Introduction to Judicial Review of Orders Passed by the President and the Governor
The power exercised by constitutional authorities such as the President of India and the Governors of States occupies a unique position within the Indian constitutional framework. While these authorities stand at the apex of the executive hierarchy, the Constitution does not envisage them as holders of unfettered or absolute power. Their actions, though clothed with constitutional authority, operate within defined limits. One of the most significant mechanisms for enforcing these limits is the doctrine of judicial review.
At first glance, constitutional provisions such as Article 361 appear to shield the President and Governors from judicial scrutiny. However, constitutional interpretation by the Supreme Court over the decades has clarified that although these authorities enjoy personal immunity, the orders and actions taken in their name are not immune from judicial review. This distinction lies at the heart of constitutional accountability.
This article examines, in detail, the scope and limits of judicial review over orders issued by the President and Governors, the constitutional provisions governing their powers, and the evolving judicial approach through landmark decisions of the Supreme Court of India.
Constitutional Status of the President and Governor
The President of India and the Governors of States are described as the constitutional or nominal heads of the executive. Under Article 74, the President acts on the aid and advice of the Council of Ministers at the Union level, while under Article 163, the Governor is guided by the Council of Ministers of the State.
Although these offices are constitutionally significant, they are not centres of independent executive authority. The real executive power lies with the elected government, and the President or Governor functions primarily as a formal authority through whom executive actions are expressed.
This constitutional design is essential to understanding why judicial review of their orders is permissible. Since their actions reflect the decisions of the political executive, constitutional accountability cannot be avoided merely because the action is formally taken in the name of the President or Governor.
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Article 361: Scope and Nature of Immunity
Article 361 of the Constitution grants certain immunities to the President and Governors. It provides that they shall not be answerable to any court for the exercise and performance of the powers and duties of their office. It also bars criminal proceedings during their term and restricts civil proceedings except under specified conditions.
However, judicial interpretation has consistently emphasized that this immunity is personal in nature. It protects the office-holder from being personally summoned, questioned, or prosecuted, but it does not extend to the validity of the actions or orders issued in their name.
Thus, while the President or Governor cannot be made a party to legal proceedings, the Union of India or the State concerned can be impleaded, and the legality of the impugned action can be examined by the courts.
Judicial Review as a Basic Feature of the Constitution
Judicial review forms part of the basic structure of the Indian Constitution. Articles 32 and 226 empower the Supreme Court and High Courts to examine executive action and ensure that it conforms to constitutional and legal requirements.
Any order passed by the President or Governor, being an executive act, is subject to judicial review if it violates fundamental rights, exceeds constitutional authority, or is tainted by arbitrariness, mala fides, or procedural irregularity.
The constitutional position is clear that no authority is above the Constitution, and the source of power does not determine immunity from review.
Doctrine of Aid and Advice
One of the most crucial principles governing the functioning of the President and Governors is the doctrine of aid and advice. This doctrine ensures democratic accountability by vesting real power in the elected executive.
In Shamsher Singh v. State of Punjab (1974), the Supreme Court authoritatively held that the President and Governors are bound by the advice of the Council of Ministers in the exercise of their functions, except in limited areas where the Constitution expressly confers discretion.
The Court clarified that executive power does not vest personally in these authorities. Instead, they act as constitutional channels through which executive decisions are formalized.
This judgment laid the foundation for subjecting presidential and gubernatorial orders to judicial scrutiny, since such orders are, in effect, decisions of the Council of Ministers.
Examination of Ministerial Advice and Constitutional Bar
Article 74(2) bars courts from inquiring into the advice tendered by the Council of Ministers to the President. A similar restriction exists under Article 163(3) in relation to Governors.
The Supreme Court has interpreted this bar strictly. Courts cannot compel disclosure of advice, nor can they question the correctness or sufficiency of such advice. This restriction preserves executive confidentiality and protects the internal decision-making process of the government.
