Every act of public functionary must be bona fide: High Court

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 KM Joseph and Justice VK Bist has said.

The observations are part of the 99-page judgment the Bench orally dictated in the open court on April 21, which was made available on Monday with the signatures of the judges. The judgment 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.

The Supreme Court had on Friday stayed the judgment till April 27 on the ground that the signed verdict was not available and asked it to be submitted by tomorrow. Undoubtedly, under the written Constitution, in which the preamble proclaims India to be a democratic sovereign and socialist republic, there is little space for unreviewable powers, the court said citing the apex court verdict in the SR 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,” the Bench said. 

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.