S. R. Bommai v. Union of India
Encyclopedia
S. R. Bommai v. Union of India ([1994] 2 SCR 644 : AIR 1994 SC 1918 : (1994)3 SCC1
) was a landmark judgment of the Supreme Court of India
, where the Court discussed at length provisions of Article 356 of the Constitution of India
and related issues. This case had huge impact on Centre-State Relations. The misuse of Article 356, to impose central authority on states, was stopped after this judgement.
over a State
of India
. When a state is under President's Rule, the elected state government (led by the Chief Minister
and the Council of Ministers) is suspended, and administration is conducted directly by the Governor of the state. The Governor is an appointee of the President
and thus, effectively, a functionary of the Union Government
(the central
or federal government
). Thus imposition of President's Rule negates the federal character
of the Indian political system, where administration usually is shared between the Union and State governments. It also militates against the democratic doctrine of popular sovereignty
, since an elected government is suspended. These reasons have made use of Article 356 controversial. Nevertheless, it was used repeatedly by central governments to suspend state governments (of opposite political parties) based on genuine reasons or trumped-up excuses.
Dr. Baba Saheb Ambedkar, one of the founding fathers of the Constitution of India
, referred to Article 356 as a dead letter of the Constitution. In the constituent assembly debate it was suggested that Article 356 is liable to be abused for political gains. Dr. Ambedkar replied that 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.”
But this was never the case and Article 356 has been abused repeatedly before this case. So far, the provision for suspension of elected governments has been used on more than 100 occasions and in almost all cases against state governments run by political parties in opposition.
Karnataka
The facts were that the Janata Party
being the majority party in the State Legislature
had formed Government under the leadership of 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 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 April, the Governor sent a report to the President stating therein there were dissensions and defections in the ruling party. He further stated that in view of the withdrawal of the support by the said legislators, the chief Minister, 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 state assembly
. 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, even by bringing forward the scheduled session, to prove the confidence of assembly in his government. 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).
A writ petition
was filed on 26 April 1989 challenging the validity of the proclamation. A special bench of 3 judges of Karnataka High Court
dismissed the writ petition.
Meghalaya
On 11 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 7 August 1988, the president issued the proclamation on the basis of Governor Report and dismissed the Government of Nagaland
thus dissolving the Legislative assembly. 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 (Constitution of India)
(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
On account of the Babri Masjid 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 BJP Governments 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 15 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 Madhya Pradesh 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.
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 inquiry 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 Article 356(3).
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.
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 nonsecular acts.
under Article 356 was justiciable all the judges were unanimous in holding that the presidential proclamation was justiciable. The 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 inquiry 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.
has unfettered powers to issue Proclamation under Article 356(1) of the Constitution. It was contended that The 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
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
.
bars the inquiry into advice was tendered by Council of Ministers to the President, the 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 Council of Ministers to the President. In this regard 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 inquiry 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.
and the remedy of judicial review being rendered fruitless.
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 religions. 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 recognize, 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 nonsecular policies or nonsecular 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 organization 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.
boldly marked out the paradigm and limitations within which Article 356 has to function. The Supreme Court said 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. The views expressed by the court in this case are similar to the concern showed by the Sarkaria Commission
.
The principles laid down in this case put a bar on the dismissal of the state government by the centre for political gains.
It was in this case that the court firmly laid down certain provision relating to Presidential proclamation issued Under Article 356. The Court held that Presidential proclamation under Article 356 is not absolute and the power conferred by Article 356 on president is conditioned power. The Supreme Court held that presidential proclamation
is not immune from judicial review
. Moreover, if the presidential proclamation is held unconstitutional, the legislature
dissolved by the presidential proclamation can be revived. It was also contended that the Articles 74(2)
bars the court from inquiring about the material on the basis of which the proclamation is issued, but the court rejected this contention.
In spite of such bold and illustrious judgement delivered by the Supreme Court, people criticized that the Court took such a long time to deliver the verdict and allowed, in the cases of Karnataka
and Meghalaya
, the illegality to be perpetuated and ultimately deprive the citizens of those states to be governed by their chosen representative. Secondly, it was also criticized that the concept of secularism
had been misinterpreted only regard to Hindu fundamentalism.
Still, the judgement delivered by the Supreme Court put a check on arbitrary dismissal of state governments in future and strengthen the federal structure of Indian polity which had hitherto been damaged on several occasion particularly when different political parties were in power at the Centre and the State.
