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Delivering a major blow to the Modi government, the Uttarakhand high court on Thursday quashed the proclamation of President's rule in the state and revived the Congress government headed by Harish Rawat, who has been asked to prove his majority in the Assembly on April 29.
Coming down heavily on the Centre for the March 27 proclamation under Art 356, a division bench of the high court headed by Chief Justice K M Joseph said the imposition of President's rule was contrary to the law laid down by the Supreme Court.
In a lengthy judgement dictated in the open court after the Centre's counsel declined to give an undertaking that the government would not revoke the President's for a week for the court to give its verdict, the bench made strong observations on the Centre's resort to Art 356 of the Constitution in the instant case.
"The soul of the matter is whether it is open to the Central government to get rid of state governments, supplant or uproot the democratically-elected government, introduce chaos, undermine confidence of the little man who stands with a white paper to cast his vote braving the snow, heat and rain.”
"We are of the view that be it suspension or dissolution, the effect is troppling of a democratically-elected government. It breeds cynicism in the hearts of citizens who participate in the democratic system and also undermines democracy and foundation of federalism," the bench said.
Allowing the petition of the ousted chief minister challenging the President'r rule, the Court restored status quo ante as prevailing on the day of imposition of central rule, the court.
Upholding the disqualification of nine dissident Congress MLAs, the court said they have to pay the price of committing the "Constitutional sin" of defection by being disqualified.
The bench, also comprising Justice V K Bist, observed that the material considered for imposing President's rule "has been found wanting".
"When stakes are as high as this, should we throw out the petitioner on this ground (of alleged suppression of fact that divison of votes was sought after the Appropriation Bill was passed," the bench said.
"What is at stake here is not just the petitioner's government but democracy at large," the bench said dealing with the Centre's argument that since the petitioner did not disclose in his plea the representation by Bharatiya Janata Party members of Legislative Assembly to the Governor seeking division of votes.
Ordering restoration of his government, the court said Rawat must necessarily obtain a vote of confidence by holding a floor test on April 29. "The present case, which was set into motion with March 18 as day one and saw a proclamation being issued in less than 10 days, brings to the fore a situation where 356 has been used contrary to the law laid down by the apex court.
"The material (considered for the proclamation) has been found wanting and justifies judicial review interfering with the proclamation," the court said.
The court said "however, we must not be understood to have said that a solitary instance would not contribute for imposing 356. The proclamation of March 27 stands quashed."
The bench said status quo ante on the day of proclamation, meaning thereby, restoration of the government led by petitioner (Rawat) will revive.
It turned down an oral plea made by the Centre's counsel for a stay on its judgement to move the Supreme Court against it.
"There is no President's rule now. The government has revived. We had told you to give us time (to write the verdict). But you forced us to pronounce it. We had said we will not allow (ourselves) to be taken for a ride. We have no objection to being overruled. You go to the Supreme Court and get it (judgement) stayed," the court said.
Rejecting the government's arguments against the scope of judicial review of President's decision in the instant case, the bench said "attainment of collateral purpose, though it may appear to be to secure legitimate purpose, is inadmissible".
It said the issue must be seen on a larger canvas as India is a union of states with the Centre and states both soverign in their respective spheres.
"One this is clear that 356 has to be used as a last resort with greatest care," the bench observed. The issue came to the division bench of the court after a single judge ordered a floor test on March 28 following controversy over the passage of Appropriation Bill on March 18 with the BJP and dissident Congress MLAs claiming the money Bill had fallen and the government has lost its majority.
A day before the floor test was to have been held the Centre imposed President's Rule on March 27 citing breakdown of Constitutional machinery as a ground. Harish Rawat approached the division bench challenging the imposition of the President's Rule.
During the last three days of hearing, the court has made several strong observations against the Centre on the issue of imposition of President's Rule in Uttarakhand.
It had said on Monday that the proclamation under Article 356, just a day ahead of the floor test, amounted to cutting at the root of democracy. Subsequently, it had observed at the government was introducing chaos and undermining an elected government.
On Wednesday, it had maintained that the decision to impose President's Rule was subject to judicial review as even the President can go terribly wrong.
Earlier in the day, the high court said it would be a travesty of justice if the Centre recalls its order imposing President's Rule and allows someone else to form a government now, strong words that came after its counsel was unable to give an undertaking till a verdict is given in the present case.
The court also told the Centre that it could allow the ousted Chief Minister Harish Rawat's petition challenging the imposition of President's Rule and ensure that a floor test is held.
"Should we consider their application for stay moved on April 7? It was expected that till the judgement is pronounced, Central government will not recall (Article) 356. If you recall 356 and call someone else to form a government, what else would it be other than travesty of justice," the bench said.
The strong words of the court came after the Centre's counsel said it was not in a position to give an assurance that the government would consider putting on hold the recall of its order imposing President's Rule for a week. It gave the government's counsel some time to take instructions.
The bench observed, "Otherwise you can do this in every state. Impose President's Rule for 10-15 days and then ask someone else to take oath. More than angry, we are pained that you are behaving like this. That the highest authority -- Government of India --behaves like this. How can you think of playing with the court."
"What if we allow the petition? Then things would go back to what it was prior to the President's Rule and the state government will only have to prove majority by way of floor test. Can you take exception to that also?" the bench asked the Centre.
About the Centre's contention that Rawat had not disclosed the representation of BJP MLAs demand for division of votes, the court said, "This is not a case where representation not actually produced as claimed by Respondent one (Centre). But greater care should have been taken (by petitioner).
"The fact remains, the petitioner actually produced it no doubt describing it as a representation given on the evening of March 18. Having regard to the totality of facts, we cannot decline judicial review on this ground of non-production of representation or the proclamation," the bench said.
With regard to use of Article 356 over the years, the bench said, "It is to be remembered that power under 356 came in for considerable misuse over the years. Incidentally, we must note that the party to which petitioner belongs has not covered itself with glory with regard to its actions in first 40 years of Independence which saw nearly 100 dissolutions taking place."
"Courts back then were of the view that they should adopt hands off approach. They took solace in the fact that the Parliament has to finally decide....This policy substantially precluded courts from interfering...," the bench said and added that "undoubtedly under written Constitution.. there is little place for unreviewable powers".
"Article 356 has to be used only as a measure of last resort and only when the government (concerned) cannot be run in accordance with Constitution," it said.
"There must be material. Material must be verified. Any material will not suffice. It has to be relevant material. Satisfaction has to be subjective satisfaction of Cabinet and not the President.
"Material considered for imposing Article 356 cannot be irrelevant or extraneous. It cannot be malafide. Actions of public figure at any level must be bonafide. Therefore, action under 356 is liable to be visited with invalidation if done with malafide.