# S.R. BOMMAI AND ORS v. UNION OF INDIA AND ORS

- **Citation:** [1994] 2 S.C.R. 644
- **Court:** Supreme Court of India
- **Decided:** 1994-03-11
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/s-r-bommai-and-ors-v-union-of-india-and-ors-12621
- **Pages:** 357

## Headnote

A
B
S.R. BOMMAI AND ORS.
v.
UNION OF INDIA AND ORS.
MARCH 11, 1994
[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, J.T.]
Constitution of India, I950: Art. 356-Nature, scope, applicability and
C effect of-President's Rule-Promulgation of in case of failure of constitutional machinery in states-Satisfaction ,_~r President' that a situation has arisen
in which the Government of the State cannot be canied on in accordance
with the provisions of the Constitution'-fnterpretation of-'Satisfaction of
PresidentL-'Satisfaction'-Meaning of-Subjective satisfaction of Union
D Council of Ministers-Principles of natural justice-Observance of-Satisfaction must be based on Objective material-Situations where it can be said
that the State Govt. 'cannot' be canied on-Return of any political party at
the centre different from that in power in the State-Not one such situation-ideology of State Govt. to be consistent with the Constitutiort-Disregard
IE by any State of the basic values and essential features of the Constitution-Regard to federal structure and Cen~State relatiotr-Need for-Effect
of issuance of the Promulgation and conditions precedent-Dissolution of
Legislative Assembly and Government of the State-.Whether a necessary
consequence-Effect of approval/disapproval of the Promulgation-Revival of
Legislation Assembly-Validation of laws and orders passed during the
~ promulgation-Validity of Promulgatidns issued in respect of Kamataka,
Meghalaya, Nagaland, Madhya Pradesh, Himachal Pradesh and Rajasthan.
Con_stitution of India, I951J-Arts. 356, and 352, 355, 357, 36o-Nature
of Art. 356 in the context of-An emeJ8ency provision to be used in excep-
" tional circumstances.
,
Constitution of India, 1951J-Arts. 356(1) and 154, 155, 156, 163-'0n
receipt of report from Govemor'-Govemor's obligation to make report-Role
of Governors-Floor test-Testing majority support of the ruling party in the
State on the floor of the House-Necessity of-Whether floor test a pre-requi-
• site to sending report by Governor.
644
I l
.>·-
S.R. BOMMAI v. U.0.l.
645
Constitution of J11dia, 195()--Preamble and Arts. 15, 16, 25, 26, 27, 28, A
30, 51-A, 356-Scope of Preambl&-Secularism-Mea11i11g a11d role
of-Religious tolerance a11d equal treatme11t of all religions-Concept of
positive secularism-Religion vis-a-vis secularism-Secularism is part of the
basic st111cture of the Constitution-Effect of 42nd Amendment.
Constitution of I11dia 1950-Arts. 32, 226 & 35-Proclamation under
Art.356-Amenable to judicial reviev.-Before or after Parliament's approval-Not the subjective satisfaction of President but material on which
satisfaction is based open to judicial review on grounds of illegality, malafide,
extraneous considerations, abuse of jJower or fraud on power, irrelevance not
sustainable so long as there is sonte relevant rnaterial-Co1Tections or adequacy of the ntaterial cannot be gone into on merits-Nor can purely political
questions be reviewed by Court-Doctrine of political thicket-Materials falling within the expression, 'or otherwise'-Review of
B
c
Constitution of India, 1950-Arts. 356, 74(2) & 142 and 32 &
226-Proclan;atio11 under Art. 356-Judicial Reviev.-Bar under Art. D
74(2)-Nature a11d object of-Whether confined to the advice tendered by
Council of Ministers-But material on the basis of which advice was tendered
is subject to judicial reviea-Whether Govt. while justifying its action can
claim privilege under S. 123 of the Evidence Act, 187l-Burden of
Proof-First on the person challenging the Proclamation-Then shifts to E
Union of India.
Constitution of India : Arts. 74 and 77-Scope of
Interpretation of the Constitution : Constitutional schem&-Should be
so construed as to maintain the fundamental balance.
p
Constitutional provisions-Language plain and clean-No obvious inadvertento: mission-Filling up the gaps by Courts-Whether could be
resorted to.
Constitutional provision

## Text

_Characters 0–39,902 of 931,714. This is a partial read: ask again with offset=39902 for what follows._

A
B
S.R. BOMMAI AND ORS.
v.
UNION OF INDIA AND ORS.
MARCH 11, 1994
[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, J.T.]
