Uttarakhand crisis: Every act of public functionary must be bona fide, not mala fide, says High Court

Every act of a public functionary at any level must be bona fide even in an action like imposing President's rule in a state, which is liable to be struck down if it is done with mala fide, the Uttarakhand High Court has held.

The court noted that there is a modicum of power with the President having regard to Article 74 to always ask the Cabinet to reconsider any advice but if the same advice is re-tendered after re-consideration, it binds the President.

"The material (on which the decision is taken) cannot be irrelevant or extraneous. It cannot be mala fide. Every act of a public functionary at any level must be bona fide. It is, therefore, that, even in an action under Article 356, the action is liable to be visited with invalidation if it is done mala fide," the bench of Chief Justice K M Joseph and Justice V K Bist has said.

The observations are part of the 99-page judgement the bench orally dictated in the open court on April 21 which was made available today with the signatures of the judges.

The judgement quashed the imposition of President's rule imposed in the state on March 27 and revived the government of Harish Rawat who had challenged the President's notification under Article 356. The Supreme Court had on Friday stayed the judgement till April 27 on the ground that the signed verdict was not available and asked it to be submitted by tomorrow.

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, the court said citing the apex court verdict in the S R Bommai.

"Our understanding is that the power under Article 356 is, indeed, extra-ordinary. It is to be used as a matter of last resort. It can be used only when the Government cannot be run in accordance with the Constitution. It points to a certain level, where it is quite impossible to run the Government in the manner provided in the Constitution. There must be material. The material must be verified. It is not any material that will suffice," the court said.

It said the material must be relevant for the formation of the satisfaction.

"The satisfaction, undoubtedly, is subjective satisfaction. It is the subjective satisfaction not of the President, but of the Cabinet for all legal purposes," it said.

"When mala fide is attributed to the Government, the mala fide is malice in law or legal malice. Attainment of a collateral purpose, though it may appear to be intended to secure a legitimate purpose, is impermissible," it said.

Conceding that there are situations in which Article 356 can be invoked, the court said it cannot 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," the bench said.

On the argument that the Governor in this case has not recommended Article 356, the division bench held that the satisfaction under this provision is to be entered by the Central Government. The Felicity of expression of the Governor, or rather, lack of it cannot possibly determine the boundaries of jurisdiction of the competent authority, the court said.

"We only say that, in a given case, if the other elements are present, which warrant in the imposition of President's rule, the merely lack of phraseology used by the Governor, by itself, would not be decisive," it said.

Questioning different aspects in building the ground for imposing President's rule, the judgement noted the mention in Governor's report of removal of the advocate general, who is related to one of the dissident Congress MLAs and that Rawat had hit at the rebel Congress men and dismissed a minister.

"We are at a total loss, to say the least, to understand how the removal of the advocate general is a material, which is relevant for deciding the issue of imposition of President's rule under Article 356. The aspect of removal of the ministers who can continue on the confidence on the Chief Minister, is also baffling, to say the least. We do not see what is the nexus it bears to the satisfaction that the government cannot be carried out in accordance with Constitution," the judgement said.

On the matter relating to Speaker disqualifying nine dissident Congress MLAs, the bench said the Government of India could not have taken the disqualification as a relevant material for the decision to impose President's rule.

"In the first place, when the cabinet met on the night of 26/03/2016, the Speaker had not yet taken the decision. Assuming for a moment that they could divine what was coming in the way of nine dissident MLAs, we would think that it is completely irrelevant for the Central Government to wait in this case for deciding to impose the President's rule. 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 look out of the Central Government. The government, when it takes action under Article 356 is expected to be completely non-partisan. It cannot have any bias. Therefore, we would think that the fate of the nine dissident MLAs was an entirely irrelevant and extraneous matter. This is for the reason that it has got nothing to do with the petitioner (Rawat) as such," the bench said.

The court also came down heavily on the allegation by the Centre's counsel regarding a dissident BJP MLA was a "mistake of fact".

"This means that, what was hotly contested before us by the Attorney General on the basis of there being laxity on the part of the Speaker reflecting double standards and also opening the doors to action under Article 356, was without any basis at all. There was, in other words, no material. We are, in fact, shocked that the decision taken at the highest level and the matter, which apparently, influenced the decision, and which engaged the counsel and the court in this litigation, has been done without due care and without any basis. It was totally without any factual foundation. It was in fact a blatant falsehood," it said.