JUDICIAL REVIEW OF ORDERS BY PRESIDENT AND GOVERNOR- PART I
Judicial Review of Orders by the President and Governor – Part I
Introduction
The President of India and the Governors of the States hold significant constitutional positions as the nominal heads of the Union and State governments, respectively. Their roles, powers, and functions are defined and regulated by the Constitution of India. While they mostly act on the aid and advice of the Council of Ministers, the Constitution grants them certain powers that are exercised at their discretion.
Since these constitutional functionaries wield powers that can affect governance and fundamental rights, their decisions and orders are subject to judicial review — the power of courts to examine the constitutionality and legality of executive actions.
Constitutional Position of the President and Governor
The President is the head of state at the Union level (Article 52).
The Governor is the head of a state (Article 153).
Both act primarily on the advice of their respective councils of ministers (Article 74(1) and Article 163(1)).
However, certain powers are vested in them to be exercised at their discretion.
Nature of Orders Passed by the President and Governors
The President and Governors pass various orders under the Constitution, including but not limited to:
Proclamations of emergency or President’s Rule (Article 356)
Granting pardons and reprieves (Article 72 for President, Article 161 for Governor)
Assenting to or reserving bills passed by the legislature
Appointment and dismissal of ministers and other constitutional posts
Dissolution of legislative assemblies
These orders can significantly impact governance, individual rights, and the federal structure of the country.
Judicial Review: Meaning and Importance
Judicial review is the power of the judiciary to review the actions, orders, or laws made by the executive or legislature to ensure they comply with the Constitution.
It acts as a check and balance on arbitrary use of power.
Protects the fundamental rights of citizens.
Ensures the separation of powers among different branches of government.
Maintains the constitutional supremacy.
In the case of the President and Governors, judicial review ensures their powers are exercised within constitutional bounds and not abused.
Grounds for Judicial Review of Orders by President and Governors
The courts may examine the following aspects when reviewing orders:
Constitutional Validity: Whether the order is within the scope of powers granted by the Constitution.
Reasonableness: Whether the order is reasonable or arbitrary.
Malafide Exercise of Power: Whether the power was exercised with an ulterior motive or bad faith.
Violation of Fundamental Rights: Whether the order infringes on fundamental rights.
Procedural Impropriety: Whether the necessary procedures or guidelines were followed.
Material on which Satisfaction is Based: Especially relevant in cases like proclamation of President’s Rule — the court may examine the material basis for satisfaction.
Judicial Review of Proclamations Under Article 356 (President’s Rule)
One of the most scrutinized orders is the President’s Rule under Article 356, which allows the President to assume direct control of a State if its constitutional machinery fails.
The Supreme Court, in S. R. Bommai v. Union of India (1994), held that the President’s satisfaction is subject to judicial review.
The court can examine whether the grounds for imposing President’s Rule are valid.
Malafide exercise or lack of relevant material can render the proclamation unconstitutional.
Judicial Review of Clemency Powers
The President’s powers of pardon, reprieve, or commutation (Article 72) and the Governor’s powers (Article 161) are generally not open to judicial review.
However, if the clemency power is exercised in violation of constitutional provisions or with malafide intent, courts may intervene (see M. P. Sharma v. Satish Chandra).
Conclusion
The judicial review of orders passed by the President and Governors is an essential feature of India’s constitutional democracy. While these constitutional heads enjoy certain discretionary powers, the courts ensure such powers are not exercised arbitrarily or beyond the constitutional mandate.
The judiciary plays a vital role in upholding constitutional supremacy and protecting citizens’ rights by checking excesses in executive actions.
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