Constitution of India, I950: Art. 356-Nature, scope, applicability and
C effect of-President's Rule-Promulgation of in case of failure of constitutional machinery in states-Satisfaction ,_~r President' that a situation has arisen
in which the Government of the State cannot be canied on in accordance
with the provisions of the Constitution'-fnterpretation of-'Satisfaction of
PresidentL-'Satisfaction'-Meaning of-Subjective satisfaction of Union
D Council of Ministers-Principles of natural justice-Observance of-Satisfaction must be based on Objective material-Situations where it can be said
that the State Govt. 'cannot' be canied on-Return of any political party at
the centre different from that in power in the State-Not one such situation-ideology of State Govt. to be consistent with the Constitutiort-Disregard
IE by any State of the basic values and essential features of the Constitution-Regard to federal structure and Cen~State relatiotr-Need for-Effect
of issuance of the Promulgation and conditions precedent-Dissolution of
Legislative Assembly and Government of the State-.Whether a necessary
consequence-Effect of approval/disapproval of the Promulgation-Revival of
Legislation Assembly-Validation of laws and orders passed during the
~ promulgation-Validity of Promulgatidns issued in respect of Kamataka,
Meghalaya, Nagaland, Madhya Pradesh, Himachal Pradesh and Rajasthan.
Con_stitution of India, I951J-Arts. 356, and 352, 355, 357, 36o-Nature
of Art. 356 in the context of-An emeJ8ency provision to be used in excep-
" tional circumstances.
,
Constitution of India, 1951J-Arts. 356(1) and 154, 155, 156, 163-'0n
receipt of report from Govemor'-Govemor's obligation to make report-Role
of Governors-Floor test-Testing majority support of the ruling party in the
State on the floor of the House-Necessity of-Whether floor test a pre-requi-
• site to sending report by Governor.
644
I l
.>·-
S.R. BOMMAI v. U.0.l.
645
Constitution of J11dia, 195()--Preamble and Arts. 15, 16, 25, 26, 27, 28, A
30, 51-A, 356-Scope of Preambl&-Secularism-Mea11i11g a11d role
of-Religious tolerance a11d equal treatme11t of all religions-Concept of
positive secularism-Religion vis-a-vis secularism-Secularism is part of the
basic st111cture of the Constitution-Effect of 42nd Amendment.
Constitution of I11dia 1950-Arts. 32, 226 & 35-Proclamation under
Art.356-Amenable to judicial reviev.-Before or after Parliament's approval-Not the subjective satisfaction of President but material on which
satisfaction is based open to judicial review on grounds of illegality, malafide,
extraneous considerations, abuse of jJower or fraud on power, irrelevance not
sustainable so long as there is sonte relevant rnaterial-Co1Tections or adequacy of the ntaterial cannot be gone into on merits-Nor can purely political
questions be reviewed by Court-Doctrine of political thicket-Materials falling within the expression, 'or otherwise'-Review of
B
c
Constitution of India, 1950-Arts. 356, 74(2) & 142 and 32 &
226-Proclan;atio11 under Art. 356-Judicial Reviev.-Bar under Art. D
74(2)-Nature a11d object of-Whether confined to the advice tendered by
Council of Ministers-But material on the basis of which advice was tendered
is subject to judicial reviea-Whether Govt. while justifying its action can
claim privilege under S. 123 of the Evidence Act, 187l-Burden of
Proof-First on the person challenging the Proclamation-Then shifts to E
Union of India.
Constitution of India : Arts. 74 and 77-Scope of
Interpretation of the Constitution : Constitutional schem&-Should be
so construed as to maintain the fundamental balance.
p
Constitutional provisions-Language plain and clean-No obvious inadvertento: mission-Filling up the gaps by Courts-Whether could be
resorted to.
Constitutional provisions-Interpretation not to whittle down the G
powers of the States.
Evidence Act, 1872:
S. 123--Privileg&-Action taken under Art. 356 of the Constitution of
India-Government justifying its action-Whether could claim privilege under H
646
SUPREME COURT REPORTS
(1994] 2 S.C.R.
A s. 123.
Adniinistrative Law :
Judicial Review-Whether confined to the decision making process only
and not the decision itself mz me1its-Justiciability and fudicial review-DifB ference between.
Words & Phrases :
'Federalisn1' 'Federation' 'federal Jann of Government' 'Secularisni'
'Judicial Review'-Meaning of in the context of the provisions of the ConstituC tion of India.
D
E
F
G
In the present appeals and Transferred cases, the dissolution of the
Legislative Assemblies in Karnataka, Rajasthan, Madhya Pradesh,
Himachal Pradesh, Meghalaya and Nagaland, was challenged.
The expansion of Ministry in Karnataka (headed by Shri S.R. Bommai of Janata Dal) caused dissatisfaction to some of the aspirants. 20
MLAs later defectedthe part and write to the Governor on April 17, 1989
expressing no confidence in the leadership of Shri Bommai. The Governor
sent a report to the President in April 19, 1989. Subsequently on April 20, ·
1989, 7 out of the 20 MLAs wrote to the Governor that their signatures
were obtained by misrepresentation and reaffirmed their support in Sb.
