LAW RESOURCE INDIA

Changing Face of Article 356—Judicial Zeal and Jerk

Posted in CONSTITUTION, COURTS, SUPREME COURT by NNLRJ INDIA on March 20, 2010

BY DR ARVIND P BHANU IN THE PRACTICAL LAWYER

Article 3561of the Constitution was most keenly discussed and debated in the Constituent Assembly. The Founding Fathers apprehended that, if and when it would be misused, it would violate not merely the federal character of the polity envisaged by them but also make a mockery of democratic principles. It seems that they were very much sure that the provision of the article would not be used to strengthen the corporative federalism1 but it would be used in resolving the ministerial crisis in the State.2 As observed by Shiban Lal Saxena “… I feel that by these articles we are reducing the autonomy of the States to a farce. These articles will reduce the State Governments to great subservience to the Central Government.3 But what could they do, they placed a hope in an apologetic manner that” … “[the] articles will never be called into operation and that they would remain a dead letter”.4

Here, it has to be seen in the context of hope of “rarest of the rare” use, that Article 356 has been used more than 120 times, calculating an average more than two times in a year. According to the Sarkaria Commission’s Report5, which analysed 75 cases of President’s Rule from June 1951 to May 1987 and found in 52 cases out of 75, Article 356 has been used not meant for. Thus the use of the article for political purposes is to uproot the federal character and democratic principle which is guaranteed by the judiciary as basic structure of the Constitution.6 Further it is mentionable that there are four institutions surrounding this Article 356, they are, the President—the creature of the Constitution i.e. the constitutional head, the protector of the Constitution, the State Governor—the constitutional office but seen as pawn on political chessboard7, Parliament and the ultimate one is Judiciary. However, it is seen that despite all these and presence of the Constitution, Article 356 is not only misused but abused as well.

Pre-1977

This was the first case challenged in the Kerala High Court on the point of proclamation issued by the President of India. In this case the resignation of the ministry caused a breakdown of the constitutional Government in the State of Kerala; the President dissolved the Legislative Assembly and assumed the executive powers of the State to himself by a Proclamation dated 10-9-1964, which was approved by Parliament by a Resolution on 30﷓9﷓1964. A general election was held thereafter, in February and March 1965, for the purpose of constituting a new Legislative Assembly in the State; but no party was able to secure a working majority of seats in the legislature. The new legislature had never been summoned under Article 174(1)9 of the Constitution, therefore the elected members could not be sworn in.

After consultation with leaders of various parties, the Governor submitted his report to the President on the possibility of the formation of the Government in the State. On 24﷓3﷓1965, the Vice-President, who was then discharging the functions of the President in the latter’s absence out of India, revoked the Proclamation of 10﷓9﷓1964 and issued a fresh proclamation under Article 356 and dissolved the newly constituted Legislative Assembly of the State.

On behalf of Aboo, it was first of all argued that the Governor could not recommend the imposition of Presidential Rule when the State was already under the rule of the President. Secondly, that the Assembly could only be dissolved after it was assembled. This would have given the Assembly an opportunity to consider the situation. The third argument was that the Court and Parliament should consider the validity of the Presidential Proclamation. The last argument was that the Governor had acted mala fide.10

The Court refused to go into the constitutionality of the proclamation. Speaking for the Court, M. Madhavan Nair, J. held that the remedy lay with Parliament and not with the Court. He observed:

8. … When the matter comes up before it, it is open to Parliament to withhold approval. If Parliament, in its supreme wisdom, is not impressed with the constitutionality, the legality or even the propriety of the proclamation it will not give its approval to it. It requires no exposition by this Court for such an action on the part of Parliament. 11

As to the last question the Judge made it clear that the Governor had not acted mala fide even if some political leaders have been preventively detained. The Court also observed that the President while acting under Article 356 exercised power in his own right and the only sanction against him was impeachment. Consequently the petition was dismissed without any interim relief as prayed for by the petitioner and all grounds of challenge to the proclamation were struck down thereby upholding the constitutionality of the proclamation.

In the State of Haryana, when imposition of President’s Rule was declared on 21-11-1967, the Legislative Assembly was dissolved and the petitioner came before the Court through Rao Birinder Singh v. Union of India12. The petitioner contended: (i) that the petitioner commanded majority in the Legislative Assembly, (ii) that the satisfaction of the President while issuing the proclamation in fact means the satisfaction of the Union Home Minister which must be based upon some facts and circumstances, (iii) that the report of the Governor makes it clear that in fact the Government could be carried on according to the Constitution because the petitioner had continued to have majority in the Legislative Assembly, (iv) that the mala fide nature of the proclamation is evident from the facts themselves that the petitioner took a bold stand in saying that he would not allow Chandigarh and Bhakra Project and efforts were made by the Centre to cause defections in the petitioner’s party.

The Court held that the President while exercising power under Article 356 did not act on behalf of the executive of the Union but in a constitutional capacity. Therefore, the exercise of power by the President was not amenable to the jurisdiction of the Court.

9. It is thus settled that the constitutional power of the President under Article 356 is apart and independent of the executive powers of the Union referred to in Articles 53, 73, and 77. Those Articles do not apply to the exercise of such a power by the President. On this approach the whole edifice of this argument on the side of the petitioner that the proclamation was issued by the President in exercise of the executive powers of the Union and hence an executive act of the Union crumbles. This Court cannot even enquire into, in view of clause (2) of Article 74, whether any advice whatsoever was tendered by any Minister or the Union Home Minister to the President in connection with the issue of the impugned proclamation under Article 356.13

Secondly, reconsideration of the proclamation being specifically vested by the Constitution in Parliament, excluded the jurisdiction of the Court in this regard. Thirdly, the Court had no jurisdiction to require disclosure of material forming basis of the satisfaction of the President.

