S. R. Bommai v. Union of India

A Key to Presidential Proclamation under Article 356 of Constitution of India

Dr. Baba Saheb Ambedkar referred Article 356 of the Constitution of India as a dead letter of the Constitution but sadly with the help of Article 356 many State Governments in India are buried from their power.

In the constituent assembly debate it was suggested that Article 356 is liable to be abused for political purpose. In reply to this Dr. Ambedkar said that such articles will never be called into operation and they would remain a dead letter. If at all they are brought into operation, I hope the President, who is endowed with these powers, will take proper precautions before actually suspending the administration of the provinces. I hope the first thing he will do would be to issue a mere warning to a province that has erred, that things were not happening in the way in which they were intended to happen in the Constitution. If that warning fails, the second thing for him to do will be to order an election allowing the people of the province to settle matters by themselves. It is only when these two remedies fail that he would resort to this article.[1]

But this was never the case the Presidents power to issue the proclamation under Article 356 has been abused most of the time. So far the power under the provision has been used on more than 90 occasions and in almost all cases against governments run by political parties in opposition. This makes S. R. Bommai v. Union of India a Land Mark Judgement in which Supreme Court had discussed at length the provision of Article 356 and various issues associated with the said provisions.

Article 356

Article 356 provides for the action to be taken by the President where he is satisfied that a situation has arisen in which the government of a State cannot be carried on in accordance with the provisions of the Constitution by making a proclamation in that behalf.[2]

The Facts
S.R. Bommai v. Union of India came before the bench of 9 judges under the following circumstances:
Karnataka
The facts were that the Janata Party being the majority party in the State Legislature had formed Government under the leadership of Shri S.R. Bommai. In September 1988, the Janata Party and Lok Dal merged into a new party called Janata Dal. The Ministry was expanded with addition of 13 members. Within two days thereafter, one Shri K.R. Molakery, a legislator of Janata Dal defected from the party. He presented a letter to the Governor along with 19 letters, allegedly signed by legislators supporting the Ministry, withdrawing their support to the Ministry. As a result on 19.4.1989, the Governor sent a report to the President stating therein there were dissensions and defections in the ruling party. In support of his case, he referred to the 19 letters received by him. He further stated that in view of the withdrawal of the support by the said legislators, the chief Minister, Shri Bommai did not command a majority in the Assembly and, hence, it was inappropriate under the Constitution, to have the State administered by an Executive consisting of Council of Ministers which did not command the majority in the House. He, therefore, recommended to the President that he should exercise power under Article 356[1].

However on the next day seven out of the nineteen legislators who had allegedly written the said letters to the Governor sent letters to him complaining that their signatures were obtained on the earlier letters by misrepresentation and affirmed their support to the Ministry. The Chief Minister and his Law Minister met the Governor the same day and informed him about the decision to summon the Assembly Session. The Chief Minister also offered to prove has majority on the floor of the House even by proponing the Assembly Session, if needed. To the same effect, he sent a telex message to the President. The Governor however sent yet another report to the President on the same day i.e., 20-4-1989, and stated that the Chief Minister had lost the confidence of the majority in the House and repeated his earlier request for action under Article 356[1]. On that very day, the President issued the Proclamation in question with the recitals already referred to above. The Proclamation was, thereafter approved by the Parliament as required by Article 356[3].[3]

A writ petition was filed on 26th April 1989 challenging the validity of the proclamation. A special bench of 3 judges of Karnataka High Court dismissed the writ petition.
Meghalaya
On 11th October 1991 the president issued a proclamation under Article 356(1) dismissing the government of Meghalaya and dissolving the legislative assembly. The Proclamation stated that the President was satisfied on the basis of the report from the Governor and other information received by him that the situation had arisen in which the Government of the State could not be carried on in accordance with the provisions of the Constitution. The Government was dismissed and the Assembly was dissolved accordingly.

