Judicial Review of Orders by President and Governor

Judicial review is one of the most important tools in India's constitutional framework. This article explains how Indian courts examine the orders and decisions of the President and the Governors: appointing Chief Ministers, dissolving Assemblies and dismissing ministries, issuing ordinances, granting pardons and imposing President's rule. Exam answers on this topic depend on leading judgments, so pay close attention to each case and what it decided.

Introduction

Judicial review means the authority of a country's courts to examine the actions of the legislative, executive and administrative branches of the government, to check that they comply with the Constitution. If an action is found to be inconsistent with the Constitution, it is declared unconstitutional and therefore null and void, which means it is treated as having no legal effect at all.

This concept of judicial review is believed to have originated with John Marshall, the fourth Chief Justice of the United States. In Marbury v. Madison (1803), he asserted that the U.S. Supreme Court had the power to invalidate laws passed by Congress.

In India, the Constitution grants certain discretionary powers to the Governors. These are powers that a Governor may exercise using his own judgment. However, Governors have sometimes not used these powers judiciously, that is, wisely, fairly and for a proper purpose. In such cases, the judiciary plays a crucial role. It often lays down valuable guidelines to ensure that these powers are exercised appropriately.

Constitutional Provisions for Judicial Review of Orders by President and Governor

To ensure the legality of administrative actions and statutes, the Indian Constitution gives powers to the higher courts, including the Supreme Court. One of the main objectives of judicial review is to protect public rights and to enforce fundamental rights.

The main constitutional provisions to remember are:

• Article 246 and Schedule 7: If disputes arise between the State and the Centre, these provisions define the areas of authority of both. In other words, they tell us which subjects belong to the Centre and which belong to the State.
• Article 13: This Article establishes the principle of judicial review. It allows the judiciary to invalidate any action that conflicts with the Constitution.
• Articles 32 and 226: These Articles specifically provide the mechanisms for enforcing the fundamental rights set out in Part III of the Constitution. Article 32 is the remedy before the Supreme Court, and Article 226 is the remedy before the High Courts.

The guarantee of fundamental rights would be meaningless if the Court had no power to protect them from arbitrary violations. An arbitrary action is one taken without reason or fair basis. This is where the power of judicial review becomes crucial.

Review of Governor's Rule

Courts have examined many different kinds of decisions taken by Governors. For easy revision, they are grouped below by subject.

Limited Nature of the Governor's Discretion

In Nabam Rebia and Bamang Felix v. Deputy Speaker (2016), the Supreme Court observed that the discretionary power of the Governor is very limited and can be subject to judicial review.

Even in matters of discretion, a seven-judge Bench of the Apex Court in Samsher Singh v. State of Punjab (1974) held that the Governor must act "in harmony with his Council of Ministers." The Court explained that the Constitution does not aim at providing a parallel administration within the State by allowing the Governor to go against the advice of the Council of Ministers. So the Constitution does not normally expect the Governor to use his power under Article 161 against the explicit recommendation of the Council of Ministers.

Appointment of the Chief Minister

The Governor's discretion in appointing Chief Ministers has been challenged several times.

• In Mahabir Prasad v. Prafulla Chandra (1969), the court ruled that the Governor's power to appoint the Chief Minister is absolute and cannot be questioned, because it falls under his sole discretion.
• Similarly, in Pratap Singh Raojirao v. Governor of Goa (1999), the court affirmed that the Governor acts on his own discretion when appointing the Chief Minister. It also held that he is protected by the immunity given under Article 361 of the Constitution. Immunity here means protection from being made answerable before a court.

Dissolution of the Assembly

When it comes to dissolving Assemblies, the courts have held that such actions are subject to judicial review.

• In S.R. Bommai v. Union of India (1994), the court stated that if the dissolution of the Assembly is found to be malafide, the court can intervene. Malafide means done in bad faith or for a dishonest or improper purpose. The court can even reinstate (restore) the Assembly before new elections are held.
• In Rameshwar Prasad v. Union of India (2006), the court described the Governor's action as "drastic and extreme." It emphasised that the court "could not be a silent spectator to such subversion of the Constitution."

