TaxTMI 
TaxTMI 
2016 (4) TMI 1485
X X X X Extracts X X X X
X X X X Extracts X X X X
....efs: 'a) issue a writ, order or any other appropriate writ(s), order(s) quashing the Proclamation dated 27.03.2016 issued under Article 356 of the Constitution of India bearing no. F. No. V/11013/2/2016-CSR-I and the consequent Notification thereof; and b) issue a writ, order or any other appropriate writ(s), order(s) quashing the recommendation of the Respondent, recommending imposition of Presidents' Rule in the State of Uttarakhand; and c) issue a writ or any other appropriate writ(s), order(s) or direction directing the Respondent to furnish the records pertaining to the recommendation of the Respondent contained in its Report/material, which has culminated in the meeting of the Union Cabinet on 26th/27th March, 2016, recommending imposition of Presidents' Rule in the State of Uttarakhand and Proclamation dated 27.03.2016 and the consequent Notification imposing President's Rule in the State of Uttarakhand; and d) issue a writ or any other appropriate order or direction restoring the Government of the Indian National Congress headed by Shri Harish Rawat, along with his Council of Ministers, to office and revive and reactivate the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....it is the case of the petitioner, a sequence was woven by the BJP to impose President's Rule in the State. The 26 MLAs belonging to the BJP and the 9 rebel Congress MLAs went to the Raj Bhawan on the same day and submitted a signed joint memorandum on the letter head of the leader of the opposition stating that the Government had been reduced to a minority criticizing the manner in which the vote on the Appropriation Bill was carried out and that the Government led by the Congress Party should be dismissed. This document is produced as Annexure P-2. It is the further case of the petitioner that, realising the consequences under the Tenth Schedule to the Constitution of having the 9 Congress MLAs sign a joint memorandum with the BJP MLAs demanding that the Government be dismissed, the 26 BJP MLAs again addressed Annexure P-3 contending that the Appropriation Bill had not been validly passed. There were resolutions moved against the Speaker and the Deputy Speaker. It is stated to be part of the mala fide move of the BJP. It is the further case of the petitioner that the 9 dissident members of the Congress Party went to the Jolly Grant Airport at Dehradun together with the BJP MLA....
X X X X Extracts X X X X
X X X X Extracts X X X X
....icance, we deem it appropriate to extract the same at this juncture. It reads as follows: "MESSAGE UNDER ARTICLE 175(2) OF THE CONSTITUTION OF INDIA Memo No. 118/Raj Bhawan Dated: 23rd March, 2016 MESSAGE In exercise of the powers conferred upon me by Article 175(2) of the Constitution of India, I, Dr. K.K. Paul, Governor of Uttarakhand hereby send the following message to the 3rd Vidhan Sabha of Uttarakhand in the context of its next meeting on 28.03.2016. A group of 35 Members of the Vidhan Sabha (26 BJP+9 Congress) visited the Raj Bhawan on 18 March 2016 and submitted a Memorandum, interalia questioning the status of Appropriation Bill 2016. It was urged that despite 35 Members requesting for a voting by division, they were ignored by the Speaker. It was also contended that this resulted into denying them their right to vote on the Appropriation Bill. It was also claimed that the details of the voting in favour of the said Bill and those against it have not been recorded. In the above circumstances, on the 19th March, 2016, a communication was sent to the Chief Minister to seek a vote of confidence in the Assembly at the earliest, but....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the Congress was adjourned to 27.03.2016 (it was a Sunday). It is the case of the petitioner that, in pursuance of the preconceived design to topple the State Government and after the rebel MLAs had failed to get any relief from the Court, a Cabinet meeting took place at 09:30 p.m. on 26.03.2016. It is the case that the Cabinet deliberately waited to see if the disqualification proceedings would be stayed and, only after the writ petitions were dismissed, stepped in to further the oblique and nefarious designs to overthrow the State Government. It is stated that none appeared for the respondents (we take it that the petitioner is hinting at the 9 dissident MLAs, as there are only two respondents in the writ petition, which are the Union of India and the State of Uttarakhand). It is the further case of the petitioner that the Notification was issued under Article 356 of the Constitution, which is impugned before us. 7. A counter affidavit has been filed by the first respondent (Union of India). It is their case, inter alia, that there were indeed materials available justifying invocation of Article 356. There is deliberate suppression and concealment of material facts. The petiti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o action under Article 356. In the matter of production of the Proclamation under Article 356 also, the most crucial page relating to suspension of various provisions of the Constitution had not been appended. Without prejudice to the contentions, it is also stated that, in the special report dated 19.03.2016, forwarded by the Governor to the President giving his preliminary views, the Governor had referred to the events, which took place on 18.03.2016, including the direction to forward the representation of 27 MLAs for division of vote, and the memorandum in regard to Shri Ganesh Joshi was also reiterated. The demand of Shri Ajay Bhatt, the Leader of the Opposition, was also reiterated. Shri Ajay Bhatt, the Leader of the Opposition, calling on the Governor at about 08:00 p.m. and informing that the Government had fallen, was also incorporated. There is reference in the said report about 34 MLAs giving the representation on the letter head of the Leader of the Opposition, which was signed by 35 MLAs. There is further reference to communication dated 20.03.2016 by the Governor to the petitioner reiterating his advice that the vote of confidence be taken at the earliest and this be ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the course of our judgment. 8. A note for the Cabinet was prepared on 26.03.2016 itself in the light of the material available and the recent political developments in the State and the aspect highlighted in the pen drive indicating horse trading, non-holding of the division of vote on the Appropriation Bill, the petitioner not acceding to the repeated requests of the Governor for securing vote of confidence expeditiously in order to win over support by allurements etc., one BJP MLA Shri B.L. Arya being made the Vice President of Ambedkar Jayanti Samaroh Samiti and his remaining absent from the Assembly proceedings on 18.03.2016 and, even though there was similar disqualification petition filed against him by the BJP, the Speaker not taking any decision to disqualify him as was done in the case of 9 Congress MLAs. They are all incorporated in the note of the Cabinet. The aspect of the defeat of Appropriation Bill, which could have led to the fall of the Government, and the claim of the Appropriation Bill having been passed by voice vote, etc. were also included in the said note. On the basis of the said note, the Cabinet recommended the President for invocation of Article 356 a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....entirely on the Centre to justify the action. He would submit that the material and the averments in the counter affidavit are clearly insufficient to sustain the Notification under Article 356. Learned Senior Counsel would refer us to the following paragraphs of the judgment in Bommai's case (supra) by Justice Sawant (paragraphs 59, 60, 61, 69 to 75 & 96): "59. It is in the light of these other provisions relating to the emergency that we have to construe the provisions of Article 356. The crucial expressions in Article 356(1) are - if the President, "on the receipt of report from the Governor of a State or otherwise" "is satisfied" that "the situation has arisen in which the Government of the State cannot be carried on "in accordance with the provisions of the Constitution". The conditions precedent to the issuance of the Proclamation, therefore, are: (a) that the President should be satisfied either on the basis of a report form the Governor of the State or otherwise, (b) that in fact a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution. In other words, the President's satisfaction....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ntended that there is difference in the nature and scope of the power of judicial review in the administrative law and the constitutional law. While in the field of administrative law, the Court's power extends to legal control of public authorities in exercise of their statutory power and therefore not only to preventing excess and abuse of power but also to irregular exercise of power, the scope of judicial review in the constitutional law extends only to preventing actions which are unconstitutional or ultra vires the Constitution. The areas where the judicial power, therefore can operate are limited and pertain to the domain where the actions of the Executive or the legislation enacted infringe the scheme of the division of power between the Executive, the Legislature and the judiciary or the distribution of powers between the States and the center. Where, there is a Bill of Rights as under our Constitution, the areas also cover the infringements of the fundamental rights. The judicial power has no scope in constitutional law beyond examining the said infringements. He also contended that likewise, the doctrine of proportionality or unreasonableness has no play in constitut....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n "Notwithstanding anything contained in Clause (2) of Article 48" would be rendered redundant as if it was no part of the Constitution. It is obvious and patent that no letter or part of a provision of the Constitution can be said to be redundant or non-existent under any principle of construction of Constitutions. The argument may be correct in exercise of other discretionary powers but it cannot be employed with reference to the dissolution of National Assembly. Blanket coverage of validity and unquestionability of discretion under Article 48(2) was given up when it was provided under Article 58(2) that "Notwithstanding Clause (2) of Article 48 -- ", the discretion can be exercised in the given circumstances. Specific provision will govern the situation. This will also avoid redundancy. Courts' Power whenever intended to be excluded is expressly stated; otherwise it is presumed to be there in Courts of record .... Therefore, it is not quite right to contend that since it was in his 'discretion', on the basis of his 'opinion' the President could dissolve the National Assembly. He has to have reasons which are justifiable in the eyes of the people and supportab....
