S R BOMMAI

VS

UNION OF INDIA

SUBMITTED TO: MR YOGESH MISHRA

SUBMITTED BY: GOURA PRASAD DAS (1982126) & PRAJNA

PRIYADARSHINI ( 1982135)

CLASS: BBA LLB (B)

SEMESTER: 2ND

SUBJECT: HISTORY OF CONSTITUTIONAL AND POLITICAL

DEVELOPMENT IN INDIA

SUBJECT CODE: LW 1016

FACTS

In 1989, the Janata Dal Government headed by Shri S.R. Bommai was in office in
Karnataka. A number of members defected from the party and there arose a question
mark on the majority support in the house for the Government. The Chief Minister
proposed to the Governor that the assembly session be called to test the strength of the
government on the floor of the House. But the governor ignored this suggestion. He
also did not explore the possibility of an alternative Government but reported to the
president that as Shri Bommai had lost the majority support in the house and as no
other party was in a position to form the government, action be taken under Article
356(1). Thereafter, the proclamation was issued by the president in April, 1989 whose
validity was challenged by Bommai before the Karnataka High Court through a writ
petition on various grounds. The Karnataka High Court ruled that the proclamation
issued under Article 356(1) is not wholly outside the purview of judicial scrutiny. The
satisfaction of the president under Article 356(1) which is a condition precedent for
the issue of the proclamation ought to be real and genuine satisfaction based on
relevant facts and circumstances. The scope of judicial scrutiny is therefore confined
to an examination whether the disclosed reasons bear any rational nexus to the action
proposed or proclamation issued. The courts may examine as to whether the
proclamation was based on a satisfaction which was malafide for any reason, or based
on any wholly extraneous and irrelevant grounds. In such a situation, the stated
satisfaction of the President would not be a satisfaction in the constitutional sense
under Article 356 . In the end, however, the court dismissed the petition holding that
the facts stated in the governor’s report could not be held to be irrelevant and held that
the governor’s bonafides could not questioned as his satisfaction was based upon
reasonable assessment of all facts. The Court also rules that recourse to floor test was
neither compulsory nor obligatory and was not a prerequisite to the sending of the
report to the President.

Similar proclamations were issued by the President:

i) In the State of Meghalaya and Nagaland upheld by the High Court

ii) In the State of Madhya Pradesh, Himachal Pradesh and Rajasthan in 1992 in the
wake of the demolition of the disputed Babri structure in Ayodhya. The MP High
Court held the proclamation to be invalid and beyond the scope of Article 356. The
Government in these states belonged to the BJP which was sympathetic to the
organisations responsible for the demolition. The Court had ruled that from the
material placed before it no inference could be drawn that the State Government had
disrespected or disobeyed any central direction nor there was any suggestion of any
alleged deed or misdeed on the part of the State Government in meeting the law and
order situation. Merely because there was some worsening of the law and order
situation in the State in the wake of ayodhya incidents, no inference could be drawn
that the state government could not be carried on in accordance with the Constitution
or that the constitutional machinery had broken down

Appeal was filed by Bommai in the Supreme Court against the High Court Decision.
Besides this, the Supreme Court was called upon by the Central Government to decide
the validity of five other proclamations in the states of Meghalaya, Nagaland, Madhya
Pradesh, Himachal Pradesh and Rajasthan.

ISSUES

 Whether the presidential rule proclaimed under article 356 is justified.

 Whether the President enjoys unrestricted power to proclaim emergency.

 Whether the proclamation comes under the scope of Judicial review.

ARGUMENTS

Petitioner’s Contention:

a) That Bommai was not given the opportunity to prove his majority.

b) That the imposition of the President’s rule in the States was mala fide, based on no
satisfaction and was purely a political act. Mere fact that communal disturbance
and/or instances of arson and looting took place is no ground for imposing President’s
rule.

c) The Union Government has also not disclosed what other material/ information
they had received on the basis of which the President had acted. It was the duty of the
Union Government to have disclosed to the Court the material/ information upon
which the requisite satisfaction was formed, more so because the proclamations
themselves do not refer to any such material. Article 74(2), it is argued, does not and
cannot relieve the Union of India of this obligation.