Bommai. On the same day the Cabinet decided to convene the Assembly
on April 27, 1989 to obtain vote of confidence and Shri Bommai met the
Governor and requested him to allow floor test, so that he could prove his
majority and that he was prepared even to advance the date of the session.
The Governor sent his second report to the President, who exercising his
power under Art. 356 issued proclamation dissolved the Assembly and
assumed the administration of the State of Karnataka. A writ petition was
filed challenging this and the High Court dismissed the writ petition,
against which the present appeal is filed.
In the elections held in February, 1990, the Bhartiya Jania Party
(BJP) emerged as the majority part in the legislative assemblies of Uttar
Pradesh, Madhya Pradesh, Rajasthan and Himachal Pradesh, and formed
governments in the said States. As per the manifesto of BJP, it was to
construct a temple for Lord Sri Rama at his birth place Ayodhya. On
H December 6, 1992 the disputed Ram Janambhoomi Bahri Masjid structure
. '
S.R. BOMMAI v. U.0.1.
647
was demolished by the Karsewaks gathered at Ayodhya, as a result of A
sustained momentum generated by BJP, Vishva Hindu Parishad,
Rashtriya Swayamsewak Sangh, Bajrang Dal, Shivsena and other or·
ganisations, despite the assurance given to this Court by the State Government that the disputed structure would be protected. Though the
Government of U.P. resigned, the President issued a proclamation under
Art. 356 of the Constitution and dissolved the U.P. State Assembly. Loss B
of precious lives of innoc-ent people and property throughout the country
and the neighbouring countries followed the demolition. The President
exercising the power under Art. 356 issued proclamations, dismissed the
State Governments of Ra.iasth.an, Madhya Pradesh and Himachal Pradesh
and dissolved the legislative assemblies or the States. These proclamations C
are also under challenge before this Court.
In the State of Meghalaya, the then Speaker of the House was elected
as leader of the opposition group and he claimed the support of the
majority of the members in the house and requested the governor to invite D
him to form the government. The Governor requested him to prove his
majority on the floor of the house. 30 members voted for him and 27 voted
against him. Before announcing the result, the Speaker intimated the
house that he had received a complaint against five independent MLAs. in
the ruling Coalition alleging disqualification under the Anti-defection Law
and that he was suspending their right to vote. There was an uproar and E
the session had to be adjourned. The Speaker sent notices to the live
independent MLAs, and later disqualified them, but not on the ground
alleged in the show cause notice.
On Governor's advice, the Chief Minister summoned the session of F
the assembly. The Speaker refused to send the notices of the session to the
live MLAs disqualified by him. He also made arrangements to ensure that
they were not allowed to enter the assembly. Four of the five members
obtained stay orders from this Court against the Speaker's order. Again
the Assembly was summoned to meet on October 8, 1991. The four MLAs.
filed Contempt Petition against the Speaker; and on this Court's orders,
they were invited to the session, and voted in favour of the motion expressG
ing confidence in the Government. Excluding the votes of the said four
members, the speaker declared that the Governn1ent had lost the confidence of the House. The Governor reported that a situation had arisen
where the Governn1ent of the State cannot be carried on in accordance with H
648
SUPREME COURT REPORTS
[1994] 2 S.C.R.
A the provisions of the Constitution and the President dismissed the Government on the basis of the report. This has been challenged before this Court.
B
In Nagaland, the Congress(!) party formed the Government in 1987,
with 35 MLAs. In 1988, there wa~ a split and 13 MLAs formed a separate
party called Congress Ruling Party. It claimed the support of 35 MLAs
and stated its claim to form the Ministry. The Governor sent a report to
the President detailing the horse trading mechanitions and some MLAs
having contact with the insurgents. The Chief Minister resigned and the
Governor recommended imposition or President's Rule. President issued
the proclamation under Art. 356 assuming the functions of the State of
C Nagaland. The dissident leader filed a writ petition challenging the
proclamation. The Judges in the Division Bench differed on the scope of
Art. 74(2) and S.123 of the Evidence Act and the matter was referred to a
third Judge. However, before he could hear the matter, the Union of India
filed Special Leave Petition and this Court granted leave and stayed the
D proceedings of the High Court.
Detailed arguments were advanced on the scope of Articles 356,
especially in the context of related provisions viz. Arts. 354, 355, 357, 360,
154, 155, 159, 163 etc. and the approval of the proclamation by the Parliament. Arguments were also advanced on the scope and extent of Art. 74(2)
E as also S. 123 of the Evidence Act. Various contentions had been raised on
Preamble to the Constitution, Federal structure of the Constitution, Judicial Review, Centre-State relations, basic structure of the Constitution as
also secularism.
p
Disposing uf the matters, this Court
HELD : Per Sawant, J. (for himself and Ku/dip Singh, !.)
