Making Sense of the Uttarakhand HC Order on Assembly Floor Test

Those critical of the high court’s order must understand that it was an extraordinary intervention, necessitated by the Centre’s controversial decision to impose President’s rule in Uttarakhand.

Uttarakhand Chief Minister Harish Rawat: Outmanoeuvred. Credit: PTI Photo

Harish Rawat. Credit: PTI

Uttarakhand high court judge U.C. Dhyani’s decision directing the convening of the state assembly  to take up a vote of confidence on the Harish Rawat’s government has raised questions of whether the judiciary has the power to do so.

To critics, Justice Dhyani’s direction upsets the doctrine of separation of powers, a basic feature of the Constitution. A closer examination of the issues involved, however, shows that the criticism is misplaced.

Justice Dhyani justified the direction, on two grounds.

First, the imposition of  President’s rule on March 27, he held, is a colourable exercise of power, because it aimed to frustrate Governor K. K. Paul’s direction on March 19 to the then chief minister to seek a vote of confidence from the assembly at the earliest, but not later than March 28.

If the Centre and the governor were on the same page, Paul could have revoked his direction to Rawat before the imposition of President’s rule and thereby answered the criticism of colourable exercise of power in the negative.

Although the central government relied on the report sent by the governor recommending President’s rule, the need to revoke his March 19 directive to Rawat was apparently not felt either by the Centre or Paul.

This technical lapse came as a blessing in disguise for the ousted chief minister, who persuaded Justice Dhyani to reach a prima facie conclusion that the imposition of President’s rule on March 27, a day prior to the scheduled trial of strength, was a colourable exercise of power.

Therefore, the fact remains that had the governor revoked his direction to Rawat to call a session of the house to prove his majority prior to the imposition of President’s rule, Justice Dhyani would not have found the Centre’s decision prima facie bad in law.

Remedying inconsistencies 

Secondly, although Justice Dhyani expressly refrained from ‘staying’ the President’s rule, as the government has not yet been heard on the merits of its decision, he justified the limited intervention because, as he held, the court should not sit as a mute spectator in the interregnum.

In other words, Justice Dhyani  clearly felt that failure to provide interim relief, as prayed for by the petitioners, would frustrate the end result, even if it is in their favour, and may even make the petition challenging the President’s rule infructuous.

The holding of a one-day session while the state is under President’s rule and the assembly is under suspended animation, may appear to be inconsistent. But the session is being called under the high court’s direction and supervision in order to correct the previous inconsistency of the Centre’s own making.

Justice Dhyani is justified in holding that this initial inconsistency – imposing President’s rule without revoking the governor’s direction – must be remedied.

Despite the popular usage of the phrase ‘suspended animation’, to refer to the state of the assembly during the President’s rule, the phrase does not figure in the president’s notification imposing President’s rule.

What has been suspended under President’s rule are Articles 163, 164 and 189(1). Article 163 deals with the council of ministers to aid and advice governor, while Article 164 deals with other provisions as to ministers. The suspension of these articles pose no problem in holding an assembly session.

However, it is Article 189(1) which could prove to be a hurdle. Article 189(1) says

Save as otherwise provided in this Constitution, all questions at any sitting of a House of the Legislature of a State shall be determined by a majority of votes of the members present and voting, other than the Speaker or Chairman, or person acting as such. The Speaker or Chairman or person acting as such, the provision further states, shall not vote in the first instance, but shall have and exercise a casting vote in the case of an equality of votes.

The suspension of this article may suggest that a session of the assembly, even for the limited purpose of voting in a confidence motion, cannot be held when the state is under the President’s rule.

But Justice Dhyani appears to have assumed – inferred from a reading of the judgment and the Constitutional provisions that have been suspended – that if the result of the vote during the session is kept by the speaker in a sealed cover and submitted to the Court by the morning of April 1, as directed by him, there is no immediate “determination of the question by a majority of votes” as envisaged under the Article.

Justice Dhyani’s reasoning appears to be that the result of the vote could be retrospectively validated, if the court were to conclude that the imposition of President’s rule on March 27 was mala fide, and therefore, was void ab initio.

Other provisions suspended are consequential provisions and these do not come in the way of holding of the session for a limited purpose, as directed by the high court.

Those who are critical of the high court’s interim order must understand that it was an extraordinary intervention, necessitated by the Centre’s controversial decision to impose President’s rule in Uttarakhand.

The Constituent Assembly generally expected that Article 356 would be invoked in extreme situations and would not be utilised as a ‘surgical operation for a mere cold or catarrh’. Dr B.R. Ambedkar hoped that this provision ‘will never be called into operation’ and ‘would remain a dead letter’.

