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Aam Aadmi Party And Another v. Union Of India And Others
Factual and Procedural Background
The petition challenged a Presidential Proclamation dated 16-2-2014 issued under Article 239-AB/Article 356 of the Constitution in relation to the National Capital Territory of Delhi, which placed the Legislative Assembly in suspended animation. A series of interim orders were passed between February and November 2014:
- Interlocutory intervention applications were dismissed.
- Notices were issued to two political parties (Respondents 2 & 3) to ascertain their positions.
- The Union Government supplied the petitioners with the Lieutenant-Governor’s report of 15-2-2014; the petitioners filed a rejoinder.
- On 4-7-2014 the matter was referred to a Constitution Bench for authoritative determination of the constitutional questions surrounding Articles 239-AA and 239-AB read with Section 50 of the Government of NCT of Delhi Act, 1991.
- After adjournments, on 11-11-2014 the Supreme Court recorded that nothing survived for adjudication and disposed of the writ petition as infructuous.
Legal Issues Presented
- Whether, after the enactment of the Tenth Schedule, the prospect of defections is a valid consideration for keeping a Legislative Assembly in suspended animation rather than dissolving it.
- Whether the President retains the power under Article 356(2) to revoke or vary a Proclamation even after it has been approved by both Houses of Parliament, in light of Section 50(1) of the Government of NCT of Delhi Act, 1991.
- More broadly, the correct interpretation of Articles 239-AA and 239-AB of the Constitution when read with Section 50 of the 1991 Act.
Arguments of the Parties
Petitioners’ Arguments
- Invoking Grounds K–N and P–S of the Union’s counter-affidavit, they contended that, post-Tenth Schedule, waiting for or encouraging defections cannot justify keeping the Assembly in suspended animation.
- Relied on paragraph 86 of Rameshwar Prasad (6) v. Union of India (2006) 2 SCC 1, emphasizing the Governor’s duty to prevent the “canker of political defections.”
- Expressed apprehension that parliamentary approval of the Proclamation might be treated as foreclosing the President’s power to revoke or vary it.
Union of India’s Arguments
- Through the Attorney General, submitted that the question raised by the petitioners is settled by paragraphs 82–86 of Rameshwar Prasad (6), rendering the matter res integra no longer.
- The Additional Solicitor General asserted that Articles 356(2) and (3) expressly permit the President to revoke or vary a Proclamation notwithstanding parliamentary approval, and that Section 50(1) of the 1991 Act does not create a fetter. Reliance was placed on Sections 14 and 21 of the General Clauses Act, 1897.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Rameshwar Prasad (6) v. Union of India, (2006) 2 SCC 1 | Duty of constitutional functionaries to prevent political defections; parameters for exercise of power under Article 356. | The parties cited paragraphs 82–86. The Court noted the need for “deeper consideration” but eventually found it unnecessary to analyse the case after the matter became infructuous. |
Court's Reasoning and Analysis
The Court’s engagement was primarily procedural:
- It recognised that presidential power under Article 356(2) to revoke or vary a Proclamation subsists even after parliamentary approval, a position “broadly accepted by the learned Senior Counsel for the parties.”
- Because the positions of Respondents 2 and 3 could have mooted the central issue, the Court directed notice to them before embarking on substantive analysis.
- Given the constitutional complexity, the matter was referred to a five-Judge Constitution Bench to interpret Articles 239-AA/239-AB and Section 50 of the 1991 Act.
- Subsequently, circumstances changed (details not recorded in the order), rendering the writ petition infructuous. The Court therefore declined to decide the constitutional questions, expressly leaving them open for future litigation.
Holding and Implications
DISPOSED OF AS INFRUCTUOUS
The petition was dismissed on 11-11-2014 because no live controversy remained. All questions of law were kept open. The decision sets no new precedent but underscores that:
- Presidential power to revoke or vary a Proclamation under Article 356(2) is not extinguished by parliamentary approval.
- Future cases may still require authoritative interpretation of Articles 239-AA, 239-AB and Section 50 of the 1991 Act.
1. Interlocutory applications for intervention are dismissed.
2. One of the arguments put forth by Mr Fali S. Nariman, learned Senior Counsel for the petitioners is: in view of Grounds K to N and P to S in the counter-affidavit of the Union of India, whether after the enactment of the Tenth Schedule waiting or accepting defection to happen is at all a relevant consideration on whether or not to keep the Assembly in suspended animation and not to be dissolved?
3. Mr Goolam E. Vahanvati, learned Attorney General, submits that the above question is no more res integra in light of the Constitution Bench decision of this Court in Rameshwar Prasad (6) v. Union of India (2006) 2 SCC 1. In this regard, the learned Attorney General referred to paras 82 to 86 of the said judgment.
