S. R. Bommai v. Union of India ([1994] 2 SCR 644 : AIR 1994 SC 1918 : (1994)3 SCC1) is a landmark decision of the Supreme Court of India, where the Court discussed at length provisions of Article 356 of the Constitution of India and related issues. This case had huge impact on Centre-State Relations. The judgement attempted to curb blatant misuse of Article 356 of the Constitution of India, which allowed President's rule to be imposed over state governments.
Bommai v. Union of India came before the bench of 9 judges (consisting of Kuldip Singh, P. B. Sawant, Katikithala Ramaswamy, S. C. Agarwal, Yogeshwar Dayal, B. P. Jeevan Reddy, S. R. Pandian, A. M. Ahmadi, J. S. Verma).
The principles laid down by Supreme Court
The Supreme Court laid down certain guidelines so as to prevent the misuse of Article 356 of the constitution.
- The majority enjoyed by the Council of Ministers shall be tested on the floor of the House.
- Centre should give a warning to the state and a time period of one week to reply.
The court cannot question the advice tendered by the Council of Ministers to the President but it can question the material behind the satisfaction of the President. Hence, Judicial Review will involve three questions only:
a. Is there any material behind the proclamation
b. Is the material relevant.
c. Was there any malafide use of power.
- If there is improper use of Article 356 then the court will provide remedy.
- 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.
- 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 center, otherwise it is likely to destroy the constitutional structure between the center and the states. Even Bhimrao Ambedkar envisaged it to remain a 'dead letter' in the constitution.
Based on the report of the Sarkaria Commission on Centre–state Relations(1988), the Supreme Court in Bommai case (1994) enlisted the situations where the exercise of power under Article 356 could be proper or improper.
Imposition of President's Rule in a state would be proper in the following situations:
- Where after general elections to the assembly, no party secures a majority, that is, Hung Assembly.
- Where the party having a majority in the assembly declines to form a ministry and the governor cannot find a coalition ministry commanding a majority in the assembly.
- Where a ministry resigns after its defeat in the assembly and no other party is willing or able to form a ministry commanding a majority in the assembly.
- Where a constitutional direction of the Central government is disregarded by the state government.
- Internal subversion where, for example, a government is deliberately acting against the Constitution and the law or is fomenting a violent revolt.
- Physical breakdown where the government willfully refuses to discharge its constitutional obligations endangering the security of the state.
The imposition of President's Rule in a state would be improper under the following situations:
- Where a ministry resigns or is dismissed on losing majority support in the assembly and the governor recommends imposition of President's Rule without probing the possibility of forming an alternative ministry.
- Where the governor makes his own assessment of the support of a ministry in the assembly and recommends imposition of President's Rule without allowing the ministry to prove its majority on the floor of the Assembly.
- Where the ruling party enjoying majority support in the assembly has suffered a massive defeat in the general elections to the Lok Sabha such as in 1977 and 1980.
- Internal disturbances not amounting to internal subversion or physical breakdown.
- Maladministration in the state or allegations of corruption against the ministry or stringent financial exigencies of the state.
- Where the state government is not given prior warning to rectify itself except in case of extreme urgency leading to disastrous consequences.
- Where the power is used to sort out intra-party problems of the ruling party, or for a purpose extraneous or irrelevant to the one for which it has been conferred by the Constitution.
Malafide exercise of Article 356
While dealing with the question as to whether the Presidential Proclamation under Article 356 was justiciable all the judges were unanimous in holding that the presidential proclamation was justiciable. The Supreme Court held that the proclamation under Article 356(1) is not immune from judicial review. The validity of the Proclamation issued by the President under Article 356(1) is judicially reviewable 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 malafide exercise of the power. 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) by the 44th Amendment Act, removes the cloud on the reviewability of the action. When a prima facie case is made out in the challenge to the Proclamation, 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. Its inquiry is limited to 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.
Powers of President under Article 356
The second question which was taken into consideration by the court was that whether the President has unfettered 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.
Article 74 and justiciability of advice of Council of Ministers to the President
In regard to the contention, that Article 74(2) bars the inquiry into advice which 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. As and 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.
Invalidation of proclamation
The Supreme Court also held that the power of the court to restore the government to office in case it finds the proclamation to be unconstitutional, it is, in Courts opinion, beyond question. Even in case the proclamation is approved by the Parliament it would be open to the court to restore the State government to its office in case it strikes down the proclamation as unconstitutional. If this power were not conceded to the court, the very power of judicial review would be rendered nugatory and the entire exercise meaningless. If the court cannot grant the relief flowing from the invalidation of the proclamation, it may as well decline to entertain the challenge to the proclamation altogether. For, there is no point in the court entertaining the challenge, examining it, calling upon the Union Government to produce the material on the basis of which the requisite satisfaction was formed and yet not give the relief.
Powers of Parliament
Moreover, the 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).
Elections to Legislature 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 the fresh election. In this regard the Court held that the Court will 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.
Secularism
Supreme Court while adjudicating 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 or as one of benevolent neutrality. 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 has no 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 and 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 nonsecular policies or nonsecular 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.
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