1.1. The common thread running through the Articles 352 to 360 in
Part XVIII relating to emergency provisions is that the said provisions can
G be invoked only when there is an emergency and the emergency is of the
nature described therein and not of any other kind. The Proclamation of
emergency under Articles 352, 356 and 360 is further dependent on the
satisfaction of the President with regard to the existence of the relevant
conditions-precedent. The duty cast on the Union under Article 355 also
H arises in the min conditions stated therein. (718 C, DJ
)
\..
-- ....
, .
.
'
•
' , . '
649
1.2. The crucial expressions in Article 356(1) are if the President, "on A
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" uin accordance with the provisions of the Constitution". The
conditions precedent to the issuance of the Proclamation, are: (a) that the
President should be satisfied either on the basis of a report from the
Governor of the State or otherwise, (b) that in fact a situation has arisen in
which the Government of the State cannot be «.:arried on in accordance with
the provisions of the Constitution. In other words, the President's satisfaction has to be based on objective material. That material may be available
B
in the report sent to him by the Governor or otherwise or both from the
report and other sources. Further, the objective material so available must C
indicate that the Government of the State cannot be carried on in accordance with the provisions of the Constitution. Thus the existence of' the
objective material showing that the Government of the State cannot be
carried on in accordance with the provisions of the Constitution is a condi·
tion precedent before the President issues the Proclamation. Once such
material is shown to exist, the satisfactiCJn of the President based on the
material is not open to question. However, if there is no such objective
material before the President, or the material before him cannot reasonably
suggest that the Government of the State cannot be carried on in accord·
ance with the provisions of the Constitution, the Proclamation issued is
D
open to challenge. [718 E·H, 719 A]
E
1.3. The objective material before the President must indicate that
the Government of the State "cannot be carried on in accordance with the
provisions of the Constitution". In other words, the provision require that
the material before the President must be sufficient to indicate that unless
F
a Proclamation is issued, it is not possible to carry on the affairs of the
State as per the provisions of the Constitution. It is not every situation
arising in the State but a situation which shows that the constitutional
Government has become an impossibility, which alone wi11 entitle the
President to issue the Proclamation. These parameters of the condition
precedent to the issuance of the Proclamation indicate both the extent of G
and the limitations on, the power of the judicial review of the Proclamation
issued. It is not disputed that the Proclamation issued under Article356(1)
is open to judicial review. All that is contended is that the scope of the
review is limited. The language of the provisions of the Article contains
sufficient guidelines on both the scope and the limitations, of the judicial H
, \ .
650
. SUPREME COURT REPORTS
[1994] 2 S.C.R.
A review. [719 B-E]
1.4. It is unacceptable that even if the Constitution provides precon-
'
ditions for exercise of power by the constitutional authorities, the Courts
cannrit examine whether the pre-conditions have been satisfied. It is equalB
ly unacceptable if the powers are entrusted to a constitutional authority
for achieving a particular purpose and if the concerned authority under
the guise of attaining the said purpose,, uses the powers to attain an
impermissible object, such use of power cannot be questioned. No
authority been pointed out in support of these propositions. Many pf the
parameters of judicial review developed in the field of administrative law
c are not anti-thetical to the field of constitutional law, and they can equally
apply to the domain covered by the constitutional law. That is also true of
the doctrine of proportionality. [720 B-D]
Barium Chemicals Ltd. & Anr. v. The Company Law Board & Ors.,
[1966) Supp. SCR 311; M.A. Rashid & Ors. v. State of Kera/a, (1975) 2 SCR
D
93; State of Rajasthan & Ors. etc. etc. v. Union of India etc. etc., [1978) 1
SCR 1; Kehar Singh & Anr. etc. v. Union of India & Anr., [1988) Supp. 3
SCR 103 and Mam Ram etc. etc. v. Union of India & Am·., [1981) 1 SCR
1196, relied on.
•
>
E
Chief Constable of the North Wales Police v. Evans, (1982) 3 All ER
141; Council of Civil Service Unions v. Minister for the Civil Service, (1985)
AC 374 at 408; R. v. Crown Court at Carlisle, exp Marcus- Moore, (1981)
Times, 26 October, DC; R. v. Panel on Takeovers and Mergers, exp Guinness
Pie, (1987) QB 815; Council of Civil Service Unions v. Minister for the Civil
Service, (1985) AC 374 at 414; Puhlhofer v. Hillingdon London Borough
F
Council, (1986) AC 484; Leech v. Deputy Governor of Parkhurst Prison,
(1988) AC 533 and Muhammad Shmifv.Federation of Pakistan, PLD (1988)
Lahore 725, referred to.