X X X X Extracts X X X X
X X X X Extracts X X X X
....een guilty of fraud, misfeasance and other misconduct towards the Company and its members. The appellant-Company had filed a writ petition before the High Court challenging the said order and one of the grounds of challenge was that there was no material on which such order could have been made. In reply to the petition, the Chairman of the Company Law Board filed an affidavit in which it was contended, inter alia, that there was material on the basis of which the order was issued and that he had himself examined this material and formed the necessary opinion within the meaning of the said Section 237(b) before the issue of the order and that it was not competent for the Court to go into the question of the adequacy or otherwise of such material. However, in the course of reply to some of the allegations in the petition, the affidavit in paragraph 14 had also proceeded to state the facts on the basis of which the opinion was formed. The majority of the judges held that the circumstances disclosed in paragraph 14 of the said affidavit must be regarded as the only material on the basis of which the Board formed the opinion before ordering an investigation under Section 237(b) and tha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ction 237(b), the opinion is challengeable on the ground of non- application of mind or perversity or on the ground that it was formed on collateral grounds and was beyond the scope of the statute. 71. In MA. Rashid and Ors. v. State of Kerala MANU/SC/0051/1974 : [1975]2SCR93, the facts were that the respondent State issued a notification under Rule 114(2) of the Defence of India Rules, 1971 imposing a total ban on the use of machinery for defibring husks in the districts of Trivandrum, Quilon and Alleppey. The appellants who were owners of Small Scale Industrial Units, being affected by the notification, challenged the same. In that connection, this Court observed that where powers are conferred on public authorities to exercise the same when "they are satisfied" or when "it appears to them" or when "in their opinion" a certain state of affairs existed, or when powers enable public authorities to take "such action as they think fit" in relation to a subject matter, the courts will not readily defer to the conclusiveness of an executive authority's opinion as to the existence of a matter of law or fact upon which the validity of the exercise of the power is predicated.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....espect to which he is to be satisfied is of such a nature that its decision must necessarily be left to the executive branch of Government. There may be a wide range of situations which may arise and their political implications and consequences may have to be evaluated in order to decide whether the situation is such that the Government of the State cannot be carried on in accordance with the provisions of the Constitution. It is not a decision which can be based on what the Supreme Court of United States has described as "judicially discoverable" and "manageable standards". It would largely be a political judgment based on assessment of diverse and varied factors, fact changing situations, potential consequences, public reaction, motivations and responses of different classes of people and their anticipated future behaviour and a host of other considerations, in the light of experience of public affairs and pragmatic management of complex and often curious adjustments that go to make up the highly sophisticated mechanism of a modern democratic government. It cannot, therefore, by its very nature be a fit subject-matter for judicial determination and hence it is left to the subjec....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e rare cases the Court will examine the exercise of the said power. 74. From these authorities, one of the conclusions which may safely be drawn is that the exercise of power by the President under Article 356(1) to issue Proclamation is subject to the judicial review at least to the extent of examining whether the conditions precedent to the issuance of the Proclamation have been satisfied or not. This examination will necessarily involve the scrutiny as to whether there existed material for the satisfaction of the President that a situation had arisen in which the Government of the State could not be carried on in accordance with the provisions of the Constitution. Needless to emphasise that it is not any material but material which would lead to the conclusion that the Government of the State cannot be carried on in accordance with the provisions of the Constitution which is relevant for the purpose. It has further to be remembered that the Article requires that the President "has to be satisfied" that the situation in question has arisen. Hence the material in question has to be such as would induce a reasonable man to come to the conclusion in question. The expression....
X X X X Extracts X X X X
X X X X Extracts X X X X
....have power or capacity". The word "cannot", therefore, would mean "not to be able" or "not to have the power or capacity". In Stroud's judicial dictionary, fifth edition, the word "cannot" is defined to include a legal inability as well as physical impossibility. Hence situation which can be remedied or do not create an impasse, or do not disable or interfere with the governance of the State according to the Constitution, would not merit the issuance of the Proclamation under the Article. 96. It will be an inexcusable error to examine the provisions of Article 356 from a pure legalistic angle and interpret their meaning only through jurisdictional technicalities. The Constitution is essentially a political document and provisions such as Article 356 have a potentiality to unsettle and subvert the entire constitutional scheme. The exercise of powers vested under such provisions needs, therefore, to be circumscribed to maintain the fundamental constitutional balance lest the Constitution is defaced and destroyed. This can be achieved even without bending much less breaking the normal rules of interpretation, if the interpretation is alive to the other equally important p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on exercising authority is absolute may have at times prevailed, but under autonomous rule, where those who exercise power in the State are themselves citizens of the same State, it can hardly be tolerated." 338. We have no hesitation in rejecting the said approach as totally inconsistent with the ethos of our Constitution, as would be evident from the discussion infra. 368. After considering a large number of decisions, Shelat, J. held: " .... the words, "reason to believe" or "in the opinion of do not always lead to the construction that the process of entertaining "reason to believe" or "the opinion" is an altogether subjective process not lending itself even to a limited scrutiny by the Court that such "a reason to believe" or "opinion" was not formed on relevant facts or within the limits of, as Lord Redcliffe and Lord Reid called, the restraint of the statute as an alternative safeguard to rules of natural justice where the function is administrative." The learned Judge then examined the object underlying Section 237 and held: "There is no doubt that the formation of opinion by the Central Government is purely subjective process. T....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... mind or perversity or on the ground that it was formed on collateral grounds and was beyond the scope of the statute." 370. Counsel brought to our notice a decision of the High Court of Australia in the Queen v. Toohey-Ex parte Northern Land Council, 151 Common Wealth Law Reports 170. Under the Aboriginal Land Rights (Northern Territory) Act, 1976, provision was made for the aboriginals to claim return of the land traditionally occupied by them. The application was to be made to the Commissioner under the Act. Tochey, J. was acting as the Commissioner. The application was made by the Prosecutor, Northern Land Council,. According to the Land Rights Act, no such claim could be laid if the land claimed was comprised in a town. The expression 'town' was defined to have the same meaning as in the law relating to Planning and Development of Town. In 1979, Planning Act was enacted superseding an earlier Act. In Section 4(1) of the Planning Act, "town" meant inter alia "lands specified by the regulations to be an area which has to be treated as a town". Planning Regulations were made by the Administrator of the Northern territory under the Planning Act specifying inter al....
