money from the Consolidated Fund of India. In Uttarakhand the grants were passed a day earlier or were passed by the house, that means the government had a majority at the time. Once the house has passed the demands for grants, then the house cannot reject the Appropriation Bill, as that would amount to making the vote of the House in passing the grant redundant, which is not allowed.”
So, he said, a house which passes a grant will also have to pass the Appropriation Bill. “It is like saying I will pass the Budget but I will not let you take money, that would be an illogical argument. Therefore, the speaker has done the right thing in Uttarakhand in saying that the Bill has been passed.”
The rules also permit the speaker to modify the procedure with regard to the Appropriation Bill. That power has not been given to the speaker in respect of any other bill. But in the case of the Appropriation Bill, the speaker has been given the power to modify the procedure, he said.
On the BJP’s question of how the MLAs were disqualified if they had not voted against the government, Acharya said they had not been disqualified because they voted against it. According to the rules, members can only be disqualified on two grounds – if the member has voluntarily given up the membership of the party or if the member has violated the whip of his party while voting.
“As there was no division and only a voice vote, which is not recorded, the members have been disqualified for voluntarily giving up the membership of the party. That is so because these nine MLAs went to the governor along with opposition MLAs, signed a joint memorandum and asked the governor to dismiss this government. That is a sure ground for disqualification because in 2007 the Supreme Court had decided in Rajendra Singh Rana’s case that if a ruling party member goes to the governor along with opposition leaders and asks for dismissal of the government to which he belongs, then it was a sure case of the member having given up the membership of his party.
On the observations of the court on the president, Acharya said the point is that a decision by the president is a decision of the council of ministers, which can go wrong. “The court can judicially review the decision of the president. Judicial review is allowed and the Bommai case has stated clearly that the presidential proclamation under Article 356 is judicially reviewable.”
He said the high court has done the right thing because this imposition of President’s rule had a very weak foundation in terms of constitution, the precedent and the convention. “This should act as a deterrent. It is not that 356 cannot be invoked under any circumstances, but the question is if the decision is justified or not. In this case it was not.”
Note: This article has been updated in the event of the Supreme Court’s interim stay on the Uttarakhand high court’s order lifting president’s rule in the state.