'
2.1. The exercise of power by the President under Article 356(1) to
G
issue Proclamation is subject to the judicial review at least to the extent
of examining whether the conditions precedent to the issuance of the
Proclamation have been satisfied or not. This examination will necessarily
involve the scrutiny as to whether there existed material for the satisfac~
lion of the President that a situation had arisen in which the Government
of the State could not be carried on in accordance with the provisions of
, .
H the Constitution. Needless to emphasise that it is not an.y material but
•
/{
- -.
S.R. BOMMAI v. U.0.1.
651
material which would lead to the conclusion that the Government of the A
State cannot be carried on in accordance with the provisions of the
Constitution which is relevant for the purpose. It has further to be remembered that the Article requires that the President "has to be satisfied" that
the situation in question has arisen. Hence the material in question has to
be such as would induce a reasonable man to come to the conclusion in
question. The expression used in the Article is "if the President ........ .is
satisfied". It is not the personal whim, \\ish, view or opinion or the ipse
B
dixit of the President de h01s the material but a legitimate inference drawn
from the material placed before him which is relevant for the purpose. In
other words, the President has to be convinced of or has to have suflicient
proof of information with regard to or has to be free from doubt or C
uncertainty about the state of things indicating that the situation in
question has arisen. Although, therefore, the sufficiency or otherwise of the
material cannot be questioned, the legitimacy of inference drawn from such
material is certainly open to judicial review. (730 E-H, 731 A·CJ
2.2. The power exercised by the President under Article 356(1) is on
the advice of the Council of Ministers tendered under Article 74(1) of the
Constitution. The Council of Ministers under our system would always
belong to one or the other political party. In view of the pluralist
democracy and the federal structure, the party or parties in power (in case
D
E
of coalition Government at the Centre and in the States may not be the
same). Hence there is a need to confine the exercise of power under Article
356(1) strictly to the situation mentioned therein which is a condition
precedent to the said exercise. That is why the framers of the Constitution
have taken pains to specify the situation which alone would enable the
exercise of the said power. The situation is no less than one in which "the F
Government of the State cannot be carried on in accordance with the
provisions of this Constitution". A situation short of the same does not
empower the issuance of the Proclamation. The word "cannot
11 emphatically connotes a situation of impasse. Situation which can be remedied or do
not create an impasse, or do not disable or interfere with the governance
of the State according to the Constitution, would not merit the issuance of G
the proclamation under the Article. A situation contemplated under this
Article is one where the government of the State cannot be carried on "in
accordance with the provisions of the Constitution". The expression indeed
envisages varied situation. Article 365 which is in Part XIX entitled "Miscellaneous", has contemplated one such situation. The failure to comply H
652
SUPREME COURT REPORTS
[1994] 2 S.C.R.
A with or to give effect to the directions given by the Union under any or the
provisions of the Constitution, is of course, not the only situation contemplated by the expression "Government or the State cannot be carried
on in accordance with the provisions or this Constitution' Article 365 is
more in the nature or a deeming provision. However, the situations other
B
than those mentioned in Article 365 must be such where the governance or
the State is not possible to be carried on in accordance with the provisions
or the Constitution. [731 D-Fl
2.3 There is no hesitation in concurring broadly with the occasions
illustrated by the Sarkaria Commission on Centre State Relations where
•
C the exercise or power under Article 356(1) would be improper and uncalled
D
E
for. [737 E]
Constituent Assembly Debates Vol. IX p. 175, 176; Report of Sarkaria
Commission on Centre State relations, paragraphs 6.3, 23, 24, 6.4.01, 6.5.01,
referred to.
3.1. The object of Article 74(2) was not to exclude any material or
documents from the scrutiny of the Courts but to provide that an order
issued by or in the name of the President conld not be questioned on the
ground that it was either contrary to the advice tendered by the Ministers
or was issued without obtaining any advice from the Ministers. Its object
was only to make the question whether the President had followed the
advice of the Ministers or acted contrary thereto, non-justiciable. What
advice, if any, was tendered by the Ministers to the President was thus to
be beyond the scrntiny of the Court. (737 H, 738 A-Bl
F
3.2. This is not to say that the rule of exclusion laid down in Section
123 of the Indian Evidence Act is given a go-bye. However, it only emphasises that the said rule can be invoked in appropriate cases. (738 G]
• _.
3.3. Although Article 74(2) bars judicial review so far as the advice
given by the Minis~ers is concerned, it does not bar scrutiny of the material
G on tbe basis of which the advice is given. The Courts are not interested in
either the advice given by the Ministers to the President or the reasons for
such advice. The Courts are, however, justified in probing as to whether
there was any material on the basis of which the advice ~1as given, and
whether it was relevant for such advice and the President could have acted
..,, •
H on it. Hence, when the Courts undertake an enquiry into the existence of
'
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S.R. BOMMAI v. U.0.1.
