S R BOMMAI CASE

SUBMITTED FOR THE PURPOSE OF INTERNAL ASSESSMENT

CONSTITUTIONAL LAW

SECOND SEMESTER

LL.B. (HONS.) IN INTELLECTUAL PROPERTY LAW

AT RGSOIPL – IIT KHARAGPUR

SUBMITTED TO: SUBMITTED BY:

Asst. Prof. UDAY SHANKAR CHINMOY MISHRA – 17IP63011

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AN ANALYSIS OF SR BOMMAI JUDGEMENT

Introduction:-
S. R. Bommai v. Union of India1 (AIR 1994 SC 1918) is one of the landmark judgments given
by the Supreme Court of India, in which the Court discussed in detail provisions of Article
365 of the Constitution of India and related matters. This case has a huge impact on Centre-
State Relations. The judgement aimed at curbing the open and unchallenged misuse of
Article 356 of the Constitution of India by the Central Government, which allowed
Presidential Rule to be imposed over state governments at the will of Central Government.

Article 356 deals with imposition of Presidential Rule over a State in India. When a state is
under Presidential Rule, the elected state government i.e. the Chief Minister and the Council
of Ministers, is dismissed (Council of ministers) and suspended (legislature), and
administration is conducted by the Governor of the state. The Governor is appointed by the
President and so, actually, a functionary of the Central Government. That’s why the
principle of President's Rule in a way undermines the federal character of the Indian political
system, where administration is shared between the Union and State governments. It is also
against the philosophy of democratic doctrine of elected/popular sovereignty as an elected
government is being suspended without valid reasons. These reasons had made the use of
Article 356 by the central government controversial, as it was used repeatedly by central
governments to suspend state governments (of opposite political parties) based on
trumped-up excuses rather than that of on genuine reasons.

Dr. Baba Saheb Ambedkar referred Article 356 of the Constitution of India as a dead letter
of the Constitution. In the constituent assembly debate2 it was suggested that Article 356 is
liable to be abused for political purpose. In reply to this Dr. Ambedkar said that “such
articles will never be called into operation and they would remain a dead letter. If at all they
are brought into operation, I hope the President, who is endowed with these powers, will
take proper precautions before actually suspending the administration of the provinces. I
hope the first thing he will do would be to issue a mere warning to a province that has erred,
that things were not happening in the way in which they were intended to happen in the
Constitution. If that warning fails, the second thing for him to do will be to order an election
allowing the people of the province to settle matters by themselves. It is only when these
two remedies fail that he would resort to this article.”

But this never was the case; the President’s power to issue the proclamation under Article
356 had been abused many a times. So far this power under the said provision has been
used on more than 90 occasions and in majority of the cases against governments run by
political parties in opposition. This makes S. R. Bommai case a Land Mark Judgement in

1
AIR 1994 SC 1918
2
Constituent Assembly Debate 1948

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which Supreme Court had discussed at length the provision of Article 356 and various issues
associated with the said provisions.

Events leading up to the case:-

Article 356 provides for the action to be taken by the President where he is satisfied that a
situation has arisen in which the government of a State cannot be carried on in accordance
with the provisions of the Constitution by making a proclamation in that behalf.

The Facts of S.R. Bommai v. Union of India3 came before the bench of 9 judges under the
following circumstances:

Karnataka

The facts were that the Janata Party being the majority party in the State Legislature had
formed Government under the leadership of S.R. Bommai. In 1988, the Janata Party and Lok
Dal merged into a new party called Janata Dal. The Ministry was expanded with addition of
13 members. Within two days thereafter, one legislator of Janata Dal defected from the
party. He presented a letter to the Governor along with 19 letters, allegedly signed by
legislators supporting the Ministry, withdrawing their support to the Ministry. As a result
the Governor sent a report to the President stating therein there were dissensions and
defections in the ruling party. In support of his case, he referred to the 19 letters received
by him. He further stated that in view of the withdrawal of the support by the said
legislators, the chief Minister, Bommai did not command a majority in the Assembly and,
hence, it was inappropriate under the Constitution, to have the State administered by an
Executive consisting of Council of Ministers which did not command the majority in the
House. He, therefore, recommended to the President to exercise power under Article
356[1].

