The Supreme Court should uphold the Presidential proclamation as it satisfies judicial standards established by previous constitution benches and avoid confusing political with legal accountability

On February 14, 2014, Arvind Kejriwal resigned as Chief Minister of Delhi. Simultaneously, the outgoing Cabinet recommended to the Lieutenant Governor of Delhi that Delhi Assembly be dissolved. Mr. Kejriwal’s resignation was accepted and the President issued a proclamation under Article 239 AB of the Constitution placing the Assembly in ‘suspended animation.’ Not surprisingly, the Aam Aadmi Party (AAP) challenged part of the Presidential Proclamation before the Supreme Court as being unconstitutional and motivated by mala fides. On March 7 and March 31, a division bench of the Court, hearing this petition, passed interim orders calling on the Bharatiya Janata Party (BJP) and the Congress to express their views to the petition. Subsequently on April 17, the Court reiterated the established legal position that any order imposing President’s Rule may be varied or revoked subsequent to its proclamation, thereby diffusing the prospect of a loud and raucous political contest before the apex court. Here we argue that the Supreme Court should uphold the Presidential proclamation as it satisfies judicial standards established by previous constitution benches and avoid confusing political with legal accountability.

Article 239 AB is a special provision that applies to the National Capital Territory of Delhi (NCT), and is analogous to Article 356, which applies generally to all States. Article 356 of the Constitution allows the President to assume the executive powers of a State and transfer the Assembly’s legislative powers to Parliament where the State government cannot be ‘carried on in accordance with the provisions of the Constitution.’ This power to impose ‘President’s Rule’ has mostly been exercised in two limited circumstances — where there is no clear majority in the Assembly, and where a State government acts contrary to constitutional provisions. We are primarily concerned here with the former type of cases as the minority AAP government has resigned and no other party has unambiguous majority support in the Assembly.

Arguments in the petition

The first argument in this petition is that the President has acted improperly by not dissolving the Assembly and placing it under ‘suspended animation.’ The role of the President (and the Governor) where there is no clear majority party in the Assembly has been clearly set out in various decisions of the court. In Rameshwar Prasad v.Union of India (2006) the Court held that this discretionary executive power under Article 356 should be exercised to sustain the political democratic process and the dissolution of a legislature is a last resort. The Supreme Court has emphasised that the Governor and President should allow the political process in the legislature to play out and not pick winners or losers among competing political parties. The tendency of political forces to find their equilibrium should not be generally interfered with, and the ability of a political party to muster a majority and form the government should be tested on the floor of the House.

The petitioner’s second argument is that the President’s proclamation in this case is motivated by mala fides. The scope of judicial review of orders imposing President’s Rule has been considered by successive benches of the Supreme Court and S.R. Bommai v. Union of India clarified that such review would be limited and only in order to ascertain whether a) it was on the basis of any material at all; b) if such material was irrelevant; and c) if the exercise of the power under Article 356 was tainted by mala fides, or was based on extraneous considerations. When adjudicating the imputation of mala fides on a high constitutional functionary like the President, the Court must remember that it cannot be alleged on personal grounds, and must exhibit attributes of irrationality or a clear fraud on the power vested (A.K. Kaul v. Union of India, 1995). Further, a court cannot examine the truth, accuracy or adequacy of the material based on which the decision was made. While mala fides may be easy to allege, they are notoriously difficult to prove in a court of law.

Why the petitioner is wrong

In order to sustain this argument the petitioner will need to show actual mala fides in fact, or prove that there is no constitutionally valid justification for the President’s action. In other words, the petitioner needs to show that the President’s decision is bad in law and motivated by mala fides, as the only manner in which political realignment to secure a majority in the Assembly could occur is through a violation of the Tenth Schedule of the Constitution. The petition supposes that defections and horse-trading are the only possible ways by which a majority may be obtained. This argument is mistaken in fact and law.

First, political realignment in May 2014 after the general election may be possible within the restrictions imposed by the Tenth Schedule. The BJP has, through a political strategy with the moniker ‘Operation Kamala’ secured and consolidated majorities in Karnataka and Gujarat by having opposition MLAs resign their legislative assembly seats and contest the by-elections on a BJP ticket. While the political legitimacy of ‘Operation Kamala’ is suspect, there is no doubt that it does not violate the Tenth Schedule. This may well explain the BJP’s reticence to spell out its position. The question of attributing mala fides will clearly turn upon facts, and much hinges on the strategically inscrutable BJP clearly articulating its stance on the possibility of forming a government in the NCT. Hence, the Lieutenant Governor’s decision to place the Assembly under suspended animation may well be justified by constitutionally valid options.

Second, a seven-judge bench of the Court has clarified that the Speaker’s quasi-judicial power under the Tenth Schedule to rule on defections cannot be appropriated by the Governor of a State unto herself to recommend dissolution of a State Assembly of that basis. ). Hence, the petitioner’s demand that the Lieutenant Governor recommend the dissolution of the Assembly is without constitutional justification.

The Constitution of India institutionalises principles of legal and political accountability through the court and the democratic political process respectively. The review of proclamations of President’s Rule stands at the cusp of these principles and is an occasion for rancorous partisan political posturing. The Court has historically done well to avoid getting too involved in these partisan contests. The Court’s interim orders seeking the views of political parties will help establish relevant facts and narrowly confine the scope of judicial enquiry. The Court has the opportunity to draw a line between legal and political accountability and allow the political process in the Assembly to proceed unhindered by legal pronouncements. Moreover, this will ensure that the corrosive political culture of attributing mala fides in public life with little or no evidence finds no place in a court of law.

(Sudhir Krishnaswamy is a Professor of Law at the Azim Premji University and Gaurav Mukherjee is a Graduate Fellow at the School of Policy and Governance, Azim Premji University.)

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