Nagaland
On 7th August 1988, the president issued the proclamation on the basis of Governor Report and dismissed the Government of Nagaland thus dissolving the Legislative assembly. Shri Vamuzo, leader of opposition party, challenged the validity of Proclamation in Gauhati High Court. A Division Bench comprising the Chief Justice and Hansaria, J. heard the petition. The Bench differed on the effect and operation of Article 74[2] and hence the matter was referred to the third Judge. But before the third learned judge could hear the matter, the Union of India moved this Court for grant of special leave which was granted and the proceedings in the High Court were stayed.

Madhya Pradesh, Rajasthan and Himachal Pradesh
The Vishva Hindu Parishad [VHP], RSS and Bajrang Dal demolished the structure of Babri Masjid in Ayodhya claiming it to be Ram Janma Bhumi. It should be noted that that VHP, RSS and Bajrang Dal are wings of the BJP, which at the time of demolition was the ruling party in Uttar Pradesh. On account of this demolition communal riots spread out in the entire country. Thereafter the Hon'ble Supreme Court banned RSS, VHP and Bajrang Dal in the country.
However the Government of Madhya Pradesh, Himachal Pradesh and Rajasthan failed to implement this ban. As a result the condition became worst in the above mentioned states. There was total failure of Law and order in these states. As a result on 15th December 1992, the president issued the proclamation under Article 356 dismissing the State Governments and dissolving the Legislative Assemblies Madhya Pradesh, Himachal Pradesh and Rajasthan. The validity of these proclamations was challenged by the Writs in the appropriate High Courts. The M.P. High Court allowed the petition, but writ petition relating to Rajasthan and Himachal Pradesh were withdrawn to Supreme Court.

All the above said petition contained similar question of law and therefore they were heard conjointly by the by the Hon'ble Supreme Court. The arguments in the S.R. Bommai's case commenced in the first week of October 1993 and were concluded in the last week of December 1993. [4]

The Contentions
S. R. Bommai v. Union of India raised serious question of law relating to Proclamation of Emergency and dissolution of Legislative assemblies according Article 356 of the Constitution of India.

First and the most important question which the Supreme Court had to determine was whether the Presidential Proclamation under Article 356 was justiciable and if so to what extent.

Secondly it was contended that whether the President has unfettered powers to issue Proclamation under Article 356(1) of the Constitution.

It was contended that since the Proclamation under Article 356[1] would be issued by the President on the advice of the Council of Ministers given under Article 74[1] of the Constitution and since Clause [2] of the said Article bars enquiry into the question whether any, and if so, what advice was tendered by Ministers to the President, judicial review of the reasons which led to the issuance of the Proclamation also stands barred.

Whether the Legislature dissolved by the Presidents proclamation can be revived if the president proclamation is set aside.

Whether the validity of the Proclamation issued under Article 356[1] can be challenged even after it has been approved by both Houses of Parliament under Clause[3] of Article 356.

It was also contended that whether any relief's can be granted when the validity of proclamation is challenged and whether the court can grant an interim stay against holding the fresh election. [5]

Whether a president can dissolve the legislature without having obtained the approval of both the Houses of the Legislature.

It was contended that Secularism being a basic feature of the Constitution, a State government can be dismissed if it is guilty of unsecular acts.

The Principles laid down by Hon'ble Supreme Court

While dealing with the question as to whether the Presidential Proclamation under Article 356 was justiciable all the judges were unanimous in holding that the presidential proclamation was justiciable. The Hon'ble Supreme Court held that the proclamation under Article 356(1) is not immune from judicial review. The validity of the Proclamation issued by the President under Article 356[1] is judicially reviewable to the extent of examining whether it was issued on the basis of any material at all or whether the material was relevant or whether the Proclamation was issued in the malafide exercise of the power. The Supreme Court or the High court can strike down the proclamation if it is found to be malafide or based on wholly irrelevant or extraneous grounds. The deletion of Clause (5) by the 44th (Amendment) Act, removes the cloud on the reviewability of the action. When a prima facie case is made out in the challenge to the Proclamation, the Union of India has to produce the material on the basis of which action was taken. It cannot refuse to do so, if it seeks to defend the action. The court will not go into the correctness of the material or its adequacy. It's enquiry is limited to see whether the material was relevant to the action. Even if part of the material is irrelevant, the court cannot interfere so long as there is some material which is relevant to the action taken. It is submitted that the validity of the Presidents proclamation under article 356 is justiciable.