653
such moterial, the prohibition contained in Article 74(2) does not negate A
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. [738 G, H; 739 A-BJ
3.4. Since further the Prodamation issued under Article 356(1) is
required by Clause (3) of that Article to be laid before each House of
Parliament and ceases to operate on the expiration of two months unless
B
it has been approved by resolutions by both the Houses of Parliament
before the expiration of that period, it. is evident that the c1uestion as to C
whether a Proclamation should or should not have been made, has to be
discussed on the floor of each House and the two Houses would be entitled
to go into the material on the basis of which the Council of Ministers had
tendered the advice to the President for issuance of the Proclamation.
Hence the secrecy claimed in respect of the Material in question cannot D
remain inviolable, and the plea of non-disclosure of the material can
hardly be pressed. When the Proclamation is challenged by making out a
prima facie case with regard to its invalidity, the burden would be on the
-•
Union Government to satisfy that there exists material which showed that
the Government could not be carried on in accordance with the provisions
of the Constitutim;. Since such material would be exclusively within the E
knowledge of the Union Government, in view of the provisions of Section
106 of the Evidence Act, the burden of proving the existence of such
material would be on the Union Government. (739 E-H, 740 A]
3.5. As regards the question whether the validity of the Proclamation F
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,
there is 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 Proclama- G
tion may be different from those challenging the validity of a legislation.
However, that does not make any difference to the vulnerability of the
Proclamation on the limited grounds available. (740 B-C]
. --~ .....
3.6. The deletion of clause (5) of Article 356, as it stood prior to its H
654
SUPREME COURT REPORTS
[1994] 2 S.C.R.
A
deletion by the Constitution ( 44th Amendment) Act in 1978, has made no
change in the legal position that the satisfaction of the President under
clause (1) of Article 356, was always judicially reviewable. On the other
hand, the deletion of the clause has reinforced the earlier legal position,
viz., that notwithstanding the existence of clause (5), the satisfaction of the
B President under clause (1) was judicially reviewable and the judicial review
was not barred on account of the presence of the clause. [741 DJ
Shamsher Singh & Anr. v. State of Punjab, [1975) 1 SCR 814; State of
U.P. v. Raj Narain, [1975] 3 SCR 333 at 360; A.K Roy v. Union of India,
[1982) 2 SCR272 at 297; Kilwto Hallahan v. Zachil/hu & Ors., [1992) Supp.
C 2 SCC 651at707-710; Union of India v.Jyoti Prakash Mittar, [1971] 3 SCR
483 and Union of India v. Tulsi Ram Patel, [1985) Supp. 2 SCR 131,
referred to.
R. v. H.M. Treasury exp. Sme/dey, [1975] QB 657, referred to.
D
Prof. H.W.R. Wade in "Administratvie Law" -6th Edition, referred to.
E
F
G
4.1. It will be an inexcusable error to examine the provisions of Article
356 from a pure legalistic angle and interpret their meaning only through
jurisdictional technicalities. The Constitution is essentially a political
document and provisions such as Article 356 have a potentiality to unsettle
and subvert the entire constitution scheme. The exercise of powers vested
under such provisions needs, therefore, to be circumscribed to maintain the
fundamental constitutional balance lest the Constitution is defaced and
destroyed. This can be achieved even without bending much less breaking
the normal mies of interpretation, if the interpretation is alive to the other
equally important prov1sions of the Constitution and its bearing on them.
Democracy and federalism are the essential features of our Constitution
and are part of its basic structure. Any interpretation that may placed on
Article 356 must, therefore, help to preserve and not subver their fabric. The
power vested de jure in the President but de facto in the Council of Ministers
under Article 356 has all the latent capacity to emasculate the two basic
features of the Constitution and hence it is necessary to scrutinise the
material on the basis of which the advice is given and the President forms
his satisfaction more closely and circumspectly. This can be done by the
Courts while confining themselves to the acknowledged parameters of the
judicial review as discussed above viz., illegality, irrationality and ma/a
H fides. Such scrutiny of the material will also be withi11 the judicially dis·
'
' •
•
S.R. BOMMAI v. u.o.r.