However seven out of the nineteen legislators sent letters to the Governor complaining that
their signatures were obtained on the earlier letters by misrepresentation and affirmed
their support to the Ministry. The Chief Minister and his Law Minister met the Governor the
same day and informed him about the decision to summon the Assembly Session. The Chief
Minister also offered to prove has majority on the floor of the House. To the same effect, he
sent a telex message to the President. The Governor however sent yet another report to the
President on the same day and stated 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]. On
that very day, the President issued the Proclamation as per Article 356. The Proclamation
was, thereafter approved by the Parliament as required by Article 356[3].

3
AIR 1994 SC 1918

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A writ petition was filed on 26th April 1989 challenging the validity of the proclamation. A
special bench of 3 judges of Karnataka High Court dismissed the writ petition.

Meghalaya

In 1991, the president issued a proclamation under Article 356(1) dismissing the Meghalaya
government and dissolving the legislative assembly. The Proclamation stated that the
President was in satisfaction on the basis of the report from the Governor and other
information received by him as the situation had arisen in which the State could not
function in accordance with the provisions of the Constitution. The Government was
dismissed and the Assembly was dissolved.

Nagaland

On 7th August 1988, the president issued a proclamation on basis of Governor’s Report and
dismissed the Government of Nagaland and dissolved the Legislative assembly. Leader of
opposition party challenged the validity of Proclamation in Guwahati High Court. A Division
Bench comprising the Chief Justice and Hansaria, J. heard the petition. The Bench differed
on the effect and operation of Article 74[2] and hence the matter was referred to the third
Judge. But before the third learned judge could hear the matter, the Union of India moved
this Court for grant of special leave which was granted and the proceedings in the High
Court were stayed.

Madhya Pradesh, Rajasthan and Himachal Pradesh

The Vishva Hindu Parishad , RSS and Bajrang Dal demolished the Babri Masjid in Ayodhya
claiming it to be Ram Janma Bhumi. VHP, RSS and Bajrang Dal are wings of the BJP, which at
the time of demolition was the ruling party in Uttar Pradesh. As the result of this demolition
communal riots spread out in the entire country. Then the Supreme Court banned RSS, VHP
and Bajrang Dal in the country.
However the Government of Madhya Pradesh, Himachal Pradesh and Rajasthan failed to
implement the ban. As a result the condition became worst in the above mentioned states.
There was total failure of Law and order in the above mentioned states. As a result in 1992,
the president issued the proclamation under Article 356 dismissing the State Governments
and dissolving the Legislative Assemblies Madhya Pradesh, Himachal Pradesh and Rajasthan.
Validity of all these proclamations was challenged by the Writs in the appropriate High
Courts. The M.P. High Court allowed the petition, but writ petitions relating to Rajasthan
and Himachal Pradesh were withdrawn to Supreme Court.

As all the above said petitions contained similar question of law and therefore they were
heard conjointly by the Supreme Court. The arguments in the S.R. Bommai’s case were
concluded in December 1993.

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The Questions Raised in this case:-

S. R. Bommai v. Union of India4 raised serious question of law relating to Proclamation of
Emergency and dissolution of Legislative assemblies according Article 356 of the
Constitution of India. Following issues were raised:

1. The most important question which the Supreme Court had to determine was
whether the Presidential Proclamation under Article 356 was justiciable and if so to
what extent.
2. Whether the President has unfettered powers to issue Proclamation under Article
356(1) of the Constitution.
3. Since the Proclamation under Article 356[1] would be issued by the President on the
advice of the Council of Ministers given under Article 74[1] of the Constitution and
since 74[2] bars enquiry into the question whether any, and if so, what advice was
tendered by Ministers to the President, judicial review of the reasons which led to
the issuance of the Proclamation also stands barred.
4. Whether the Legislature dissolved by the Presidents proclamation can be revived if
the president proclamation is set aside.
5. Whether the validity of the Proclamation issued under Article 356[1] can be
challenged even after it has been approved by both Houses of Parliament under
356[3].
6. Whether any reliefs can be granted when the validity of proclamation is challenged
and whether the court can grant an interim stay against holding the fresh election.
7. Whether a president can dissolve the legislature without having obtained the
approval of both the Houses of the Legislature.
8. It was also contended that Secularism being a basic feature of the Constitution, a
State government can be dismissed if it is guilty of unsecular acts.

Jurisdiction of Supreme Court:-

The Supreme Court has original, appellate and advisory jurisdiction. Its exclusive original
jurisdiction extends to any dispute between the Government of India and one or more
States or between the Government of India and any State or States on one side and one or
more States on the other or between two or more States, if and insofar as the dispute
involves any question (whether of law or of fact) on which the existence or extent of a legal
right depends. In addition, Article 32 of the Constitution gives an extensive original
jurisdiction to the Supreme Court in regard to enforcement of Fundamental Rights. It is
empowered to issue directions, orders or writs, including writs in the nature of habeas
corpus, mandamus, prohibition, quo warranto and certiorari to enforce them.

4
AIR 1994 SC 1918

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The Supreme Court has been conferred with power to direct transfer of any civil or criminal
case from one State High Court to another State High Court or from a court subordinate to
another state High Court. The appellate jurisdiction of the Supreme Court can be invoked by
a certificate granted by the High Court concerned under Article 132(1), 133(1) or 134 of the
Constitution in respect of any judgment, decree or final order of a High Court in both civil
and criminal cases, involving substantial questions of law as to the interpretation of the
Constitution. The Supreme Court had jurisdiction to hear this case under Article 132 of the
Constitution.

The Principles laid down by Supreme Court:-

The SC laid down few guidelines to prevent the misuse of Article 356 of the constitution:

1. The majority enjoyed by the Council of Ministers if the State 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 into the advice tendered by the Council of Ministers to
the President but it can certainly question the material behind the satisfaction of the
President. Hence, Judicial Review will be based on these three questions only:
a. Was there any material behind the proclamation?
b. Was the material relevant?
c. Was there any mala fide use of power?
4. If there is improper use of A356 then the court can 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. Ambedkar was in
opinion on it to remain a 'dead letter' in the constitution.

Mala fide exercise:-

While deciding the issue as to whether the Presidential Rule under Article 356 was
justiciable, all the judges were unanimous in holding that the presidential proclamation was
justiciable. The SC held that the proclamation under Article 356(1) is not barred from judicial
review. The validity of the Proclamation issued by the President under Article 356(1) is
judicially reviewable only to the extent of examining whether it was issued on the basis of
any material at all or whether the material was relevant or whether the Proclamation was
issued in the mala fide exercise of the power. The SC or the HC have the power to strike
down the proclamation if it is found to be mala fide or based on wholly irrelevant or
extraneous grounds. When a prima facie case is made out against the Proclamation, the

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Central Government has to produce the material on the basis of which action was taken. It
cannot refuse to do so, if it seeks to defend the action. The court will not go into the
correctness or adequacy of the material. Its inquiry is only to determine whether the
material was relevant to the action. Even if part of the material is irrelevant, the court
cannot interfere so long as there is some material which is relevant to the action taken. It is
submitted that the validity of the Presidents proclamation under Article 356 is justiciable.

Presidential Power as per Article 356:-

Another issue in question was whether the President has unchallenged powers to issue
Proclamation under Article 356(1) of the Constitution of India. It was contended that The
Supreme Court in this regard held that the power conferred by Article 356 upon the
President is a conditioned power. It is not an absolute power. This satisfaction may be
formed on the basis of the report of the Governor or on the basis of other information
received by him or both. The existence of relevant material is a pre-condition to the
formation of satisfaction. The satisfaction must be formed on relevant material. The
dissolution of the Legislative Assembly should be resorted to only when it is necessary for
achieving the purposes of the proclamation. The exercise of the power is made subject to
approval of the both Houses of Parliament.