Ambedkar also assured the Constituent Assembly that ‘the first thing the President would do would be to issue a mere warning to a province that has erred, that things were not happening in the way in which they were intended to happen in the Constitution….’

It is clear that the Centre did not follow these principles while imposing President’s rule in Uttarakhand. After all, the passage of the Appropriation Bill in the assembly on March 18 cannot be construed as an irremediable decision, even if it is found that it was not passed by majority. A procedural irregularity could have been corrected by the governor by sending a message to the assembly to pass it afresh.

Legal precedents

The Punchhi Commission on Centre-State Relations had found that the Article had been used 103 times as of 2009.

The Supreme Court’s judgment in SR Bommai v. Union of India (1994) lays down the definitive law on the subject. Article 356, the judges said in that ruling, can be invoked only in cases where non-compliance with the Constitution is of such a nature that it results in situations that create an impasse and are not capable of being remedied, and where the governance of the state has become impossible. Not every violation of the Constitution merits imposition of President’s rule in a state.

One of the important issues decided by the majority in the Bommai case is that state legislative assembly cannot be dissolved merely upon issue of presidential proclamation and before parliamentary approval is accorded as required under Article 356 (3).

The Court read this limitation into the article to place a check on the executive and to ensure that the grant of final relief does not become infructuous. Had the Court not held so in the Bommai case, the present government could have dissolved the Uttarakhand assembly alongside with the imposition of President’s rule.

In the immediate aftermath of the Bommai judgment, senior advocate and former Attorney General Soli Sorabjee wrote in a critique carried in the Journal of Supreme Court Cases:

“A  mere declaration of unconstitutionality without granting consequential relief would be a teasing illusion and in effect confer immunity upon unconstitutional action.  Moreover, judicial review in the absence of grant of full and effective relief would be a futile exercise.  The Pakistan judiciary has adopted a similar approach and granted full relief without any untoward consequences…

Any timorous retreat in future from the robust judicial activism reflected in Bommai will cause serious problems and lead to the pernicious consequence of one or more basic features of the Constitution being invoked to destroy another essential feature, Federalism”.

In Rameshwar Prasad v. Union of India, (2006), federalism suffered because of the Supreme Court’s failure to grant full and effective relief after finding the dissolution of the Bihar state assembly unconstitutional. The Court had missed the opportunity to provide interim relief by not restraining the Election Commission from holding of the next assembly elections during the hearing of the case. As a result, its judgment became an academic exercise, although it resulted in the resignation of Buta Singh, the governor of Bihar at that time.

As in the Uttarakhand case now, Singh had then alleged various allurements had been offered to win over elected representatives to cobble a majority and stake claim to form a government. He recommended the dissolution of the assembly to arrest this trend immediately. That the Supreme Court did not find merit in his reasoning should be a binding precedent for the high court to dismiss the Centre’s claim that it imposed President’s rule in Uttarakhand before the vote of confidence due to allegations of horse-trading.

More importantly, the Supreme Court in the Bommai case agreed with the view that the assembly was placed under suspended animation initially with the intention of providing time and space to political parties to explore the possibility of providing a majority government in the state. Therefore, Justice Dhyani can be said to have rightly used this reasoning to direct the holding of a special session of the assembly.

BJP contradicts previous position

Since coming to power at the Centre, the BJP appears to have forgotten its own suggestions to the Punchhi Commission on safeguards to make the use of Article 356 less arbitrary.

The party told the commission that safeguards corresponding in principle to clauses (7) and (8) of Article 352, which deals with the proclamation of emergency, should be incorporated in Article 356 to enable parliament to review continuance in force of a proclamation.

Clause 7 of Article 352 states:

Notwithstanding anything contained in the foregoing clauses, the President shall revoke a Proclamation issued under clause (1) or a Proclamation varying such Proclamation if the House the People passes a resolution disapproving, or, as the case may be, disapproving the continuance in force of, such Proclamation.

Clause 8 of Article 352 states:

Where a notice in writing signed by not less than one-tenth of the total number of members of the House of the People has been given, of their intention to move a resolution for disapproving, or, as the case may be, for disapproving the continuance in force of, a  Proclamation issued under clause (1) or a Proclamation varying such Proclamation, –

  • To the Speaker, if the House is in session; or
  • To the President, if the House is not in session, a special sitting of the House shall be held within 14 days from the date on which such notice is received by the Speaker, or, as the case may be, by the President, for the purpose of considering such resolution.

That the BJP wanted similar safeguards in Article 356 speaks volumes of the party’s intention to make its use more transparent and less arbitrary.

The session, first directed to be held on March 31, has now been kept in abeyance till April 7, by the division bench of the high court, which heard the appeal by the Central government.