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2014 Supreme(SC) 1176
SUPREME COURT OF INDIA
R.M. Lodha, Kurian Joseph, JJ.
Aam Aadmi Party & Anr. - Petitioners
Versus
Union of India & Ors. - Respondents
Writ Petition (Civil) No. 163 of 2014
Decided On : 17-04-2014
For the Petitioner:Fali S. Nariman, Sr. Advocate, Prashant Bhushan, Kamini Jaiswal, Rohit Singh, Shilpi Dey, Krishna Tiwari, Ramesh, Govind and Shyam Singh Chauhan, Advocates.
For the Respondent:K.V. Vishwanathan, A.S.G., Rohit Sharma, and B.K. Prasad, Advocates, Mukul Rohtagi, P.S. Patwalia, Sr. Advocates, Aman Sinha, S.K. Pathak and Rajiv K. Singh, Advocates, K. Parasaran, Sr. Advocate, K.C. Mittal and Arvind Kumar Gupta, Advocates.
The main legal point established is that the President has the power to revoke or vary a Proclamation under Article 356(2) of the Constitution of India, irrespective of the provisions in the Government of National Capital Territory of Delhi Act, 1991.
Headnote:
Article 356 - Proclamation under Article 356(2) of the Constitution of India - The court clarified that the President has the power to revoke or vary a Proclamation under Article 356(2) despite the provisions in the Government of National Capital Territory of Delhi Act, 1991.
Fact of the Case:
The court clarified the President's power to revoke or vary a Proclamation under Article 356(2) of the Constitution of India, particularly in view of the provision contained in Section 50(1) of the Government of National Capital Territory of Delhi Act, 1991.
Finding of the Court:
The court found that there is no impediment for the President to exercise his power under Article 356(2) if it is required, based on the legal position explained by the learned Additional Solicitor General.
Issues: The issues included the President's power to revoke or vary a Proclamation under Article 356(2) and the interpretation of the provisions in the Government of National Capital Territory of Delhi Act, 1991.
Ratio Decidendi: The court clarified that the President has the power to revoke or vary a Proclamation under Article 356(2) despite the provisions in the Government of National Capital Territory of Delhi Act, 1991.
Final Decision: The court's observations clarified the President's power under Article 356(2) and left all questions of law, including the maintainability of the writ petition, open for consideration at a later stage.
ORDER :
Fali S. Nariamn, learned senior counsel for the petitioners, at the outset, expressed the apprehension that Proclamation dated 16.2.2014 having been approved by both Houses of Parliament, it is likely to be under stood 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 "1991 Act") is not exercisable.
2. We wanted to know from Mr. K.V. Vishwanathan, 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 Article 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 not with standing approval of such Proclamation by resolutions of both Houses of Parliament, the President may revoke or vary the Proclamation despite the provision contained in Section 50 (1) of the 1991. In this regard, he has referred to Section 50(1) of 1991 Act, Article 356(2) and Sections 14 and 21 of the General Clauses Act, 1897.
3. 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 fact sand circumstances of the matter concerning Proclamation dated 16.2.2014.
4. We clarify that our observations shall not be construed as a direction to any authority to act in any manner whatsoever.
5. All questions of law including the maintainability of the writ petition are left open for consideration at a later stage.
6. List the matter on 5.5.2014.