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
) was a landmark judgment of the Supreme Court of India
Supreme Court of India
The Supreme Court of India is the highest judicial forum and final court of appeal as established by Part V, Chapter IV of the Constitution of India...
, where the Court discussed at length provisions of Article 356 of the Constitution of India
Constitution of India
The Constitution of India is the supreme law of India. It lays down the framework defining fundamental political principles, establishes the structure, procedures, powers, and duties of government institutions, and sets out fundamental rights, directive principles, and the duties of citizens...
and related issues. This case had huge impact on Centre-State Relations. The misuse of Article 356, to impose central authority on states, was stopped after this judgement.
Background
Article 356 deals with imposition of President's RulePresident's rule
President's rule is the term used in India when a state legislature is dissolved or suspended and the state is placed under direct federal rule...
over a State
States and territories of India
India is a federal union of states comprising twenty-eight states and seven union territories. The states and territories are further subdivided into districts and so on.-List of states and territories:...
of India
India
India , officially the Republic of India , is a country in South Asia. It is the seventh-largest country by geographical area, the second-most populous country with over 1.2 billion people, and the most populous democracy in the world...
. When a state is under President's Rule, the elected state government (led by the Chief Minister
Chief Minister
A Chief Minister is the elected head of government of a sub-national state, provinces of Sri Lanka, Pakistan, notably a state of India, a territory of Australia or a British Overseas Territory that has attained self-government...
and the Council of Ministers) is suspended, and administration is conducted directly by the Governor of the state. The Governor is an appointee of the President
President of India
The President of India is the head of state and first citizen of India, as well as the Supreme Commander of the Indian Armed Forces. President of India is also the formal head of all the three branches of Indian Democracy - Legislature, Executive and Judiciary...
and thus, effectively, a functionary of the Union Government
Government of India
The Government of India, officially known as the Union Government, and also known as the Central Government, was established by the Constitution of India, and is the governing authority of the union of 28 states and seven union territories, collectively called the Republic of India...
(the central
Central government
A central government also known as a national government, union government and in federal states, the federal government, is the government at the level of the nation-state. The structure of central governments varies from institution to institution...
or federal government
Federal government
The federal government is the common government of a federation. The structure of federal governments varies from institution to institution. Based on a broad definition of a basic federal political system, there are two or more levels of government that exist within an established territory and...
). Thus imposition of President's Rule negates the federal character
Federation
A federation , also known as a federal state, is a type of sovereign state characterized by a union of partially self-governing states or regions united by a central government...
of the Indian political system, where administration usually is shared between the Union and State governments. It also militates against the democratic doctrine of popular sovereignty
Popular sovereignty
Popular sovereignty or the sovereignty of the people is the political principle that the legitimacy of the state is created and sustained by the will or consent of its people, who are the source of all political power. It is closely associated with Republicanism and the social contract...
, since an elected government is suspended. These reasons have made use of Article 356 controversial. Nevertheless, it was used repeatedly by central governments to suspend state governments (of opposite political parties) based on genuine reasons or trumped-up excuses.
Dr. Baba Saheb Ambedkar, one of the founding fathers of the Constitution of India
Constitution of India
The Constitution of India is the supreme law of India. It lays down the framework defining fundamental political principles, establishes the structure, procedures, powers, and duties of government institutions, and sets out fundamental rights, directive principles, and the duties of citizens...
, referred to Article 356 as a dead letter of the Constitution. In the constituent assembly debate it was suggested that Article 356 is liable to be abused for political gains. Dr. Ambedkar replied that 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.”
But this was never the case and Article 356 has been abused repeatedly before this case. So far, the provision for suspension of elected governments has been used on more than 100 occasions and in almost all cases against state governments run by political parties in opposition.
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
Janata Party
The Janata Party was an amalgam of Indian political parties opposed to the state of emergency imposed by the government of Prime Minister Indira Gandhi and her Indian National Congress...
being the majority party in the State Legislature
Karnataka legislature
The Karnataka Legislative Assembly is the lower house of the bicameral legislature of Karnataka state in southern India. Karnataka is one of the six states in India, where the state legislature is bicameral, comprising two houses...
had formed Government under the leadership of 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 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 April, the Governor sent a report to the President stating therein there were dissensions and defections in the ruling party. He further stated that in view of the withdrawal of the support by the said legislators, the chief Minister, 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
Executive (government)
Executive branch of Government is the part of government that has sole authority and responsibility for the daily administration of the state bureaucracy. The division of power into separate branches of government is central to the idea of the separation of powers.In many countries, the term...
consisting of Council of Ministers which did not command the majority in the state assembly
Karnataka legislature
The Karnataka Legislative Assembly is the lower house of the bicameral legislature of Karnataka state in southern India. Karnataka is one of the six states in India, where the state legislature is bicameral, comprising two houses...
