The Supreme Court Friday termed as disturbing and stayed the interim order passed by the Andhra Pradesh High Court which had sought assistance of the state government asking whether it can record a finding that constitutional machinery has broken down there. The appeal filed by the state government against the high court’s October 1 interim order came up for hearing before a bench headed by Chief Justice S A Bobde which stayed further proceedings in the matter before the high court. We find it disturbing, the bench, also comprising Justices A S Bopanna and V Ramasubramanian, observed during the hearing conducted through video-conferencing.
Application for amendment of the special leave petition is allowed. Issue notice returnable immediately after the ensuing Christmas/New Year Holidays, 2020. Until further orders, there shall be a stay of further proceedings, the top court said in its order. The bench was hearing the state government’s appeal which said that in the interim order, the high court in an unprecedented manner and without any basis or pleadings by any of the parties to that effect, has framed the following question: on the next date, the learned senior counsel appearing on behalf of the state may come prepared to assist the court as to whether in circumstances, which are prevailing in the state of Andhra Pradesh, the court can record a finding that there is constitutional breakdown in the State or not.
The appeal said that under the Constitution, Article 356 deals with the provisions in case of failure of constitutional machinery in state. Under this Article if the President, on receipt of report from the Governor of a state or otherwise, is satisfied that a situation has arisen in which the government of the state cannot be carried on in accordance with the provisions of the constitution, the President can impose presidents Rule, it said.
This is a power exclusively vested in the Executive. The power in this regard like sending a report either to the President or to the Governor or to record a finding in that regard cannot be exercised by the Judiciary, the appeal said. It said the high court desired to consider the question as to whether there is failure of constitutional machinery in the state while hearing habeas corpus petition.
A habeas corpus plea is a petition filed to ensure a person under alleged illegal detention is brought before a court to determine if the detention is legal. It is most respectfully submitted that the aforesaid question framed by the High Court is not only unprecedented, but is also uncalled for; violative of the basic structure of the Constitution; and, it is most respectfully submitted, grossly misconceived, it said.
The state has said in its appeal that constitutional courts do not have any judicially discoverable and manageable standards to determine if there has been a constitutional breakdown in the state. The said fact is essentially an executive function and is necessarily required to be based on a detailed factual analysis. The courts simply do not have any means to decide such question. In fact, the order is a serious encroachment on the powers of the executive as enumerated under the Constitution and is thus violative of the doctrine of separation of powers, it said, while urging the apex court to set aside the order.