November 27, 2020

JUDICIAL REVIEW OF ORDERS BY PRESIDENT AND GOVERNOR- PART I

INTRODUCTION

Encyclopedia defines “Judicial Review” as the power of the courts of a country to examine the actions of the legislative, executive, and administrative arms of the government and to determine whether such actions are consistent with the Constitution. Actions judged inconsistent are declared unconstitutional and, therefore, null and void. Constitutional Judicial Review is usually considered to have begun with the assertion by John Marshall, Fourth Chief Justice of the United States (1801–35), in Marbury v. Madison (1803) that the Supreme Court of the United States had the power to invalidate legislation enacted by Congress. Constitution of India itself provides some discretionary powers to the Governors. Sometime Governors’ do not exercise their discretionary powers judiciously. Here the role of the judiciary starts and many times judiciary has provided valuable guidelines for the Governors.

CONSTITUTIONAL PROVISIONS FOR JUDICIAL REVIEW OF ORDERS BY PRESIDENT AND GOVERNOR

In order to scrutinize the legitimacy of administrative action and the statutes, the Constitution of India has given influences to the higher courts and the Supreme Court of India. To guard the rights of public and implement the fundamental rights are the main objects of judicial review. If any difficulty arises between State and Centre relation, then Article 246 and the Schedule 7 of the Constitution has marked the working zone for the regulation construction between both State and Centre. The tool of Judicial Review empowers the judiciary to strike down any action, which is in conflict with the Constitution. In the Constitution of India, the principle lies under Article 13. Articles 32 and 226 provide for the enforcement of the fundamental rights enshrined in Part III of the Constitution of India. Guarantee of the fundamental rights is insignificant and meaningless unless the Court has power to protect the same from the arbitrary violation. At this point, the power of the Judicial Review became relevant.

REVIEW OF GOVERNOR’S RULE

The Supreme Court in Nabam Rebia and Bamang Felix v. Deputy Speaker (2016), observed that the discretionary power of the Governor is extremely limited and entirely amenable to Judicial Review. Even when the exercise of discretion is concerned, a seven-judge Bench of the Apex Court in Samsher Singh v. State of Punjab (1974) has held that the Governor may do so only “in harmony with his Council of Ministers”. The area being traversed in this case is alien to our Constitution, not having envisaged a situation where the Governor exercises his power under Article 161 against the express recommendation of the Council of Ministers.

In the Appointing of the Chief Ministers of the states, various times the issue of the discretion of the Governor is challenged. Like in, Mahabir Prasad vs Prafulla Chandra (1969) the court held the power of Governor is absolute with regard to appointment of Chief Minister and the court cannot call in question the same, since it is his sole discretion. In Pratap singh Raojirao vs Governor of Goa (1999) the court held that for the purpose of the appointment of the Chief Minister, Governor Acts in his sole discretion and while taking decision in his sole discretion he enjoys immunity under Article 361 of the Constitution.

In the Dissolution of Assemblies, the court held, as in the case of S.R. Bommai vs Union of India (1994), that the dissolution of the Assembly is subject to judicial review and if the court is convinced that it is malafide, it can even revive the Assembly, before fresh elections are held. In case of Rameshwar Prasad vs. Union of India (2006), the court held that the action of the Governor was “drastic and extreme” and the court “could not be a silent spectator to such subversion of the Constitution”.

In the Dissolution of Ministry, the court held, as in case of Jagdambika Pal vs State of U.P. (1998) to convene a special session of Legislative Assembly and to have a composite floor test between contending parties to ascertain who out of two (Sh. Kalyan Singh and Sh. Jagdambika Pal) enjoys a majority in the Assembly. It showed that the Governor’s discretion to dismiss the ministry should be exercised only when the Chief Minister fails to prove the majority on the floor of the House by any means. In Mahabir Prasad Sharma vs Prafulla Chandra Ghose (1969) Calcutta High Court has ruled that if the Council of Ministers refuses to vacate the office of ministers, after the defeat of the confidence motion in the House, then the Governor may withdraw his pleasure.

The Court also held that the right of the Governor to withdraw his pleasure during which the minister is to hold office is absolute, unrestricted and unfettered and the exercise of discretion in withdrawing the pleasure cannot be called in question in a court of law.

In the Summon and Prorogue of State Assembly, the court held, in case of In K.A. Mathialagan vs The Governor (1973), that the exercise of the function of the Governor in proroguing the Assembly under Article 174 is not a function which he can exercise in his discretion that is to say to the exclusion to the ministerial advice.

In the Pardoning Powers, the same is provided by Article 161 of Constitution. The pardoning power of governor is not absolute. It is governed by the advice of the Council of Ministers. In case of Epuru Sudhakar v. Govt. of A.P. (2006), the immunity of the pardoning power of governor from judicial review came up. SC aside a decision of then Andhra Pradesh Governor Sushil Kumar Shinde, remitting the sentence of a Congress activist who faced ten years in prison in connection with the killing of two persons including a TDP activist, holding that “Rule of Law is the basis for evaluation of all decisions (by the court) that rule cannot be compromised on the grounds of political expediency. To go by such considerations would be subversive of the fundamental principles of the Rule of Law and it would amount to setting a dangerous precedent.”


Author Details: Vaibhav Goyal is a 3rd Year student of Panjab University and is pursuing BA.LLB (H).

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