AUTHOR: Nandini Verma, 2nd Year, University Institute of Legal Studies, Chandigarh
Indian Constitution was drafted, enacted and adopted to give shape to a newly independent nation, united by its own diversity. Its quasi-federal nature not just accommodated the diversity between states, but also strengthened the centre to hold it all together and maintain the oneness of the nation. This unique centre-state relationship brought its own set of challenges with respect to exercising authority and abuse of special powers granted to the central forces. One such area of challenge was the utilization of emergency provisions mentioned in the Constitution. Initially meant to be a dead letter in the Constitution that was to be used in the rarest of rare cases of absolute urgency, it later came to be utilized as the deadliest weapon against the very spirit of democracy. Additionally, highly esteemed constitutional positions of the President and the Governor also contributed a great deal in regulation of centre-state relations.
The landmark case of S.R. Bommai v. Union of India revolved around the ill-usage of provisions of presidential rule in the state by the Governor and the President. Article 356 of the Indian Constitution provides for the suspension of state legislative assemblies and application of presidential rule in a particular state under certain circumstances of breakdown of constitutional machinery. Before the apex court’s intervention, this provision had been blatantly misused 95 times, in order to advance certain political goals. The judgment by a nine judge bench of the Supreme Court finally settled the legal position on presidential rule in states and the scope of its judicial review. This piece provides an in-depth analysis of the same.
Court: Supreme Court of India
Petitioner: S.R. Bommai
Respondent: Union of India
Date of judgment: 11th March, 1994
Judges: S.R. Pandian, A.M. Ahmadi, Kuldip Singh, J.S. Verma, P.B. Sawant, K. Ramaswamy, S.C. Agrawal, Yogeshwar Dayal and B.P. Jeevan Reddy, JJ.
FACTS OF THE CASE:
There were civil appeals before the Honorable court from the judgments of the Meghalaya, Karnataka High Courts as well as writ petitions from Nagaland, Madhya Pradesh, Rajasthan and Himachal Pradesh High Courts that were collectively taken up for consideration by the Supreme Court.
S.R. Bommai Case:
- R. Bommai was elected as the Chief Minister of Karnataka, leading the Janta party government in March August 1988. This was followed by a merger of Janta party and Lok Dal into Janta Dal in September, 1988. Till April, 1989, there was considerable expansion in the strength of council of ministers which caused the Janta Dal members to defect to the party.
- Consequently, one of the members, Sri Kalyana Rao Molakeri gave the Governor a letter withdrawing his support from the Bommai government. Next day, similar letters from 19 legislators reached the Governor, who then authenticated the signatures through the legislature secretary.
- Upon the Governor’s alleged satisfaction that the Bommai government had lost majority in the house, on 19th April, he sent his report to the President, urging him to invoke Article 356 in Karnataka and proclaim presidential rule.
- On 20th April, seven legislators wrote to the Governor explicitly stating that their signatures on the previous letters were a result of misrepresentation and reinstating their support with the Bommai government. The same day Bommai and his law minister met the Governor to enlighten him about the summoning of the session and his preparedness for a floor test to prove the majority in the house.
- However, much to their dissatisfaction, the Governor sent another report to the President stressing on the need for action on his previous report and the President then published his proclamation of presidential rule under Article 356 and suspension of Karnataka’s legislative assembly on 21st April, 1989.
- When this was challenged in the Karnataka High Court, it was dismissed on the grounds that a floor test was not compulsory to decide the question of majority and the Governor’s satisfaction of the breakdown of constitutional machinery in the state cannot be questioned. Consequently, an appeal was filed in the Supreme Court challenging the High Court’s decision.
In Meghalaya and Nagaland also, similar proclamations were made and upheld by the respective High Courts on questionable circumstances regarding the legislature’s majority.
In BJP ruled states of Madhya Pradesh, Himachal Pradesh and Rajasthan, the Presidential Rule was established in the wake of Babri Masjid demolition and clashes in 1992. The central government contended that the leaders of BJP had undermined the constitutional tenet of Secularism by encouraging the kar sevaks from their respective states to partake in the demolition and had welcomed them in a grand manner upon their return after the incident. The High Courts failed to identify the rationale behind the proclamation and therefore these were also taken up by the Supreme Court.
- Constitutional validity of Presidential rule in the mentioned states.
- Scope and analysis of Article 356.
- Scope of judicial review on proclamations made under Article 356.
- Secularism vis-à-vis Article 356.
CONTENTIONS MADE BY APPELLANTS:
- R. Bommai was not given the opportunity to prove his majority in the Ministry via floor test.
- Proclamation of the President’s Rule is a political act colored with mala fide intentions and is not based on his genuine satisfaction.
