JUDICIAL REVIEW OF ORDERS BY THE PRESIDENT AND GOVERNOR- PART II
Judicial Review of Orders by the President and Governor – Part II
1. Introduction
The President of India and the Governors of States hold key constitutional positions. Their orders and decisions can have profound effects on governance. However, these offices are not above the law or the Constitution, and their decisions are subject to judicial review by the courts.
Judicial review ensures that the exercise of power by these authorities is lawful, reasonable, and in accordance with the Constitution.
2. Scope of Judicial Review
The President and Governors act mostly on the aid and advice of the Council of Ministers (except in rare discretionary situations).
Their orders, proclamations, or decisions can be challenged in courts if they:
Violate the Constitution,
Are arbitrary, mala fide, or illegal,
Violate fundamental rights or procedural fairness, or
Are beyond their constitutional powers (ultra vires).
However, courts generally exercise restraint respecting the constitutional position of these offices.
3. Constitutional Provisions
Article 72 (President’s power to grant pardons, etc.)
Article 163 (Governor’s role and discretion)
Article 164(1) (Governor’s aid and advice of the Council of Ministers)
Article 200 (Governor’s power to assent, withhold assent, or reserve bills)
Article 356 (President’s rule in states, based on Governor’s report)
4. Judicial Review of President’s Orders
A. Pardoning Powers (Article 72)
The President has power to grant pardons, reprieves, respites, or remissions of punishment.
This power is subject to judicial review to ensure it is not exercised arbitrarily or mala fide.
Landmark Case:
Moti Ram v. State of Madhya Pradesh (1960)
The Supreme Court held that the President’s power of pardon is subject to judicial review if exercised arbitrarily or mala fide.
Courts can examine the reasons and legality behind granting or refusing pardon.
B. Presidential Proclamations under Article 356
Proclamation of President’s Rule in states is reviewable by courts to check if:
There was material to justify the proclamation,
The proclamation was made in good faith.
Landmark Cases:
S.R. Bommai v. Union of India (1994)
Supreme Court held that the proclamation under Article 356 is subject to judicial review on grounds of mala fide, lack of material, or arbitrariness.
Courts can examine Governor’s report and other materials before approval.
5. Judicial Review of Governor’s Orders
Governors act both as the constitutional head of a state and as an agent of the Union Government in some respects.
A. Discretionary Powers of Governor
Governor usually acts on advice but has limited discretionary powers (e.g., in appointing Chief Minister, recommending President’s Rule).
B. Assent to Bills
Governor can withhold assent or reserve bills for President’s consideration.
Judicial review applies if the Governor’s actions violate constitutional principles or are arbitrary.
6. Key Case Laws on Judicial Review of Governor’s Actions
A. Shamsher Singh v. State of Punjab (1974)
The Court held that the Governor must act on the aid and advice of the Council of Ministers.
Discretion must be exercised judicially and not arbitrarily.
B. S.R. Bommai v. Union of India (1994)
Governor’s report recommending President’s Rule is subject to judicial review.
Governor cannot act mala fide or on extraneous considerations.
C. B.P. Singhal v. Union of India (2010)
Though primarily about Governors’ removal, the Court emphasized the Governor’s role as a constitutional head who must act impartially.
Judicial review can ensure Governor’s actions are not politically motivated.
7. Limits on Judicial Review
Courts do not interfere with President’s or Governor’s actions when:
These are purely political questions or discretionary acts not justiciable.
The Constitution grants absolute powers (e.g., dissolution of Lok Sabha).
Courts respect the separation of powers and the special constitutional status of these offices.
8. Summary Table
| Power/Order | Judicial Review Allowed? | Grounds for Review | Important Cases |
|---|---|---|---|
| President’s Pardoning Power | Yes | Arbitrary, mala fide, violation of law | Moti Ram v. State of M.P. (1960) |
| President’s Rule (Article 356) | Yes | Mala fide, no material, arbitrariness | S.R. Bommai (1994) |
| Governor’s Assent to Bills | Yes | Arbitrary, mala fide | Shamsher Singh (1974) |
| Governor’s Recommendation for President’s Rule | Yes | Mala fide, extraneous considerations | S.R. Bommai (1994), B.P. Singhal (2010) |
| Discretionary Powers of Governor | Limited | Must be judicially exercised, not arbitrary | Shamsher Singh (1974) |
9. Conclusion
The orders of the President and Governor are subject to judicial review to prevent misuse or abuse of power.
The scope of review depends on the nature of the power exercised and the constitutional context.
Judicial review acts as a check and balance on the executive, ensuring that constitutional mandates are upheld, and democratic governance is maintained.
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