Thus, the Court reiterated the ratio laid down earlier that the proclamation of emergency under Article 356, justiciability, legality or propriety of proclamation even the relevancy of recital as to satisfaction of President is not justiciable. The Court dismissed the petition and outrightly rejected all the reliefs sought by the petitioner and it did not hesitate to state that there was sufficient material in the report of the Governor to show that administration of the State had broken down.14

In another case, Gokulananda Roy v. Tarapada Mukharjee15, the Calcutta High Court held that,

“18. … The validity or legality of the incidental and consequential provisions contemplated by Article 356(1)(c) is not justiciable because that is a matter entirely for the satisfaction of the President. The Court further ruled that the Governor’s report could not be questioned because the President acted in his satisfaction.”16

The scope of Article 356 was, however, considered in greater detail and depth in A. Sreeramula, In re,17 in 1974 by the High Court (Andhra Pradesh). The Presidential Proclamation was challenged on the ground that President’s Rule was imposed in the State without exploring the possibility for the formation of an alternative ministry when the Chief Minister resigned under the instruction of the Congress High Command. Justice Chinnappa Reddy held that a Presidential Proclamation issued under Article 356 is not susceptible to judicial review because the Presidential satisfaction under Article 356 is basically a political issue. The Constitution does not enumerate a situation where President’s Rule can be imposed and there are no satisfactory” criteria for judicial determination of what is relevant consideration for invoking the power under Article 356. Consequently, the question is intrinsically political and beyond the reach of the courts.

While considering the question whether there is any legal limitation to the kind of action that can be taken under Article 356 of the Constitution, the Judge assured that the only limitation on the exercise of power under Article 356 is political limitation, the considerations of which are relevant for action under Article 356 and weighing of these considerations appears to be clearly matters of political wisdom and not of judicial scrutiny.

“12. … after everything is said and done, it is the people of the country that should resist despotic tendencies on the part of the President or the majority party in Parliament and it is scarcely a matter for the courts.” Further, the Court said that the President can act under this Article in a number of situations18, whereas, the Founding Father hoped that Article 356 to be used as “dead letter”.19

It is significant to note at this juncture that it was in Sreeramula case20 that for the first time the yardstick of judicial review of administrative action was sought to be invoked to test the validity of a Presidential Proclamation under Article 356 though the response of the Court was the same as before. It is the head of the State that is entrusted with the discharge of the duty and the fact that it is Parliament that is the final arbiter led to the inevitable conclusion that the Court can never go into the merit of the proclamation issued by the President.

In a subsequent decision in Hanumantha Rao v. State of A.P.21 the Andhra Pradesh High Court reached the zenith of abdication of judicial review. It held that court cannot examine the appropriateness or adequacy of the grounds for the taking of a decision by the President, nor any bad faith can be permitted to be attributed to him. The court must be a “judicial hands off” in connection with this Presidential exercise of emergency power.22

In Bijayananda Patnaik v. President of India,23 the constitution- ality and legality of the Presidential Proclamation of 3-3-1973 in the Orissa State was examined by the Orissa High Court. It was alleged in this case that, when the Chief Minister tendered resignation of his Council of Ministers, the Governor should have called the leader of the opposition party to form the ministry. The Court said that without testing its strength the Governor’s decision not to call the leader of opposition party to form the ministry and to recommend for President’s Rule under Article 356 are however not justiciable and no writ can lie for quashing.

The Court with instructive attitude, criticised the conduct of the Governor insofar as he recommended the President’s Rule in the State without first calling Bijayananda to form the Government. By this the Governor failed to honour the conventions prevalent in Great Britain. The Court suggested that, on the fall of ministry, the Governor should automatically ask the leader of opposition to form the Government.

The Court further stated that it is now well settled that the conventions which were prevalent in England at the time of framing of our Constitution are to be honoured by different functionaries in working out of the Constitution though they are not put into a written instrument of instructions. In the Constituent Assembly there was a debate whether the well-accepted conventions followed in England should be put into a written instrument of instructions for guidance. The proposal was not accepted.24

This is the concluding interpretation supported by the courts in respect of the power and position of the President that he is bound to act according to aid and advice of the Council of Ministers. But in case of imposition of President’s Rule in State, he is said to have acted on his own and Council of Ministers is not responsible for that. Both the views cannot be held simultaneously. Since Parliament is a forum to debate the policies of the Government and take a verdict on them but that does not mean that the policies so approved ipso facto attain constitutional validity. So also the approval of the emergency resolution by Parliament, with Government solidity voting for the resolution and the opposition marshalling its entire strength against it, overtaken by the heat of political fervour, and nothing sort of a dispassionate and unbiased consideration for the issue from the angle of protecting the Constitution motivates their stance. The view taken by the Court mutatis mutandis applies to legislation enacted by Parliament and on the basis of the same logic, once an Act is adopted by Parliament it should also, like emergency resolution, get immunity from judicial review. Since the courts in consideration of the sacred trust reposed in them to protect the Constitution, exercise judicial review on other policies enacted by Parliament, likewise it is equally incumbent upon them to have taken cognizance of the dispute relating to exercise of powers under Article 356 and pronounce their verdict.

When the President for all practical purposes was made to act on the aid and advice of his Council of Ministers it was erroneous to hold that Article 74(2) barred the court from enquiring into the advice given to the President to promulgate emergency. Since the President was made a constitutional head and the courts, in different judgments had also declared him bound by the advice of his ministers.25 It was not consistent to hold that the advice did not fall within the ambit of judicial review, particularly, in a matter where the abuse of the power had very serious consequences of the nature of scuttling and cascading the basic structure of the Constitution.26

A critical examination of these decisions reveals that the courts have given support to the Central Government consistently. They have taken the position that they could not go into the validity or otherwise of a proclamation, because of non-justiciable nature of the President’s satisfaction by treating the circumstances sufficient to justify the Centre’s conclusion that there was a breakdown of constitutional machinery in the State concerned. The Kerala and Punjab High Courts took a very restrictive view on the issue, approving the proclamation. These courts observed that they did not have any power to go into these questions at all. The Andhra Pradesh High Court, however, explained its stand on the basis of separation of powers, Justice Chinnappa Reddy pleaded for an alternative testing of the merits of the proclamation. The Orissa High Court also followed the total ouster approach but G.K. Mishra, J. in his judgment censured the Governor for not following political conventions which ought to have been followed. Thus, in all these cases before the various High Courts, it was made known that there could be no judicial review of Presidential Proclamation although the reasons for reaching the conclusions varied. None of these challenges had come before the Supreme Court. The matter came up for consideration in 1977 before the Supreme Court in State of Rajasthan case27.