Respondent’s Contention:

a) There is difference in the nature and scope of the power of judicial review in the
administrative law and the constitutional law. While in the field of administrative law,
the Court’s power extends to legal control of public authorities in exercise of their
statutory power and therefore not only to preventing excess and abuse of power but
also to irregular exercise of power, the scope of judicial review in the constitutional
law extends only to preventing actions which are unconstitutional or ultra vires the
Constitution. The areas where the judicial power, therefore, can operate are limited
and pertain to the domain where the actions of the Executive or the legislation enacted
infringe the scheme of the division of power between the Executive, the Legislature
and the judiciary or the distribution of powers between the States and the Centre. The
implication of this contention, among others, is that even if the Constitution provides
pre-conditions for exercise of power by the constitutional authorities, the Courts
cannot examine whether the pre-conditions have been satisfied. Secondly, 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.

b) It was contended on behalf of the Union of India that only on the advice of the
council of ministers given under Article 74(1) of the Indian constitution, the
Proclamation under Article 356 (1) could be issued by the President and further
enquiry into the question whether any, and if so, what advice was tendered by
Ministers to the President is barred by clause (2) of the said Article, judicial review of
the reasons which led to the issuance of the Proclamation also stands barred.

JUDGEMENT

Appeals from the judgments of the Gauhati, Karnataka and Madhya Pradesh High
Courts and the writ petitions filed in Rajasthan and Himachal Pradesh High Courts,
which were transferred to the Supreme Court, were heard by a nine-judge Bench. The
arguments in the case 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 intervening Dussehra and Diwali holidays and a brief absence of Justice
Pandian from the Bench. The judgment was pronounced on March 11, 1994.

Separate judgments have been delivered by Justices Pandian, Ahmadi, by Justice

Verma for himself and Justice Dayal, by Justice Sawant on behalf of himself and
Justice Kuldip Singh, by Justice K. Ramaswamy, and by Justice Jeevan Reddy for
himself and Justice Agrawal. These judgments reveal sharp judicial divergence on
many points. The majority judgments are of Justices Sawant, Kuldip Singh, Jeevan
Reddy, Agrawal and Pandian. The judges who are in the minority are Justices
Ahmadi, Verma, Dayal and K. Ramaswamy.

The SC laid down certain guidelines so as to prevent the misuse of A356 of the
constitution.

1. The majority enjoyed by the Council of Ministers shall be tested on the floor
of the House.

2. Centre should give a warning to the state and a time period of one week to
reply.
 3. The court cannot question the advice tendered by the CoMs to the President
but it can question the material behind the satisfaction of the President. Hence,
Judicial Review will involve three questions only:
a. Is there any material behind the proclamation
b. Is the material relevant.
c. Was there any mala fide use of power.

4. If there is improper use of A356 then the court will provide remedy.

5. Under Article 356(3) it is the limitation on the powers of the President. Hence,
the president shall not take any irreversible action until the proclamation is
approved by the Parliament i.e. he shall not dissolve the assembly.

6. Article 356 is justified only when there is a breakdown of constitutional

machinery and not administrative machinery

Article 356 shall be used sparingly by the centre, otherwise it is likely to destroy the
constitutional structure between the centre and the states. Even Dr. Babasaheb
Ambedkar envisaged it to remain a 'dead letter' in the constitution.

Based on the report of the Sarkaria Commission on Centre–state Relations (1988), the
Supreme Court in Bommai case (1994) enlisted the situations where the exercise of
power under Article 356 could be proper or improper.

Imposition of President’s Rule in a state would be proper in the following situations:

 Where after general elections to the assembly, no party secures a majority, that
is, Hung assembly.