The second question which was taken into consideration by the court was that whether the President has unfettered powers to issue Proclamation under Article 356(1) of the Constitution. It was contended that The Hon'ble Supreme Court in this regard held that the power conferred by Article 356 upon the President is a conditioned power. It is not an absolute power. This satisfaction may be formed on the basis of the report of the Governor or on the basis of other information received by him or both. The existence of relevant material is a pre-condition to the formation of satisfaction. The satisfaction must be formed on relevant material. The dissolution of the Legislative Assembly-assuming that it is permissible is not a matter of course. It should be resorted to only when it is necessary for achieving the purposes of the proclamation.

The exercise of the power is made subject to approval of the both Houses of Parliament. With this the Hon'ble Supreme Court also made it clear that President cannot dissolve the legislature without having obtained the approval of both the Houses of the Legislature.

In regard to the contention, that Article 74[2] bars the enquiry into the question whether any, and if so, what advice was tendered by Ministers to the President, the Hon'ble Supreme Court at length considered the scope and effect of Article 74[2]. Here it would be appropriate to mention that article 74[2] of the constitution provides that the court cannot inquire as to any, and if so what, advice was tendered by Ministers to the President. In this regard Hon'ble Supreme Court held that although Article 74[2] bars judicial review so far as the advice given by the Ministers is concerned, it does not bar scrutiny of the material on the basis of which the advice is given. The material on the basis of which advice was tendered does not become part of the advice. The Courts are justified in probing as to whether there was any material on the basis of which the advice was given, and whether it was relevant for such advice and the President could have acted on it. Hence when the Courts undertake an enquiry into the existence of such material, the prohibition contained in Article 74[2] does not negate their right to know about the factual existence of any such material.

This is not to say that the Union Government cannot raise the plea of privilege under Section 123 of the Evidence Act. As and when such privilege against disclosure is claimed, the Courts will examine such claim within the parameters of the said section on its merits. But Article 74[2] as such is no bar to the power of judicial review regarding the material on the basis of which the proclamation is issued.

The Hon'ble Supreme also held that the power of the court to restore the government to office in case it finds the proclamation to be unconstitutional, it is, in Courts opinion, beyond question. Even in case the proclamation is approved by the Parliament it would be open to the court to restore the State government to its office in case it strikes down the proclamation as unconstitutional. If this power were not conceded to the court, the very power of judicial review would be rendered nugatory and the entire exercise meaningless. If the court cannot grant the relief flowing from the invalidation of the proclamation, it may as well decline to entertain the challenge to the proclamation altogether. For, there is no point in the court entertaining the challenge, examining it, calling upon the Union Government to produce the material on the basis of which the requisite satisfaction was formed and yet not give the relief.

Moreover the Supreme Court firmly held that there was no reason to make a distinction between the Proclamation so approved and a legislation enacted by the Parliament. If the Proclamation is invalid, it does not stand validated merely because it is approved of by the Parliament. The grounds for challenging the validity of the Proclamation may be different from those challenging the validity of legislation. However, that does not make any difference to the vulnerability of the Proclamation on the limited grounds available. And therefore the validity of the Proclamation issued under Article 356[1] can be challenged even after it has been approved by both Houses of Parliament under Clause [3] of Article 356.

Another issue taken into consideration by the Hon'ble Supreme Court was whether any relief's can be granted when the validity of proclamation is challenged and whether the court can grant an interim stay against holding the fresh election. In this regard the Hon'ble Court held that the Court will have power by an interim injunction, to restrain the holding of fresh elections to the Legislative Assembly pending the final disposal of the challenge to the validity of the proclamation to avoid the fait accompli and the remedy of judicial review being rendered fruitless.

