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S.R. Bommai & Ors. vs. Union of India & Ors.
AIR1994SC1918; (1994)3SCC1, [1994]2SCR644
Hon’ble Judges/Coram: S.R. Pandian, A.M. Ahmadi, Kuldip Singh, J.S. Verma, P.B. Sawant, K. Ramaswamy, S.C. Agrawal, Yogeshwar Dayal and B.P. Jeevan Reddy, JJ.
Date of Decision: 11.03.1994
FACTS:-
On March 5, 1985 elections held to the Karnataka State Legislative Assembly and the Janta Dal won 139 seats out of 225 seats and the Congress Party was the next largest party securing 66 seats. Sri R.K. Hedge was elected as the leader of Janta Dal and became the Chief Minister. Due to his resignation on August 12, 1988, Sri S.R. Bhommai’s was elected as leader of the party and became the Chief Minister. As on February 1, 1989 the strength of Janta Dal was 111 and the Congress was 65 and Janta Party was 27, apart from others. On April 15, 1989 his expanding the Ministry caused dissatisfaction to some of the aspirants. One Kalyan Molakery and others defected form Janta Dal and he wrote letters on April 17 and 18, 1989 to the Governor enclosing the letters of 19 others expressing want of confidence in Sri Bhommai. On April 19, 1989 the Governor of Karnataka sent a report to the President. On April 20, 1989, 7 out of 19 M.L.As that supported Kalyan Molakery, wrote to the Governor that their signatures were obtained by misrepresentation and reaffirmed their support to Sri Bommai. On the same day the cabinet also decided to convene the Assembly session on April 27, 1989 at 3.30 P.M. to obtain vote of confidence and Sri Bommai met the Governor and requested him, to allow floor test to prove his majority and he was prepared even to advance the date of the session. In this scenario the Governor sent his second report to the President and exercising the power under Article 356 the President issued proclamation, dismissed Bommai Government and dissolved the Assembly on April 21, 1989 and assumed the administration of the State of Karnataka. When a writ petition was filed on April 26, 1989, a special bench of three Judges of the High Court of Karnataka dismissed the writ petition reported in S.R. Bhommai and Ors. v. Union of India AIR (1990) Kar 5. Thus this appeal by special leave was filed before this Court.
ISSUE:-
Whether the President has unfettered powers to issue Proclamation under Article 356(1) of the Constitution?
JUDGMENT:-
It will be an inexcusable error to examine the provisions of Article 356 from a pure legalistic angle and interpret their meaning only through jurisdictional technicalities. The Constitution is essentially a political document and provisions such as Article 356 have a potentiality to unsettle and subvert the entire constitutional scheme. The exercise of powers vested under such provisions needs, therefore, to be circumscribed to maintain the fundamental constitutional balance lest the Constitution is defaced and destroyed. This can be achieved even without bending much less breaking the normal rules of interpretation, if the interpretation is alive to the other equally important provisions of the Constitution and its bearing on them. Democracy and federalism are the essential features of our Constitution and are part of its basic structure. Any interpretation that may be placed on Article 356 must, therefore help to preserve and not subvert their fabric. The power vested de jure in the President but de facto in the Council of Ministers under Article 356 has all the latent capacity to emasculate the two basic features of the Constitution and hence it is necessary to scrutinise the material on the basis of which the advice is given and the President forms his satisfaction more closely and circumspectly. This can be done by the Courts while confining themselves to the acknowledged parameters of the judicial review as discussed above viz., illegality, irrationality and mala fides. Such scrutiny of the material will also be within the judicially discoverable and manageable standards.