X X X X Extracts X X X X
X X X X Extracts X X X X
....om Section.33 of the Northern Territory (Self-Government) Act 1978. I have already referred to the possibility of a legislature by appropriate words excluding judicial review of the nature here in question. The terms of the present grant of power conferred by Section 165(1) are devoid of any suggestion of such exclusion. It follows that if it be shown that a regulation made under that power was made for a purpose wholly alien to the Planning Act it will be ultra vires the power and will be so treated by the courts." 372. Having noticed various decisions projecting different points of view, we may now proceed to examine what should be the scope and reach of judicial review when a proclamation under Article 356(1) is questioned. While answering this question, we should be, and we are, aware that the power conferred by Article 356(1) upon the President is of an exceptional character designed to ensure that the government of the States is carried on in accordance with the Constitution. We are equally aware that any misuse or abuse of this power is bound to play havoc with our constitutional system. Having regard to the form of government we have adopted, the power is ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ke Meghalaya and Karnataka, both Houses of Parliament approved the proclamations shows the enervation of this check. Even the proponents of the finality of the decision of the President in this matter could not but concede that the said check has not proved to be an effective one. Nor could they say with any conviction that judicial review is excluded in this behalf. If judicial review is not excluded in matters of pardon and remission of sentence under Article 72 - a seemingly absolute and unconditional power - it is difficult to see on what principle can it be said that it is excluded in the case of a conditional power like the one under Article 356." 12. Learned Senior Counsel would submit that, in fact, the later judgment of the Apex Court in the case of Rameshwar Prasad (supra), speaking through Chief Justice Y.K. Sabharwal, has taken the view that Bommai's case has expanded the scope of judicial review. He drew our attention to the following paragraphs of the judgment in Rameshwar Prasad's case (supra) (paragraphs 67, 68, 69, 96, 130, 138, 140, 141, 142, 145, 146, 147, 148 & 154): "67. In Chapter VI, Sarkaria Commission dealt with the emergency provisions ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dent is the satisfaction of the Council of Ministers. As provided in Article 74(1), the President acts on the aid and advice of the Council of Ministers. The plain reading of Article 74(2) stating that the question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any Court, may seem to convey that the court is debarred from inquiring into such advice but Bommai has held that Article 74(2) is not a bar against scrutiny of the material on the basis of which the President has issued the proclamation under Article 356 ... 130. As opposed to the cases of dissolution of Karnataka and Nagaland, while considering the cases of dissolution of assemblies of Madhya Pradesh, Rajasthan and Himachal Pradesh, it was held in Bommai that the reports of the Governors disclosed that the State Governments had miserably failed to protect the citizens and property of the State against internal disturbances, it was found that the Governor's reports are based on relevant material and are made bona fide and after due verification. It is in the light of these findings that the validity of the Proclamation was unanimously upheld in respe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ice being given by the Council of Ministers to the President leading to the issue of the impugned Proclamation. 142. Regarding the argument urged on behalf of the Government of lack of judicially manageable standards and, therefore, the court should leave such complex questions to be determined by the President, Union Council of Ministers and the Governor, as the situation like the one in Bihar, is full of many imponderables, nuances, implications and intricacies and there are too many ifs and buts not susceptible of judicial scrutiny, the untenability of the argument becomes evident when it is examined in the light of decision in Bommai' case upholding the challenge made to dissolution of the Assemblies of Karnataka and Nagaland. Similar argument defending the dissolution of these two assemblies having not found favour before a Nine Judge Bench, cannot be accepted by us. There too, argument was that there were no judicially manageable standards for judging Horse-trading, Pressure, Atmosphere being vitiated, wrongful confinement, Allurement by money, contacts with insurgents in Nagaland. The argument was rejected. 145. In the present case, like in Bommai's....
X X X X Extracts X X X X
X X X X Extracts X X X X
....round of same being unethical, plunging the country or the State to another election. This aspect assumes great significance in situation of fractured verdicts and in the formation of coalition Governments. If, after polls two or more parties come together, it may be difficult to deny their claim of majority on the stated ground of such illegality. These are the aspects better left to be determined by the political parties which, of course, must set healthy and ethical standards for themselves, but, in any case, the ultimate judgment has to be left to the electorate and the legislature comprising also of members of opposition. 147. To illustrate the aforesaid point, we may give two examples in a situation where none of the political parties was able to secure majority on its own: 1. After polls, two or more political parties come together to form the majority and stake a claim on that basis for formation of the Government. There may be reports in the media about bribes having been offered to the elected members of one of the political parties for its consenting to become part of the majority. If the contention of the respondents is to be accepted, then the constit....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s based on wholly extraneous and irrelevant ground. The main ground being to prevent a party to stake claim to form the Government. 13. In regard to the issue that the Appropriation Bill had not been passed on the basis of division of votes, which was demanded by the 27 MLAs by a written communication addressed to the Governor, the learned Senior Counsel would point out that, having regard to the role of the Governor, forwarding the application to the Speaker asking him to hold voting by division and about videographing the entire affair, it was completely unauthorised in law. He drew our attention to Articles 174, 175 & 176 of the Constitution of India. He would submit that, under Article 174, the Governor has three distinct roles. He is to summon the Assembly; thereafter, he has power to prorogue; and, finally, he has power to dissolve the House. The Governor is expected to act on the advice of the Council of Ministers, except in matters, where, under the Constitution, a discretion is vested in him. Equally, he may enjoy a discretionary authority when the same is lodged in him under a statute. Otherwise, he is essentially a figurehead. The executive power is to be exercised ac....
X X X X Extracts X X X X
X X X X Extracts X X X X
....w if the Governor gives his assent to it, or if, having been reserved by the Governor for the consideration of the President, it is assented to by the President. The Governor is, therefore, one of the three components of a State legislature. The only other legislative function of the Governor is that of promulgating Ordinances under Art. 213(1) when both the Houses of the State legislature or the Legislative Assembly, where the legislature is unicameral, are not in session. The Ordinance-making power of the Governor is similar to that of the President, and it is co-extensive with the legislative powers of the States legislature. 21. The function assigned to the Governor under Art. 176(1) of addressing the House or Houses of Legislature, at the commencement of the first session of each year, is strictly not a legislative function but the object of this address is to acquaint the members of the Houses with the policies and programmes of the Government. It is really a policy statement prepared by the Council of Ministers which the Governor has to read out. Then again, the right of the Governor to send messages to the House or Houses of the Legislature under Art. 175(2), with ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e rejoinder affidavit, he would contend that, actually, the demand for grants had been made and passed on 17.03.2016 and some had been passed on 18.03.2016. After the demands for grants are passed, the passing of the Appropriation Bill cannot be subjected to any amendment or variation and is, essentially, a formality. He drew our attention to Articles 203 & 204 of the Constitution, which read as follows: "203. Procedure in Legislature with respect to estimates .- (1) So much of the estimates as relates to expenditure charged upon the Consolidated Fund of a State shall not be submitted to the vote of the Legislative Assembly, but nothing in this clause shall be construed as preventing the discussion in the Legislature of any of those estimates. (2) So much of the said estimates as relates to other expenditure shall be submitted in the form of demands for grants to the Legislative Assembly, and the Legislative Assembly shall have power to assent, or to refuse to assent, to any demand, or to assent to any demand subject to a reduction of the amount specified therein. (3) No demand for a grant shall be made except on the recommendation of the Governo....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the relevant Demands for Grants were under discussion. Amendments No amendment can be proposed to an Appropriation Bill, which will have the effect of varying the amount or altering the destination of any grant so made or of varying the amount of any expenditure charged on the Consolidated Fund of India, and the decision of the Speaker as to whether such an amendment is inadmissible is final. The rest of the procedure in regard to Appropriation Bills is the same as for Bills with such modifications as the Speaker may consider necessary. An amendment to an Appropriation Bill for omission of a demand already voted by the House is out of order. However, an amendment to an Appropriation Bill which does not vary the amount or alter the destination of any grant or vary the amount of any expenditure charged on the Consolidated Fund but is only of a clarificatory nature is in order." 17. He would refer us to sub-Article (2) of Article 204, which we have already quoted above. He would submit that the Constitution, itself, makes it clear that, when the demand for grants had been passed, there can be no question of any amendment, which would have the ef....