Cases become interesting when you are sure that whether you lose or win, you are before an absolutely straight and honest bench in which you have faith. I realised very early on that the division bench hearing the matter at the High Court was ramrod straight, which given the stakes, and the legal firepower pointed at it, was critical. The Chief Justice of the Uttarakhand High Court, Justice KM Joseph, had a deep interest in the intellectual development of the law. He had even come to the matter having read the main judgements in advance – a rare thing.
I pressed my arguments. First, I went through the facts in great detail, and laid out the events that had occurred between 25 and 27 March 2016, in essence, the span of just one weekend.
My narrative showed clearly that the decision to impose President’s rule did not come from any of the facts on the ground in Uttarakhand, but was part of a larger pattern of manipulation from the government at the Centre. Something similar had been attempted in Arunachal Pradesh a little earlier. The very basis of the imposition of President’s rule, I argued, arose from an ulterior motive.
Second, the decision of the President is fully judicially reviewable. Since the landmark case of SR Bommai in 1994, the President needed to have information that would allow him to conclude that the state government could not be carried on in accordance with the Constitution. But did the facts on the ground allow for such a conclusion? What was the basis of his decision?
Both the decisions to hold a vote, and how, and the potential disqualification of the rebel MLAs were the Speaker’s decisions to take. The Speaker had already guaranteed a floor test – a vote as to whether the government enjoyed confidence or not. Once the Speaker has put a date for that vote, the regular legislative process is under way.
The only instability was that the rebel MLAs were disqualified before the floor test.That too was a decision in the domain of the Speaker – and the subject of very specific constitutional provisions. In short, while the politics in Uttarakhand appeared shaky, the crisis was being dealt with adequately using the powers vested in the Parliament and with the Speaker. Emergency powers were not needed.
I also stressed that this video – which conveniently appeared before the Cabinet exactly on the night of 26 March, after the High Court had refused to grant a stay, and shortly before material was to be placed before the President – was obviously doctored and had not been forensically tested.
Often when I am arguing, I turn the perspective around for the Court. Even if, I argued, the Speaker had erred about the division vote on 18 March, could that amount to a trigger for President’s rule, particularly when the remedy of a floor test had already been put in motion? Could not the matter have waited ten more days to be determined finally and certainly on the floor of the house and not by Central intervention?
Federalism – the autonomy of state governments, the will of the people to decide in their local and state units how they will be governed – and consequently democracy would be weakened by a decision such as this. I put it that the Governor had acted as a mere postbox instead of applying his mind to the matter before him. How else could a proclamation of President’s rule have been made on the flimsy pretext of one mistaken decision?
Third, the Governor had sent eight reports in the preceding week and none of the eight reports of the Governor had recommended President’s rule. He reported all the facts, but not once did he state there was a breakdown of the constitutional machinery. If he had not, what was the motivation for the Cabinet to do so, apart from bias?
Mukul Rohatgi, who was leading the arguments for the government, as Attorney General for India, argued two points. One that it was not for the Court to look at the sufficiency, that is, the merits of the material put before the President, but its existence. He argued that usually the Court does not sit in appeal over minutiae of the President’s decisions...
The Court went through the arguments and the documents in exhaustive detail. After many hearing days, Justice Joseph asked some pointed questions in Court, and within a day the Central government knew it was turning against them. Then, and I am sorry to say it of such an eminent set of counsel, the next two days saw a host of delaying tactics, with the Attorney General himself asking time for instructions.
The Chief Justice said he would not adjourn the case, but if the government could revoke the proclamation, the matter could be put to an end – in short, an honourable path was open at that point to the BJP government to not have an order against them. But admission of defeat would have been too embarrassing at the point, and so the dictation of the judgement was completed. It took three days in open court for Chief Justice Joseph to dictate the judgement.
It concluded that President’s rule must be tested on the legitimacy of the decision made by the President. The Court held that a “legitimate inference must be drawn from the material placed before him which is relevant for the purpose”.
The Court also very wisely and courageously stated that the Constitution is essentially a political document and provisions such as Article 356 have the potential to unsettle the entire constitutional scheme. The exercise of those powers needs to be controlled.
Democracy and federalism are essential features of our Constitution. The power given to the President but which is actually in the hands of the Union Cabinet under Article 356 can alter the federal balance, and suspend the choices made by millions of voters.
The power to declare President’s rule has the ability “to emasculate the two basic features of the Constitution and hence it is necessary to scrutinise the material on the basis of which the advice is given and the President forms his satisfaction more closely and circumspectly”.
The Court found that the evidence before the President was irrelevant to the decision he was to take, and none of it could be taken at face value. Further, if it looked like the government was losing support, the only true remedy was the floor test. The only exception to this is if there was a collapse of law and order, and it became impossible to hold a fair floor test.
The Court came down heavily on the government for short-circuiting this process. The Central government had shown bias in favour of its own party and the Court did not hesitate to state as much.
The High Court then made its meaning absolutely clear:
This means that, what was hotly contested before us by the Attorney General on the basis of there being laxity on the part of the Speaker reflecting double standards and also opening the doors to action under Article 356, was without any basis at all. It was a completely non-existent material. There was, in other words, no material. We are, in fact, shocked that the decision taken at the highest level and the matter, which, apparently, influenced the decision, and which engaged the counsel and the Court in this litigation, has been done without due care and without any basis. It was totally without any factual foundation. It was, in fact, a blatant falsehood.
We are of the view that this is a case where all cannons of propriety were thrown to wind and the undue haste made by the Governor in inviting the President to issue the Proclamation under Article 356(1) clearly smacked of mala fides. The Proclamation issued by the President on the basis of the said report of the Governor and in the circumstances so obtaining, therefore, equally suffered from mala fides. A duly constituted Ministry was dismissed on the basis of material which was neither tested nor allowed to be tested and was no more than the ipse dixit of the Governor. The action of the Governor was more objectionable since as a high constitutional functionary, he was expected to conduct himself more fairly, cautiously and circumspectly. Instead, it appears that the Governor was in a hurry to dismiss the Ministry and dissolve the Assembly. The Proclamation having been based on the said report and so-called other information which is not disclosed, was therefore liable to be struck down.
The Court then quashed the proclamation of President’s rule, revived the Congress government, and directed that there would be a floor test at the earliest, on 29 April 2016.
Excerpted with permission from From The Trenches, Abhishek Singhvi with Satyajit Sarna, Juggernaut Books.
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