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You Are Here : Home » Case Analysis » Case Analysis: S.R. Bommai V. Union Of India (1994) 3 SCC 1
Case Analysis: S.R. Bommai v. Union of India (1994) 3 SCC 1 adminmain
November 24, 2013
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Judicial Review The power of the courts of a country to examine the actions of the legislative, executive, and administrative arms of the government and to determine whether such actions are consistent with the constitution. Actions judged inconsistent are declared unconstitutional and, therefore, null and void. The institution of judicial review in this sense depends upon the existence of a written constitution[1]. In law, judicial review is said to be the power of the court to check the legal validity of the action taken by the legislature and to limit the over use of the same. Article 356: Background
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Dr. B.R. Ambedkar was of the view that the Constitution must provide for situation of break-down of the Constitutional machinery in the State analogous to provisions contained in Section 93 of the 1935 Act. If a situation arises, for whatever reason, where the government of a State cannot be carried on in accordance with the provisions of the Constitution, he said, the President of India must be empowered to remedy it. For that purpose, he could take over all or any of the functions of the government as well as of the State Legislature. He could also make such other provisions as he may think necessary – including suspension of the provisions of the Constitution except those relating to High Court. This power, he stated must be understood in the context of draft Article 277(A) (Article 355), which cast an obligation upon the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of the Constitution. To discharge this obligation, he said, the center must be empowered to take over the government of the State. At the same time, he said, the President is not expected to act in a wanton or arbitrary manner but on the basis of a report from the Governor or on the basis of other material in his possession, as the case may be.
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AN ANALYSIS OF ARTICLE 356: The heading of Article 356 characterizes it as a provision providing for failure of Constitutional machinery in State. Clause (1), however, does not use the words “failure of constitutional machinery”. Even so, the significance of the title of the Section cannot be overlooked. It emphasizes the level, the stage, the situation in which the power is to be exercised. Clause (1) speaks of the President being satisfied “that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution”. If so satisfied, he may, by proclamation, assume and exercise the several powers mentioned in Sub-clauses (a), (b) and (c). An analysis of Clause (1) of the Article yields the following ingredients: (a) if the President is satisfied; (b) on receipt of report from the Governor of State or otherwise; (c) that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of the Constitution; (d) the President may by proclamation, (1) assume
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to himself all or any of the functions of the Government of the State of all or any of the powers of the Governor or any other body or authority in the State except the legislature of the State; (ii) declare that the powers of the legislature of the State shall be exercised by the Parliament or under its authority; and (iii) make such incidental or consequential provisions as appear to him to be necessary or desirable for giving effect to the objects of the proclamation including provisions for suspending in whole or in part the operation of any provisions of this Constitution relating to anybody or authority in the State. (The proviso to Clause (1) clarifies that nothing in the said clause shall authorize the President to assume to himself any of the powers vested in or exercisable by a High Court or to suspend in whole or part the operation of any provision relating to High Courts.) Clause (2) says that any proclamation under Clause (1) can be revoked or varied by a subsequent proclamation. Clause (3) provides that every proclamation issued under Clause (1) (except a proclamation revoking a previous proclamation) shall be laid before each House of the Parliament and “shall…cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament”. The proviso to Clause (3) provides for a situation where the Lok Sabha is dissolved on the date of the proclamation or is dissolved within two months of such proclamation. Clause (4) says that a proclamation so approved by both Houses of Parliament shall, unless revoked earlier, cease to operate on the expiration of period of six months. (By 42nd Amendment, the words ‘one year’ were substituted for the words ‘six months’ but by 44th Amendment, the words “six months” have been restored). The three provisos to Clause (4) provide for certain situations which it is not necessary for us to consider for the purpose of these cases. Clause (5), as inserted by 38th Amendment ran as follows: ” (5) notwithstanding anything in this Constitution, the satisfaction of the President mentioned in Clause (1) shall be final and conclusive and shall not be questioned in any court on any grounds”. By 44th Amendment, however, this clause was repealed altogether and in its place a new Clause (5) introduced which limits the maximum period, for which such a proclamation can be operative, to one year except in a case where a proclamation of emergency is in operation. It is not necessary to consider Clause (5) also for the purpose of these cases. Facts:
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Karnataka Facts In the case of Karnataka, the facts were that the Janta Party being the majority party in the State Legislature had formed the Government under the leadership of Shri S.R. Bommai on August 30, 1988 following the resignation on August 1, 1988 of the earlier Chief Minister Shri Hegde who headed the ministry from March 1985 till his resignation. On 17th April, 1989 one legislator presented a letter to the Governor withdrawing his support to the Ministry. On the next day he presented to the Governor 19 letters allegedly written by 17 Janta Dal legislators, one independent but associate legislator and one legislator belonging to the BJP which was supporting the ministry, withdrawing their support to the ministry. On receipt of these letters, the Governor is said to have called the Secretary of the Legislature Department and got the authenticity of the signatures on the said letters verified. On April 19, 1989, the Governor sent a report to the President stating therein that there were dissensions in the Janta Party which had led to the resignation of Shri Hegde and even after the formation of the new party viz. Janta Dal, there were dissensions and defections. He, therefore, recommended to the President that he should exercise power under Article 356(1). The Governor did not ascertain the view of Shri Bommai either after the receipt of the 19 letters or before making his report to the President. On the next day i.e. April 20, 1989, 7 out of the 19 legislators who had allegedly sent the letters to the Governor complained that their signatures were obtained on the earlier letters by misrepresentation and affirmed their support to the Ministry. The State Cabinet met on the same day and decided to convene the Session of the Assembly within a week i.e. on April 27, 1989. The Chief Minister and his Law Minister met the Governor on the same day and informed him about the decision to summon the Assembly Session. The Chief Minister offered to prove his majority on the floor of the House, even by pre-phoning the Assembly Session, if needed. To the same effect, the Governor however sent yet another report to the President on the same day i.e. April 20, 1989, in particular, referring to the letters of seven Members pledging their support to the Ministry and withdrawing their earlier letters. In the end, he reiterated his opinion 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) of the Constitution. On that very day, the President issued the Proclamation in dissolving the House. The Proclamation was thereafter approved by the Parliament as required by Article
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A writ petition filed in the High Court challenging the validity of dissolution was dismissed by a three Judge Bench inter alia holding that the facts stated in the Governors report cannot be held to be irrelevant and that the Governor’s satisfaction that no other party was in a position to form the Government had to be accepted since his personal bona fides were not questioned and his satisfaction was based upon reasonable assessment of all the relevant facts. The High Court relied upon the test laid down in the State of Rajasthan case[2] and held that on the basis of materials disclosed, the satisfaction arrived at by the President could not be faulted.
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The main issues included in the case are-
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1) Whether the presidential proclamation issued under Art. 356(1) is amenable to judicial review or not? If, Yes then what is the extent of the judicial reviews, adding further, what is the nature of the presidential satisfaction? Is, it subjective or objective.
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First of all it is essential to know that the nature of the power conferred by Art. 356 to the president is a conditional power it is not an absolute power. There are basic two conditions which need to be fulfilled for the issuance of the presidential proclamation; these conditions are imposed in Article 356 itself. Article 356(1) reads as356. (1) If the President, on receipt of a report from the Governor 1*** of a State or otherwise[3], is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may by Proclamation—
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(a) Assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor 2*** or anybody or authority in the State other than the Legislature of the State;
(b) Declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament;
(c) Make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this Constitution relating to anybody or authority in the State:
Provided that nothing in this clause shall authorize the President to assume to himself any of the powers vested in or exercisable by a High Court, or to suspend in whole or in part the operation of any provision of this Constitution relating to High Courts.
More elaborately the two conditions areFirstly, the president should be fully satisfy himself that there is a condition aroused in which the government of the state will not be able to function in accordance with the provisions of the constitution. Secondly, the presidential satisfaction should be based on the “report of the governor or otherwise” – means that the satisfaction of the president should based on the either of the report of the governor or the president may otherwise have information through accredited channel of communications and have it in custody and on consideration of which the president would reach a satisfaction that a situation has arisen in which
the Government of a state cannot be carried on in accordance with the provisions of the constitution or more briefly the materials and record should be self satisfactory in themselves for the issuance of such an proclamation which is referred as Dr. Ambedkar’s “dead letter[4]” for the government of the state.
Analysis of the issues and relative reasoning
The whole Issue can be divided to two parts; First part is related to the power and extent of courts to judicially review the presidential proclamation. Second part deals with the nature of the presidential satisfaction. Dealing with the first part court broadened the purview of the judicial review as discussed in the case of State of Rajasthan v. Union of India[5] concluding thatYes, the proclamation made by the president can be judicially reviewed, adding to the extent of the judicial power court says that the proclamation is subjected to the judicial review, to an extent of examining whether the conditions at the time of issuance of the proclamation have been fulfilled or not and that condition includes- whether there existed material for the satisfaction of the president, that a situation has arisen in which the government of the state could not be carried on in accordance with the provisions of the constitution.