In the case of State of Rajasthan Vs. Union of India5, SC held that Article 356 involved
essentially a political question and rejected the contention of it was not amenable to judicial
determination.SC further held that The satisfaction of the President is a subjective one and
cannot be tested by reference to any objective tests. There may be a wide range of
situations which may arise and their political implications and consequences may have to be
evaluated in order to decide whether the situation is such that the government of the State
cannot be carried on in accordance with the provisions of the Constitution. One thing that is
certain if the satisfaction is mala fide or is based on wholly extraneous and irrelevant
grounds, the Court would have jurisdiction to examine it.

Presidential proclamation issued under Article 356 of the Constitution is not completely
beyond judicial review. Mala fides intention provides a ground for judicial interference. So
there must be some check i.e. judicial review to avoid misuse of imposition of President
Rule. In Case of Rameshwar Prasad Vs. State of Bihar6, SC held that what ultimately
determines the scope of judicial review is the facts and circumstances of the given case. SC
further held that judicial review even further extends to the examining of governor’s report.

5
AIR 1977 SC 1361
6
(2006) 2 SCC 1

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Discussion on Article 74 in this case:-

In regard to the contention, that Article 74[2] bars the inquiry into advice was tendered by
Council of Ministers to the President, the Supreme Court at length considered the scope and
effect of Article 74(2). Here it would be appropriate to mention that article 74(2) of the
constitution provides that the court cannot inquire as to any, and if so what, advice was
tendered by Council of Ministers to the President. In this regard Supreme Court held that
although Article 74(2) bars judicial review so far as the advice given by the Ministers is
concerned, it does not bar scrutiny of the material on the basis of which the advice is given.
The material on the basis of which advice was tendered does not become part of the advice.
The Courts are justified in probing as to whether there was any material on the basis of
which the advice was given, and whether it was relevant for such advice and the President
could have acted on it. Hence when the Courts undertake an inquiry into the existence of
such material, the prohibition contained in Article 74(2) does not negate their right to know
about the factual existence of any such material. This is not to say that the Union
Government cannot raise the plea of privilege under Section 123 of the Evidence Act. When
such privilege against disclosure is claimed, the Courts will examine such claim within the
parameters of the said section on its merits. But Article 74(2) as such is no bar to the power
of judicial review regarding the material on the basis of which the proclamation is issued.

A.M. Ahmadi, J. Article 74(2) then provides that 'the question whether any, and if so what,
advice was tendered to the President shall not be inquired into in any Court'. What this
clause bars from being inquired into is 'whether any, and if so what, advice was tendered'
and nothing beyond that. This question has been elaborately discussed by my learned
colleagues who have examined in detail its pros and cons in their judgments and therefore, I
do not consider it necessary to traverse the same path. It would suffice to say that since
reasons would form part of the advice, the Court would be precluded from calling for their
disclosure but I agree that Article 74(2) is no bar to the production of all the material on
which the ministerial advice was based.

P.B. Sawant, J. the objective of Article 74[2] was not to exclude any material or documents
from the scrutiny of the Courts but to provide that an order issued by or in the name of the
President could not be questioned on the ground that it was either contrary to the advice
tendered by the Ministers or was issued without obtaining any advice from the Ministers. Its
object was only to make the question whether the President had followed the advice of the
Ministers or acted contrary thereto, non-justiciable. The Courts are, however, justified in
probing as to whether there was any material on the basis of which the advice was given,
and whether it was relevant for such advice and the President could have acted on it. Hence
when the Courts undertake an enquiry into the existence of such material, the prohibition
contained in Article 74[2] does not negate their right to know about the factual existence of
any such material.

