Every act of public functionary must be bona fide, not mala

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.

Undoubtedly, under the written Constitution, in which the

preamble proclaims India to be a democratic soverign 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.

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.
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.
(REOPENS LGD 35)
On the controversial passage of the Appropriation Bill, the court said it was "troubled" by the "conduct" of Rawat in making the statement that demand of division was made after passage whereas the assembly proceedings showed the contrary.
"Proceedings of the Assembly have been produced before this court along with the rejoinder affidavit. We cannot help referring to it when it says that the Speaker says that Ajay Bhatt, the Leader of the Opposition, made a demand in writing for division.

"Thereafter, what is stated in Hindi is that the Bill was passed. We do notice that there is a contradiction in the pleadings of the petitioner and the document produced.
"According to the petitioner, as we have already noticed, after the passing of the Bill, the demand was made. We are troubled by this conduct of the petitioner in making this statement," the bench said.
The court said that though under the Rules of Business regarding carrying out of the assembly proceedings, if a demand for division is sought the Speaker has to grant it and if he feels it is not warranted then he must hold a vote by show of hands.

However, it said that the rules also provide that it is open to the Speaker to suspend any Rule and thus, the petitioner (Rawat) has a case that "when action is taken in violation of any other rule, it involves the presumption that the said rule was relaxed".
"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(3) provides that it is open to the Speaker to suspend any Rule. There is a case for the petitioner that, when the power is exercised under Rule 185(3), there is no need for any express order as such and when action is taken as is taken in violation of any other rule, it involves the presumption that the said rule was relaxed," the bench said..
The Centre during the arguments had contended that when demand for division of votes was sought by a majority of 35 members (26 of BJP and nine of Congress), it ought to have been granted by the Speaker.

The court, in its judgement, also noted that on March 18 there was a controversy regarding the appropriation bill as 26 BJP MLAs had approached the Governor for division of votes.
"It is ripe now for us to point out that, when the Governor was approached in this matter, in our humble view, it did not lay within the four-walls of the Governor's authority to direct the Speaker, who is himself a high constitutional authority, to act in a particular manner.
"We have also noticed in this regard the nature of the rules that the Speaker has free play in his joints. It is not open to the Governor to control the exercise of discretion vested with another constitutional authority, namely, the Speaker, which, in terms of the rules, is power given to the Speaker," the court has also said in its verdict.