. 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, even by bringing forward the scheduled session, to prove the confidence of assembly in his government. 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).
A writ petition
Writ
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...
was filed on 26 April 1989 challenging the validity of the proclamation. A special bench of 3 judges of Karnataka High Court
Karnataka High Court
The Karnataka High Court is the High Court of the Indian state of Karnataka. It is located in Bangalore, the capital city of Karnataka. The High Court functions out of a red brick building known as Attara Kacheri...
dismissed the writ petition.
Meghalaya
On 11 October 1991 the president
President of India
The President of India is the head of state and first citizen of India, as well as the Supreme Commander of the Indian Armed Forces. President of India is also the formal head of all the three branches of Indian Democracy - Legislature, Executive and Judiciary...
issued a proclamation under Article 356(1) dismissing the government of Meghalaya
Meghalaya
Meghalaya is a state in north-eastern India. The word "Meghalaya" literally means the Abode of Clouds in Sanskrit and other Indic languages. Meghalaya is a hilly strip in the eastern part of the country about 300 km long and 100 km wide, with a total area of about 8,700 sq mi . The...
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 7 August 1988, the president issued the proclamation on the basis of Governor Report and dismissed the Government of Nagaland
Nagaland
Nagaland is a state in the far north-eastern part of India. It borders the state of Assam to the west, Arunachal Pradesh and part of Assam to the north, Burma to the east and Manipur to the south. The state capital is Kohima, and the largest city is Dimapur...
thus dissolving the Legislative assembly. 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 (Constitution of India)
Article 74 (Constitution of India)
Article 74 of the Constitution of the Republic of India provides for a Council of Ministers which shall aid the President in the exercise of his functions.-Text: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
On account of the Babri Masjid demolition, communal riots spread out in the entire country. Thereafter the Hon’ble Supreme Court
Supreme Court of India
The Supreme Court of India is the highest judicial forum and final court of appeal as established by Part V, Chapter IV of the Constitution of India...
banned RSS, VHP and Bajrang Dal in the country.
However the BJP Governments of Madhya Pradesh
Madhya Pradesh
Madhya Pradesh , often called the Heart of India, is a state in central India. Its capital is Bhopal and Indore is the largest city....
, Himachal Pradesh
Himachal Pradesh
Himachal Pradesh is a state in Northern India. It is spread over , and is bordered by the Indian states of Jammu and Kashmir on the north, Punjab on the west and south-west, Haryana and Uttar Pradesh on the south, Uttarakhand on the south-east and by the Tibet Autonomous Region on the east...
and Rajasthan
Rajasthan
Rājasthān the land of Rajasthanis, , is the largest state of the Republic of India by area. It is located in the northwest of India. It encompasses most of the area of the large, inhospitable Great Indian Desert , which has an edge paralleling the Sutlej-Indus river valley along its border with...
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 15 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 Madhya Pradesh High Court
Madhya Pradesh High Court
The Madhya Pradesh High Court is the High Court of the state of Madhya Pradesh. It was established as the Nagpur High Court on 2 January 1936 under the Government of India Act 1935. The Court was established in Nagpur, but after the reorganisation of states on 1 November 1956, it was moved to...
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.
The Contentions
S. R. Bommai v. Union of India raised serious question of law relating to Proclamation of President's RulePresident's rule
President's rule is the term used in India when a state legislature is dissolved or suspended and the state is placed under direct federal rule...
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)
Article 74 (Constitution of India)
Article 74 of the Constitution of the Republic of India provides for a Council of Ministers which shall aid the President in the exercise of his functions.-Text:Article 74...
of the Constitution and since Clause [2] of the said Article bars inquiry into the question whether any, and if so, what advice was tendered by Ministers to the President, judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
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 Article 356(3).
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.
Whether a president can dissolve the legislature without having obtained the approval of both the Houses of the Legislature.