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K. Ramaswamy, J. The legal immunity under Article 74(2) must be distinguished from the
actions done by the President in discharge of his administrative functions under Article 356.
The administrative decision taken by the Council of Ministers is entirely different from the
advice rendered to the President, and the later cannot be equated with the grounds or the
reasons for presidential proclamation. The former are not part of the advice tendered to the
President by the Council of Ministers. Judicial review must be distinguished from
justiciability. The two concepts are not synonymous. The power of judicial review goes to
the authority of the Court, though in exercising the power of judicial review, the Court in an
appropriate case may decline to exercise the power as being not justiciable. The
Constitution is both the source of power as well as it limits the power of an authority.

B.P. Jeevan Reddy, J. Under Article 356, the President is empowered to remove the State
Government, dissolve the Legislative Assembly of the State and take over the functions of
the government of the State in case he is satisfied that the government of that State cannot
be carried on in accordance with the provisions of the Constitution. In the context of the
Indian Constitution (more specifically after the amendment of Article 74(1) by the 42 nd
(Amendment) Act) this really is the power vested in the council of ministers headed by the
Prime Minister at the centre. The action can be taken either on the report of the Governor
or on the basis of information received otherwise or both. An awesome power indeed. The
only check envisaged by the Constitution apart from the judicial review - is the approval by
both Houses of Parliament which in practice has proved to be ineffective.

Validity of Proclamation:-
Supreme Court firmly held that there was no reason to make a distinction between the
Proclamation so approved and legislation enacted by the Parliament. If the Proclamation is
invalid, it does not stand validated merely because it is approved of by the Parliament. The
grounds for challenging the validity of the Proclamation may be different from those
challenging the validity of legislation. However, that does not make any difference to the
vulnerability of the Proclamation on the limited grounds available. And therefore the validity
of the Proclamation issued under Article 356(1) can be challenged even after it has been
approved by both Houses of Parliament under Article 356(3).

State Legislature when pending final Disposal of case:-

Another issue taken into consideration by the Supreme Court was whether any relief can be
granted when the validity of proclamation is challenged and whether the court can grant an
interim stay against holding of the fresh election. In this regard the Court held that the Court
does have power by an interim injunction, to restrain the holding of fresh elections to the
Legislative Assembly pending the final disposal of the challenge to the validity of the
proclamation to avoid the fait accompli and the remedy of judicial review being rendered
fruitless.

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Secularism:-
Supreme Court held that a State Government cannot follow particular religion discussed at
length the concept of Secularism. The Court held that Secularism is one of the basic features
of the Constitution. Secularism is a positive concept of equal treatment of all religions. This
attitude is described by some as one of neutrality towards religion. While freedom of
religion is guaranteed to all persons in India, from the point of view of the State, the
religion, faith or belief of a person is immaterial. To the state, all are equal and are entitled
to be treated equally. In matters of State, religion cannot have any place. And if the
Constitution requires the State to be secular in thought and action, the same requirement
attaches to political parties as well. The Constitution does not recognize, it does not permit,
mixing religion with State power. Both must be kept apart. That is the constitutional
injunction. None can say otherwise so long as this Constitution governs this country. Politics
and religion cannot be mixed. Any State government which pursues non-secular policies or
non-secular course of action acts contrary to the constitutional mandate and renders itself
amenable to action under Article 356. Given the above position, it is clear that if any party
or organization seeks to fight the elections on the basis of a plank which has the proximate
effect of eroding the secular philosophy of the Constitution would certainly be guilty of
following an unconstitutional course of action.

