The case of S.R.Bommai vs Union of India1 is a very landmark case in the purview of the Indian Constitutional history relating to the proclamation of emergency under Article 356 of the Constitution. The case mainly came up with the issue, of the power of the President to issue proclamation under Article 356 of the Constitution including the power to dissolve State Legislative Assemblies2 and also issues relating to federalism and secularism as a part of basic structure.3
The facts and the situation that how the case arises is given below:-
“Bommai’s case came before a bench of 9 judges.4 On 21st April 1989, the President issued a Proclamation under Art. 356 of the Constitution dismissing the Bommai Government and dissolving the Legislative Assembly of the State of Karnataka. A writ petition was filed on 26th April, 1989 challenging the validity of the Proclamation. A special bench of 3 judges of the Karnataka High Court dismissed the writ petition. On 11th October 1991, the President issued a Proclamation under Article 356(1) dismissing the Government of Meghalaya and dissolving the Legislative Assembly. On 7th August 1988, the President issued a Proclamation dismissing the Government of Nagaland and dissolving the State Legislative Assembly. The validity of the Proclamation was challenged in the Guwahati High Court. The petition was heard by a Division Bench comprising of the Chief Justice and Hansaria J.5 The bench differed on the effect and operation of Art. 74(2) and hence the matter was referred to the third Judge. But before the third Judge could hear the matter, the Union of India was granted special leave to appeal and further proceedings in the High Court were stayed. On 15th December 1952, the president issued a Proclamation under Article 356 dismissing the State Governments and dissolving the Legislative Assemblies of Rajasthan, Madhya Pradesh and
1. AIR1994 SC 1918
2. Seervai H.M., Constitutional Law of India, Universal Law Publication, 4th edition, Vol-3, 2005, Delhi. 3098.
3. Prof. M.P. Jain. Indian Constitutional Law, Wadhwa, 5th edition, 2007, Nagpur. 12.
4. S. Ratnavel 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.
5. (1988)2 Gauh L.J. 468
Himachal Pradesh. The validity of these Proclamations was challenged by Writ Petition in the appropriate High Courts. The Madhya Pradesh High Court allowed the Petition but Writ Petition relating to Rajasthan6and Himachal Pradesh were withdrawn to the Supreme Court. The arguments in the case of Bommai commenced in the first week of October 1993 and were concluded in the last week of December 1993. The hearing was interrupted thrice because of Dashera and Diwali holidays and the brief absence of Pandian J. from the bench.”7 The law of the land changed from the year 1992 after the demolition of the Babri Masjid. At that time BJP ruled the states and had their government removed under Article 356 of the Constitution.8
The case of Bommai not only comprised of the issue of Proclamation of emergency by the President but it also has different types of issues relating to secularism and federalism of the Constitution in the Indian context.9 It also enhances in the matter of judicial review of Article 365 of the Constitution which is capable of exercise in testing invalidating proclamation.10
As said in the earlier paragraph I would firstly prefer to deal with the issue of democracy and secularism relating to this case only. ‘The Supreme Court of India has said that democracy and secularism is the basic feature of the Indian Constitution. India is democratic as it has a responsible and parliamentary form of government which is accountable to an elected legislature.’11
‘Secularism is also a part of basic structure as the basis of the Indian Constitution is that all citizens are equal and that the religion of a citizen is irrelevant in the matter of his enjoyment of Fundamental Rights. The Constitution ensures equal freedom for all religion and provides that the religion of the citizen has nothing to do in socio-economic matters.’12