Post-1977

In post-1977, the question came before the Court in State of Rajasthan v. Union of India28. In the Parliamentary elections of March 1977 the ruling Congress Party suffered a massive defeat in nine States viz. Bihar, U.P., H.P., M.P., Haryana, Orissa, Punjab, Rajasthan and West Bengal. After the elections the Janata Party came to power at the Centre. On 17-4-1977 the Union Home Minister wrote letters to the Chief Ministers of nine States asking them to advise their Governors to dissolve the respective Assemblies and seek fresh mandate. Further, the Union Law Minister in a broadcast said that the Governments in the nine Congress-ruled States had forfeited confidence of the electorates and that they seek the dissolution of the State Legislature and obtain a fresh mandate. It was quite clear that if the suggestion was not acted upon, the Union Government would invoke emergency powers under Article 356 and impose President’s Rule and dissolve the State Legislatures though this was not mentioned in the letter.

Six of these nine States, namely, Rajasthan, M.P., Punjab, Bihar, H.P. and Orissa in their writ petition to the Supreme Court submitted that the Home Minister’s letter and the radio broadcast of the Law Minister constituted a clear-cut threat of dissolution of the Assemblies and disclosed grounds which are prima facie outside the purview of Article 356 of the Constitution. The Court rejecting the objections held that the defeat of the ruling party in itself, without anything more, supports the inference that the Government of the State cannot be carried on in accordance with the provisions of the Constitution. But the present situation was wholly different. It was not a case where just an ordinary defeat had been suffered by the ruling party in a State at the elections to the Lok Sabha but there has been a total rout of its candidates which reflected a wall of estrangement and resentment and antipathy in the hearts of people against the Government which may lead to instability and even the administration may be paralysed. Therefore, this ground was held to be clearly a relevant one.

The Court rejected the contention that judicial review of Presidential Proclamation was totally barred. Bhagwati and Gupta, JJ. held that:

149. … merely because a question has a political complexion, that by itself is no ground why the court should shrink from performing its duty under the Constitution if it raises an issue of constitutional determination. … merely because a question has a political colour, the court cannot fold its hands in despair and declare “judicial hands off”.29

For the first time in this case, the Supreme Court departing from the earlier view adopted by different High Courts in respect of proclamation of emergency made by the President under Article 356(1), formulated a view that, in certain circumstances, the challenge could be entertained for the exercise of judicial review.30

“… the satisfaction of the President is subjective and cannot be tested by reference to any objective test. So it cannot be a fit case for judicial determination. The Court cannot go into the correctness or adequacy of the facts and the circumstances on which the satisfaction of the Central Government is based. But if the satisfaction is mala fide or is based on wholly extraneous and irrelevant grounds, the Court would have jurisdiction to examine it because in that case there would be no satisfaction of the President in regard to the matter in which he is required to be satisfied. The satisfaction of the President is a condition precedent to the exercise of power under Article 356(1), and if it can be shown that there was no satisfaction of the President at all, the exercise of power would be constitutionally invalid. Of course, in most of the cases it would be difficult, if not impossible, to challenge the exercise of power under Article 356(1), even on this limited ground because the facts and circumstances on which the satisfaction is based would not be known, but what is possible, is that the existence of satisfaction can always be challenged on the ground that it is mala fide or based on wholly extraneous and irrelevant grounds.”31

Previously, the judiciary had held that the President enjoyed immunity under Article 361(1) and hence neither his satisfaction nor the existence of it could be challenged. But here, a distinction was made between the “satisfaction” and “existence of satisfaction” and the latter could not exist if the grounds taken were mala fide or irrelevant. Yet about the interpretation of Article 74(2).32 barring the judiciary from making enquiry as to what advice was tendered by the Council of Ministers, in respect of action taken under Article 356, there was no change and the situation remained as it was before. In spite of it the judgment could be said to be a significant improvement because, through the ambit of judicial review though made extremely restricted yet in certain circumstances, the existence of satisfaction was made subject to the Court’s enquiry.

In A.K. Roy v. Union of India33 a Constitution Bench of the Supreme Court observed that Rajasthan case34 is often cited as an authority for the proposition that the court ought not to enter the “political thicket”. It has to be borne in mind that at the time when the case was decided, Article 356 contained clause (5) which was inserted by the Thirty-eighth Amendment35 by which the satisfaction of the President mentioned in clause (1) was made final and conclusive and that satisfaction was not open to be questioned in any court on any ground. Clause (5) has been deleted by the Forty-fourth Amendment36 and therefore any observation made in Rajasthan case37 on the basis of that clause cannot any longer hold good. It is arguable that the Forty-fourth Constitution (Amendment) Act leaves no doubt that judicial review is not totally excluded in regard to the question relating to the President satisfaction.

After Rajasthan case38 the question of judicial review of Presidential Proclamation under Article 356 arose for consideration in the Gauhati and Karnataka High Courts. The President’s Rule was imposed in Nagaland on 7-8-1988 when the eight months old Congress Ministry headed by Hokisha Sema was reduced to a minority due to defections. There was a difference of opinion between Chief Justice Raghaur and Justice Hansaria.39 The former held that the Union of India cannot be compelled to tender any information to the Court because of Article 74(2) of the Constitution40. On the other hand, Justice Hansaria held that as the material which formed part of “other information” was not before the Court and as the same did not form part of the advice tendered by the Council of Ministers under Article 74(1)41, the Union of India should be given an opportunity to disclose the information to the Court. Justice Hansaria ruled that if the Union of India fails to give the “other information” the Court would have no alternative but to decide the matter on the basis of the matter placed before it. 42

The High Court (Karnataka) discussed the law at length in S.R. Bommai v. Union of India43 when the Presidential Proclamation was challenged in the Court. In Karnataka, the then ruling party came in minority due to defection caused by the party members. The Chief Minister proposed to the Governor that the Assembly session be called to test the strength of the Ministry on the floor of the House. But the Governor ignored this suggestion without exploring the possibility of alternative Government. The Governor made a report to the President of India to impose the President’s Rule in the State. The imposition of President’s Rule in Karnataka on 29-4-1989 and the dissolution of the Legislative Assembly based on the Governor’s report and on “other information” was challenged before the Karnataka High Court. The Full Bench held that Presidential Proclamation was justiciable.

