Encyclopaedia defines “Judicial Review” as the power of the courts of a country to examine the actions of the legislative, executive, and administrative arms of the government and to determine whether such actions are consistent with the constitution. Actions judged inconsistent are declared unconstitutional and, therefore, null and void. Constitutional judicial review is usually considered to have begun with the assertion by John Marshall, fourth chief justice of the United States (1801–35), in Marbury v. Madison (1803) that the Supreme Court of the United States had the power to invalidate legislation enacted by Congress. Constitution of India itself provides some discretionary powers to the Governors. Sometime Governors’ do not exercise their discretionary powers judiciously. Here the role of the judiciary starts and many times judiciary has provided valuable guidelines for the Governors.

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JUDICIAL REVIEW OF ORDERS BY PRESIDENT AND GOVERNOR
INTRODUCTION
Encyclopaedia defines “Judicial Review” as the power of the courts of a country to examine
the actions of the legislative, executive, and administrative arms of the government and to
determine whether such actions are consistent with the constitution. Actions judged
inconsistent are declared unconstitutional and, therefore, null and void. Constitutional judicial
review is usually considered to have begun with the assertion by John Marshall, fourth chief
justice of the United States (1801–35), in Marbury v. Madison (1803) that the Supreme Court
of the United States had the power to invalidate legislation enacted by Congress. Constitution
of India itself provides some discretionary powers to the Governors. Sometime Governors’ do
not exercise their discretionary powers judiciously. Here the role of the judiciary starts and
many times judiciary has provided valuable guidelines for the Governors.
CONSTITUTIONAL PROVISIONS
In order to scrutinize the legitimacy of administrative action and the statutes, the Constitution
of India has given influences to the higher courts and the Supreme Court of India. To guard the
rights of public and implement the fundamental rights are the main objects of judicial review.
If any difficulty arises between State and Centre relation, then Article 246 and the Schedule 7
of the Constitution has marked the working zone for the regulation construction between both
State and Centre. The tool of judicial review empowers the judiciary to strike down any action,
which is in conflict with the Constitution. In the Constitution of India, the principle lies under
Article 13. Articles 32 and 226 provide for the enforcement of the fundamental rights enshrined
in Part III of the Constitution of India. Guarantee of the fundamental rights is insignificant and
meaningless unless the Court has power to protect the same from the arbitrary violation. At
this point, the power of the judicial Review became relevant.
REVIEW OF GOVERNOR’S RULE
The Supreme Court, observed in Nabam Rebia and Bamang Felix v. Deputy Speaker (2016),
the discretionary power of the Governor is extremely limited and entirely amenable to judicial
review. Even when the exercise of discretion is concerned, a seven-judge Bench of the apex
court in Samsher Singh v. State of Punjab (1974) had held that the Governor may do so only
“in harmony with his Council of Ministers”. The area being traversed in this case is alien to