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he preventive detention laws, were entitled to get notice of the proposed enactments and the Thirty-ninth amendment, so as to be present "in Parliament", to oppose these changes in the law. I am afraid, such an objection is directly covered by the terms of Article 122 which debars every court from examining the propriety of proceedings "in Parliament". If any privileges of members of Parliament were involved, it was open to them to have the question raised "in Parliament". That is no provision of the Constitution which has been pointed out to us providing for any notice to each member of Parliament. That, I think, is also a matter completely covered by Article 122 of the Constitution. All that this Court can look into, in appropriate cases, is whether the procedure which amounts to legislation or, in the case of a constitutional amendment, which is prescribed by Article 368 of the Constitution, was gone through at all. As a proof of that, however, it will accept, as conclusive evidence, a certificate of the Speaker that a Bill has been duly passed." 19. He would submit that never before in the history of independent India has resort been made to Article 356 purporting to short-c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e question relating to suppression of material facts, the argument would run as follows: The impugned decision was issued on 27.03.2016. Within 24 hours, the writ petition was filed. Furthermore, the representation, which was given by the 27 MLAs of the BJP in the morning of 18.03.2016 has actually been produced and marked as Annexure P-3. The respondents are certainly aware of the said document. Even they did not point out that this had been produced. The parties, in fact, proceeded as if it had not been produced; whereas, it has actually been produced. It was filed in hurry and sometimes errors occur. It was not deliberate. Furthermore, it is contended that, in a case of this nature, what is impugned is the imposition of President's Rule under Article 356. The alleged suppression, when the document has actually been produced, can never be considered as a ground to dismiss the writ petition. He would submit that, in fact, the production of the said representation would only strengthen the petitioner's case that only 27 MLAs of the BJP had moved the Governor and 9 dissident members of the Congress had not filed any representation. Petitioner had nothing to gain by suppre....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y and make out a case of practising of double standards. In fact, the facts would show that the Speaker was even-handed. As to luring the said MLA by offering him the post of Vice President of Ambedkar Jayanti Samaroh Samiti, it is submitted that, actually, it is done as per the convention (Mr. Rakesh Thapliyal, learned Assistant Solicitor General in fact points out that it was done on 19.03.2016). It is, in fact, the case of the petitioner that, by convention, it is offered to the members of the opposition parties. 25. The learned Senior Counsel would point out that there is no statement in the letters of the Governor that there was a breakdown of the constitutional order in the State warranting imposition of President's Rule. 26. Mr. Mukul Rohatgi, the learned Attorney General, who appeared on behalf of the first respondent and who was assisted by Mr. Tushar Mehta, learned Additional Solicitor General and Mr. Rakesh Thapliyal, learned Assistant Solicitor General, would submit that the Governor's report as such is not binding on the President. Even if the Governor does not recommend imposition of President's Rule, that will not militate against the power of the P....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n. It is pointed out that Shri B.L. Arya, MLA, finds mention in the representation; but he was won over and he was made Vice President of Ambedkar Jayanti Samaroh Samiti. He would point out with reference to the Assembly with 71 members, that it was reduced to an actual strength of 68 Members on the fatal day, namely, 18.03.2016. Shri Ganesh Joshi was arrested; Shri B.L. Arya was not present and one Shri Ansari belonging to BSP was also not present. Therefore, if the Speaker is excluded, there were only 67 persons. There is indisputable material to show that 35 MLAs (26 belonging to the BJP and 9 dissident Members belonging to the Congress) made a demand for division on the floor of the House. The majority was defied by the Speaker, who arrogated to himself the power to defy the fundamental elements of a democratic body, a body, which should function in a democratic manner. He questions why the Appropriation Bill was not sent till 28.03.2016 to the Governor. The respondents have a case that, in fact, the Bill had not been passed on 18.03.2016 and the reluctance in sending the Bill to the Governor till 28.03.2016 betrays the Speaker's state of mind. He would rely on Rule 296, wh....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lved in horse trading, as is established through the sting operation. There was, therefore, material in this case, which positively proved horse trading, and unlike in the Bommai's case and Rameshwar Prasad's case, this case is distinct; in that, the petitioner, who is the former Chief Minister, was caught on tape, both audio and visual committing acts, which ill-behove a Chief Minister. Therefore, the Central Government was justified. In regard to Article 212, he would, in the first place, submit that it is directed against the courts. In other words, the taboo against interference with the affairs of the Legislature is confined to the courts. As far as the Central Government and the President acting under Article 356 is concerned, if it is found that there has been a violation of the Constitution or if there is any illegality committed, the Speaker cannot immunize his actions on the basis of Article 212. This cannot detract from the power of the authority under Article 356. Even as far as the courts are concerned, the protective shield can be worn only against matters of procedure. The mandate is limited to matters of procedure only. In this regard, he relied on the decis....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d make submissions on the questions of law. He submitted that this is a case, where there were materials. What happened on 18.03.2016 was sufficient. He would submit that the contours of judicial review in respect of action under Article 356 are limited. He sought to draw support from the judgment of the Apex Court in the cases of Madhav Rao Scindia vs. Union of India & another, reported in (1971) 1 SCC 85 and M.R. Balaji and others vs. The State of Mysore & others, reported in AIR 1963 SC 649. He would submit that this cannot be treated as a case, where the Central Government could stand accused successfully of having acted for attainment of collateral purposes. He pointed out that the Court is not in possession of sufficient power to interfere with the exercise of the discretionary power vested in the highest constitutional authority. He submitted that it is only a suspension and not a dissolution. 32. We also permitted Mr. Dinesh Dwivedi, learned Senior Counsel, to appear in the matter on behalf of the 9 dissident Members of Congress. He would submit that, even though the power under Article 356 may be described as extra-ordinary, it only means that the concerned authority mu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ers. In England, the Cabinet system is based on conventions. The framers of our Constitution considered it fit to incorporate the system in the Constitution. The principle of collective responsibility finds place in Art. 75(3) where it is stated that the Council of Ministers shall be collectively responsible to the Lok Sabha. In other words, this provision means that a Ministry which loses confidence of the Lok Sabha is obliged to resign. The loss of confidence is expressed by rejecting a Money Bill or Finance Bill or any other important policy measure or by passing a motion of no-confidence or rejecting a motion expressing confidence in the Ministry. When a Ministry loses confidence of the Lok Sabha the whole of the Ministry has to resign including those Ministers who are from the Rajya Sabha. The Ministers fall and stand together. In certain cases the Ministry may advice the President to dissolve the Lok Sabha and call for fresh elections. Collective responsibility also means that when a decision has been taken by the Cabinet all ministers are bound by it. They have to defend it in the Parliament and outside. Differences are to be aired in the Cabinet in party forum or w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....opposition has a right to censure the functioning of the Government and even overthrow it by voting it out of power if it had or abstaining from voting by a Member contrary to any direction issued by his party would to any direction issued by his party would by necessary implication envisage voting or abstaining from voting in regard to a motion or proposal, which if failed, as a result of lack of requisite support in the House, would result in voting the Government out of power, which consequence necessarily follows due to well established constitutional convention only when either a motion of no-confidence is passed by the House or it approves a cut-motion in budgetary grants. Former because of implications of Article 75(3) of the Constitution and latter because no Government can function without money and when Parliament declines to sanction money, then it amounts to an expression of lack of confidence in the Government. When so interpreted the clause(b) of sub-paragraph (1) of paragraph 2 would leave the Members free to vote according to their views in the House in regard to any other matter that comes up before it." 37. The learned Senior Counsel for the petitioner....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dia (supra), wherein it has been held as under: "A prerogative remedy is not available as a matter of course. In exercising extraordinary power, therefore, a writ court will indeed bear in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the court, the court may dismiss the action without adjudicating the matter. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible. There is still one more reason why the appellant Company should be denied equitable relief under Article 136 of the constitution. The appellant has not come with clean hands. It has suppressed and concealed material facts from the Court. Though the appellant Company has approached the High Court under Article 226 of the Constitution, it had not candidly ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d to play "hide and eek" or to "pick and choose' the facts he likes to disclose and to suppress (keep back) or not to disclose (conceal) other facts. The very basis of the writ jurisdiction rests in the disclosure of true and complete (correct) facts. If material facts are suppressed or distorted, the very functioning of the writ courts and exercise would become impossible. The petitioner must disclose all the facts having a bearing on the relief sought without any qualification. This is because "the court knows law but not facts". An applicant who does not come with candid facts and "clean breast" cannot hold a writ of the court with "soiled hands". Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, manoeuvring or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the court, the court ha inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the court....