The Court held in S.R. Bommai4444 that:

38. (1) … the proclamation made under Article 356 of the Constitution is justiciable and that the courts could look into the materials or the reasons disclosed for issuing the proclamation, to find out whether those materials or reasons were wholly extraneous to the formation of the satisfaction and had no rational nexus at all to the satisfaction reached under Article 356 of the Constitution.

In the end, however, the High Court dismissed the petition holding that the facts stated in the Governor’s report could not be held to be irrelevant. The Governor’s bona fides were not questioned and his satisfaction was based upon reasonable assessment of all facts. The Court also ruled that recourse to floor test was neither compulsory nor obligatory and was not a prerequisite to the sending of the report to the President.

Thus the judicial reasoning carried the progress of the judicial intervention of the exercise of the power conferred by Article 356 to the President of India. Though the Court could not grant relief in the eighty’s decade to the victims of the misuse of the provision, the credit went to judicial stepping into the grounds said in Rajasthan case44. The journey in the instant case remained short of expectation that was culminated in Jagdambika Pal45 in the State of U.P. in which the composite floor test was ordered by the Allahabad High Court.

Sunderlal Patwa v. Union of India46

After the demolition of Babri Masjid at Ayodhya on 6-12-1992, the President’s Rule was imposed in U.P., M.P., H.P. and Rajasthan. The imposition of President’s Rule in M.P., H.P. and Rajasthan was challenged in the respective High Courts. The Madhya Pradesh High Court departed from the earlier decisions and held that the Presidential Proclamation can be challenged in a court of law. The Court held that after the Forty-fourth Amendment of the Constitution, clause (5) of Article 356 has been repealed resulting in enlarging the scope of judicial review. Therefore, the Presidential Proclamation is open to judicial review on the ground of irrationality, illegality, impropriety or mala fide or in short, on the ground of abuse of power.

The Court in the instant case pointed out that sudden outbreak of riot resulting in failure on the part of the State Government to maintain public order does not justify the President’s Rule in the State. The power can be used only in an extreme difficult situation viz. where there is an actual and imminent breakdown of the constitutional machinery, as distinguished from failure to observe a particular provision of the Constitution or worsening of law and order situation. Since Article 356 of the Constitution authorises serious inroads into the principles of federation. As regards the “other information” the Court stated that the Union Cabinet cannot claim privilege.

30. … As has been held by the Supreme Court in Rajasthan case47, the satisfaction of the President has to be, in the scheme of the Constitution, based on the aid and advice of the Cabinet. The decision to impose the President’s Rule is virtually taken by the Cabinet and the action of the President is subject to judicial review in a court. Although the President cannot be made a party in a court of law, the Union Government representing the Cabinet can claim no privilege or protection against the disclosure of such “otherwise information” in its possession and which was made the basis of proclamation.48

The Supreme Court in A.K. Roy case49 ordered to restore the dismissed ministry as also the dissolved Assembly. The judgment of the Madhya Pradesh High Court has been a “significant milestone in legal history” since it is the first case where the Court struck down a Presidential Proclamation as unconstitutional.50

From 1994 to date Supreme Court on S.R. Bommai v. Union of India51

This case came before a Bench of nine Judges52 in the context of following facts:

On 21-4-1989, the President issued a Proclamation under Article 356 dismissing the Bommai Government, the President issued a Proclamation under Article 356(1) dismissing the Government of Meghalaya and dissolving the Legislative Assembly on 7-8-1988, the President issued a proclamation dismissing the Government of Nagaland and dissolving the Legislative Assembly. The validity of the proclamation was challenged in the Gauhati High Court. The petition was heard by a Division Bench comprising of the Chief Justice and Hansaria, J. (1988). The Bench deferred on effect and operation of Article 74(2) and hence the matter was referred to the three﷓Judge Bench. But before the three-Judge Bench could hear the matter, the Union of India was granted special leave to appeal and further proceedings in the High Court were stayed. On 15-12-1992, the President issued a Proclamation under Article 356 dismissing the State Governments and dissolving the Legislative Assemblies of Rajasthan, Madhya Pradesh and Himachal Pradesh. As already said that these proclamations were challenged in the respective High Courts. The Madhya Pradesh High Court allowed the writ petition, but writ petitions relating to Rajasthan and Himachal Pradesh were withdrawn to the Supreme Court.

This case raised very important questions about the power of the President to issue a proclamation under Article 356 (failure of constitutional machinery in the States) including, inter alia, the power to dissolve State Legislative Assemblies. The Court laid down the following propositions:

  1. Presidential Proclamation dissolving a State Legislative Assembly is subject to judicial review.
  2. Burden lies on the Government of India to prove that relevant material existed (to justify the issue of proclamation).
  3. Courts would not go into the correctness of the material.
  4. If the court strikes down the proclamation it has power to restore the dismissed State Government to office.
  5. A State Government pur- suing anti-secular politics is liable to action under Article 356.