4. On the other hand, Mr Fali S. Nariman, learned Senior Counsel for the petitioners, also relies upon para 86 of the said judgment wherein the Constitution Bench observed: [Rameshwar Prasad (6) case (2006) 2 SCC 1]
“86. Undisputedly, a Governor is charged with the duty to preserve, protect and defend the Constitution and the laws, has a concomitant duty and obligation to preserve democracy and not to permit the ‘canker’ of political defections to tear into the vitals of the Indian democracy.”
5. The judgment of this Court in Rameshwar Prasad (6) (2006) 2 SCC 1 may need deeper consideration, if necessary. But before we consider that, it is necessary to have the views of two political parties who have been impleaded as Respondents 2 and 3 because their firm position in the matter may obviate necessity of consideration of the above question.
6. Let notice be issued to Respondents 2 and 3 returnable on 31-3-2014. Dasti, in addition to the ordinary process, is permitted.
7. We record that the learned Attorney General in the course of hearing has handed over a copy of the Lieutenant General's report dated 15-2-2014 to the Advocate-on-Record for the petitioners.
8. Rejoinder-affidavit handed over by the Advocate-on-Record for the petitioners in the Court is taken on record.
Court Masters
Order dated 17-4-2014
(Before R.M Lodha and Kurian Joseph, JJ.)
9. Mr Fali S. Nariman, learned Senior Counsel for the petitioners, at the outset, expressed the apprehension that Proclamation dated 16-2-2014 having been approved by both the Houses of Parliament, it is likely to be understood that the power conferred on the President under Article 356(2) of the Constitution of India, particularity in view of the provision contained in Section 50(1) of the Government of National Capital Territory of Delhi Act, 1991 (for short “the 1991 Act”) is not exercisable.
10. We wanted to know from Mr K.V Viswanathan, learned Additional Solicitor General whether the President has the power to revoke or vary the proclamation under Article 356(2) of the Constitution of India in such circumstances. In response, he submits that in respect of an order under Article 239-AB, the provisions of Articles 356(2) and (3) are applicable. He further submits that Article 356(2) of the Constitution clearly says that any Proclamation made under Article 356(1) may be revoked or varied by a subsequent proclamation. His submission, therefore, is that notwithstanding approval of such proclamation by resolutions of both the Houses of Parliament, the President may revoke or vary the proclamation despite the provision contained in Section 50(1) of the 1991 Act. In this regard, he has referred to Section 50(1) of the 1991 Act, Article 356(2) and Sections 14 and 21 of the General Clauses Act, 1897.
11. Having regard to the above legal position explained by the learned Additional Solicitor General, which is broadly accepted by the learned Senior Counsel for the parties, we observe that there is no fetter or impediment for the President to exercise his power under Article 356(2) if it is so required having regard to the facts and circumstances of the matter concerning the Proclamation dated 16-2-2014.
12. We clarify that our observations shall not be construed as a direction to any authority to act in any manner whatsoever. All questions of law including the maintainability of the writ petition are left open for consideration at a later stage.
13. List the matter on 5-5-2014.
Order dated 4-7-2014
(Before R.M Lodha, C.J and Madan B. Lokur and Kurian Joseph, JJ.)
14. Since the matter involves interpretation of the constitutional provisions particularly Articles 239-AA and 239-AB read with Section 50 of the National Capital Territory of Delhi Act, 1991, we are of the view that the matter needs to be heard by a five-Judge Constitution Bench. List the matter for final disposal on 5-8-2014 before a Constitution Bench as agreed to by the learned Senior Counsel for the parties.
15. Needless to say that the pendency of the writ petition before this Court is no impediment for the learned Lieutenant Governor of Delhi to take appropriate decision in the matter.
Order dated 9-9-2014
(Before H.L Dattu, Jasti Chelameswar, Dr A.K Sikri, R.K Agrawal and Arun Mishra, JJ.)
16. At the request of all the learned counsel, the matter stands adjourned to 10-10-2014. The Registry is directed to take appropriate orders from the Hon'ble the Chief Justice of India for the matter being listed on 10-10-2014 at 2.00 p.m with a request to the learned Chief Justice to constitute the same Bench once over again.
Order dated 11-11-2014
(Before H.L Dattu, C.J and Jasti Chelameswar, Dr A.K Sikri, R.K Agrawal and Arun Mishra, JJ.)
17. As of now nothing survives in this writ petition for our consideration and decision. Therefore, the writ petition is disposed of as having become infructuous. The question of law raised by both the parties is kept open to be agitated in an appropriate case.
18. We appreciate the efforts made by Shri P.S Narasimha, learned Additional Solicitor General in bringing an end to this litigation in a most appropriate manner. Ordered accordingly.
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