Majority Judgement:-

a) Scope of Judicial review Article 356:

It was observed by J. Reddy that though Article 356 is found in Part XVIII, it is not
exactly an emergency provision. Article 356 creates an obligation for the President to
preserve and protect the Constitution. Unlike other discretionary powers of the
President like defence and foreign affairs, Article 356 is not immune from judicial
review. The major issue placed before the Supreme Court was not the existence but
the extent of the judicial review of proclamation made under Article 356. Justice
Sawant and Kuldip Singh were of the view that the scope of judicial review has to be
expanded to meet the changing circumstances. The contention that parameters of
judicial review in the administrative law were anti-theatrical to that of constitutional
law was rejected by them. Justice Reddy and Aggarwal were of the view that since it
is a question of examination of a declaration by the highest constitutional authority.
It is submitted that the conservative approach of J. Reddy is better since it clearly
defines the limitation of judicial investigation.
It was unanimously agreed that the judicial scope has been expanded by the deletion
of Article 356(5). The court held that the conditions precedent to the issuance of an
emergency are that the there should be satisfaction and there should be a situation
where the state cannot be carried in accordance with the provisions of the
constitution of India. The material on the basis of which a conclusion is arrived at can
be a report of the governor or “otherwise” but must be objective. The proclamation
is open to challenge if a prima facie case is made out that there existed no material
on which the proclamation was based. The Court relied upon the decision of

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Supreme Court of Pakistan in Muhammad Sharif v. Federation of Pakistan7 and

concurred that there have to be certain facts and circumstances which can lead a
person to form an intelligent opinion to exercise discretion of such grave nature. It
was further mentioned that the court will not be entering the political thicket since
they are performing the duty cast upon them under the constitution.
If the material exists, the courts also have the right to judicially investigate whether
the material was relevant or whether the proclamation was issued in the mala fide
exercise of the power. Sawant J. and Singh J. came to the conclusion that the
proclamation is not the personal opinion, view or ipse dixit of the President but a
legitimate inference drawn from the material placed before him which is relevant for
the purpose. The court can review the legitimacy of this inference even if the
sufficiency or otherwise of the material cannot be questioned. As per J. Reddy and
Aggarwal, the court will not go into the correctness of the material or its adequacy.
Its enquiry is limited to see whether the material was relevant to the action and if a
certain part of the material is relevant it does not matter if the rest is irrelevant. The
power of bringing the legislature back to life, even if the Parliament has approved
the proclamation, is ancillary to the powers of judicial review.
b) Article 74(2):
Article 74(2) prohibits the court from inquiring into the advice tendered by Ministers
to the President. The Bommai Bench considerably narrowed down the scope of this
article. All nine judges concurred that the matter and documents placed before the
President for his consideration do not come under the purview of Article 74(2). Since
the Government will be obliged to disclose the material in front of the Parliament by
virtue of 356(3), secrecy of the material cannot be claimed. Sawant J. rightly
concluded that the court is only barred from inspecting whether the President has
followed the advice of the council of ministers. As per Reddy J. Article 74(2)
protection is rendered to the discussions of the President with his council of
ministers i.e. the process to arrive at the conclusion is immune but not the
conclusion itself (the acts and orders).
The Court did endorse the view of Rajasthan that the proclamation of emergency
can be declared invalid on the grounds of mala fide intention and irrelevant and
extraneous consideration but found some of the proposition of Rajasthan as
problematic. J. Jeevan Reddy disagreed that it is within the rights of the Centre to
control the rein of State government and the satisfaction of the President is out of
the purview of the Courts (Beg CJ). The court differed from the argument there were
no judicially discoverable and manageable standards by which the Court could
examine the correctness of the satisfaction of the President (P.N. Bhagwati and A.C.
Gupta, JJ). Bommai bench overruled the closed interpretation of Article 74(2) by
Rajasthan and concluded that the heavy loss of the major ruling party in Lok Sabha
elections is no grounds for the dissolution of assembly.

7
PLD 1988 LAHORE 725

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Minority Judgement:-

As pointed out earlier the conclusions and interpretation of Article 356 was influenced by
the idea of federalism in India. The reasoning of the minority judges was similar to Rajasthan
regarding the scope and ambit of judicial review i.e. the judicial review should be limited to
cases where the action is mala fide or ultra vires. Justice Ramaswamy held that the
satisfaction required under Article 356 is not judicially manageable. A strong and cogent
prima facie case has to be made out to challenge the proclamation. They unanimously
agreed that extraordinary powers granted under the emergency provisions cannot be
measured by the same yardstick of judicial review in administrative law. The minority judges
held that the proclamation of emergency is a highly political question and difficult to
adjudicate, so the governor reports and actions should be given credence.