 Where the party having a majority in the assembly declines to form a ministry
and the governor cannot find a coalition ministry commanding a majority in
the assembly.

 Where a ministry resigns after its defeat in the assembly and no other party is
willing or able to form a ministry commanding a majority in the assembly.

 Where a constitutional direction of the Central government is disregarded by

the state government.
  Internal subversion where, for example, a government is deliberately acting
against the Constitution and the law or is fomenting a violent revolt.

 Physical breakdown where the government willfully refuses to discharge its

constitutional obligations endangering the security of the state.

The imposition of President’s Rule in a state would be improper under the following
situations:

 Where a ministry resigns or is dismissed on losing majority support in the

assembly and the governor recommends imposition of President’s Rule
without probing the possibility of forming an alternative ministry.

 Where the governor makes his own assessment of the support of a ministry in
the assembly and recommends imposition of President’s Rule without
allowing the ministry to prove its majority on the floor of the Assembly.

 Where the ruling party enjoying majority support in the assembly has suffered
a massive defeat in the general elections to the Lok Sabha such as in 1977 and
1980.

 Internal disturbances not amounting to internal subversion or physical

breakdown.

 Maladministration in the state or allegations of corruption against the ministry

or stringent financial exigencies of the state.

 Where the state government is not given prior warning to rectify itself except
in case of extreme urgency leading to disastrous consequences.

 Where the power is used to sort out intra-party problems of the ruling party, or
for a purpose extraneous or irrelevant to the one for which it has been
conferred by the Constitution.

The facts in the individual cases were examined before the judges. the facts are not
being discussed with a view to give relief prayed for, since in all cases fresh elections
have been held, new Legislative Assemblies have been elected and new Ministries
have been installed. Nor do the petitioners/ appellants seek any such relief. The facts
are being discussed to find out whether the action of the President was justified in the
light of our conclusions above. The finding may serve as a guidance for future. For
the sake of convenience, it was proposed to deal with the cases of the States of
Karnataka, Meghalaya and Nagaland separately from those of the States of Himachal
Pradesh, Madhya Pradesh and Rajasthan.

Karnataka:

The Proclamation does not contain any reasons and merely recites that the President is
satisfied on a consideration of the report of the Governor and other information
received by him. The Chief Minister also offered to prove his majority on the floor of
the House even by preponing the Assembly Session.

In view of the conclusions that we have reached with regard to the parameters of the
judicial review, it is clear that the High Court had committed an error in ignoring the
most relevant fact that in view of the conflicting letters of the seven legislators, it was
improper on the part of the

Governor to decide himself, firstly, that the earlier nineteen letters were genuine and
were written by the said legislators of their free will and volition. He had not even
cared to interview the said legislators, but had merely got the authenticity of the
signatures verified through the Legislature Secretariat. Secondly, he also took upon
himself the task of deciding that seven out of the nineteen legislators had written the
subsequent letters on account of the pressure from the Chief Minister and not out of
their free will. Again he had not cared even to interview the said legislators. Thirdly,
it is not known from where the Governor got the information that there was horse-
trading going on between the legislators. The correct and the proper course for him to
adopt was to await the test on the floor of the House which the Chief Minister was
ready to undertake on any day that the Governor chose. In fact, the State Cabinet had
itself taken an initiative to convene the meeting

The action of the Governor was objectionable since as a high constitutional more
fairly, cautiously and circumspectly. Instead, it appears that the Governor was in a
hurry to dismiss the Ministry and dissolve the Assembly. The Proclamation having
been based on the said report and so-called other information which is not disclosed
was, therefore, liable to be struck down.

The strength of the Ministry which is to be assessed is not a matter of private opinion
of any individual, be he the Governor or the President. It is capable of being
demonstrated and ascertained publicly in the House. When the demonstration is
possible, it is to be taken into consideration instead of depending upon the subjective
satisfaction of the Governor or the President.