X X X X Extracts X X X X
X X X X Extracts X X X X
....7 BJP MLAs was not referred to as such in the writ petition. The petitioner has produced the communication by the OSD to the Speaker. In that communication, there is reference to the representation. Therefore, the petitioner would contend that the petitioner had nothing to gain by suppressing the representation. What is more clear in a manner of speaking, in a comedy of errors, the representation had actually been produced as Annexure P-3 in this case. It would appear that both, the petitioner and the respondents, were unaware of it. The discovery came rather late in the course of hearing. Therefore, this is not a case, where the representation was actually not produced, as was originally complained of by the first respondent. But, even then, it is true that much greater care should have been taken. 44. In regard to the case set-up from paragraphs 16 to 22 of the writ petition that the Bill was passed by voice vote and, thereafter, the demand was made for division of votes; there is a case for the first respondent that, if the representation had been produced as having emanated in the morning of 18.03.2016 and through the medium of the Governor being forwarded, then, at the stag....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s found solace in the fact that the Proclamation would have to pass muster at the hands of the Parliamentarians for it to continue. It was not a matter, which presented manageable standards for the courts. This was the philosophy, which substantially precluded the courts from practically interfering in action taken under Article 356. The Sarkaria Commission gave its report. It listed various situations and the abuses. It is, then, that the Nine Judges of the Supreme Court in Bommai's case (supra) sat to consider the true scope of judicial review in matters relating to Proclamation under Article 356. We have already referred to the case-law and the relevant paragraphs. Undoubtedly, under the written Constitution, in which the Preamble proclaims India to be a democratic, sovereign and socialist republic, there is little space for unreviewable powers. There are areas like the making of a treaty or a decision to go for war or foreign policy, where there are no objective criteria, which would provide the basis for the courts to strike at the executive action. It was in this strain that, in Bommai's case (supra), the learned Judges proclaimed a new approach to judicial review. Our un....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nderstand that Article 356 is not confined in its employment to a situation arising from disregard by a State to the direction issued by the Central Government under Article 257 leading to the emergence of a situation under Article 365. We cannot, in fact, exhaustively lay down the situations. But, one thing is clear that it should be used as a matter of last resort and it should be used with the greatest care. This we say for the reason as we deem it appropriate to deal with another argument of the learned Attorney General, as also Mr. Harish Salve, that what is involved in this case is only a suspension of the Assembly and not the dissolution. We are of the view that, be it suspension or dissolution, the fact is that toppling of a democratically elected Government breeds cynicism in the hearts of the citizens, who had participated in the democratic process. It undermines the foundations of federalism. A Government in a State, which has been democratically elected, is usually engaged in the enunciation of policy and the transmission of policy into legislation. The carrying out of the policies, ordinarily, in accordance with the manifesto, which Parties may take to an electorate, i....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of India & others, reported in AIR 1982 SC 149. Therein, the court took the view that, in an open democratic society, there is little scope for claiming right to withhold documents. The trend should be towards disclosure of information. It is crucial in the efficient working of a mature democracy. We are making this observation with another object also in mind. We notice that, after the Right to Information Act has been passed by the Parliament, there is a change brought about. It is true that in Bommai's case (supra) and in Rameshwar Prasad's case (supra), the court has taken a view that it is open to the Government to raise the claim under Section 123. We only wish to notice that, under the Right to Information Act, Section 8(1)(i) reads as follows: "8. Exemption from disclosure of information .- (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen .- (i) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were tak....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d here that earlier in the day, a letter had been submitted, signed by 27 MLAs of the BJP, addressed to the Governor, requesting for a vote by division for the Appropriation Bill. (copy attached). This letter was forwarded to the Speaker of the Assembly. Directions for audio/video recording of the proceedings for submission to the Governor (copy attached) were also conveyed. Though I have on telephone asked the Speaker and the Leader of the House (Chief Minister) to send to me their reports about the proceedings of the 18th March in the House immediately, these are yet to be received. The audio/video recording has also not been forwarded to my office so far. The Leader of Opposition had also submitted a letter dated 18th March to the Governor regarding arrest (in Shaktiman horse affair) of one of their MLAs Shri Ganesh Joshi, and requested to issue directions to the concerned officer to allow the arrested MLA to participate in the proceedings of the House. The letter was immediately sent to the Secretary of the Legislative Assembly for necessary action, but apparently no action was taken on this. It is understood that about 7:30 p.m., as soon as Shri Ajay....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e and would be meeting the Governor this evening. A copy of the Press Note issued to the Media last night is being enclosed for favour of information. This is only a preliminary account of the events as they unfolded on 18th March. With Yours sincerely, Sd/- Encl: As above (Dr. K. K. Paul) Shri Pranab Mukherjee Hon'ble President of India Rashtrapathi Bhawan, New Delhi Copy to :- 1. Shri Narendra Modi, Hon'ble Prime Minister of India, South Block, New Delhi 2. Shri Raj Nath Singh, Hon'ble Union Home Minister, North Block, New Delhi. Sd/- (Dr. K.K. Paul)" 51. It appears that there is a communication dated 20.03.2016, which we intend to refer to. It is addressed by the Governor to the President. Therein, it is stated that, on 19.03.2016, the petitioner had been asked to seek vote of confidence from the Legislature at the earliest, but not later than 28.03.2016, the date on which the House had already been convened by the Speaker. The petitioner had subsequently called on the Governor in the evening and gave his version of the events. The Governor write....
X X X X Extracts X X X X
X X X X Extracts X X X X
....veyed as enclosure to my letter of 19th March. List of these 35 MLAs who had met the Governor on 18th evening and submitted the signed letter, is enclosed once again. It is pertinent that at that particular moment, only 68 Members (out of 71) were present for voting in the House. Shri Ganesh Joshi, MLA (BJP) was in judicial custody, Shri Bheem Lal Arya of BJP and Shri Sarwat Karim Ansari of BSP were absent. Smt. Indira Hridyesh, who was waiting outside, was then called in. She herself raised the issue of No Confidence Resolution against the Speaker and the Dy. Speaker and said that a 14 days period was essential. She was conveyed that there are constitutional provisions pertaining to this issue, which needed to be followed in letter and spirit. In the meantime, three MLAs of Congress; Shri Vijay Bahuguna, Shri Harak Singh Rawat and Smt. Amrita Rawat have submitted a letter yesterday, stating that there was a breakdown of Constitutional machinery as the majority of the MLAs present at the time of voting, had voted against the Money Bill. Late last night, the CM has replied to my letter of advising him to seek a vote of confidence at the earliest and not la....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n it meets after the vacation. It would not be out of place to mention that the Speaker had adjourned the House at the end of the day's proceedings on 18th March, up to 11 a.m. on 28th March. 3. In this context a Message under Article 175(2) of the Constitution has already been sent to the Speaker. 4. In the meantime, on a petition of the Chief Whip and Minister of Parliamentary Affairs, Smt. Indira Hridyesh, the Speaker had issued show cause notices to 9 Congress MLAs under the Anti Defection Law and specifically under the "Uttarakhand Vidhan Sabha Sadasya (Dal Parivartan Ke Adhar Par Nirharta) Niymavali, 2005. These notice were issued on 19th March u/s 8(1)(3) [k, they are returnable by 26th March. 5. Further, I had called the Secretary of the Vidhaan Sabha and given him detailed directions in light of my Message under Article 175(2) of the Constitution. With warm regards Yours sincerely, Sd/- (Dr. K. K. Paul) Shri Pranab Mukherjee Hon'ble President of India Rashtrapathi Bhawan, New Delhi" 54. Then, there is a few newspaper cuttings relating to the political developments. There is communic....