However, this does not mean that courts are powerless. While the advice itself is immune, the outcome of the advice, namely the executive action or order, remains open to judicial scrutiny.
Grounds of Judicial Review of Presidential and Gubernatorial Orders
Judicial review of orders issued by the President or Governor operates on well-established grounds. Courts may examine whether the action suffers from illegality, arbitrariness, mala fides, procedural impropriety, or violation of constitutional limitations.
The courts do not review the wisdom or desirability of the decision. Their role is confined to ensuring that power has been exercised within constitutional bounds.
This distinction preserves the separation of powers while ensuring that constitutional authority is not misused.
Presidential Satisfaction and Article 356
One of the most controversial areas involving presidential power is the invocation of Article 356, which permits the imposition of President’s Rule in a State.
In State of Rajasthan v. Union of India (1977), the Supreme Court examined whether presidential satisfaction under Article 356 was justiciable. While the Court adopted a restrained approach, it acknowledged that absolute immunity could not be claimed.
The judgment marked an early recognition that constitutional satisfaction is not wholly beyond judicial review, even though courts must exercise caution in such politically sensitive matters.
S.R. Bommai v. Union of India
The scope of judicial review under Article 356 was decisively settled in S.R. Bommai v. Union of India (1994). The Supreme Court held that the proclamation of President’s Rule is subject to judicial review.
The Court ruled that presidential satisfaction must be based on relevant material and that courts can examine whether such material existed. If the proclamation is found unconstitutional, courts have the power to restore the dismissed government.
This judgment transformed the understanding of executive accountability and reinforced constitutional supremacy.
Rameshwar Prasad v. Union of India
In Rameshwar Prasad v. Union of India (2006), the Supreme Court dealt with the dissolution of the Bihar Legislative Assembly under Article 356.
The Court held that although presidential satisfaction is subjective, it is not immune from judicial scrutiny. The Court can examine whether the satisfaction was based on irrelevant or extraneous material, or whether it was actuated by mala fides.
The judgment reaffirmed that constitutional powers cannot be exercised arbitrarily, even when exercised by the highest executive authority.
Judicial Review of Governor’s Discretionary Powers
The Governor’s role becomes particularly significant in situations involving discretionary powers, such as recommending President’s Rule, reserving bills for Presidential assent, or determining government formation.
In Nabam Rebia v. Deputy Speaker (2016), the Supreme Court scrutinized the actions of the Governor of Arunachal Pradesh and held that discretionary powers must be exercised strictly within constitutional limits.
The Court emphasized that the Governor is not an independent political authority but a constitutional functionary bound by the Constitution.
Mala Fides and Abuse of Constitutional Power
Judicial review assumes heightened importance where allegations of mala fides are raised. Courts have consistently held that constitutional authorities must act in good faith and for constitutionally permissible purposes.
If an order passed in the name of the President or Governor is shown to be motivated by political bias, personal considerations, or extraneous factors, courts are empowered to strike it down.
Although proving mala fides is difficult, constitutional immunity does not protect unconstitutional conduct.
Limits of Judicial Review and Judicial Restraint
Despite the broad scope of judicial review, courts have also recognized the need for restraint. Matters involving policy choices or political wisdom are generally considered non-justiciable.
Courts do not substitute their judgment for that of the executive. Their role is limited to examining legality, not desirability. This balance preserves the functional harmony between the branches of government.
Conclusion
The constitutional position regarding judicial review of orders passed by the President and Governors is now well settled. While Articles 361, 74, and 163 provide personal immunity and protect executive advice from disclosure, they do not place executive action beyond constitutional scrutiny.
Through landmark decisions such as Shamsher Singh, S.R. Bommai, Rameshwar Prasad, and Nabam Rebia, the Supreme Court has ensured that constitutional power remains accountable to constitutional limits.
Judicial review, in this context, serves not as an intrusion into executive authority but as a safeguard against its misuse, thereby strengthening the rule of law and constitutional governance in India.