The first and most important question which the Supreme Court had to determine was whether the President’s Proclamation under Article 356 was justiciable and if so, to what extent. All Judges were unanimous in holding that the President’s Proclamation was justiciable, though they differed widely as to the extent of the justiciability. Ahmadi, J. in a muffled sort of way observed that:

32. Since it was not disputed before us by the learned Attorney General as well as Mr Parasaran, the learned counsel for the Union of India, that a proclamation issued by the President on the advice of his Council of Ministers headed by the Prime Minister, is amenable to judicial review, the controversy narrows down to the determination of the scope and ambit of judicial review i.e. in other words, to the area of justiciability.53

The other Judges like Sawant, J. for himself and Kuldeep Singh, J. observed, “It is not disputed before us that the proclamation issued under Article 356(1) is open to judicial review. All that is contended is that the scope of the review is limited.”54

K. Ramaswamy, J. dealt with justiciability of the President’s Proclamation at length. He observed,

“The question relating to the extent, scope and power of the President under Article 356 though wrapped up with political thicket, per se it does not get immunity from judicial review.”55

In Constitutional Law of India56 Dr. Basu has pointed out that judicial review of a proclamation under Article 356 would lie on any of the grounds upon which any executive determination which is founded on subjective satisfaction can be questionable. By way of example he has cited the following grounds:

“(a) That the proclamation has been made upon a consideration which is wholly extraneous or irrelevant to the purpose for which the power under Article 356 had been conferred by the Constitution, namely, a breakdown of the constitutional machinery in a State, or, in other words, where there is no ‘reasonable nexus’ between the reasons disclosed and the satisfaction of the President, because in such a case, it can be said that there has been no ‘satisfaction’ of the President which is a condition for exercise of the power under Article 356.

(b) That the exercise of the power under Article 356 has been mala fide, because a statutory order which lacks bona fides has no existence in law.”

Though the pre-hand proposition propounded by Dr. Basu is in conformity with the unanimous opinion of the Judges in the present case, yet Justice K. Ramaswamy did not consist the line with that of the satisfaction of an administrator. He observed:

The rule that the satisfaction reached by an administrative officer when found to be based on irrelevant grounds, the whole order gets vitiated has no application to the action under Article 356. Judicial review of the Presidential Proclamation is not concerned with the merits of the decision but to the manner in which the decision had been reached. The satisfac- tion of the President cannot be equated with the discretion conferred upon an administrative agency, of his subjective satisfac- tion upon objective material like in detention cases … the satisfaction of the President being subjective, it is not judicially discoverable by any manageable standards and the court would not substitute their own satisfaction to that of the President.57

Till 1994, it has long been established that the President’s satisfaction under the scheme of the Indian Constitution is of the Council of Ministers enjoying confidence in the House. The immunities provided under the Constitution cannot be enjoyed by the ministry by stating that they cannot be called before the Court. The propositions submitted by Dr. Basu have fully been acknowledged by the judiciary in Bommai case58, this made the Presidential Proclamation subject to judicial enquiry.

Yet another significant fact that now emerges is that the Supreme Court could call upon the Union of India to disclose materials based upon which the President had formed the requisite satisfaction in taking over the administration of a State by dismissing the popular ministry. The majority judgment said that, “It does not bar the court from calling upon the Union Council of Ministers to disclose to the court the material upon which the President had formed the requisite satisfaction.”59

As Jeevan Reddy and Agrawal, JJ. put it, “Article 74(2)60 does not mean that the Government of India need not reveal the facts to the Court. Hence, the limited provision contained in Article 74(2) cannot override the basic provision in the Constitution regarding judicial review.” If any act of the President is challenged in a court of law, they continued, “it is for the Council of Ministers to justify it by disclosing the material which formed the basis” 61 of the act/order. The material placed before the President does not thereby become part of advice. Advice is what is based upon the said material. Material is not advice. The position all along has been that though the Court cannot compel the Government to produce the advice tendered by the ministers to the President or the reasons thereof, there is nothing to prevent the court to compel production of material upon which the advice or its reasoning was based.

Reacting to the judgment Mr P.P. Rao commented that:

“Disclosure of cabinet papers may not be in public interest. As a collective expression of judicial displeasure, the judgment is justified. But as a proposition of enduring value, it is likely to run into difficulties.”62

Determination of the strength of the Ministry (floor test)

Another important question which was considered in Bommai63 was the proper method of testing the strength of the ministry and to determine whether it has lost or still retains the confidence of the House. The Court held that a ministry’s strength should be tested on the floor of the House which alone “is the constitutionally ordained forum” and “not by the private opinion of any individual, be he the Governor or the President”. This rule can be departed from only in an extraordinary situation where because of all pervasive violence a free vote is not possible in the House. Jeevan Reddy and Agrawal, JJ. also adverted to the importance of the Tenth Schedule to the Constitution, the objective of which is to prevent and discourage “floor crossing” and defection.64

K. Ramaswamy’s dissenting judgment, that (at SCC p. 192, para 224) “A floor test may provide impetus for corruption and rank force and violence by musclemen or wrongful confinement or volitional captivity of legislators” is worth remembering. As long as the rulers of mankind are unable to suggest an acceptable alternative, however, floor test continues to be the sole practical means of establishing majority with an exception made for the rarest of rare cases, covering virtual civil war condition.

Hence, the issue of determining the majority support of a political party in the House in the form of floor test has found its place in the Rajamannar Committee Report, Sarkaria Commission’s Report and Bommai65 judgment. Likewise the Constitution Commission has recommended that the question whether the Ministry in a State has lost the confidence of the Legislative Assembly or not, should be decided only on the floor of the Assembly and nowhere else.66

Relief in case of mala fide exercise of power

In this regard, the Court observed that if the Presidential Proclamation is held invalid “then notwithstanding the fact that it is approved by both Houses of Parliament, it will be open to the court to restore the status quo ante” and bring back to life the Legislative Assembly and ministry.67 The Court also held that in appropriate cases and if the situation demands it, the High Court/Supreme Court have the power by an interim injunction to restrain the holding of fresh elections to the Legislative Assmebly pending the final disposal of the challenge to the validity of the proclamation but not in such a manner as to allow the Assembly to continue beyond its original term. This it can do to avoid a fait accompli and to prevent “the remedy of judicial review (from) being rendering fruitless”.68