- The Central Government has not provided the court with the material upon which the President’s alleged satisfaction was based. Article 74(2) does not preclude Union of India from this obligation.
CONTENTIONS MADE BY RESPONDENTS:
- Judicial review has its limitations in Administrative and Constitutional law. It is applicable in domains where the actions of the Executive or Legislature infringe the scheme of division of powers between the Executive, Legislature and Judiciary or the distribution of powers between the Centre and the States. Even though the Constitution provides certain prerequisites for exercise of powers, the courts cannot look into their sufficiency.
- The President’s proclamation is issued only on the advice given by Council of Ministers upon production of substantive material. Any further inquiry or judgment by the courts on the adequacy of the advice given or materials produced is barred by Article 74(2).
The judgment delivered by Sawant and Jeevan Reddy, JJ., which form the crux of the majority opinion have been discussed here.
Per Sawant, J. (for himself and Kuldip Singh, J.) emphasised on the vital bearing of Article 356 in a parliamentary democracy with a federal structure. The crucial question that falls for consideration in all these matters is whether the President has unfettered powers to issue Proclamation under Article 356(1) of the Constitution. The answer to this question depends upon the answers to the following questions:
(a) Is the Proclamation amenable to judicial review?
(b) If yes, what is the scope of the judicial review in this respect?
(c) What is the meaning of the expression “a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution” used in Article 356(1)?
Article 356 had to be constructively understood in the backdrop of other emergency provisions of the Constitution. Expressions like the President “on the receipt of report from the Governor of a State or otherwise”, “is satisfied” that “the situation has arisen in which the Government of the State cannot be carried on”, “in accordance with the provisions of this Constitution” illustrates the prerequisites of the issuance of proclamation under Article 356. President’s subjective satisfaction had to be based on objective material placed before him. It is also necessary that the objective material relied upon for President’s satisfaction has to explicitly indicate that without Presidential rule the state shall not be able to function effectively. These observations indicate the scope, extent and limitations of judicial review on proclamation of presidential rule in any state.
The learned judges also observed that the satisfaction of the President was not based on his personal whims and fancies but on a legitimate inference from the objective material and circumstances in consideration. This satisfaction has to be clear and certain based on actual facts and not political bias. Even though the ‘sufficiency’ of the material in consideration cannot be questioned, the legitimate inference drawn from the same is certainly open to judicial review.
The satisfaction of the President is based on the advice offered by the Council of Ministers under Article 74(1) of the Constitution. Since the Council of Ministers will always have a backing of the ruling party, the possibility of political bias in the advice offered is inevitable. This is one of the reasons why the framers of the Constitution confined the applicability of Article 356 strictly to situations where the state was unable to function, according to provisions of the Constitution.
Learned Judge also referred to the Sarkaria Commission findings on centre-state relations to understand the situations where the use of the said power by the President will be improper:
- A situation of maladministration in a State, where a duly constituted Ministry enjoying majority support in the Assembly, is in office.
- Where a Ministry resigns or is dismissed on losing its majority support in the Assembly and the Governor recommends imposition of President’s rule without exploring the possibility of installing an alternative Government, enjoying such support or ordering fresh elections.
- Where the Governor on his subjective satisfaction sends the reports for issuance of proclamation under Article 356 without giving the ministry an opportunity to prove its majority via floor test.
- Where in a situation of ‘internal disturbance’, (not amounting to abdication of governmental powers by the State Government), all possible measures to contain the situation have not been exhausted by the Union Government in the discharge of its duty, under Article 355.
- When in not extremely urgent situations the President gives no prior warning or opportunity to the State Government to correct itself.
- Where in response to the prior warning or notice or to an informal or formal direction under Articles 256, 257, etc., the State Government either applies the corrective and thus complies with the direction, or satisfies the Union Executive that the warning or direction was based on incorrect facts, it shall not be proper for the President to invoke Article 356.
- When the power is invoked merely on grounds of financial exigencies of the state, allegations of corruption against ministry or to resolve intra party issues.
- Political Question
Jeevan Reddy, J. held that Judicial Review is not concerned with the merits of the decision but the manner in which it is taken. Sawant, J. held that the Proclamation issued under Art. 356 is judicially reviewable to the extent of examining whether it was issued on the basis of any material at all, or whether it was relevant or whether it suffered from malafide. The bench also said that the sufficiency of the material cannot be questioned. It is only the legitimacy of the inference drawn from such material, which is open to judicial review.
- Article 74(2), Constitution of India and Section 123, Indian Evidence Act
Jeevan Reddy, J. held that Article 74(2) merely bars an enquiry into the advice given by the Council of Ministers to the President. It does not bar the courts to ask for the material upon which the advice is rendered by the Council of Ministers or satisfaction attained by the President. This is necessary to resolve the questions on its existence and relevance with issues under consideration upon which the Proclamation has been issued.
