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Legal powers

President's decisions subject to judicial review: HC

The Times of India, Apr 21 2016

President too can go wrong, says Uttarakhand high court

Vineet Upadhyay

 The legitimacy of the President's decision to suspend the Uttarakhand assembly is subject to judicial review as even he can go wrong, the Uttarakhand high court observed.

The court was responding to an argument by additional solicitor general Tushar Mehta, appearing on behalf of the Centre, who contended that the President relies on his political wisdom in many matters. “You cannot have absolutism. President can go wrong,“ the division bench comprising chief justice K M Joseph and Justice V K Bisht commented. The judges went on to remark that the court's order, too, is “always open to judicial review“.

Even as the bench declared at the conclusion of arguments on Wednesday that the hearing would continue the next day , Abhishek Manu Singhvi, counsel for former chief minister Harish Rawat, put forward his apprehensions that the Centre may revoke President's rule and call BJP to form the government in the state. Reacting to this, the court issued a subtle warning, “We still have tomorrow.We hope they will not provoke us.“ By the end of the day , opin ion among legal circles was that the court was likely to reserve its orders on the matter. Meanwhile, hectic parleys that continued throughout the day focused on the events in the assembly on March 18. The HC, citing the governor's report and correspondence, about what had happened in the state ssembly on that day , pointed out that there was “no mention of nine (rebel) MLAs of Congress making the demand of the division of vote on the floor. Instead, as per the material we have, the leader of opposition had made the demand of the division of vote“, the bench noted, adding that “what we have understood is that everything was proceed ing towards a floor test on March 28“. It also said there was “absolute absence of material that would create an apprehension in the mind of the governor“ that central rule needs to be imposed.

Talking about the Union Cabinet note about recommendation of central rule, the bench asked additional solicitor general Tushar Mehta, “Why so much secrecy around this cabinet note?“ Mehta denied any secrecy , adding that the note was only submitted to the court as “confidential material“.

During the arguments, Singhvi raised a question on whether a solitary instance of a speaker denying a division would be sufficient to impose central rule. He also alleged that none of the governor's reports to the President recommended imposing of Article 356 or said there was “failure of constitutional machinery in the state“. Singhvi told the court that BJP filed the complaint against Arya on April 5 after which the speaker had already sought a reply from Arya on April 12. “Centre's argument that he did not take any action is baseless,“ he added.The court said it is “taking a serious note of this“. The Centre will submit its clarification.

See also

The Presidents and Vice- Presidents of India

President’s rule: India