Dismissal of a Ministry

On the question of dismissing a ministry, the court in Jagdambika Pal v. State of U.P. (1998) ruled that a special session of the Legislative Assembly should be convened for a composite floor test between the competing parties. A floor test is a vote held on the floor of the House to find out who actually has majority support. The purpose in this case was to decide which leader, Sh. Kalyan Singh or Sh. Jagdambika Pal, had majority support in the Assembly.

This decision emphasised that the Governor should use his discretion to dismiss the ministry only if the Chief Minister fails to prove his majority in the House.

In Mahabir Prasad Sharma v. Prafulla Chandra Ghose (1969), the Calcutta High Court ruled that if the Council of Ministers refuses to leave office after losing a confidence motion, the Governor can withdraw his approval.

The Court also held that the Governor's right to withdraw his approval for a minister to hold office is absolute and cannot be questioned in a court of law.

Summoning and Proroguing the State Assembly

To summon the Assembly means to call it to meet. To prorogue it means to end its current session. On this subject, the court ruled in K.A. Mathialagan v. The Governor (1973) that the Governor's decision to prorogue the Assembly under Article 174 is not a discretionary function and must include ministerial advice.

Pardoning Power of the Governor

The Governor's pardoning powers are set out in Article 161 of the Constitution. These powers are not absolute and are subject to the advice of the Council of Ministers.

The Rule of Law means that everyone, including the highest constitutional authorities, must act according to law and not according to personal or political preference.

Review of the President's Rule

The Court periodically reviews the imposition of President's rule, especially when it is challenged, and lays down guidelines for its use. The courts have also examined other powers of the President and the Governor, such as the power to issue ordinances and the power to grant pardons. These are discussed below.

(a) Ordinances

An ordinance is a temporary law issued by the President (under Article 123) or by a Governor (under Article 213).

In T. Venkata Reddy v. State of A.P. (1985), the Constitution Bench ruled that an ordinance cannot be invalidated only on the ground of non-application of mind. This phrase means that the authority did not properly think about the matter before acting. The Court explained that the power to issue an ordinance is a legislative function, not an executive one.

The Supreme Court emphasised that the satisfaction of the President under Article 123 and of the Governor under Article 213 is subject to judicial review. (This was held later, in a 2017 decision of a seven-judge Bench, and not in T. Venkata Reddy.) In that decision, Justice D.Y. Chandrachud noted that the apex court would examine three questions:

• whether the President's or Governor's decision to promulgate (issue) an ordinance was based on relevant material;
• whether it amounted to a "fraud on power," that is, using a power for a purpose other than the one for which it was given; and
• whether it was motivated by improper intentions.

Former Chief Justice Thakur also stated that the "re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes." Re-promulgation means issuing the same ordinance again and again instead of having the legislature pass a law.

In Gurudevdatta VKSSS Maryadit v. State of Maharashtra (2001), the Supreme Court held that as long as an ordinance does not violate constitutional safeguards, its validity cannot be questioned, and neither can the motives behind its promulgation. The courts cannot interfere on the ground of perceived legislative malice, meaning a bad motive on the part of the law-maker in passing a statute.

Interference by the courts is therefore limited. It mainly focuses on whether the action is constitutional and does not go beyond that. Courts do not usually have jurisdiction over questions of legislative malice.

In the landmark case of D.C. Wadhwa & others v. State of Bihar (1986), the Supreme Court made several key observations:

1. The power to promulgate an ordinance is an emergency measure. It is meant for use when immediate action is necessary and the legislature is not in session.
2. A constitutional authority cannot do indirectly what it is prohibited from doing directly.
3. The Court cannot question the Governor's satisfaction about the necessity of an ordinance. However, it can decide whether the Governor exceeded constitutional limits.
4. Generally, the motive behind issuing an ordinance cannot be challenged, but the Court cannot allow ordinances to be misused for political purposes.

