Judicial reversal in Uttarakhand

The High Court order setting aside President’s Rule will have constitutional implications

The Uttarakhand High Court’s setting aside of President’s Rule in the state, reinstating Congress leader Harish Rawat as chief minister, has been a quick and right step intended to correct the injudicious decision of the Central government to impose President’s Rule at the end of March. The court has also ordered a floor test on April 29. But this decision will open up many questions on the powers and functions of several institutions. The inappropriateness of the decision of the Centre, which will challenge the decision in the Supreme Court, had been manifest from the beginning because President’s Rule came just a day before a floor test was to be held in accordance with the instruction of the governor. The Centre had justified its action on the grounds of a ‘constitutional breakdown’ in the state after nine Congress MLAs had withdrawn their support to the government. However, the fact that the floor test could not take place undermined the constitutional office of the governor, who is the head of a state. But a bit of anomaly followed thereafter. There was again an order for a floor test, this time by a single-member Bench of the court, without setting aside President’s Rule. This led to the question how a dismissed chief minister could seek a confidence vote. Thursday’s verdict by a two-member Bench, which had stayed the single Bench’s order, has corrected the anomaly.

From the observations of the two-member Bench at each hearing, it was obvious that the judges, Chief Justice KM Joseph and Justice VK Bist, had been uncomfortable at the conduct of the Central government and had expressed its unhappiness. The court also questioned the President’s action. This will no doubt have implications for presidential functioning because the President is constitutionally bound to act on the advice of the Union government. Also any action taken by the president in his capacity as president should be outside judicial scrutiny. This is significant because President Pranab Mukherjee has just alerted the judiciary about the pitfalls of judicial activism and the need to maintain the principle of the separation of powers.

If the Centre had paid attention to the Supreme Court judgment in the case on the dismissal of the Karnataka government in 1989, this problem would not have arisen. The court had said only a floor test could establish whether a government could carry on in office or not. Before April 29, the court will determine the fate of the nine MLAs, who had been disqualified by the Speaker. In all, the Uttarakhand episode has greatly furthered a process that has been gaining strength for years. It is the ceding of ground by the executive and legislature to the judiciary. Ironically, the Indian Constitution, like the British Constitution, is based on the notion of legislative supremacy.