Uttarakhand: President can be wrong, HC tells centre
20 April 2016
"Even the President can go wrong," a bench of the Uttarakhand High Court observed today, as they decide whether President's Rule was imposed in the hill state to dismiss a lawful government.
In successive hearings, the judges have suggested that the Centre's motives in imposing President's Rule appear suspect.
The Centre has been arguing that President's Rule cannot be reviewed by the courts. Unmoved by that contention, the judges today said, "There is no such decision like that of a king, which cannot be subject to judicial review."
The court asked the Centre whether it was not "totally extraneous" for the union government to be concerned over the disqualification of nine rebel MLAs and to "interfere" in the affairs of the state, which should be done only in "extraordinary instances".
"What is passing through our mind is, is it the lookout of the Central government as to what would have happened on 28 March (when the floor test was to be held) in view of the changed composition and in view of the nine ousted MLAs?
"Will it not be totally extraneous for Central government, which is ruled by another political party, to be concerned by the changed composition (of the state assembly)," a bench of Chief Justice K M Joseph and Justice V K Bist asked attorney general Mukul Rohatgi.
The bench was hearing a writ petition of the ousted chief minister Harish Rawat challenging the imposition of President's rule on 26 March.
The bench said the demand for division of votes in the Assembly when an appropriation Bill was introduced was only a "solitary instance" and added, "this is what is colouring our minds. Can one solitary instance topple a democratically-elected government in its fourth or fifth year ... the root of the matter is you are cutting at the root of democracy".
Attorney general Mukul Rohatgi contended that the speaker's decision to not allow 35 MLAs to vote on their demand for division, when the money bill was introduced, amounted to "destroying democracy" as the 35 constituted the majority view.
He alleged that former chief minister Harish Rawat and the speaker were "in cahoots" and "scuttled the demand for division".
He claimed that since no vote was held, the money bill had failed and this amounted to the state government having fallen on 18 March.
The court, however, said, "The governor should call the shots in a state. He is not an agent of the centre. He is independent of politics. He had called for a floor test.
"Whether the government enjoyed confidence can be tested in a floor test. Even if nine MLAs were disqualified, horse-trading was going on. The proper thing to do would be to order a floor test and await the results. You (centre) are supposed to keep hands off and have a neutral stand," the court said.
'Governor could have solved it'
The court said the "Governor could have solved it. Why did he not call for a floor test within a day or two of 18 March. Why did he not call for floor test in writing?"
"Everything has stopped (in the state). No development is work going on. The government in its fifth year. All this would not have happened. The governor could have solved it," the court added.
In response to the court's observations, the AG said that irrespective of what the governor's view was the President was entitled to take an entirely different view based on the material before him.
The AG said that the President took a call after going through the same material that was considered by the governor.
He also alleged that the ousted chief minister had suppressed facts in his plea by not disclosing that he was aware of the demand for division much prior to tabling of the appropriation bill.
The AG argued that the CM's plea instead shows that demand for division was raised after the bill was tabled and passed, which was "misleading" and a "deliberate misstatement" and thus the petition ought to be dismissed.
In answer to the court's query as to why the MLAs wrote to the governor and not the speaker, the AG said that they (MLAs) probably apprehended that with things "hotting up" in the state, they were not sure how the Speaker would handle it.
He said it was not disclosed that the demand for division was made when bill was tabled as otherwise the focus would have shifted to the speaker's decision.
The AG further said that there has been "twisting of facts to show division occurred after passage of Bill".
"They presented a picture that article 356 was imposed after appropriation bill was passed," he said and added that no interim order would have been passed by the single judge if these facts had been placed before him.
Regarding the speaker's decision, the AG said the speaker "cannot defy majority view of the house and there is no protection under the law for that".
He said the speaker has given no reason for ignoring the demand for division adding that not allowing the MLAs to vote was "a serious blow to democracy".