X X X X Extracts X X X X
X X X X Extracts X X X X
....smen, against the Government/Party were well covered by the Media, both electronic and Print, the next day. Some of the press clippings are enclosed for ready reference. (g) Shri Ajay Bhatt, Leader of Opposition (BJP) informed me on telephone at about 8 p.m. that the government had fallen and he was coming to Raj Bhawan with his supporters. He also mentioned to me that a very large number of Congress workers outside the Assembly were blocking his way, and of those, accompanying him. DGP was accordingly directed to make adequate security arrangement for the MLAs. (h) At about 11:30 PM, Shri Ajay Bhatt, Leader of Opposition (BJP) along with 34 MLAs, called on the Governor at Raj Bhawan and handed over a letter signed by 35 MLAs (9 of Congress and 26 of BJP). The letter (copy enclosed) states that the Appropriation Bill had not been passed in the House as the proceedings were being carried out in an undemocratic manner. It was also mentioned that the Appropriation Bill not having been passed, the government had fallen and needed to be dismissed. According to thee MLAs, there were only 68 members present in the House while 35 were with them, opposing the Appropriation....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of the Chief Whip and Minister of Parliamentary Affairs, Smt. Indira Hridyesh, the Speaker had issued show cause notices to 9 Congress MLAs under the Anti Defection Law and specifically under the "Uttarakhand Vidhan Sabha Sadasya (Dal Parivartan Ke Adhar Par Nirharta) Niyamavali, 2005. These notices were issued on 19th March u/s 8(1)(3) [k, they are returnable by 26th March. Out of the 9 MLAs, who had been issued show cause notice, 8 MLAs had gone to the High Court at Nainital on 25th March where their petitions were rejected. 5. In order to ensure that the proceedings in the Assembly at the time of Chief Minister's vote of confidence take place smoothly, and as per Constitutional propriety, morality and decorum, a detailed Message under Article 175(2) (copy enclosed for ready reference) also sent to the speaker. This message specifically included that the voting has to be by division. 6(a). This morning at about 11 a.m., a closed cover was received at Raj Bhawan from the office of Shri Bahuguna, MLA. The closed cover had a representation addressed to the Governor, by Shri Harak Singh Rawat, MLA, one of the disgruntled Congressmen. The letter also had a pen d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....shed, it is prima facie obvious that plans have been afoot to indulge in horse trading of MLAs and the Chief Minister is a party to such machinations. Such behaviour runs contrary to the expected standards of probity from a Chief Minister. 11. The political atmosphere is likely to get further vitiated, as the MLAs start returning to the State Capital for the Vote on 28th. In the given situation and the surcharged atmosphere, it is possible that the Assembly proceedings on 28th March, may be unruly, chaotic and violent. With warm regards, Yours sincerely, Sd/- (Dr. K. K. Paul) Shri Pranab Mukherjee Hon'ble President of India Rashtrapathi Bhawan, New Delhi" 55. Next, we find letter dated 26.03.2016 sent by the BJP through its office bearers. It reads as follows: "Bhartiya Janata Party Date: 26/03/2016 His Excellency, The President of India Rashtrapati Bhawan, Delhi Subject: Request for imposition of President's Rule in the State of Uttarakhand This is in continuation of our earlier representation dated 21st and personal meeting our senior leaders had with your Excellency wherein....
X X X X Extracts X X X X
X X X X Extracts X X X X
....thods to convert minority into majority. It has also been learnt that the Speaker in connivance with CM has refused to share the documents and give a personal hearing to the rebel Congress MLAs which is mandatory as per Uttarakhand Vidhan Sabha (Anti defection) Rules. Sir, this clearly demonstrates that there is Constitutional break down in the State of Uttarakhand and hence it is a fit and just case for exercise of powers for imposition of Presidents Rule in the State of Uttarakhand. Thanking you in anticipation, 1. Shri Vinay Shastrabudhe (Vice President) 2. Shri Shyam Jaju (Vice President) 3. Shri Kailash Vijayvargiya (General Secretary) 4. Shri Anil Jail (General Secretary) 5. Shri Shrikant Sharma (National Secretary) 6. Shri Bhagat Singh Koshyari (MP, Lok Sabha)" 56. Finally, we come to the Cabinet Note. We have had the occasion to peruse the Cabinet Note. We notice that there is a reference to allurement of a BJP Member. There is reference to events of 18.03.2016. Then, there is reference to gaining time by the Chief Minister; double standards by the Speaker; the petition against Shri B.L. Arya being p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....vernor to hold the meeting at the earliest with the ultimatum that it should not go beyond 28.03.2016; but the substance of the matter is that, if the time limit fixed in the communication and in the Message under Article 175(2) was not exceeded, can the petitioner be blamed or can Article 356 be imposed on that basis? We would clearly think that, after having given time till 28.03.2016 to seek vote of confidence, subject to our findings on the other issues, the fact that the vote of confidence was not sought earlier could not be put at the doorstep of the petitioner by way of blaming him and, that too, going beyond visiting the State with the imposition of President's Rule. This is not a matter between an individual and the Government. It is a matter between an elected Government and another elected Government. 58. Next we come to the letter of the BJP. Starting from 18.03.2016, the BJP had, even according to the learned Attorney General, 'come out in the open with the 9 dissident Members of Congress'. When they write a letter to the President, we do not see how it can at all be taken at its face value. We do not think that it can be the material in the first place ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ment that they could divine what was coming in the way of 9 dissident MLAs, we would think that it is completely irrelevant for the Central Government to weigh it in the scales for deciding to impose the President's Rule. What would happen to the Members of the Congress Party for their alleged acts or omissions is entrusted to the constitutional functionary, namely, the Speaker to decide. What will happen if they are disqualified and, therefore, what would be the composition of the House on 28.03.2016 when the floor test would take place, surely could not have been the lookout of the Central Government. The Government, when it takes action under Article 356, is expected to be completely non-partisan. It cannot have any kind of bias. Therefore, we would think that the fate of the 9 dissident Congress MLAs was an entirely irrelevant and extraneous matter. This is for the reason that this has got nothing to do with the petitioner as such. This is the result of the supervening circumstances flowing from the alleged conduct of those 9 dissident MLAs, which is enjoined upon the body polity by way of introduction of the Tenth Schedule to the Constitution. It is a constitutional sin to....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the same may be taken on record. It reads as follows: "To, Rakesh Thapliyal, Asst. Solicitor General of India Uttarakhand Date: 21-04-2016 Sub: Writ Petition No. 795 of 2016- Harish Chandra Singh Rawat v. Union of India and another. My Dear Thapliyal, 1. Please convey to the Hon'ble Court that on 7.04.2016, while the matter was getting posted for final arguments on behalf of Respondents on 18.04.2016, a statement was made by me that if any action was to be taken by the Respondents during the recess (April 8th-April 17th) the same would be informed to the Hon'ble Court. In other words, such a statement was necessitated only due to the recess. 2. I am not in a position to continue the said statement, which was to operate only till the resumption of Court proceedings on 18.04.2016. Significantly, no contention was raised by the Petitioner for any interim order when I was present in the Court on 18.04.2016 and 19.04.2016 (till lunch recess). 3. It has been the submission on behalf of the Respondents that no interim order can be passed restraining the Hon'ble Governor or the Hon'ble Preside....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ould take-up the issue relating to the sting operation. It is true that there is a material available in the form of a CD. The material was sent by the Governor to the Central Government. The Cabinet met in the night of 26.03.2016. As at the time when the Cabinet met in the night, the first thing we must notice is that the CD had not been verified. From the records, it is clear that it was sent by hand from Delhi to Chandigarh and it was received by the office at Chandigarh on 27.03.2016. So, at the time when the advice was given by the Cabinet, it had not verified the genuineness of the CD. But the argument of the learned Attorney General is that the fact that the subsequent report of the CFSL has shown that there is no morphing and that it is genuine would, in other words, fortify the Government of India in the decision it took and the Court need not go further. 66. At this juncture, it probably is apposite that we must notice that, on 25.03.2016, the writ petition filed by the 9 dissident MLAs belonging to the Congress Party stood dismissed. On 26.03.2016, apparently, the Governor writes; the Cabinet, apparently, meets on the basis of the same in the night on the same day; th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hat it was so, the correct and the proper course for him to adopt was to await the test on the floor of the House which lest the Chief Minister had willingly undertaken to go through on any day that the Governor chose. In fact, the State Cabinet had itself taken an initiative to convene the meeting of the Assembly on April 27, 1989, i.e., only a week ahead of the date on which the Governor chose to send his report to the President. Lastly, what is important to note in connection with this episode is that the Governor at no time asked the Chief Minister even to produce the legislators before him who were supporting the Chief Minister, if the Governor thought that the situation posed such grave threat to the governance of the State that he could not await the result of the floor-test in the House. 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 fr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r'. Instead of remaining a 'dead-letter', it has proved to be the 'death-letter' of scores of State Governments and Legislative Assemblies. The Sarkaria Commission which was appointed to look into and report on Center-State relations considered inter alia the manner in which this power has been exercised over the years and made certain recommendations designed to prevent its misuse. Since the Commission was headed by a distinguished Judge of this Court and also because it made its report after an elaborate and exhaustive study of all relevant aspects, its opinions are certainly entitled to great weight notwithstanding the fact that the report has not been accepted so far by the Government of India. 391. We must also say that the observation under point (7) is equally misplaced. It is true that action under Article 356 is taken on the basis of satisfaction of the Union Council of Ministers but on that score it cannot be said that 'legal mala fides' of the Governor is irrelevant. When the Article speaks of the satisfaction being formed on the basis of the Governor's report, the legal mala fides, if any, of the Governor cannot be said to the ir....