The political significance of the decision is that it will act as a bar on motivated and arbitrary dismissal of the State Governments by the Centre as had happened in a number of cases in the recent past. The unseating of a ministry commanding a majority in the Assembly by applying Article 356 is a virtual dismissal through back door. Now that the courts could go into the circumstances of the dismissal and declare the act as unconstitutional leading to the declaration of status quo ante, the party in power at the Centre will think twice before embarking on the adventurous course of imposing President’s Rule.69

A critical analysis of the decision could now be attempted. The verdict evoked mixed reaction among politicians, journalists and constitutional experts. While recording his resentment against the decision L.K. Advani observed that “the verdict was erroneous”. He said that the judiciary had no right to set itself as an “ideological ombudsman”. There was no clear rational validity for the dismissal of the three BJP Governments, while all other instances of the use of Article 356 before the Court had been overturned.70 The CPI-M unreservedly welcomed the judgment. Prakash Karat, CPM Polit Bureau member, described it as a “landmark verdict” which need to be widely published and disseminated and could serve as a weapon in future struggle against the politics of communalism. “There is a fundamental point that the judgment makes”, he pointed out, “secularism can only mean that religion cannot intrude into politics”.71 As such the judgment could be “the basis for further enactment to strengthen existing provisions of law on the separation of religion and politics”.72

Constitutional experts also took widely divergent view of the judgment. Soli J. Sorabjee, the former Attorney General of India, welcomed the judgment. He observed:

The decision in Bommai73 marks the high watermark of judicial review. It is a very salutary development and will go a long way in minimising Centre’s frequent onslaught on the States who as rightly pointed out “are neither satellites nor agents of the Centre” and “have as important a role to play in the political, social, educational and cultural life of the people as the Union”. However, there is genuine concern about misuse by the Centre of Article 356 on the pretext that the State Government is acting in defiance of the essential features of the Constitution. The real safeguard will be full judicial review extending to an inquiry into the truth and correctness of the basic facts relied upon in support of the action under Article 356 as indicated by Justices Sawant and Kuldip Singh. 74

However, K.K. Venugopal, the former Solicitor General of India, was not entirely convinced of the merit of the judgment, which he finds as inconsistent in parts.75

It may be mentioned that by the time Bommai case76 came before the Supreme Court, Article 356(5) putting a ban on judicial review of Article 356 proclamation had been repealed. In State of Rajasthan v. Union of India77 it was said that the State Legislature can be dissolved by the Centre without waiting for its approval by the Houses of Parliament.78 But in Bommai79, the Court has disagreed with the view for a very good reason. If the proclamation is not approved by Parliament, it automatically lapses after two months. This could forward a rule of putting Assembly into suspended animation. Thus in Bommai80, the Supreme Court seeks to promote several basic and wholesome constitutional values such as parliamentary system, federalism, control over the executive and secularism. Bommai81 is a very fine example of judicial creativity. 82

Recently, in 1996 when elections were held to the Uttar Pradesh Legislative Assembly no party secured a majority to form the Government. So, the President’s Rule was imposed in the State and this proclamation was subsequently approved by Parliament. Against this imposition of the President’s Rule five petitions were filed in the Allahabad High Court. A two-Judge Bench delivered a split verdict on 11-11-1996, necessiating the referring of the matter to a three-Judge Bench.

The Court unanimously held that the impugned Presidential Proclamation dated 17-10-1996 reimposing President’s Rule in U.P. and subsequently approved by Parliament was unconstitutional, issued in colou- rable exercise of power and was based on wholly irrelevant and extraneous grounds and therefore, could not be allowed to stand. Consequently the proclamation was quashed.83 However, to avoid any crisis as a result of the quashing of the aforesaid proclamation, the Court, by applying the doctrine of prospective ruling, directed that the judgment shall come into operation only after the pronounced date for the resumption of political process in the State. Even though the verdict quashing the Presidential Proclamation was unanimous, the three Judges cited different reasons in their respective judgments. B.M. Lal, J. observed that the Governor of U.P. was constitutionally not bound to invite the single largest party to form a Government, in case, it did not have the confidence of the House. But at the same time he was constitutionally bound and obliged to explore all possibilities.84

Uttar Pradesh in 1998 when Governor Romesh Bhandari, being of the view that Chief Minister Kalyan Singh Ministry had lost majority in the Assembly dismissed him without giving him opportunity to prove his majority on the floor of the House and appointed Shri Jagdambika Pal as the Chief Minister which was challenged by Shri Kalyan Singh before the High Court which by an interim order put Shri Kalyan again in position as Chief Minister. This order was challenged by Shri Jagdambika Pal before the Supreme Court which directed a “composite floor test” to be held between the contending parties which resulted in Shri Kalyan Singh securing majority. Accordingly, the impugned interim order of the High Court was made absolute.85

In the year 2005, the Governor of Jharkhand was ordered by the Supreme Court for holding a floor test to determine which party/political alliance commanded a majority in Jharkhand. The Court made it clear that the discretionary power under Article 164(1) of the Governor is subject to judicial review. And the exercise of such power can constitutionally be insured by conducting floor test. Thus, the democratic principle propounded in Bommai case86 was again sounded in this case and so as with Arjun Munda v. Governor of Jharkhand.87

Rameshwar Prasad case88 has reiterated the principles enunciated in State of Rajasthan89 and Bommai case90 with more constitutional conscience. The Court made it clear that Article 356 contains an emergency power and this emergency power should be used not as normal power. “Article 356 confers a power to be exercised by the President in exceptional circumstances to discharge the obligation cast upon him by Article 355”. By referring Articles 74(1) and (2), the Court held that due to Bommai case91 Article 74(2) is not a bar against scrutiny of materials on the basis of which the President has issued Proclamation under Article 356. This approach shows objectivity even in subjectivity. Constitutionalism or constitutional system of Government abhors absolutism—it is premised on the rule of law by which subjective satisfaction is substituted by objectivity, provided for by provision of the Constitution itself.92

Concluding remarks

These two recent judgments of the Supreme Court in Jagdambika Pal93 and Rameshwar Prasad94 are the reflections of the judicial progress which in turn are a proof of the contribution in constitutional jurisprudence. The theory deducted by way of construction of the Constitution has been an instant need of Indian constitutional system. The President and Parliament are found short in protecting the constitutional misuse for political purposes. It is now expected that the judicial weapon can preclude from abusing the provisions of the Constitution which have colourably been interpreted with their own line by the politicians.