This can be done by the courts by employing the recognised standards of the judicial review- illegality, irrationality and mala fides.
Secularism has been upheld as an element of the basic structure of the Constitution. Political parties at the centre or the state level could not run on any religious lines. If this ideal is sabotaged in any manner by any political party, it would directly be in contravention of provisions of the Constitution. According to the judges, the addition of Secularism in the Preamble through the 42nd Amendment made what was implicit, explicit. All judges were in consonance over the fact that violation of a basic feature of the Constitution would fairly invite the invocation of Article 356.
Conclusions derived by Sawant, J. (for himself and Kuldip Singh, J):
- Learned Sawant, J. observed that it shall not be possible for the President to take irreversible actions under Article 356 owing to clause (3) of the same. This stands true until the Proclamation is approved by both Houses of Parliament within the prescribed time frame of two months.
- Even after approval from both Houses, if the proclamation is held to be invalid, it will be the court’s discretion to restore the status quo ante and revive the dissolved Legislative Assembly of the State. It shall also be open for the court, parliament and legislature of the state to approve, review or modify the actions taken by the President during the period of application of Article 356.
- To serve the purpose of judicial review of Proclamation more effectively, the court shall also have the power to grant interim injunctions to restrain fresh elections until the disposal of challenges to Proclamation.
- Proclamations issued under Article 356 in states of Karnataka, Meghalaya and Nagaland were held to be unconstitutional.
- Proclamations issued and actions taken by the President in the states of Madhya Pradesh, Himachal Pradesh and Rajasthan were held to be constitutionally valid.
Conclusions by Jeevan Reddy, J. (for himself and Agrawal, J.):
- The power conferred by Article 356 upon the President is conditional in nature. It is not absolute and is dependent on the Governor’s report and relevant material. He also reiterated the points mentioned in the Sarkaria Commission report.
- When Article 356(1) is in operation, the President has to take the sole charge of the state and suspend the state legislature. No partial charge can be taken and no two governments can work together. The power has to be exercised by the President in its entirety.
- Clause (3) of Article 356 is conceived as a check on the power of the President and also as a safeguard against abuse. Therefore, the Proclamation shall cease to operate on completion of two months if it is not approved or disapproved by the Parliament.
- Termination of clause (5) of Article 356 by the 44th (Amendment) Act cleared the air on its reviewability. If the court requires the material upon which President’s satisfaction was based to be presented, there can be no refusal by the Central Government.
- Any action by the state government that is violative of the constitutional mandate or is not secular in nature rightfully invites the imposition of Article 356.
- He also held the same set of proclamations valid and invalid as concluded by Sawant, J.
Pandian, J., broadly agreed with the observations of Sawant, J., and Jeevan Reddy, J. Ramaswamy and Ahmadi, JJ. presented dissenting opinions albeit some of their observations were on similar lines as that of the majority view and the only minority voices were those of Verma, J. (for himself and Dayal, J.)
The learned Judges discussed in detail the principles of federalism and parliamentary democracy. States are not just mere extensions or agents to serve the politically biased wishes of the Centre. State governments are highly independent and powerful within their own territory and even though there are certain elements of a strong centre, they do not completely override the federal structure of the country. Strong views were upheld on the paramount existence of Secularism in all sorts of circumstances. Sarkaria Commission Report on Centre-State relations also helped the court in containing the unfettered use of Article 356.
This historic judgment set the narrative clear with respect to boundaries and paradigms within which Article 356 could be used. It was reiterated to be an exception and not a rule or a loophole in law for the Centre to bully or exploit the State governments. It also reaffirmed the sanctity of positions of high constitutional functionaries- the Governor and the President, and held them accountable for the cautious use of Article 356. A positive and assertive stance of Judicial Review was put forward to keep a check on arbitrary use of the powers conferred in Article 356. This judgment provided a much needed breakthrough in achieving cooperative federalism and upholding the Constitutional values in their true sense.
 1994 SCC (3) 1
 India Const. art.356.
 India Const. art. 74, cl. 1.
 S. R. Bommai v. Union of India 1994 SCC (3) 1 (para 298).
 B. N. Harish & Vikram Raghavan, S.R. Bommai v. Union of India (1994) 3 SCC 1, 7 Student Advoc. 134 (1995).
 S. R. Bommai v. Union of India 1994 SCC (3) 1 (Paras 374, 377).
 S. R. Bommai v. Union of India 1994 SCC (3) 1 (Paras 60 and 74).
 India Const. art. 74, cl. 2.
 S. R. Bommai v. Union of India 1994 SCC (3) 1 (Per, Ahmadi J. at para. 29).
 India Const. art. 356, cl. 3.