Meghalaya:

After reviewing the circumstances leading to the issue of the proclamation, the court
ruled that prima facie the material before the President was not only irrational but
motivated by ‘factual and legal mala fides’

Nagaland:

There was defection in the ruling congress party as 1/3rd of its members formed a
new party. The Chief Minister resigned. The leader of the breakaway group claimed
majority support but instead of allowing him to test his strength on the floor of the
house, on the report of the governor, the president issued a proclamation under Article
356(1). The court ruled that in the circumstances the proclamation was
unconstitutional. The court emphasized that the anti-defection law did not prohibit the
formation of a new political party if it was backed by at least 1/3rd members of an
existing legislature party. The leader of the new party ought to have been given an
opportunity to prove his majority on the floor of the house.

The case of the proclamations issued in case of Madhya Pradesh, Rajasthan, Himachal
Pradesh fell in a different category. None of the state governments had lost its
majority. These proclamations were issued in the wake of the incidents at Ayodhya on
December 6, 1992. But here the crucial question involved was that of upholding the
basic constitutional value of secularism. The court emphasized that the various
constitutional provisions by implication prohibit the establishment of a theocratic state
and prevent the state from either identifying itself with or favouring any particular
religion or sect or denomination. The state is enjoined to accord equal treatment to all
religions and sects. Religion and any secular activity of the state cannot be mixed.
Religion has no place in matters of the State. No political party can simultaneously be
a religious party and politics and religion cannot be mixed. Secularism is held to be a
part of the basic structure of the constitution. If any state government acts in a manner
which is calculated to sub serve or sabotage secularism it can lawfully be regarded
that a situation has arisen in which the state government is not being carried on in
accordance with the constitutional provisions. The three proclamations were thus held
valid on this ground. The decision of Madhya Pradesh high court was reversed.

CASE COMMENT

1. I feel that this case in itself is a historic judgment. There is no flaw in the
judgement whatsoever. The case become one of the most cited whenever hung
assemblies were returned and parties scrambled to form a government. As the verdict
of the Supreme Court ruled that the floor of the assembly is the only forum that
should test the majority of the government of the day, and no the subjective opinion of
the governor.

This case deals with evaluating the constitutional mechanism and exploring the whole
realm of constitutional imperatives on Central-State relations and on the controversial
role of State Governors inviting President’s Rule. The fact that under the scheme of
our Constitution greater power is conferred upon the centre vis-a-vis the states do not
mean that the States are mere appendages of the centre. The states are supremely
powered within the spheres which are allotted to them. The centre cannot tamper with
their powers. This judgement is considered to be a historic judgement as it has put an
end to the arbitrary dismissal of State Governments under Article 356 and also as it
has marked out the paradigms and limitations within which Article 356 has to
function. The judgement concluded that the power of the president is not absolute but
a conditioned power and the presidential proclamation is not immune from judicial
review.
2. This case in the history of the Indian Constitution has great implications on Centre-
State Relations. It is in this case that the Supreme Court boldly marked out the
paradigm and limitations within which Article 356 has to function. As said by the
honourable Supreme Court, 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.

However, the principles laid down in this case put a bar on the dismissal of the state
government by the centre for political gains.

The fact that under the scheme of our Constitution greater power is conferred upon
the centre vis-a-vis the states do not mean that the States are mere appendages of the
centre. The states are supremely powered within the spheres which are allotted to
them. The centre cannot tamper with their powers. 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, it can
be criticised on the ground 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, according to my opinion that the concept of secularism had
been misinterpreted only regard to Hindu fundamentalism.

Lastly, This case ended the practice of arbitrarily dismissing the state government by
the central government. Earlier, political parties used this mechanism given in the
Constitution to get political mileage and settle scores with opposition parties. The
Bommai verdict restricted this practice to a large extent.

1. Case comment written by Prajna Priyadarshini

2. Case comment written by Goura Prasad Das