It was contended that Secularism
Secularism
Secularism is the principle of separation between government institutions and the persons mandated to represent the State from religious institutions and religious dignitaries...
being a basic feature
Basic structure
The basic structure doctrine is the judge-made principle that certain features of the Constitution of India are beyond the limit of the powers of amendment of the Indian parliament. The doctrine, which was first expressed by the Indian Supreme Court in Kesavananda Bharati v...
of the Constitution, a State government can be dismissed if it is guilty of nonsecular acts.
Malafide exercise of Article 356
While dealing with the question as to whether the Presidential ProclamationPresident's rule
President's rule is the term used in India when a state legislature is dissolved or suspended and the state is placed under direct federal rule...
under Article 356 was justiciable all the judges were unanimous in holding that the presidential proclamation was justiciable. The Supreme Court held that the proclamation under Article 356(1) is not immune from judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
. 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
Prima facie
Prima facie is a Latin expression meaning on its first encounter, first blush, or at first sight. The literal translation would be "at first face", from the feminine form of primus and facies , both in the ablative case. It is used in modern legal English to signify that on first examination, a...
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 inquiry 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.
Powers of President under Article 356
The second question which was taken into consideration by the court was that whether the PresidentPresident of India
The President of India is the head of state and first citizen of India, as well as the Supreme Commander of the Indian Armed Forces. President of India is also the formal head of all the three branches of Indian Democracy - Legislature, Executive and Judiciary...
has unfettered powers to issue Proclamation under Article 356(1) of the Constitution. It was contended that The 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
Legislative Assembly
Legislative Assembly is the name given in some countries to either a legislature, or to one of its branch.The name is used by a number of member-states of the Commonwealth of Nations, as well as a number of Latin American countries....
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
Parliament of India
The Parliament of India is the supreme legislative body in India. Founded in 1919, the Parliament alone possesses legislative supremacy and thereby ultimate power over all political bodies in India. The Parliament of India comprises the President and the two Houses, Lok Sabha and Rajya Sabha...
.
Article 74 and Justiciability of advice of Council of Ministers to President
In regard to the contention, that Article 74(2)Article 74 (Constitution of India)
Article 74 of the Constitution of the Republic of India provides for a Council of Ministers which shall aid the President in the exercise of his functions.-Text:Article 74...
bars the inquiry into advice was tendered by Council of Ministers to the President, the 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 Council of Ministers to the President. In this regard 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 inquiry 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
Indian Evidence Act
The Indian Evidence Act, originally passed by the British parliament in 1872, contains a set of rules and allied issues governing admissibility of any evidence in the Indian courts of law. Before Indian Evidence Act,India was subjected to Personal Laws as correctly may be said that of Muslims and...
. 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.
Invalidation of Proclamation
The Supreme Court 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.Powers of Parliament
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 Article 356(3).Elections to Legislature pending final Disposal of case
Another issue taken into consideration by the 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 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 accompliFait Accompli
Fait accompli is a French phrase which means literally "an accomplished deed". It is commonly used to describe an action which is completed before those affected by it are in a position to query or reverse it...
and the remedy of judicial review being rendered fruitless.
Secularism
Supreme Court while adjudicating that a State Government cannot follow particular religionReligion
Religion is a collection of cultural systems, belief systems, and worldviews that establishes symbols that relate humanity to spirituality and, sometimes, to moral values. Many religions have narratives, symbols, traditions and sacred histories that are intended to give meaning to life or to...
discussed at length the concept of Secularism
Secularism
Secularism is the principle of separation between government institutions and the persons mandated to represent the State from religious institutions and religious dignitaries...
. The Court held that Secularism is one of the basic features of the Constitution
Basic structure
The basic structure doctrine is the judge-made principle that certain features of the Constitution of India are beyond the limit of the powers of amendment of the Indian parliament. The doctrine, which was first expressed by the Indian Supreme Court in Kesavananda Bharati v...
. Secularism is a positive concept of equal treatment of all religions. This attitude is described by some as one of neutrality towards religion or as one of benevolent neutrality. While freedom of religion
Freedom of religion
Freedom of religion is a principle that supports the freedom of an individual or community, in public or private, to manifest religion or belief in teaching, practice, worship, and observance; the concept is generally recognized also to include the freedom to change religion or not to follow any...
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 recognize, 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 nonsecular policies or nonsecular 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 organization 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.