The States have an independent constitutional existence and they have as important a role to play in the political, social, educational and cultural life of the people as the Union. They are neither satellites nor agents of the center. The fact that during emergency and the certain other eventualities their powers are overridden or invaded by the center is not destructive of the essential federal nature of our Constitution. The invasion of power in such circumstances is not a normal feature of the Constitution. They are exceptions and have to be resorted to only occasionally to meet the exigencies of the special situations. The exceptions are not a rule. Article 356 of the Constitution confers a power upon the President to be exercised only where he is satisfied that a situation has arisen where the government of a State cannot be carried on in accordance with the provisions of the Constitution. Under our Constitution, the power is really that of the Union council of Ministers with the Prime Minister at its head. The satisfaction contemplated by the article is subjective in nature. Further the power conferred by Article 356 upon the President is a conditioned power. It is not an absolute power. The existence of material which may comprise of or include the report (s) of the governor – is a precondition. The satisfaction must be formed on relevant material. The recommendations of the Sarkaria Commission with respect to the exercise of power under Article 356 do merit serious consideration at the hands of all concerned.
Though the power of dissolving of the Legislative Assembly can be said to be implicit in Clause (1) of Article 356, it must be held, having regard to the overall constitutional scheme that the President shall exercise it only after the proclamation is approved by both Houses of Parliament under Clause (3) and not before. Until such approval, the President can only suspend the Legislative Assembly by suspending the provisions of Constitution relating to the Legislative Assembly under Sub-clause (c) of Clause (1). The dissolution of Legislative Assembly is not a matter of course. It should be resorted to only where it is found necessary for achieving the purposes of the proclamation. The proclamation under Clause (1) can be issued only where the situation contemplated by the clause arises. In such a situation, the government has to go. There is no room for holding that the President can take over some of the functions and powers of the State government while keeping the State government in office. There cannot be two governments in one sphere. Moreover, two principles need to be followed; firstly, Clause (3) of Article 356 is conceived as a check on the power of the President and also as a safeguard against abuse. In case both Houses of Parliament disapprove or do not approve the proclamation, the proclamation lapses at the end of the two-month period. In such a case, government which was dismissed revives. The Legislative Assembly, which may have been kept in suspended animation gets re-activated. Since the Proclamation lapses – and is not retrospectively invalidated – the acts done, orders made and laws passed during the period of two months do not become illegal or void. They are, however, subject to review, repeal or modification by the government/Legislation Assembly or other competent authority. However, secondly, if the proclamation is approved by both the Houses within two months, the government (which was dismissed) does not revive on the expiry of period of proclamation or on its revocation. Similarly, if the Legislative Assembly has been dissolved after the approval under Clause (3), the Legislative Assembly does not revive on the expiry of the period of proclamation or on its revocation.
That apart Article 74(2) of the Constitution merely bars an enquiry into the question whether any, and if so, what advice was tendered by the ministers to the President. It does not bar the court from calling upon the Union Council of Ministers (Union of India) to disclose to the Court the material upon which the President had formed the requisite satisfaction. The material on the basis of which advice was tendered does not become part of the advice. Even if the material is looked into by or shown to the President, it does not partake the character of advice. Article 74(2) and Section 123 of the Evidence Act cover different fields. It may happen that while defending the proclamation, the minister or the concerned official may claim the privilege under Section 123. If and when such privilege is claimed, it will be decided on its own merits in accordance with the provisions of Section 123.
Further with respect to scope and extent of judicial review of the proclamation under Article 356(1) it is held not to be immune from judicial review. The Supreme Court or the High Court can strike down the proclamation if it is found to be malafide or based on wholly irrelevant or extraneous grounds. The deletion of Clause (5) (which was introduced by 38th (Amendment) Act) by the 44th (Amendment) Act, removes the cloud on the reviewability of the action. When called upon, the Union of India 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 of the material or its adequacy. It’s enquiry is limited to see 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. Moreover, if the Court strikes down the proclamation, it has the power to restore the dismissed government to office and revive and re-activate the Legislative Assembly wherever it may have been dissolved or kept under suspension. In such case, the court has the power to declare that acts done, orders passed and laws made during the period the proclamation was in force shall remain unaffected and be treated as valid. Such declaration, however, shall not preclude the government/Legislative assembly or other competent authority to review, repeal or modify such acts, orders and laws.
HELD:-
Court held that the power of President under Article 356 is not unfettered and it is further reasonable that cases falling under Article 356 are justiciable and must be determined by Court.
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