Moreover, if the proclamation is found to be in malafide or based on wholly irrelevant grounds then the supreme court of the high court can strike down the proclamation. The deletion of clause (5) from Article 356, removes the clouds of reviewability of the action. When called upon, the union of India has to produce the material on the basis of which action was taken. Its enquiry is limited to see whether the material was relevant to the action. Moreover, if any advice was tendered to the president by the
council of ministers,[6] then the court will not interfere into the matter that what advice was, but the material and record on which the advice was tendered to the president. Examples; Malafide[7]/Bad Faith Prof. de Smith in his book on bad faith stated that – “The concept of bad faith eludes precise definition, but in relation to the exercise of statutory powers it may be said to comprise dishonestly (or fraud) and malice. A power is exercised fraudulently if its repository intends to achieve an object other than that for which he believes the power to have been conferred. His intentions may be to promote another public interest or private interest. A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercised”.
So, if the material on records for such an proclamation is influenced by any kind of malicious feeling including any kind of political rivalry or irrelevant materials as in the case of State of Rajasthan v. Union Of India[8]. Where the political party in the power at the centre tendered such malafide advice against a state governed by another political party to the president. But in this case court due the enactment of 38th amendment which includes clause (5) to article 356 which say that“(5) The satisfaction of the president will be final and conclusive and cannot be challenged before any cour[9]t” And decided the same and doesn’t leave any scope of judicial review. Subsequently, clause (5) of the article was struck down by the enactment of the 44th amendment act. This opens the way for the ray of light of judicial review to enter the prison of presidential power under article 356(1) if the proclamation is made under such malicious minds and irrelevant material on records. This was subsequently seen in the case of S.R Bommai v. Union of India[10]. In which the bench of nine judges by majority of 5:4 broadened or say open up the scope of judicial
review.
Dealing with the second part of the issue court says that the presidential satisfaction is a subjective one and it is subjected to the materials and records and also the report of the governor of the state. Moreover, court guided that the facts and circumstances relevant to the satisfaction, that the government of the state cannot be carried on in accordance with the provisions of the constitution, should only be the ground of the satisfaction of the president.
The President cannot exercise these powers under the Constitution on wish or whim. He has to have facts, circumstances which can lead a person of his status to form an intelligent opinion requiring exercise of discretion of such a grave nature that the representative of the people who are primarily entrusted with the duty of running the affairs of the State are removed with a stroke of the pen.
His action must appear to be called for and justifiable under the Constitution if challenged in a Court of Law. No doubt, the Courts will be chary to interfere in his ‘discretion’ or formation of the ‘opinion’ about the ‘situation’ but if there is no basis or justification for the order under the Constitution, the Courts will have to perform their duty cast on them under the Constitution. While doing so, they will not be entering in the political arena for which appeal to electorate is provided for.
CONCLUSION
The power conferred to the president by Article 356 is of grave nature and should not be used very frequently as used till date (over 100 times in more than 20 states). As the fear of the same
should take off the efficiency of the state governments as they doesn’t know that when the dead letter would reach them. Also, they must be subjected to the judicial review to an extent of checking the legal validity of the proclamation only. Also it is submitted that though court have been provided with the power but it also has to be limited. As it is said by Justice Kailash Nath Katju, Divisional Manager, Aravali Golf Club and Anr. Vs.: Chander Hass and Anr[11]that“Judges must know their limits and must not try to run the Government. They must have modesty and humility, and not behave like Emperors[12].” Lastly,Dr. Ambedkar’s stated that the constitution is a document given by the people to govern themselves not the bodies formed by the constitution. So, the main power should lies with the citizens of the country. The precedent of the case was followed subsequently in Rameshwar Prasad v. Union of India[13].In this case the scope of judicial review was broadened more.
[1] Britannica Encyclopedia [2] AIR 1977 SC 1361 [3] C.A.D Vol IX p. 177 [4] C.A.D Vol IX p. 1970 [5] AIR 1977 SC 1361 [6] Article 74(1) [7] HM Seervai, constitutional law of india,volume 3, p.3095 [8] AIR 1977 SC 1361 [9] Clause (5) added by 38th amendment(1975) and struck down th
by the 44th amendment act(1978) [10] (1994) 3 SCC 1 [11] 2007 (14) SCALE 1 [12] JUSTICE RUMA PAL, JUDICIAL OVERSIGHT OR OVERREACH: THE ROLE OF THE JUDICIARY IN MODERN INDIA,2008 [13] (2006) 2 SCC 1
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