Case BriefsHigh Courts

Madras High Court: A Division Bench of N. Kirubakaran and B. Pugalendhi, JJ., said that a Constitutional Authority has to take a decision, if a Bill is presented for assent, as soon as possible. It was also stated that the protection under Article 361 of the Constitution has been given by the Framers of the Constitution, with hope and trust in the Appointees that they would perform their constitutional functioning promptly.

The High Court was hearing a petition seeking direction to the Governor to take a decision with regard to “The Tamil Nadu Admission to Under Graduate Courses in Medicines, Dentistry, Indian Medicine and Homeopathy on preferential basis to the Students of the Government Schools Bill, 2020” pending before him for assent. The Advocate General submitted before to the Court that the Constitutional Authority is in need of three to four weeks time to take a decision with regard to the Bill. It was noted that the said Bill was passed unanimously on 15-09-2020 and the same was sent for assent to the Constitutional Authority on the very same day, yet the same is pending for last two months.

It was noted by the Court that since the introduction of NEET Examination in the year 2017, so far only 14 students from the Government Schools got admission to the Medical Courses. On High Court’s posing a question with regard to the non-taking of a decision by the Constitutional Authority, the Advocate General referred Article 361(“Protection of President and Governors and Rajpramukhs“) of the Constitution of India and submitted that in the said Article, protection has been given that the Governor who is not answerable to any Court for exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties.

The Court was of the view that no doubt Article 361 gives protection to the Constitutional Authority. However, in the given circumstances, a decision has been taken, taking into consideration the future of the Government School students, who are invariably from marginalized and poor sections, as soon as possible as provided under Article 200 of the Constitution of India.

Article 200 of the Constitution of India :

200. Assent to Bills.—When a Bill has been passed by the Legislative Assembly of a State or, in the case of a State having a Legislative Council, has been passed by both Houses of the Legislature of the State, it shall be presented to the Governor and the Governor shall declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President:

Provided that the Governor may, as soon as possible after the presentation to him of the Bill for assent, return the Bill if it is not a Money Bill together with a message requesting that the House or Houses will reconsider the Bill or any specified provisions thereof and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message and, when a Bill is so returned, the House or Houses shall reconsider the Bill accordingly, and if the Bill is passed again by the House or Houses with or without amendment and presented to the Governor for assent, the Governor shall not withhold assent therefrom:

Provided further that the Governor shall not assent to, but shall reserve for the consideration of the President, any Bill which in the opinion of the Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that Court is by this Constitution designed to fill.

The High Court stated that, “A perusal of Article 200 – ‘Assent to Bills’, would reveal that the Constitutional Authority has to take a decision, if a Bill is presented for assent, as soon as possible.

It was also said that the protection under Article 361 “has been given by the Framers of the Constitution, with hope and trust in the Appointees that they would perform their constitutional functioning promptly and there would not be any situation, wherein they would be called for to give an explanation or they will be questioned by the Court of law.

In view of the above, the High Court concluded that, when the situation changes and present kind of situation arises, a different approach has to be taken by the Courts in the interest of the public. It is well-settled law that “Extraordinary situation requires extraordinary remedies”. When public interest requires, the High Court has to do its constitutional duties and to address the situation. However, the Court was of the opinion that such a situation would not arise to pass any order in the present matter. [S. Ramakrishnan v. State of T.N., 2020 SCC OnLine Mad 5207, decided on 29-10-2020]

Case BriefsHigh Courts

“Armed forces are apolitical and neutral stakeholder in the modern democracy. Defence Forces belong to everyone and are not an appendage of any political outfit.”

Madhya Pradesh High Court: The Division Bench of S.K. Seth, CJ. and Vijay Kumar Shukla, J. was hearing a public interest litigation (PIL) seeking quashing of conditions in the Model Code of Conduct (MCC), imposed by the Election Commission of India (ECI) on political parties, restricting them from using pictures of defence and military personnel in any advertisement, poster or any other campaign-related activities.

Petitioner, who claimed to be a member of the Aam Nagrik Mitra Foundation and Organization stated that he had filed the present PIL on his own, and not at the instance of any political outfit. His contention was that the ECI had no authority to impose restriction in the MCC on the political parties, while exercising its power of the superintendence and control of elections. It was averred that the condition contained in the MCC 2019 issued by the ECI for the recent Legislative Assembly Election and Lok Sabha Election 2019, was bad in law as “no harm is done if political parties during the political campaign, are allowed to discuss in the public, the military operation and act of soldiers.” Thus, the impugned condition was liable to be struck down as amounted to violation of freedom of speech and expression.

The Court in its order held that the ECI is a Constitutional Authority and Article 324 of the Constitution of India casts on it, a duty to ensure free and fair election to the legislative body at the Central and State level. Though the MCC has no statutory backing, it is a consensus-driven code arrived at, after consultation with all political parties to ensure free and fair elections, and to provide a level playing field for the candidates in the fray, which is the bedrock of democracy. It is a set of norms which has judicial recognition.

It was observed that army or defence personnel in service are not vote catching issues and therefore, it is vital to keep the army apolitical. “The Indian army is not a politicized force nor does it play any role in the politics and administration of the country. The democracy for all its wart and shortcomings is well entrenched in India, and executive control over the Olive Greens is firmly established. It is a reasonable restriction and does not violate the right of freedom of speech and expression.”

In view of the above, the petition was dismissed summarily for being devoid of any substance and merit.[Dr Mumtaj Ahmed Khan v. Election Commission of India, 2019 SCC OnLine MP 771, Order dated 01-05-2019]

Case BriefsSupreme Court

Supreme Court: In the writ petition relating to appointment of constitutional authorities where the President of India was made the first respondent, the Court said that despite the decision of the constitutional bench in Rameshwar Prasad v. Union of India, (2006) 2 SCC 1 where it was clearly held that the President of India cannot be arrayed as a party to the litigation, the petitioners being emboldened by some kind of imaginative faculty have described the President as a Respondent.

The petitioners had sought issue of a quo warranto declaring that one of the respondents is not eligible to hold the constitutional post or alternatively issue a writ of mandamus not to continue on the post in question, the Court said that the writ petition preferred under Article 32 of the Constitution is absolutely the product of disgruntled minds obsessed with their own litigation. Their individual grievances do not confer any right on them to file a writ petition of the present nature. It is an assault on the Constitution, more so, when the high constitutional authorities are involved. No litigant can be permitted to browbeat or malign the system. This is essential for maintaining the integrity of the institution and the public confidence in the delivery of justice. It is sheer malice. The question of issuance of any kind of writ does not arise.

The bench of Dipak Misra and R. Banumathi, JJ further directed that in future the petitioners shall be debarred from filing any kind of public interest litigation in any constitutional court and none of their petition under Article 226 or Article 32 of the Constitution shall be entertained unless they are personally grieved. [Anindita v. Pranab Kumar Mukherjee, 2017 SCC OnLine SC 71, decided on 30.01.2017]