X X X X Extracts X X X X
X X X X Extracts X X X X
....remembered that the Council of Ministers not only decided on April 20, 1989 to convene the Assembly on 27th of that very month i.e., within 7 days, but also offered to prepone the Assembly if the Governor so desired. It pains us to note that the Governor did not choose to act upon the said offer. Indeed, it was his duty to summon the Assembly and call upon the Chief Minister to establish that he enjoyed the confidence of the House. Not only did he not do it but when the Council of Minister offered to do the same, he demurred and chose instead to submit the report to the President. In the circumstances, it cannot be said that the Governor's report contained, or was based upon, relevant material. There could be no question of the Governor making an assessment of his own. The loss of confidence of the House was an objective fact, which could have been demonstrated, one way or the other, on the floor of the House. In our opinion, wherever a doubt arises whether the Council of Ministers has lost the confidence of the House, the only way of testing it is on the floor of the House except in an extraordinary situation whether because of all-pervasive violence, the Governor comes to the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e is also appeal made to the higher normative values of democracy and federalism and the larger issue of the impact of toppling a democratically elected Government. In view of the fact that the parties were all proceeding on the basis that floor test was to be held on 28.03.2016 and the fact that the petitioner stood deprived of the said opportunity as he was not given the opportunity by way of the imposition of President's Rule, we should go by the principles laid down by the Apex Court in paragraph 118 of the judgment in Bommai's case (supra), which clearly appears to lay down that, even if there is horse trading, floor test must be resorted to, besides paragraph 119. 71. Therefore, we would think that, having regard to the fact that the floor test was to take place on 28.03.2016, the sting operation, in view of the law laid down in Bommai's case (supra) and in Rameshwar Prasad's case (supra), would fade into irrelevance. It also, therefore, would be a case, where there was no warrant for a legitimate inference being drawn from the facts that the floor test should be avoided and, instead, the draconian provisions of Article 356 should be invoked. 72. In rega....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ocedure or the conduct of business, or for maintaining order, in the Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers." 74. This has been the subject matter of considerable case law. In the case of MSM Sharma v. Shree Krishna Sinha, reported in (1961) 1 SCR 96, the Apex Court was dealing with a case of a journalist, who was faced with action by the Privilege Committee of the Legislature, and the court had this to say: "10. It now remains to consider the other subsidiary questions raised on behalf of the petitioner. It was contended that the procedure adopted inside the House of the Legislature was not regular and not strictly in accordance with law. There are two answers to this contention, firstly, that according to the previous decision of this Court, the petitioner has not the fundamental right claimed by him. He is, therefore, out of Court. Secondly, the validity of the proceedings inside the Legislature of a State cannot be called in question on the allegation that the procedure laid down by the law had not been strictly followed. Article 212 of the Constitution is a complete answer to this part of the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... get a resolution passed to disapprove the Ordinance, and, instead, adjourned the matter. At this stage, the Deputy Speaker took over. The proceedings were conducted. This was done as the Ordinance provided that, in view of the urgency, the affairs of the Assembly could not be adjourned except by the majority agreeing to it. Therefore, the business was transacted. The Ordinance was challenged. The Apex Court, in the context of these facts, proceeded to consider two aspects. Firstly, it was a case, where the Deputy Speaker proceeded to occupy the Chair in view of the action of the Speaker. The question arose whether the Deputy Speaker could do so in view of Article 199. The court took the view that it was a directory provision and, in particular, it would cause grave disquiet and inconvenience to the public. The court also had occasion to rule on the aspect of Article 212, wherein the court held as follows: "30. Further again, there is Article 212 clause (1) which provides that the validity of any proceeding in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure. This clause was invoked in respect of a Money Bill....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ll matters covered by Article 212. We deem it appropriate to refer to the following paragraphs of this judgment: "38. The Legislative Assembly of a State is undoubtedly the fountain source of its power and the rules framed under Article 208 of the Constitution being the creatures of such power are succeptible to modification or deviation at the discretion of the majority of the members of the Assembly. The power to make a rule implies a power to deviate from the rule if the exigencies of circumstances require and if the party vested with the power is inclined to so act. B.W. Ridges in his book "Constitutional Law of England" dealing with the subject 'what is the precise meaning of the term 'proceedings in Parliament' would say- "Another collective right of the House is to settle its own code of procedure. This is such an obvious right-it has never been directly disputed-that it is unnecessary to enlarge upon it except to say that the House is not responsible to any external authority for following the rules it lays down for itself, but may depart from them at its own discretion ...... This holds good even where the procedure of a House or the right of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ur Legislatures. Such plenary powers are countenanced in the various Articles of the Constitution including Article 212. The course of such power and the manner in which it is channelised by the source of authority cannot either be stemmed or interfered with by a process of Court even under Article 226 of the Constitution. Such a collective privilege contemplated under the provisions of the Constitution, which has to be liberally interpreted and not with a sense of pedantism, prompts us to hold that when the motion for the removal of the Speaker was taken up for consideration in the instant case and when at that moment of time the Deputy Speaker was put in office as a substitute for the Speaker and if the Deputy Speaker thereof conducted the proceedings resulting in the challenged resolution of the Assembly; they are all matters which the Assembly has the privilege to deal with and decide upon. They are therefore neither illegal nor unconstitutional. As the accredited parliamentary practice enables the House to decide what it will discuss and how it will settle its internal affairs and what code of procedure it intends to adopt, it follows that it may even depart if it is so compul....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of things, this Court is entrusted with the duty to be watchdog of and guarantor of the Constitution. 378. With reference to the above-quoted observations recognizing the permissibility of scrutiny in a court of law on allegation that the impugned procedure was illegal or unconstitutional, the learned Additional Solicitor General submitted that these observations need to be clarified and the expression "illegality" must necessarily mean "unconstitutionality", that is violation of mandatory constitutional or statutory provisions." 79. Thereafter, referring to Smt. Indira Nehru Gandhi vs. Raj Narain & another (supra), which we have referred to in the earlier part of this judgment, Chief Justice Y.K. Sabharwal held as follows: "383. In our considered view, the question before the court in the case of Indira Nehru Gandhi essentially pertained to the lawfulness of the session of Parliament that had passed the constitutional amendment measure. The concern of the court did not involve the legality of the act of the legislative body. As regards the views based on the holding in the case of Pandit Sharma, it has already been observed that it was rather premature for th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....199(3) If any question arises whether a Bill introduced in the legislature of a State which has a Legislative Council is a Money Bill or not, the decision of the Speaker of the Legislative Assembly of such State thereon shall be final." We have extracted the same s we will be referring to the authorities as regards interpretation of the said clause. 39. Placing reliance on Article 199, the learned counsel would submit that the present Act which was introduced as a Money Bill has remotely any connection with the concept of Money Bill. It is urged by him that the State has made a Sisyphean endeavor to establish some connection. The High Court to repel the challenge had placed reliance upon Article 212 which stipulates that the validity of any proceedings in the legislature of a State shall not be called in question on the ground of any irregularity of procedure. 40. The learned counsel for the appellants has drawn inspiration from a passage from Powers, Privileges and immunities of State Legislature, In re, Special Reference No. 1 of 1964 AIR 1965 SC 745, wherein it has been held that Article 212 (1) lays down that the validity of any proceedings in the leg....