Critical Analysis:-
The landmark case of S. R. Bommai v. Union of India8, in the history of the Indian
Constitution has great implications in 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. The Supreme Court of India in its judgment in the case said that it is well settled
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.
It should be noted here that the views expressed by the bench in the case are similar to the
concern showed by the Sarkaria Commission.

The Judgement delivered by the Supreme Court is laudable and requires to be praised.
Undoubtedly the principles laid down in this case will put a bar on the future dismissal of
the state Government by the centre on the political consideration. The Supreme Court had
hardly erred on any point while delivering the judgment.

It was in this case that Supreme Court firmly laid down certain provision relating to
Presidential proclamation issued Under Article 356. The Court rightly 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 was rightly held that Presidential
proclamation is not immune from judicial review. Moreover if the presidential proclamation
is held unconstitutional than the Legislature dissolved by the Presidents proclamation can
be revived. It was also contended that the Articles 74[2] bars the court from enquiring about
the material on the basis of which the proclamation is issued. But the court rejected this
contention.

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AIR 1994 SC 1918

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Inspite of such bold and illustrious judgement delivered by the Supreme Court it was
criticized that the Court took long time to deliver the verdict and allowed in cases of
Karnataka and Meghalaya the illegality to be perpetuated and ultimately deprive the citizen
of those states to be governed by their chosen representative. Secondly it was also criticized
that the concept of secularism has been misinterpreted only regard to Hindu
fundamentalism.
Despite two or three drawbacks the judgement delivered by the Supreme Court deserves to
be complemented for the several reasons. Firstly the Judgement is delivered after in-depth
analysis of provision relating to Presidential proclamation. Secondly, it would put a check on
arbitrary dismissal of state governments in future and strengthen the federal structure of
Indian policy which had hitherto been damaged on several occasion particularly when
different political parties were in power at the centre and the state.

It was recognized by both minority and majority judges that the Indian federalism is
different from that of USA or Australia. In reality Indian federalism is organic federalism
where the state functions in its own independent sphere as an organ of the state. This view
was adopted by the framers of the Indian Constitution with progress and development in
mind. It is submitted that organic federalism holds much more relevance today in
development and strengthening the nation. But that does not give the right to central
government to dismiss the state government without justifiable reasons. The power to undo
the will of people cannot be without checks and balance. It is necessary to impose certain
duties on the Executive which can be enforced by the Courts. Article 356 should only be
brought in force to preserve the parliamentary form of democracy from internal subversion
or a deliberate deadlock created by parties or from a deadlock created by indecisive
electoral verdict which makes the carrying on government practically impossible. It should
not be called into operation for want of good governance, massive defeat by the ruling
party, allegations of corruptions etc. The Governor should exhaust all the steps to induct or
maintain a stable government before declaring a constitutional breakdown. The non-
compliance or violation of a provision should be such that it would give rise to a situation
where the government cannot be carried on with accordance of the Constitution. The
author concurs with the submission of Seervai that to prevent the constant abuse of the
power under Article 356 the Constitution should be amended to make the tenure of the
office of Governor a fixed tenure subject to his removal from office by impeachment by the
State Legislature. A compulsory floor test, prior warning to the erring state, opportunity for
the State to answer the contention of the Central government are consideration for Union
government before resorting to Article 356. It is submitted instead of focussing at the
validity of the emergency, the court should see if the Union government has used all the
measures and was left with no other recourse.

