New Delhi, Mar 28: One could expect a lot of activity in Uttarakhand following the imposition of President's rule in the state.
For starters, the Congress has decided to approach the Supreme Court of India challenging the decision to impose president's rule in the state.
The BJP states that it enjoys the support of nine rebel Congress MLAs and this automatically gives them the right to form a government.
There is a debate however that is on with regard to the timing of the disqualification of the rebel MLAs. The legal position states that if the MLAs were disqualified after the imposition of the President's rule then the order will not stand. However if the order was passed before the imposition of President's rule then it would stand.
If the order of disqualification stands, then the majority mark in the reduced house of 61 would be 31. The BJP would then need the support of 6 MLAs to form the government. The BJP would ride then on the support of six PDF MLAs.
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The legal position:
A president's rule is imposed under Article 356 when there is a breakdown of the Constitutional machinery and the government cannot function.
Although there is no clear explanation as to what a breakdown would mean, it is mandatory that the strength of any government needs to be tested on the floor of the house as per the findings in the S R Bommai case.
The other aspects to be taken into consideration are the report by the governor. However the President can also take a decision to impose President's rule if he is convinced that the machinery has broken down.
There are two case laws which have dealt extensively with such situations- S R Bommai and the Bihar Assembly case of 2006.
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In the S R Bommai case, the Supreme Court in 1994 held that a President's rule can be imposed if there is a breakdown of the Constitutional machinery in the state. The court however also added that the strength of a government must be tested on the floor of the house.
Further it also stated that courts cannot question the Union Cabinet's advice to the President but they can question the material behind the satisfaction of the President who would decide on the breakdown of the constitutional machinery.
In the Bihar case of 2006, the Supreme Court while dealing with the powers of the Governor in recommending president's rule said that the report cannot be taken at face value. The report of a governor must be verified by a council of ministers.
Further it said that President's rule cannot be imposed as per the whims and fancies of of a governor and the council of ministers must carefully examine such a report and not accept it as a gospel truth on face value.