X X X X Extracts X X X X
X X X X Extracts X X X X
....date on the subject, rendering unnecessary search for an answer elsewhere or invocation of principles of harmonious construction. * * * 366. The touchstone upon which parliamentary actions within the four walls of the legislature were examined was both the constitutional as well as substantive law. The proceedings which may be tainted on account of substantive illegality or unconstitutionality, as opposed to those suffering from mere irregularity thus cannot be held protected from judicial scrutiny by Article 122 (1) inasmuch as the broad principle laid down in Bradlaugh v. Gossett (1884) LR 12 QBD 271 acknowledging exclusive cognizance of the legislature in England has no application to the system of governance provided by our constitution wherein no organ is sovereign and each organ is amenable to constitutional checks and control, in which scheme of things, this Court is entrusted with the duty to be watchdog of and guarantor of the Constitution. 42. In this regard, we may profitably refer to the authority in Mohd. Saeed Siddiqui v. State of U.P. (2014) 11 SCC 415, wherein a three-Judge Bench while dealing with such a challenge, held that Article 212 preclud....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t and this could only be done if that enactment had been passed according to the procedure for Money Bills in the manner provided by Arts. 198, 199 and 207 of the Constitution and as no such Money Bill was introduced or passed for the enhancement of the tax, the tax was illegal and invalid. In our opinion by substitution of new coinage i.e. naya Paisas in place of annas, pice and pies no enhancement of tax was enacted but it was merely a substitution of one coinage by another of equivalent value. Even assuming that it is a taxing measure its validity cannot be challenged on the ground that it offends Arts. 197 to 199 and the procedure laid down in Art. 202 of the Constitution. Article 212 prohibits the validity of any proceedings in a legislature of a State from being called in question on the ground of any alleged irregularity of procedure and Art. 255 lays down that requirements as to recommendation and previous sanction are to be regarded as matters of procedure only. It provides: Art. 255 "No Act of Parliament or of the Legislature of a State, and no provision in any such Act, shall be invalid by reason only that some recommendation or previous sanction required by thi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... made. We are troubled by this conduct of the petitioner in making this statement. 84. We have to consider, firstly, whether we can hold that the Bill was not passed. The Bill is declared to have been passed by the Speaker. It is apposite at this point of time to consider the Rules in question. Rule 296, much relied on by the Government of India, no doubt, provides that a Bill may be carried by voice vote. It further provides that, if a single member demands a division, then division is to be allowed. The proviso, however, provides for the condition that, if the Speaker finds that the demand for division is not warranted, he must then hold vote by show of hands. We must, at this juncture, also consider Rule 185. Rule 185 has already been extracted by us in the earlier portion of this judgment. Rule 185(3) provides that it is open to the Speaker to suspend any Rule. 85. It is very interesting to note that the Rules of the Business are made under Article 208 of the Constitution of India. Article 208 reads as under: "208. Rules of procedure. - (1) A House of the Legislature of a State may make rules for regulating, subject to the provisions of this Constitution, its pro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ether the law would take in subordinate legislation as well. Certainly, subordinate legislation would suffice for the purpose of Article 19. However, contrasting the two Articles, namely, Articles 208 and 209, which are neighbours, they appear to suggest that there must be a law or Act by the Legislature under Article 209. But, even in the rules made under Article 208, under Rules 185(3), there is a power with the Speaker to suspend any rule. We are referring to this only to point out that what has been laid down as not protected under Article 212 are matters relating to violation of the constitutional provisions or matters relating to a mandatory statutory provision. If a power is lodged with the Speaker to suspend a rule, which would take in also Rule 296, which provides for seeking a division of votes, can it be considered to be mandatory when there is power with the Speaker to suspend that Rule. The scope for debate or modification of an Appropriation Bill is very minimal when the demands for grants are passed, as we have already noted. Therefore, we come to a situation, where, on 18.03.2016, in regard to the Appropriation Bill, indeed, there was a controversy. Earlier in the d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ouse concerning how his new minority government would view defeats in divisions: The Government intend to treat with suitable respect but not with exaggerated respect, the results of any snap Division ... In case of a Government defeat, either in such circumstances or in a more clear expression of opinion, the Government will consider their position and make a definitive statement after due consideration. But the Government will not be forced to go to the country except in a situation in which every hon. Member in the House was voting knowing the full consequences of his vote ... What I am trying to say is that a snap division or even, perhaps in some cases, a more substantial one ... would not necessarily mean, and would not, indeed, immediately mean, any fundamental decision about the future of the Government or about a Dissolution. I am saying that if there were to be anything put to the House which could have those consequences, every hon. Member would have it explained to him in the House by the government before the voted. During the short 1974 Parliament the Labour Government lost seventeen divisions, and between the second 1974 election and dissolution in ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d Association & others vs. Union of India, reported in (1993) 4 SCC 441, the question arose in the context of the appointment of Judges to the superior courts. The court held as follows: "337. Two sets of principles, thus, make up the rules of constitutional law. One set of rules is contained in the written Constitution of a country and the other set is referred to as the "conventions of the constitution". Conventions are a means of bringing about constitutional development without formal changes in the law. K.C. Wheare in his book The Statute of Westminster and Dominion Status (Fourth Edition) defines the conventions as under: "The definition of 'conventions' may thus the amplified saying that their purpose is to define the use of constitutional discretion. To put this in slightly different words, it may be said that conventions are non-legal rules regulating the way in which legal rules shall be applied." 339. The conventions enable a rigid legal framework - laws tend to be rigid - to be kept up with changing social needs and changing political ideas. The conventions enable the men, who govern, to work the machines ... 344. K.C. Wheare ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Tribunal under the National Tax Tribunal Act, 2005. The court took the view that the Tribunal's act is unconstitutional, as, in transferring the power from the traditional court to an alternative Tribunal, salient characteristics of the court were sought to be replaced and not incorporated in the court / tribunal created. The court, in the majority judgment, took the view that the constitutional conventions pertaining to the westminister model do not debar the Legislature from enacting legislation to transfer adjudicatory functions earlier vested in the superior court and the exercise of such power would not violate any constitutional convention. But, when such transfer is made, the conventions, customs, practices of the court sought to be replaced must be incorporated in the court / tribunal created so that the alternative court / tribunal is no less effective. 91. It may be true that, ordinarily, when a Money Bill is defeated, the Government tenders its resignation. But, what happens if the Government does not tender its resignation. Can it be likened to a situation, where the Government has fallen, which appears to be the line of argument addressed by the learned Attorne....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l's argument. If this is allowed, it can possibly result in undue interference in the affairs of the State Legislatures leading to unwarranted imposition of President's Rule. The federal framework, within which the country functions, could shrivel- up and breakdown. This does not auger well for the Nation. 93. At any rate, we may also notice that this solitary instance, which is seized upon, may not justify the imposition of President's Rule. On 26.03.2016, when the Cabinet made the recommendation, the question was whether the Government could be carried on. The last date for the assent on the Money Bill was 31.03.2016. So, there is a case for the petitioner that, even though the Money Bill was not dispatched immediately, if the President's Rule had not been imposed on 27.03.2016, there would have been nothing in the way of the Money Bill being given assent to when it had reached, admittedly, on 28.03.2016. 94. We must not be understood as saying that, in no circumstances, a solitary event cannot provide material for successful invocation of Article 356. 95. Regarding the question whether the Government can, despite Article 212, make violations in the Assem....