(b) Pardoning power

The President's pardoning power is found in Article 72. Courts have dealt with it, and with the Governor's similar power, in the following cases.

• In Maru Ram v. Union of India (1980), the court suggested that guidelines should be framed for exercising the power under Article 72, so that the President is not accused of arbitrary decision-making.
• In Kehar Singh v. Union of India (1988), the court noted that when all judicial remedies have been exhausted, a person may seek mercy from the President on moral and humanitarian grounds. The Court held that the President may examine the evidence afresh and reach a different view, even though the courts have already decided the case. The question of how far the President's power extends can be examined by the courts, but the President's order cannot be reviewed on its merits except within the strict limits laid down in Maru Ram.
• In Satpal v. State of Haryana (2000), the Supreme Court held that the Governor's pardoning power, being the power of a constitutional authority, can be subject to judicial review in certain circumstances:
  1. if the Governor acted without the advice of the government;
  2. if the Governor exceeded his jurisdiction;
  3. if the decision was made without proper consideration;
  4. if the decision was influenced by improper factors.

In Satpal, the Governor had granted a pardon without properly considering the situation and without being fully informed of all the relevant facts. As a result, the Supreme Court annulled (cancelled) the clemency order. Clemency means mercy shown to a convicted person, for example by pardoning him or reducing his punishment.

(c) Imposition of President's rule

President's rule is imposed by a proclamation (a formal public order) under Article 356. As discussed by Kameshwari G. in the book "A Boom or a Bane to Federalism," the Supreme Court and the High Courts can invalidate such a proclamation if it is found to have been made in bad faith or on irrelevant or improper grounds.

The earlier cases, however, took a narrower view of the courts' role:

• In K.K. Aboo v. Union of India (1965), no party had won a working majority in the newly elected Kerala Legislative Assembly. After the Governor consulted the party leaders and sent his report, a fresh proclamation under Article 356 imposed President's rule and dissolved the new Assembly before it had ever met. The Kerala High Court dismissed the petition at the threshold (in limine), holding that no prima facie case was made out.
• Similarly, in Rao Birinder Singh v. Union of India (1968), the Punjab & Haryana High Court made three points:
  1. The court cannot question the validity, legality or appropriateness of the proclamation. The President issued it under Article 356(1) as a constitutional power, which is not an executive action and is protected from judicial scrutiny by Article 361(1).
  2. The Constitution specifically gives the power to review the proclamation to Parliament, which excludes the jurisdiction of the courts.
  3. The Governor's conclusions in his report to the President cannot be challenged in court, because they are matters for the President and Parliament to consider.

Two cases differ on whether the State Legislature can be dissolved before Parliament approves the proclamation:

Conclusion

The discussion above shows that the President of India and the Governors of the States have significant discretionary powers under the Constitution of India. These powers are meant to be exercised in good faith. Over time, however, various governments have misused them for political ends. The courts have therefore set judicial precedents in the judgments discussed above, limiting these powers and making them subject to judicial review. The aim is to prevent abuse of the law and to protect the fundamental rights of Indian citizens.

In short, the main lessons from the cases are:

• The Governor's discretion is limited and can be reviewed by the courts (Nabam Rebia; Samsher Singh).
• A dissolution made in bad faith can be struck down, and the Assembly can be restored (S.R. Bommai; Rameshwar Prasad).
• A disputed majority should be tested on the floor of the House (Jagdambika Pal).
• Ordinances and pardons are open to limited judicial review on recognised grounds (T. Venkata Reddy; D.C. Wadhwa; Epuru Sudhakar; Satpal).
• A proclamation of President's rule not approved by Parliament within two months lapses (S.R. Bommai).

If these powers are used in good faith for the welfare of the people, the courts may not overturn the decisions. However, the judiciary is often described as the "Watchdog" of the Constitution, and it therefore has an inherent duty to monitor all policies and ensure that they serve the public interest.