The theory of “satisfaction and the existing satisfaction” with reference to “advice”95 under Article 74(2)96 evolved in State of Rajasthan case97, through Bommai case98 has acquired more democratic light in Rameshwar Prasad case99 by adopting the approaching that “subjective satisfaction is subjectivity by objectivity”100. However, it cannot be said that the challenging of President’s Rule equates with those of administrative actions because of constitutional provisions. 101 It is further submitted that, basing upon the “satisfaction” theory laid down in State of Rajasthan case102 the Supreme Court has evolved the constitutional safeguards in Bommai case103 to regulate the political behaviour which has potential to be misused under Article 356. It is desirable to reduce all these in constitutional form by amending the Constitution as the Governor’s obligation to explore alternatives, floor test to judge the strength of ministry, putting the legislature in suspended animation if occasion arises, speaking report by the Governor/advice based upon relevant material tendered by the Council of Ministers, appointment of the Governor as per Sarkaria Commission’s recommendations, to give clarity in the meaning of failure of constitutional machinery in the State and judicial review.

Since 1977, the Court has been trying to put check on the political behaviour of the Governor, but still it cannot be termed as complete code. Referring the suggestions made by the Administrative Reforms Commission104 to suo motu summon the Assembly to obtain the verdict if the Chief Minister does not advise him to convene the Assembly was refused by the Central Government to endorse. Because, the Central Government saw the suggestion not in its favour.

Though a check to misuse the power under Article 356 can be seen, yet it is not in expectation of the Founding Fathers. Therefore an appeal for constitutional morality105 is required to protect the Constitution. In this context, an example of President K.R. Narayanan can be put forward when the President returned the aid and advice by the Central Government in 1998 for imposition of Central rule in the State of Bihar.