6. State of Rajasthan vs Union of India, AIR (1977)3 SCC592
7. Seervai H.M., Constitutional Law of India, Universal Law Publication, 4th edition, Vol-3, 2005, Delhi. 3098.3099.
8. From the Guwahati, Madhya Pradesh and Karnataka case referred in S.R. Bommai, AIR1994 SC 1918
9. Prof. M.P. Jain. Indian Constitutional Law, Wadhwa, 5th edition, 2007, Nagpur. 12.
10. AIR1994 SC 1918
11. Supra note 9 pg 12.
12. Ibid pg.14
Justice Sawant and Justice B.P. Jeevan Reddy observed that ‘the concept of secularism is not merely a passive attitude of religious tolerance. It is also a positive concept of equal treatment of all religions. This concept was not expressly incorporated in the constitution at the stage of its making, but its operation was visible in the Fundamental Rights and Directive Principles. The concept of secularism, though not expressly stated in the constitution, was nevertheless, deeply embedded in the constitutional philosophy. In 1976, through 42nd amendment of the Constitution, the concept of secularism came into being. The constitution does not define the word ‘secular’ as it is a very elastic term and not capable of any precise definition it is kept undefined.’13
In the view of Justice Ramaswamy, ‘secularism is not anti-god. In Indian context secularism has a positive content. The Indian Constitution embodies the positive concept of secularism and has not accepted the American doctrine of secularism i.e. the concept of erecting “a wall of separation between Religion and State”. The concept of positive secularism separates spiritualism with individual faith.’14
The context of S.R. Bommai also gives us an idea about the federal structure of India, so this is the second issue that has come up. ‘The question of Federalism arose in connection with the main topic of discussion, of the power of President to proclaim the failure of Constitutional Machinery, under Art.356. In this connection Justice Sawant and Kuldip Singh observed that federalism was an essential feature of our Constitution and were a part of basic structure.’15 Justice Jeevan Reddy observed that, ‘the fact that under the scheme of our Constitution, greater power is conferred upon the state vis-à-vis the States do not mean that they are mere appendages of the Centre. With the sphere allotted to them, Sates are supreme. The centre cannot tamper with their powers. More appropriately, the court should not adopt an approach or interpretation, which has the effect of or tends to have the effect of whittling down the power reserved to the State.’16 Thus federalism in India is not a matter of
13. Ibid pg 1201.
14. Pandey J.N., Constitutional Law of India, Central Law Agency, 42nd edition, 2005, Allahbad, 293.
15. Supra note 7 pg 2563
16. AIR1994 SC 1918
administrative convenience, but one of principle.17
The judgment of Justice Verma, Yogeshwar Dayal and Justice Ahmadi also dealt with the issue of federalism and held that it was a part of basic structure. Justice Ramaswamy held that ‘federalism envisaged in the Constitution of India was a basic feature in which the Union of India is permanent within the territorial limit set out in Article 1 of the Constitution and is indestructible and he sets out what he considered to be the feature of federalism. He makes statement that federalism is a basic feature of our constitution is correct, but in describing the nature of federalism in our Constitution the statement made by him are not correct as he has made no attempt to answer the observations made by Justice Sawant.’18 Therefore it is submitted that the discussion is somewhat confused as two judges hold that our Constitution is a federal Constitution with a bias towards the centre and the other two judges have made no attempt to answer the observation of Justice Sawant.19
After the issue of secularism and federalism in the context of this case20 we move on to the next crucial issue which belongs to the:-
Dissolution of the Legislative Assembly- ‘Article 174(1)(b) confers powers on the governor to dissolve the legislative assembly of the State before the expiration of the term of five years. In normal circumstances, the Assembly is not dissolved till the expiry of the term and so long the Ministry is enjoying support in the House. When the ministry has lost the majority support and no alternative to stable the ministry is possible, he may exercise his discretion and dissolve the Legislative Assembly. In this case the Supreme Court has held that the Assembly should not be dissolved until the proclamation made under Article 356 of the Constitution by the President, has been approved by both the Houses of Parliament.21 Therefore a dissolution by the President after the issuance of the proclamation would be as good as a dissolution of the Assembly by the Governor whose powers are taken over.’22
17. Supra note 9 pg 725.
18. Supra note 2 pg 3102
19. Ibid pg.3103
20. S.R. Bommai, AIR1994 SC 1918
21. Kumar Narendra, Constitution of India, Allahbad Law Agency, 4th edition, 2004, Haryana, 541.
22. Ibid pg. 321.
Another issue which can be looked upon is the
Non-Justiciability of the Cabinet advice – It mainly relates to the ‘scope and ambit of Article 74(2) of the Constitution, which bars the Court from embarking upon an inquiry as to whether any advice was tendered by the Council of Ministers to the President. The Supreme Court clarified the implications of Article 74(2) and held that no Court is concerned with what advice was tendered by the Minister to the President. The court is only concerned with the validity of the order and not with what happened in the inner council of the President and the Ministers. An order cannot be challenged on the ground that it is not in accordance with the advice tendered by the Minister or that it is based on no advice. If the president acts without the advice of the Ministers, it may be a case of impeachment, but according to the Court it is the act of the President. Article 74(2) protects and preserves the secrecy of the deliberation between the President and his Council of Ministers. Its scope is limited. This Article cannot override the basic provisions of the Constitution relating to Judicial Review. It does not mean that the government will not justify the Act of the President taken in exercise of his functions. When an Act or Order of the President is questioned in a Court, it is for the Council of Ministers to justify the same by disclosing the materials which formed the basis of the Act.’23
Through this content of Article 74(2) implications, we came to the point of
Judicial Review :
‘Judicial review came with the Question of Politics and relating to this Justice Ahmadi held that, the opinion formed by the President on the basis of Governors report reflects his political judgment and it is difficult to evolve judicially manageable norms for scrutinizing political decisions. There fore by the very nature of things governing decisions under Article 356, they are not justificable.24 Justice Ramaswamy held that, the satisfaction required under Article 356 is a political one and is not judicially manageable as long as the decision does not suffer from malafide irrationality, it cannot be challenged merely on the grounds that material was inadequate or insufficient.25 Justice Jeevan Reddy expressed the same opinion
