6 July 2023 4:01 AM GMT
Dismissing a plea seeking its intervention to invoke Article 355 and Article 352 of the Constitution in the backdrop of Tamil Nadu minister Senthil Balaji's arrest and the alleged manhandling of Income Tax officials during the search, the Madras High Court ruled that the High Court under Article 226 does not have the power to issue directions to the Centre to invoke Article 355, as it is a...
Dismissing a plea seeking its intervention to invoke Article 355 and Article 352 of the Constitution in the backdrop of Tamil Nadu minister Senthil Balaji's arrest and the alleged manhandling of Income Tax officials during the search, the Madras High Court ruled that the High Court under Article 226 does not have the power to issue directions to the Centre to invoke Article 355, as it is a part of the policy decision on the part of the Executive.
The division bench of Chief Justice SV Gangapurwala and Justice PD Audikesavalu said any such direction would also be in violation of the theory of separation of power. "Moreover, in our opinion the current set of facts as explained before do not fall under the ambit of 'internal disturbance'," said the court.
The court also said that the facts of the case also do not warrant invoking of its jurisdiction, adding that the expression “internal disturbance” conveys the sense of domestic chaos, which takes the colour of a security threat from its associate expression “external aggression”.
"It would require a case of large scale public disorder which throws out of gear the even tempo of administration and endangers the security of the State," said the bench, adding the writ petition is misconceived and does not merit consideration.
Varaaki, who said he is a journalist, had filed the petition contending that Balaji, who was arrested by the Enforcement Directorate in a cash-for-job scam, acted in violation of the Constitution of Indian and the Representation of People Act 1950 as he failed to follow the oath of affirmation. Varaaki also contended that Chief Minister had also acted in violation of the Centre-State obligations.
It was submitted that during the arrest of the Minister, the enforcement officers were mobbed and manhandled and the DMK party has caused great disturbance to the public. It was also contended that the State Law Enforcement Agency was unable to protect the fundamental right of citizens and maintain law and order in the state and they had also failed to ensure peaceful conditions for the operation of ED. Alleging that the state machinery had failed to maintain internal peace and order, the petition said it is the constitutional duty of the Union to intervene in such cases of internal disturbance.
After tracing the history of Article 355 of the Constitution, which obligates the Union to ensure that the governance in a State is carried out in accordance with the Constitution, the court looked into the meaning of “internal disturbance” as provided under the Constitution.
"As explained in the Sarkaria Commission Report, under Article 355 of the Constitution, a whole range of action on the part of the Union is possible depending on the circumstances of the case, the nature, the timing and the gravity of the internal disturbance. In some cases, advisory assistance by the Union to the State for the most appropriate deployment of its resources may suffice. In more serious situations, augmentation of the State's own efforts by rendering Union assistance in men, material and finance may be necessary. If it is a violent upheaval or a situation of external aggression (not amounting to a grave emergency under Article 352), deployment of the Union forces in aid of the police and magistracy of the State may be sufficient to deal with the problem. But what is legally permissible may not be politically proper, therefore the Union has to sound the State Government and seek its cooperation before any action."
The court further said though it is the protective duty of the Central Government to declare an emergency under Article 352(1), such an emergency cannot be declared if it is only a case of internal disturbance without any armed rebellion.
"The Central Government also has a duty to declare an emergency under Article 356, but it would not be attracted if the internal disturbance has not resulted in the failure of the constitutional machinery," it added.
In the present case, the court said the manhandling of Income Tax Officials would not tantamount to an internal disturbance.
“If the facts put forth by the petitioner are considered as they are, then the incident of Income Tax officials being mobbed and manhandled during the arrest of one minister would not by any stretch tantamount to an internal disturbance within the ambit and purview of Article 355 of the Constitution of India,” the court observed.
The court also said judicial review would be possible only when there is an exercise or non-exercise of power by the Executive.
"Whereas in the present scenario, the power has not yet been exercised. The situation is not such that it has already been considered by the Union Government, and the materials lead the Union Government to conclude that they were not enough to constitute a threat and invoke Article 355. The aforementioned situation has not arisen (going by lack of any official reports/correspondence and further express denial of the same) and thus the question of judicial review does not arise," said the court.
Case Title: Varaaki v The Secretary and Others
Citation: 2023 LiveLaw (Mad) 188
Counsel for the Petitioner: Mr. P Vijendran