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our Constitution, not having envisaged a situation where the Governor exercises his power
under Article 161 against the express recommendation of the Council of Ministers.
In the Appointing of the Chief Ministers of the states, various times the issue of the discretion
of the Governor is challenged in many of the cases ruled by the Court. Some of which can be
highlighted through the case of Mahabir Prasad vs Prafulla Chandra (1969) in which, it was
laid down that the power of Governor is absolute with regard to appointment of Chief Minister
and court cannot call in question the same, since it is his sole discretion. In Pratap singh
Raojirao vs Governor of Goa (1999) the court held that for the purpose of the appointment of
the Chief Minister, Governor Acts in his sole discretion and while taking decision in his sole
discretion he enjoys immunity under Article 361 of the Constitution.
In the Dissolution of Assemblies, the court held as in the case of S.R. Bommai vs Union of
India (1994), the Supreme Court held that dissolution of the Assembly is subject to judicial
review and if the court is convinced that it is malafide, it can even revive the Assembly, before
fresh elections are held. In case of Rameshwar Prasad vs. Union of India (2006), the court held
that the action of the Governor was “drastic and extreme” and the court “could not be a silent
spectator to such subversion of the Constitution”.
In the Dissolution of Ministry, the court held as in case of Jagdambika Pal vs State of
U.P.(1998) to convene a special session of Legislative Assembly and to have a composite floor
test between contending parties to ascertain who out of two (Sh. Kalyan Singh and Sh.
Jagdambika Pal) enjoys a majority in the Assembly. It showed that the Governor’s discretion
to dismiss the ministry should be exercised only when the Chief Minister fails to prove the
majority on the floor of the House by any means. In Mahabir Prasad Sharma vs Prafulla
Chandra Ghose (1969) Calcutta High Court has ruled that if the Council of Ministers refuses
to vacate the office of ministers, after the defeat of the confidence motion in the House, then
the Governor may withdraw his pleasure. The Court also held that the right of the Governor to
withdraw his pleasure during which the minister is to hold office is absolute, unrestricted and
unfettered and the exercise of discretion in withdrawing the pleasure cannot be called in
question in a court of law.
In the Summon and Prorogue of State Assembly, the court held in case of In K.A.
Mathialagan vs The Governor (1973), the court held that the exercise of the function of the
Governor in proroguing the Assembly under Article 174 is not a function which he can exercise
in his discretion that is to say to the exclusion to the ministerial advice.

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In the Pardon Powers, the same is provided by Article 161 of Constitution. The pardoning
power of governor is not absolute. It is governed by the advice of the Council of Ministers. In
case of Epuru Sudhakar v. Govt. of A.P. (2006), the immunity of the pardoning power of
governor from judicial review came up. SC aside a decision of then Andhra Pradesh Governor
Sushil Kumar Shinde, remitting the sentence of a Congress activist who faced ten years in
prison in connection with the killing of two persons including a TDP activist, holding that
“Rule of Law is the basis for evaluation of all decisions (by the court) That rule cannot be
compromised on the grounds of political expediency. To go by such considerations would be
subversive of the fundamental principles of the Rule of Law and it would amount to setting a
dangerous precedent.”
REVIEW OF PRESIDENT’S RULE
The Court scrutinizes the imposition of President’s rule from time to time, when it is challenged
in courts and also provides the guidelines for the use of different provisions. The Constitution
Bench in case of T. Venkata Reddy v. State of A.P. (1985), ruled that it is impossible to accept
the submission that the ordinance can be invalidated on the ground of non-application of mind.
The power to issue an ordinance is not an executive power but is the power of the executive to
legislate. The Supreme Court widening its scope on the Ordinance Making Power exercised
by both the Governor and the President highlighted that the satisfaction of the President under
Article 123 and of the Governor under Article 213 is not immune from judicial review. Justice
Chandrachud observed that the apex court would scrutinise whether the satisfaction of the
President or the Governor to promulgate an ordinance was based on relevant material or
whether it amounted to a “fraud on power or was actuated by an oblique motive.” Former Chief
Justice Thakur also held that the “re-promulgation of ordinances is a fraud on the Constitution
and a subversion of democratic legislative processes.” In case of Gurudevdatta VKSSS
Maryadit v. State of Maharashtra (2001), Supreme Court held that the ordinance, if, does not
infringe the constitutional safeguards, cannot be examined nor can the motive for such a
promulgation be in question. The courts cannot interfere with a legislative malice in passing a
statute. Interference is restrictive in nature and that too on constitutionality aspect and not
beyond the same. Legislative malice is beyond the pale of jurisdiction of the law courts.
In a landmark case of D.C. Wadhwa & others v. State of Bihar (1986), Supreme Court had
made some important observations some of which include: (i) power to promulgate an
Ordinance is an emergency power which may be used where immediate action may be