655
coverable and manageable standards. [742 F-H; 743 A-CJ
4.2. States have an independent constitutional existence and they
have as important a role to play in the political, social, educational and
cultural life to the people as the Union. They are neither satellites nor
agents of the Centre. The fact that during emergency and in certain other
eventualities their powers are overriden or invaded by the, Centre is not
destructive of the essential federal nature of our Constitution. The invasion of power in such circumstances is not a normal feature of the
Consdtution. They are exceptions and have to be resorted to only occasionally to meet the exigencies of the special situations. The exceptions
A
B
are not a rule. (746 E-G]
C
4.3. So long as the States are not mere administrative units but in
their own right constitutional potentates with the same paraphernalia as
the Union, and with independent Legislature and the Executive constituted
by the same process as the Union, whatever the bias in favour of the D
Centre, it cannot be said that merely because (and assuming it is correct)
the Constitution is labelled unitary or quasi-federal or a mixture of federal
and unitary structure, the President has unrestricted power of issuing
Proclamations under Article 356(1). If the Presidential powers under the
said provision are subject to judicial review within the limits discussed
above, those limitations will have to be applied strictly while scrutinising E
the concerned the material. (747 A-CJ
4.4. In a representative democracy in a populous country like ours
when legislatures of the States are dissolved pursuant to the power used
under Article 356(1) of the Constitution and the elections are proposed to F
be held, it involves for the public exchequer an enormous expenditure and
consequently taxes the public. The machinery and the resources of the St~te
are diverted from other useful work. The expenses of contesting elections.
which even othenrise are heavy and unaffordable for common man are
multiplied. Frequent elections; consequent upon unjustified use of Article
356(1) has thus a potentially dangerous consequence of negating the very G
democratic principle by making the election-contest the exclusive preserve
of the affiuent. What is further, the frequent dissolution of the Legislature,
has the tendency to create disenchantment in the people with the process of
election and thus with the democratic way oflife itself. The history warns us
that the frustration with democracy has often in the past, led to an invita- H
656
SUPREME COURT REPORTS
[1994] 2 S.C.R.
A lion to fascism and dictatorship of one form or the other. [747 D-F]
B
c
D
4.5. Tne participation of the people in the governance is a sine qua
non of democracy. The democratic way of life began by direct participation
of the people in the day to day affairs of the society. With the growth of
population and the expansion of the territorial boundaries of the State,
representative democracy replaced direct democracy and people gradually
surrendered more and more of their rights of direct participation, It their
representatives. Notwithstanding the surrender of the requisite powers, in
matters which are retained, the powers are jealously guarded and rightly
so. If it is true to say that in democracy, people are sovereign and all power
belongs primarily to the people, the retention of such power by the people
and the anxiety to exercise them is legitimate. The normal rule being the
self-governance, according to the wishes expressed by the people, the
occcsions to interfere with the self- governance should both be rare and
demonstrably compelling. (747 H, 748 A·CJ
4.6. Our Society is, among other things, multi-lingual, multi-ethnic
and multi-cultural. Prior to independence, political promises were made
that the States will be formed on linguistic basis and the ethnic and
cultural identities will not only be protected but promoted. It is in keeping
with the said promises, that the States eventually have come to be orE ganised broadly on linguistic, ethnic and cultural basis. The people in
every State desire to fulfil their own aspirations through self-governance
within the framework of the Constitution. Hence interference with the
self-governance also amounts to the betrayal of the people and unwarranted interference. The betrayal of the democratic aspirations of the
F
people is a negation of the democratic principle which runs through our
Constitution. (748 D-F]
G
4.7. Under our political and electoral system, political parties may
operate at the State and national level or exclusively at the State level.
There may be different political parties in different States and at the
national leveJ. Consequently, situations may arise, as indeed they have,
when the ;iolitical parties in power in various States and at the Centre may
be different. It may also happen • as has happened till date • that through
political bargaining, adjustment and understanding, a State-level party
may agree to elect candidates of a national level party to the Parliament
H and vice versa. This mosaic of variegated pattern of political life is paten-
)'\
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S.R. BOMMAI v. U.0.1.
657
tially inherent in a pluralist multi-party democracy like ours. Hence the A
temptation or the political party or parties in power (in a coalition Government) to destabilise or sack the Government in the State not run by the
same political party or parties is not rare and in fact the experience or the
working or Article 356(1) since the inception or the Constitution, shows
that the State Governments have been sacked and the legislative assemblies dissolved on irrelevant, objectionable and unsound grounds. So
for the power under the provision has been used on more than 90 occasions
and the almost all cases against governments run by political parties in
opposition. Ir the fabric or pluralism and pluralist democracy and the
B
•
unity and integrity or the country are to be preserved, judiciary in the
circumstances is the only institution which can act as the saviour or the C
system and of the nation. (748 G-H, 749 A-D]
j
4.8. It cannot be said that if the ruling party in the States suffers an
overwhelming defeat in the elections to the Lok Sabha - however complete
the defeat may be it will be a ground for the issue of the Proclamation
under Article 356(1). (749 E]
D
4.9. The federal principle, social pluralism and pluralist democracy
which form the basic structure of our Constitution demand that the
judicial review of the Proclamation issued under Article 356(1) is not only
an imperative necessity but is a stringent duty and the exercise of power E
under the said provision is confined strictly for the purpose and to the
circumstances mentioned therein and for none else. It also requires that
the material on the basis of which the power is exercised is scrutinised
circumspectly. (750 F-G]
State of Rajas than etc. etc. v. Union of India, (1978] 1 SCR 1, referred F
to.