Implications and Criticism
This case in the history of the Indian Constitution has great implications on Centre-State Relations. It is in this case that the Supreme CourtSupreme Court of India
The Supreme Court of India is the highest judicial forum and final court of appeal as established by Part V, Chapter IV of the Constitution of India...
boldly marked out the paradigm and limitations within which Article 356 has to function. The Supreme Court said 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. The views expressed by the court in this case are similar to the concern showed by the Sarkaria Commission
Sarkaria Commission
Sarkaria Commission was set up in June 1983 by the central government of India. The Sarkaria Commission's charter was to examine the relationship and balance of power between state and central governments in the country and suggest changes within the framework of Constitution of India. The...
.
The principles laid down in this case put a bar on the dismissal of the state government by the centre for political gains.
It was in this case that the court firmly laid down certain provision relating to Presidential proclamation issued Under Article 356. The Court held that Presidential proclamation under Article 356 is not absolute and the power conferred by Article 356 on president is conditioned power. The Supreme Court held that presidential proclamation
President's rule
President's rule is the term used in India when a state legislature is dissolved or suspended and the state is placed under direct federal rule...
is not immune from judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
. Moreover, if the presidential proclamation is held unconstitutional, the legislature
Legislature
A legislature is a kind of deliberative assembly with the power to pass, amend, and repeal laws. The law created by a legislature is called legislation or statutory law. In addition to enacting laws, legislatures usually have exclusive authority to raise or lower taxes and adopt the budget and...
dissolved by the presidential proclamation can be revived. It was also contended that the Articles 74(2)
Article 74 (Constitution of India)
Article 74 of the Constitution of the Republic of India provides for a Council of Ministers which shall aid the President in the exercise of his functions.-Text:Article 74...
bars the court from inquiring about the material on the basis of which the proclamation is issued, but the court rejected this contention.
In spite of such bold and illustrious judgement delivered by the Supreme Court, people criticized that the Court took such a long time to deliver the verdict and allowed, in the cases of Karnataka
Karnataka
Karnataka , the land of the Kannadigas, is a state in South West India. It was created on 1 November 1956, with the passing of the States Reorganisation Act and this day is annually celebrated as Karnataka Rajyotsava...
and Meghalaya
Meghalaya
Meghalaya is a state in north-eastern India. The word "Meghalaya" literally means the Abode of Clouds in Sanskrit and other Indic languages. Meghalaya is a hilly strip in the eastern part of the country about 300 km long and 100 km wide, with a total area of about 8,700 sq mi . The...
, the illegality to be perpetuated and ultimately deprive the citizens of those states to be governed by their chosen representative. Secondly, it was also criticized that the concept of secularism
Secularism
Secularism is the principle of separation between government institutions and the persons mandated to represent the State from religious institutions and religious dignitaries...
had been misinterpreted only regard to Hindu fundamentalism.
Still, the judgement delivered by the Supreme Court put a check on arbitrary dismissal of state governments in future and strengthen the federal structure of Indian polity which had hitherto been damaged on several occasion particularly when different political parties were in power at the Centre and the State.
See also
- Supreme Court of IndiaSupreme Court of IndiaThe Supreme Court of India is the highest judicial forum and final court of appeal as established by Part V, Chapter IV of the Constitution of India...
- Article 356
- Sarkaria CommissionSarkaria CommissionSarkaria Commission was set up in June 1983 by the central government of India. The Sarkaria Commission's charter was to examine the relationship and balance of power between state and central governments in the country and suggest changes within the framework of Constitution of India. The...
- Judicial ReviewJudicial reviewJudicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
- Article 74Article 74 (Constitution of India)Article 74 of the Constitution of the Republic of India provides for a Council of Ministers which shall aid the President in the exercise of his functions.-Text:Article 74...
External links
- http://www.judis.nic.in/supremecourt/qrydisp.aspx?filename=11570Case details as available on Indian Supreme Court websiteSupreme Court of IndiaThe Supreme Court of India is the highest judicial forum and final court of appeal as established by Part V, Chapter IV of the Constitution of India...
] - Case details as available on Legal Service India
- Executive discretion and Article 356 of the constitution of india: By K. Jayasudha Reddy and Joy V. Joseph
- Case details at indiankanoon.org
- Soli J. Sorabjee, Decision of the Supreme Court in S.R. Bommai v. Union Of India: A Critique http://www.ebc-india.com/lawyer/articles/94v3a1.htm