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necessary at a time when the legislature is not in session;(ii) A constitutional authority cannot
do indirectly what it is not permitted to do directly;(iii)While the satisfaction of the President
as to the existence of circumstances necessitating immediate action by issuing an Ordinance
cannot be examined by Court, it is competent for the Court to inquire whether he has exceeded
the limits imposed by the Constitution;(iv)Though, in general the motive behind issuing an
Ordinance cannot be questioned, the Court cannot allow it to be ‘perverted for political ends’.
For the Pardon powers of the President, the court in the case of Maru Ram v. Union of India
(1980), expressed a view in favour of laying down some guidelines for the purpose of
exercising power under Art.72 in order to avoid any allegation of arbitrary exercise of power.
In Kehar Singh vs Union of India (1988), the court observed that, The biggest question which
could be laid down against the conception of Judicial Review of the power is that, a person
pleads for mercy when all the doors of judiciary closes for him, in that case if president grants
pardon on some moral & humanitarian ground whether in that case if judicial review is done
then how come a judiciary would close its eyes from the previous judgments which it has given
right from the lower courts against the pleader. It is more or less clear that it would revoke the
pardon & would revert back to its final decision. In Satpal vs State of Haryana (2000), the
Supreme Court held that pardoning power being constitutional power conferred upon the
Governor by the Constitution is amenable to judicial review on certain limited grounds which
are: (i) if the Governor is found to have exercised the power himself without being advised by
the government; (ii) If the Governor transgresses the jurisdiction in exercising the same; (iii) It
is established that the Governor has passed the order without application of mind; (iv) The
Governor has passed the order on some extraneous consideration.
In this case, Governor exercised his power to grant pardon without applying his mind. He was
not properly advised with all the relevant facts and accordingly Supreme Court quashed the
clemency order.
For the Imposition of the President’s rule, as Kameshwari G. indicated in his book “A Boom
or a Bane to Federalism” that the Supreme Court and High Court can strike down the
proclamation, if it is found to be mala fide or based on wholly irrelevant or extraneous ground.
In the case of K.K. Aboo vs Union of India (1965), the court dismissed the petition on the
grounds of frivolous petition as the Governor dismissed the State Legislatures without meeting
with all the members and imposed the rule of President. In another case of Rao Birinder Singh
vs. Union of India (1968), it was observed by Panjab & Haryana High Court that: (i) The court

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cannot go into the validity or legality or propriety of the proclamation because the President
had issued the same in pursuance of his constitutional power under Article 356(1), which is not
an executive action of the Union and the President himself is not amenable to the jurisdiction
of the court in view of Article 361(1); (ii) The consideration of the proclamation has been
specifically vested by the Constitution in Parliament and this excludes the jurisdiction of the
courts; (iii) The conclusion reached by the Governor in his report to the President cannot be
questioned in the court as those are matters for the consideration of the President and
Parliament.
In State of Rajasthan vs Union of India (1977), it was viewed that when proclamation is issued
under Article 356 then the State Legislature can be dissolved by the Centre without waiting the
approval of the proclamation by the Parliament. But Supreme Court in case of S.R. Bommai vs.
Union of India (1994), disapproved this view on the ground that if the proclamation is not
approved within two months by the Parliament, it would lapse automatically thereafter and it
would be inevitable to revive the dissolved Assembly and no fresh election can be held for the
House within the short period of two months.
CONCLUSION
The ultimate conclusion could be derived from the above discussion is that the powers of the
President of India and the Governors of the States of India has a very wide discretionary powers
as had been defined in the Constitution of India to be exercised in the good faith. But, over the
time with the political abusing of these powers by different governments, the Courts setting the
Judicial Precedents in various judgements as had been discussed above had limited its powers
and subject to Judicial Review to prevent the abuse of the process of Law ultimately violating
the fundamental rights of the individual citizen of India. If the power is exercised in good faith
for the welfare, then the Court may not reverse the order, but somehow, as the Constitution
also describe the judiciary as the “Watchdog” has an inherent duty to keep a check on all the
policies and decide as in the public interest.
VAIBHAV GOYAL
BA.LLB (H) - 3RD YEAR
PANJAB UNIVERSITY

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