The existence of the otherwise cannot be ignored even if it is not put forward before the
court. It is not difficult to envisage a situation where the otherwise might be too sensitive to
disclose, so it becomes imperative for the court to view the existence of otherwise on a case

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by case basis. Justice Reddy observed that there cannot be a uniform rule applicable to all
cases. A situation can be complex and too political for judicial prognosis. It is necessary to
determine the dominant purpose of the proclamation for determining its validity. It is added
that that judiciary might not be in the possession of certain specific documents and facts
and thus will not be able to understand reasons, which would have lead to the proclamation
of emergency. The competency of the court to evaluate certain materials and consideration
can also be questioned.

While examining the material placed in front of the court, there is a thin line between the
adequacy and relevancy of the material. The judgement of Sawant which enunciate a wide
rule for judicial review should not be read as judiciary substituting its judgement for that of
the executive because the article speaks of the satisfaction of the President and not that of
the Court. Thus it is not for the court to determine the correctness of the inference or arrive
at a conclusion based on the material as rightly pointed by J. Jeevan Reddy.

Conclusion:-
The case of S.R. Bommai is a vast case consisting of more than 200 pages of decision given
by the Supreme Court of India. It is an important development in the Constitutional Law of
India. As a part of comprehension I have tried to trace out some of the main issues of the
case and how are they implied. I have dealt with the issue of secularism and federalism, and
have mentioned the view of almost all the judges, who has given the opinion that a federal
and secular structure is an essential feature of the Constitution of India and State
governments, and comprises of the basic structure. The issue of dissolution of Legislative
Assembly which deals with Article 174(1)(b) is given in the context of the dissolution of the
State Assembly by the President under Article 356 of the Constitution which cannot be done
until the proclamation is verified by both the Houses of Parliament. It is held by the court
relating to the non-justiciability of the cabinet advice that no court is concerned with the
advice tendered by the Ministers to the President as it is only concerned with the validity of
the order and is protected by Article 74(2) of the Constitution. Article 356 has been summed
up in this case and has given extraordinary powers to the president which must be used
sparingly during the situation of protection of a democratic form of Government and to
prevent paralysis of the political process.

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). 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. It is said by

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Justice Kailash Nath Katju, in Divisional Manager, Aravali Golf Club and Anr. Vs. Chander
Hass and Anr9 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.”

Dr. Ambedkar 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
India10. In this case the scope of judicial review was broadened more.

Many things have been left inconclusive in Bommai. The judges by pronouncing six separate
judgements do not seem to have made things clear; neither is there a clear cut order signed
by all judges indicating the majority and minority. The exercise of determining the ratio of
the case was rendered difficult because though the conclusions of Justice Jeevan Reddy and
Agrawal were similar to those of Sawant and Singh, the reasoning differed. Justice Pandian
selectively concurs with some of the conclusions reached by Justices Sawant and Kuldip
Singh, and agrees with the reasoning and other conclusions arrived at by Justices Jeevan
Reddy and Agrawal.

Post Bommai it became difficult to invoke Article 356. The Article was recently brought
again in question when Supreme Court in Rameshwar Prasad v. Union of India11 was asked
to decide whether the proclamation in Bihar under Article 356 is illegal and
unconstitutional. Chief Justice Y.K. Sabharwal and Justice K.G. Balakrishnan their opinions
affirmed the principle enunciated in Bommai and adopted the reasoning given by Justice
Reddy. The bench disagreeing with Sawant J. and Singh J. held that the principles of judicial
review which are applicable when an administrative action is challenged cannot be applied
stricto sensu. Rameshwar Prasad correctly accepts the majority view of Jeevan reddy and
narrows down few wide proposition of the rule.

This discussion indicates that the Bommai judgment is certainly a landmark judgement in
keeping a check on the discretionary powers of the Executive. But the power of the
executive in declaring emergency should not be restricted extremely by extending the scope
of judicial review. The separation of powers forms the basic structure of the Constitution
since it is vital for democratic functioning of the society.

9
(2007) 14 SCALE 1
10
(2006) 2 SCC 1
11
(2006) 2 SCC 1

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