Hon'ble Supreme Court while adjudicating that a State Government cannot follow particular religion discussed at length the concept of Secularism. The Court held that Secularism is one of the basic features of the Constitution. Secularism is a positive concept of equal treatment of all religious. This attitude is described by some as one of neutrality towards religion or as one of benevolent neutrality. While freedom of religion is guaranteed to all persons in India, from the point of view of the State, the religion, faith or belief of a person is immaterial. To the state, all are equal and are entitled to be treated equally. In matters of State, religion has no place. And if the Constitution requires the State to be secular in thought and action, the same requirement attaches to political parties as well. The Constitution does not recognise, it does not permit, mixing religion and State power.

Both must be kept apart. That is the constitutional injunction. None can say otherwise so long as this Constitution governs this country. Politics and religion cannot be mixed. Any State government which pursues unsecular policies or unsecular course of action acts contrary to the constitutional mandate and renders itself amenable to action under Article 356.Given the above position, it is clear that if any party or organisation seeks to fight the elections on the basis of a plank which has the proximate effect of eroding the secular philosophy of the Constitution would certainly be guilty of following an unconstitutional course of action.

Critical Analysis
The landmark case of S. R. Bommai v. Union of India, in the history of the Indian Constitution has great implications in Center-State relations. It is in this case that the Supreme Court boldly marked out the paradigm and limitations within which Article 356 has to function. The Supreme Court of India in its judgment in the case said that it is well settled that Article 356 is an extreme power and is to be used as a last resort in cases where it is manifest that there is an impasse and the constitutional machinery in a State has collapsed. It should be noted here that the views expressed by the bench in the case are similar to the concern showed by the Sarkaria Commission.

The Judgement delivered by the Hon'ble Court is laudable and requires to be praised. Undoubtedly the principles laid down in this case will put a bar on the future dismissal of the state Government by the centre on the political consideration. The Hon'ble Supreme Court had hardly erred on any point while delivering the judgment.

It was in this case that Hon'ble Court firmly laid down certain provision relating to Presidential proclamation issued Under Article 356. The Court rightly held that Presidential proclamation under Article 356 is not absolute and the power conferred by Article 356 on president is conditioned power. The Hon'ble Supreme Court was rightly held that Presidential proclamation is not immune from judicial review. Moreover if the presidential proclamation is held unconstitutional than the Legislature dissolved by the Presidents proclamation can be revived. It was also contended that the Articles 74[2] bars the court from enquiring about the material on the basis of which the proclamation is issued. But the court rejected this contention.

Inspite of such bold and illustrious judgement delivered by the Hon'ble Supreme Court it was criticized that the Court took long time to deliver the verdict and allowed in cases of Karnataka and Meghalaya the illegality to be perpetuated and ultimately deprive the citizen of those states to be governed by their chosen representative. Secondly it was also criticized that the concept of secularism has been mis-interpreted only regard to Hindu fundamentalism. [6]
Despite two or three drawbacks the judgement delivered by the Hon'ble Supreme Court deserves to be complemented for the several reasons. Firstly the Judgement is delivered after in-depth analysis of provision relating to Presidential proclamation. Secondly, it would put a check on arbitrary dismissal of state governments in future and strengthen the federal structure of Indian policy which had hitherto been damaged on several occasion particularly when different political parties were in power at the centre and the state.

Endnotes
[1] Constitution assembly debate
[2] Constitutional Law of India by Dr. J. N. Pandey
[3] Shorter Constitution of India by Durga Das Basu
[4] Constitutional Law By H.M. Seervai (Volume 3) Pg No. 3102
[5] Constitutional Law by H. M. Seerwai (Volume 3) Pg 3104
[6] Constitutional Law of India by Dr. J. N. Pandey

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