  1. G. Austin, The Indian Constitution — Cornerstone of a Nation, 187; K.C. Wheare, Modern Government (1971) —18; Jennings, Some Characteristics of the Indian Constitution, 55; D.D. Basu, Commentary on the Constitution of India, 7th Edn., Vol. A, 55.
  2. See, Constituent Assembly Debates, Vol. IX, 141.
  3. Ibid, at p. 143.
  4. Ibid, at p. 177.
  5. Sarkaria Commission, Report on Centre-State Relationship (1983-1988), see also, “National Commission to Review the Working of the Constitution, Report, I, S. 8.16 (2002) and D.D. Basu, in his book, Introduction to Constitution of India, (19th Edn.) at p. 483 says “… no provision of the Constitution has been so often used, misused, and abused as Article 356, 108 times since 1954”.
  6. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.
  7. Also see, Soli J. Sorabjee, The Governor: Sage or Saboteur, Roli Book, New Delhi, 1985, p. 88 (The public today generally regard the Governor as the employee of the Central Government, that in some cases the spy of the Centre).
  8. AIR 1965 Ker 229.
  9. “The Governor shall from time to time summon the House or each House of the Legislature of the State to meet.…”
  10. K.K. Aboo v. Union of India, AIR 1965 Ker 229 at p. 232, para 8.
  11. Supra n. 8.
  12. AIR 1968 P&H 441.
  13. Ibid, at p. 447, para 9.
  14. Rao Birinder Singh v. Union of India, AIR 1968 P&H 441.
  15. AIR 1973 Cal 233 at p. 238, para 18.
  16. State of Rajasthan v. Union of India, (1977) 3 SCC 592.
  17. AIR 1974 AP 106.
  18. Ibid, at p. 111, para 12.
  19. Supra n. 5.
  20. A. Sreeramula, In re, AIR 1974 AP 106.
  21. (1975) 2 An WR 277.
  22. Ibid, at p. 301.
  23. AIR 1974 Ori 52.
  24. Granville Austin, The Indian Constitution, pp. 138-39.
  25. Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549; U.N.R. Rao v. Indira Gandhi, (1971) 2 SCC 63; Rustom Cavasjee Cooper v. Union of India, (1970) 1 SCC 248; Samsher Singh v. State of Punjab, (1974) 2 SCC 831 : 1974 SCC (L&S) 550.
  26. B.P. Pandya, “Article 356 and Judicial Review”, Indian Journal of Public Administration, Oct.﷓Dec. 2001, p. 798.
  27. State of Rajasthan v. Union of India, (1977) 3 SCC 592.
  28. Ibid.
  29. State of Rajasthan v. Union of India, (1977) 3 SCC 592 at pp. 660-61, para 149.
  30. Bhagwati, J., for himself and also on behalf of C. Gupta, J. held, (at SCC p. 663, para 150) If the satisfaction is mala fide or is based on wholly extraneous and irrelevant grounds, the court would have jurisdiction to examine it, because in that case there would be no satisfaction of the President in regard to the matter on which he is required to be satisfied. The satisfaction of the President is a condition precedent to the exercise of power under Article 356(1) and if it can be shown that there is no satisfaction of the President at all, the exercise of the power would be constitutionally invalid. [By virtue of Article 356(5), the satisfaction of the President cannot be challenged but only the existence of the satisfaction.] Of course … in most cases it would be difficult, if not impossible, to challenge the exercise of power under Article 356(1) even on this limited ground, … but where it is possible, the existence of the satisfaction can always be challenged on the ground that it is mala fide or based on wholly extraneous and irrelevant grounds.
  31. State of Rajasthan v. Union of India, (1977) 3 SCC 592.
  32. “74. (2) The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.”
  33. (1982) 1 SCC 271 : 1982 SCC (Cri) 152.
  34. State of Rajasthan v. Union of India, (1977) 3 SCC 592.
  35. The Constitution (Thirty-eighth Amendment) Act, 1975.
  36. The Constitution (Forty-fourth Amendment) Act, 1978.
  37. State of Rajasthan v. Union of India, (1977) 3 SCC 592.
  38. Ibid.
  39. (1982) 2 Gau LJ 468.
  40. State of Rajasthan v. Union of India, (1977) 3 SCC 592.
  41. There shall be a Council of Ministers … to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice.
  42. State of Rajasthan v. Union of India, (1977) 3 SCC 592.
  43. AIR 1990 Kant 5 at p. 27, para 38(1).
  44. State of Rajasthan v. Union of India, (1977) 3 SCC 592.
  45. (1999) 9 SCC 95.
  46. AIR 1993 MP 214.
  47. State of Rajasthan v. Union of India, (1977) 3 SCC 592.
  48. Sunderlal Patwa v. Union of India, AIR 1993 MP 214 at pp. 233-34, para 30.
  49. A.K. Roy v. Union of India, (1982) 1 SCC 271 : 1982 SCC (Cri) 152.
  50. D. Nagasalia and V. Suresh, “Will the Supreme Court break new ground”, The Hindu, 9﷓5﷓1993. On similar issue, Ahmad Tariq Rahim v. Federation of Pakistan, PLD 1992 SC 646 and Federation of Pakistan v. Aftab Ahmad Khan Sherpao, PLD 1992 SC 723. A much more relevant and instructive judgment of the Pakistan Supreme Court is of June 1993 invalidating the dismissal of Nawaz Sharif Government and dissolution of the National Assembly.
  51. (1994) 3 SCC 1.
  52. Pandian, Ahmadi, Kuldeep Singh, Verma, Sawant, K. Ramaswamy, Agrawal, Yogeshwar Dayal and Jeevan Reddy, JJ.
  53. S.R. Bommai v. Union of India, (1994) 3 SCC 1 at p. 80, para 32.
  54. Ibid, at p. 93, para 60.
  55. Ibid, at p. 178, para 201.
  56. (1988) by Dr. D.D. Basu, pp. 403, 404.
  57. S.R. Bommai v. Union of India, (1994) 3 SCC 1 at pp. 187-88, paras 215-16.
  58. S.R. Bommai v. Union of India, (1994) 3 SCC 1.
  59. Ibid, at p. 297, para 434(6).
  60. S.R. Bommai v. Union of India, (1994) 3 SCC 1 at p. 297, para 434(6).
  61. Ibid, at SCC p. 242, para 323.
  62. Sukumar and Murlidharan and V. Venkatasan, “Article 356, For and Against: A Range of Reflection”, Frontline, April 1994 : 120.
  63. S.R. Bommai v. Union of India, (1994) 3 SCC 1.
  64. Ibid.
  65. Ibid.
  66. The National Constitution Commission (NCRWC) (2000-2002).
  67. Ibid, at pp. 298, 149 also H.M. Seervai, Constitutional Law of India, 4th Edn., p. 3105 (In my submission, the fact that though Article 356 was amended six times and no amendment was made to revive the dissolved legislature and to reinduct the dismissed ministry, strongly supports the view that on the disapproval of the Presidential Proclamation by Parliament, or on the High Court/Supreme Court holding the proclamation invalid, the dissolved legislature is not revived and the dismissed ministry is not reinducted into office.).
  68. Ibid, at p. 149.
  69. A Landmark Verdict, Editorial, The Hindu, 14-3-1994.
  70. Frontline, 8-4-1994.
  71. Ibid.
  72. Ibid.
  73. S.R. Bommai v. Union of India, (1994) 3 SCC 1.
  74. Soli J. Sorabjee, at pp. 30-31.
  75. Supra, n. 60.
  76. S.R. Bommai v. Union of India, (1994) 3 SCC 1.
  77. (1977) 3 SCC 592.
  78. Chandrachud, J. Supra, n. 77 at 198, Bhagwati, J., Ibid at p. 657.
  79. S.R. Bommai v. Union of India, (1994) 3 SCC 1.
  80. Ibid.
  81. Ibid.
  82. M.P. Jain, Indian Constitutional Law, 5th Edn., 2003, Reprint 2005, 702.
  83. The Hindustan Times, 20-12-1996.
  84. Ibid.
  85. Jagdambika Pal v. Union of India, (1999) 9 SCC 95.
  86. S.R. Bommai v. Union of India, (1994) 3 SCC 1.
  87. (2005) 3 SCC 399.
  88. Rameshwar Prasad (VI) v. Union of India, (2006) 2 SCC 1.
  89. State of Rajasthan v. Union of India, (1977) 3 SCC 592.
  90. S.R. Bommai v. Union of India, (1994) 3 SCC 1.
  91. Ibid.
  92. Rameshwar Prasad (VI) v. Union of India, (2006) 2 SCC 1 at pp. 94 & 96, paras 96 & 100.
  93. Jagdambika Pal v. Union of India, (1999) 9 SCC 95.
  94. Rameshwar Prasad (VI) v. Union of India, (2006) 2 SCC 1.
  95. In Doypack Systems (P) Ltd. v. Union of India, (1988) 2 SCC 299, it was held that the noting of the officials which lead to the Cabinet’s decision form part of the advice.
  96. State of Rajasthan v. Union of India, (1977) 3 SCC 592.
  97. Ibid.
  98. S.R. Bommai v. Union of India, (1994) 3 SCC 1.
  99. Rameshwar Prasad (VI) v. Union of India, (2006) 2 SCC 1.
  100. Arjun Munda v. Governor of Jharkhand, (2005) 3 SCC 399.
  101. S.R. Bommai v. Union of India, (1994) 3 SCC 1.
  102. State of Rajasthan v. Union of India, (1977) 3 SCC 592.
  103. S.R. Bommai v. Union of India, (1994) 3 SCC 1.
  104. Report on Centre-State Relationship, 28. 73.
  105. B.R. Kapur v. State of T.N., (2001) 7 SCC 231. The Court has extended the basic structure theory to the constitutional morality.

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