23. Supra note 3 pg 132.
24. AIR1994 SC 1918 Para 35
25. Paras 215,216,217 and 260
and held that judicial review is not concerned with the merits of the decisions but the manner in which it is taken.26However he also concurred with Justice Sawant’s conclusion who held that, the Proclamation issued under Article 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 malafides, but also held that sufficiency of the material cannot be questioned. It is the only the legitimacy of the inference drawn from such material, which is open to judicial review.27
Application of Article 74(3), Sec.123 of the Indian Evidence Act and administrative law were also there in the issue of judicial review. Justice Ramaswamy held that Article 74(2) has to be harmonized with Article 142 and therefore though the advice of the Council of Ministers cannot be examined, the material on which it was based upon is reviewable.28 The plea of Sec. 123 has to be examined on merits and a broad principle cannot be laid down.29 Justice Jeevan Reddy while expressing the same view held that the scrutiny of the material on which the decision of the Council of Ministers was based upon can be done before or after Parliament approves the proclamation.30 Majority of the judges has clearly held that, the principles of administrative law are inapplicable to the decision of constitutional authority. Justice Sawant held that, these principles are applicable, because the decision under Article 356(1) should be tested by the doctrine of proportionality with respect to the decision taken at the moment of arising of the situation.31 The plea of Article 361 has been summarily dismissed on the ground that the Council of Ministers would be liable under the name of the Union of India, even if the President is immune from judicial scrutiny.32 The summary dismissal of the plea of Article 361 appears to ignore the decisions in Jayantilal Sodhan vs F.N.Rana,33where it has been clearly laid
26. Para 374 and 377
27. Para 60 and 74
28. Para 205
29. Para 209 and 210
30. Para 320-324
31. Para 62
32. Para 210
33. AIR 1964 SC 648
down by the 5 judges, that the executive power of the President is different from the executive power of the Union and that this principle has not expressly been overruled in any of the cases.’34
One of the most important issue of this case without which the case is incomplete is the Scope and Ambit of Article 356.
‘President’s rule is invoked under Article 365, only on the occasion in, a situation resulting from instability of the state government35, or in a situation resulting from the law and order problems36, or frequent defections and change of loyalties by the legislators37, or on the ground of corruption, mal administration, misuse of power for partisan ends.38. An unusual instance of the invocation of Article 356 and the imposition of President’s rule in the States took place in 1977, after the lifting of the Emergency of 1975, as the general elections for Lok Sabha were held in n1977.’39
‘The Supreme Court of India has lain down a number of guidelines which reflects the majority view. Those are:
Article 356 confers extra ordinary power on the President. This power should be exercised sparingly and with great circumspection. The court reffered to the observations made by Dr. B.R. Ambedkar on Article 356.He hoped that the emergency provisions would be invoked in rarest of rare cases. The court also endorsed the recommendations of the Sarkaria Commission in regard to the use of Article 356. The Commission recommended that before invoking Article 356(1) a warning in specific terms should be given to the State. All alternatives
34. B.N.Harish and Vikram Raghavan, ivth year and vth year B.A. LLB(Hons), NLSIU, 136,137, 138
35. For instance Art 356(1) was invoked in 1951 in Punjab, in1954 in Andhra Pradesh etc.
36. For instance Art 356(1) was invoked in 1959 in Kerala, in 1973 in Andhra Pradesh, in 1983 and again 1987 in Punjab
37. for instance in 1967 in Hryan, in 1975 in Nagaland, in 1976 and 1996 in Gujrat
38. For instance the dismissal of the D.M.K. Ministry in Tamilnadu in 1976 given in case of M.Karunanidhi vs U.O.I., A.I.R. 1978 SC 68
39. Supra note 21 pg. 793
should be exhausted to contain the situation and all attempts to resolve the crisis of the State level should be made.40
Though Article 356 does not expressly speak of the dissolution of the Legislative Assembly of the State, however, such power is implicit in sub-clause(a) of Article 356(1). Since Article 174(2)(b) empowers the Governor to dissolve the Legislative Assembly and the President under Article 356(1))a) assumes to himself the powers and functions of both of the Government and the Governor. He can dissolve the Legislative Assembly as part of the proclamation issued under Article 356(1) or by a subsequent order.41
The court relating to the power to dissolve the Legislative Assembly, said that Clause (3) of Article 356 requires the Proclamation to be laid before both Houses of Parliament. The President has the power to suspend the Legislative Assembly under Article 356 (1)(c) before the approval of the Proclamation by the Parliament.