Constituent Assembly Debates, Vol. IX p. 177 referred to.
5.1. The removal of the MinistJ11 orthe dissolution of the Legislative
Assembly is not automatic consequence of the issuance or the Proclamation. G
The exercise of the powers under sub-clauses (a), (b) and (c) of Article
356(1) may also co-exist with a mere suspension of the political Executive
and the Legislature or the State. Sub-clause (c) or Article 356(1) makes it
clear. It 5{1t~ks or incidental and consequential provisions to give effect to
the objects or the proclamation including suspension in whole or part of the H
658
SUPREME COURT REPORTS
[1994] 2 S.C.R.
· A
operation or any provision or the Constitution relating to any body or
authority in the State. It has to be noted that unlike sub-clause (a), it does
not exclude the Legislature of the State. Sub clause (b) only speaks of
exercise or the powers of the Legislature of the State by or under the
authority of the Parliament. What is further, the assumption of only some
B
of the functions orthe Government and the powers orthe Governor or of any
body or authority in the State other than the Legislature of the State under
sub-clause (a), is also conceivable with the retention of the other functions
and powers with the Government or the State and the Governor or any body
or authority in the State. The language of sub-clause (a) is very clear on the
subject. Where there is a bicameral Legislature, the Upper House, i.e., the
C
Legislative Council cannot be dissolved. Yet under sub-clause (b) of Article
356(1) its powers are exercisable by or under the authority of Parliament.
The word used there is "Legislature" and not "Legislative Assembly". Legislature includes both the Lower House and the Upper House, i.e., the Legislative Assembly and the Legislative Council. It has also to be noted that
D when the powers of the Legislature of the State are declared to be exercisable by or under the authority of the Parliament under Article 356(l)(b),
it is competent for Parliament under Article 357, to confer on the President
the power of such Legislature to make laws and to authorise the President
to delegate the powers so conferred, to any other authority to be specified by
him. The authority so chosen may be the Union or officers and authorities
E thereof. Legally, therefore, it is permissible under Article 356(1), firstly,
only to suspend the political executive or any body or authority in the State
and also the Legislature of the State and not to remove or dissolve them.
Secondly, it is also permissible for the President to assume only some orthe
functions of the political executive or of any body or authority or the State
F
other than the Legislature while neither suspending nor removing them.
The Caci that some of these exercises have not been resorted to in practice
so far, does not militate against the legal position which emerges from the
clear language of Article 356(1). [751 H; 752 A-H; 753 A-BJ
5.2. Once the issuance of the Proclamation is held valid, the scrutiny
G of the kind and degree of power used under the Proclamation, falls in a
narrower compass. There is every risk and fear of the Court undertaking
upon itself the task of evaluating with fine scales and through its own
lenses the comparative merits of one rather than the other measure. The
Court will thus travel unwittingly into the political arena and subject itself
H more readily to the charges of encroaching upon policy-making. The
..
.....
S.R. BOMMAI v. U.0.1.
659
'political thicket" objection sticks more easily in such circumstances. A
Although, therefore, on the language or Article 356(1), it is legal to hold
that the President may exercise only some or the powers given to him, in
practice it may not always be easy to demonstrate the excessive use or the
power. (753 E-F]
5.3. In addition to warning, the President will always have the power
to issue the necessary directives. Except in situations where urgent steps
are imperative and exercise of the drastic power under the Article cannot
brook delay, the President should use all other measures to restore the
constitutional machinery in the State. The Sarkaria Commission has also
made recommendations in that behalf in paragraphs 6.8.01 to 6.8.04 or its
Report, and the said recommendations are endorsed. (754 E-F]
6.1. The Parliament can only approve or disapprove or the removal
B
c
or the Council or Ministers and the dissolution or the Legislative Assembly
under clause (3) or Article 356, if such action is taken by the President. D
The question then arises is whether the Council or Ministers and the
Legislative Assembly can be restored by the Court when it declares the
Proclamation invalid. There is no reason why the Council of Ministers and
the Legislative Assembly should not stand restored as a consequence or
the invalidation or the Proclamation, the same being the normal legal effect
or the invalid action. In the context or the relevant constitutional E
provisions and in view of the power of judicial review vested in the Court,
such a consequence is also a necessary constitutional fall-out. Unless such
result is read, the power or judicial review vested in the judiciary is
rendered nugatory and meaningless. To hold otherwise is also tantamount
to holding that the Proclamation issued under Article 356(1) is beyond the F
scope or judicial review. For when the validity or the Proclamation is
challenged, the Court will be powerless to give relier and would always be
met with the fait accompli. Article 356 would then have to be read as an
exception to judicial review. Such an interpretation is neither possible nor
permissible.