The High Court or Supreme Court shall have the jurisdiction to entertain a writ petition questioning the Proclamation if it is satisfied that the writ petition raises arguable question with respect to the validity of the Proclamation. If the situation demands, the court may also stay the dissolution of the Legislative Assembly.42
Clause (3) of Article 356 is conceived as a control on the power of the President and also a safeguard against abuse. Thus if the two Houses of Parliament do not approve the issuance of Proclamation, both the State Government and the State Assembly can be revived.43
If the proclamation issued is held invalid by the Court, then, notwithstanding the fact that it is approved by the both House of Parliament, it will be open to the Court to restore the status quoi ante to the issuance of Proclamation and hence to restore the Legislative Assembly and the Ministry.44
40. Report Sarkaria Commission, October 27, 1987
41. In this regard the court approved the decision in State of Rajasthan vs U.O.I.
42. Per B.P. Jeevan Reddy, J.(for himself and on behalf of S.C. Agarwal, J.) S.R. Bommai, AIR1994 SC 1918 2060.
43. Per B.P. Jeevan Reddy, J.(for himself and on behalf of S.C. Agarwal, J.) S.R. Bommai, AIR1994 SC 1918 2060-61.
44. Per Sawant J.(for himself and Kuldip Singh J.), B.P. Jeevan Reddy J. (for himself and on behalf of S.C. Agarwal, J.) S.R. Bommai, AIR1994 SC 1918 2004, 2113.
In all cases where the Ministry loses majority support, it was held that the proper course for testing the strength of the Ministry was holding the Test on the floor of the House, except in case where the holding of the floor test was considered not possible.
It was held that Article 74(2) did not bar the Court from calling upon the Union Council of Ministers to disclose the material upon which the President had formed the requisite satisfaction.’45
It was held that the power of the President under Article 365 of the Constitution is a constitutional power and not an absolute power.46
‘The most recent instance of the invocation of Article 356 was the imposition of the President’s rule in the State of Uttar Pradesh in 1996. After the resignation of the Mayawati Government, the main parties, the B.J.P. and the Samajwadi Party, did not claim to form Government. The Governor recommended the President’s rule in the State and further said that the Legislative Assembly of the State should be kept under suspended animation until the proclamation to be made under Article 356 was confirmed by the two Houses of the Parliament.’47
The case of S.R.Bommai is a vast case consisting of more than 200 pages of decision given by the Supreme Court of India. It is an important development in the Constitutional Law of India. As a part of comprehension I have tried to trace out some of the main issues of the case and how are they implied. I have dealt with the issue of secularism and federalism, and have mentioned the view of almost all the judges, who has given the opinion that a federal and secular structure is an essential feature of the Constitution of India and State governments48, and comprises of the basic structure. The issue of dissolution of Legislative Assembly which deals with Article 174(1)(b) is given in the context of the dissolution of the State Assembly by the President
45. Supra note 21. pg 798, 799, 800.
46. Supra note 14. pg 693, 694.
47. Supra note 21. pg 800.
48. Arvind P. Datar, Datar on Constitution, Wadhwa and Company, 2001, New Delhi, 1157.
under Article 356 of the Constitution which cannot be done until the proclamation is verified by both the Houses of Partliament.49It is held by the court relating to the non-justiciability of the cabinet advice that no court is concerned with the advice tendered by the Ministers to the President as it is only concerned with the validity of the order and is protected by Article 74(2) of the Constitution.
Article 356 has been summed up in this case and has given extraordinary powers to the president which must be used sparingly during the situation of protection of a democratic form of Government and to prevent paralysis of the political process.50 ‘The majority view in this case is the test laid down in the Barium Chemicals Ltd.51 and the decisions for adjudging the validity of administrative action, which cannot be for testing the satisfaction of the President under Article 356. The dissenting by, Sawant and Kuldip Singh JJ., held that the parameters of judicial review developed in the field of administrative law are not antithetical in the field of constitutional law and they equally apply to the domain covered by Constitutional Law.’52
49. Supra note 21 pg 541.
50. Supra note 48 pg 1157.
51. Barium Chemicals Ltd vs Company Law Board AIR 1967 SC 295
52. Supra note 48 pg. 1159
List of Cases :-
1) Guwahati emergency case (1988)2 Gauh L.J. 468, PG 2
2) State of Rajasthan vs Union of India, AIR (1977)3 SCC592, PG 3
3) Jayantilal Sodhan vs F.N.Rana, AIR 1964 SC 648, PG 7.
4) M.Karunanidhi vs Union of India., A.I.R. 1978 SC 68, pg 8
5) Report Sarkaria Commission, October 27, 1987, pg 9
6) Barium Chemicals Ltd vs Company Law Board, AIR 1967 SC 295, pg 11
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