PETITIONER: S.R. BOMMAI Vs. RESPONDENT: UNION OF INDIA DATE OF JUDGMENT11/03/1994 BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) SAWANT, P.B. RAMASWAMY, K. AGRAWAL, S.C. (J) YOGESHWAR DAYAL (J) JEEVAN REDDY, B.P. (J) PANDIAN, S.R. (J) PANDIAN, S.R. (J) AHMADI, A.M. (J) CITATION: 1994 AIR 1918 1994 SCC (3) 1 JT 1994 (2) 215 1994 SCALE (2)37 ACT: HEADNOTE: JUDGMENT:
The Judgments of the Court were delivered by
S. RATNAVEL PANDIAN, J.- I have had the privilege of going
through the erudite and scholarly judgments of my learned
brothers making an exhaustive and in-depth analysis,
evaluating the constitutional mechanism and exploring the
whole realm of constitutional imperatives as envisaged by
the Founding Fathers of the Indian Constitution on Central-
State relations and throwing abundant light on the
controversial role of State Governors inviting President’s
Rule and the mode by which the Union Cabinet and Parliament
discharged their responsibility in this regard with
reference to Articles 74(2), 163, 355, 356, 357 and the
other allied constitutional provisions.
2. 1 find myself in agreement with the opinion of P.B.
Sawant, J. on his conclusions 1, 2 and 4 to 8 with which
B.P. Jeevan Reddy, J. concurs in his judgment (speaking for
himself and on behalf of S.C. Agrawal, J.) but so far as the
reasoning and other conclusions are concerned, I agree fully
with the judgment of B.P. Jeevan Reddy, J. Yet I would like
to give my brief opinion on the constitutional question of
substantial importance in relation to the powers of the
President to issue Proclamations under Article 356(1) of the
Constitution.
3. The Indian Constitution is both a legal and social
document. It provides a machinery for the governance of the
country. It also contains the ideals expected by the
nation. The political machinery created by the Constitution
is a means to the achieving of this ideal.
4. To what extent we have been successful in achieving the
constitutional ideals is a question with a wide spectrum
which needs an elaborate debate. Harking back to the
question involved in this case, the Framers of the
Constitution met and were engaged for months together with
the formidable task of drafting the Constitution on the
subject of Centre State relationship that would solve all
the problems pertaining thereto and frame a system which
would enure for a long time to come. During the debates and
deliberations, the issues that seemed to crop up at every
point was the States’ rights vis-a-vis the Central rights.
Some of tile members seem to have expressed their
conflicting opinions and different reasoning and sentiments
on every issue influenced and inspired by the political
ideology to which they were wedded. The two spinal issues
before the Constituent Assembly were (1) what powers were to
be taken away from the States; and (2) how could a national
supreme Government be formed without completely eviscerating
the power of the State. Those favoring the formation of a
strong Central Government insisted that the said Government
should enjoy supreme power while others supporting States’
rights expostulated that view. The two sides took turns
making their representations but finally realising that all
might be lost, they reached a compromise that resolved the
deadlock on the key issue and consequently the present form
of Government, more federal in structure, came into being
instead of a unitary Government.
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established by the people of India for themselves for their
own governance and not for the governance of individual
States. Resultantly, the Constitution acts directly on the
people by means of power communicated directly from the
people.
6. In regard to the Centre State relationship there are
various reports suggesting certain recommendations for the
smooth relationship of both the Governments without
frequently coming into conflicts thereby creating
constitutional crisis. The reports suggesting
recommendations are that of (1) Administrative Reforms
Commission 1969; (2) Rajmannar Committee 1969; and (3)
Sarkaria Commission 1987.
7. When the question with regard to the Centre State
relations stands thus, the publication issued by the Lok
Sabha Secretariat giving an analytical tabular form with
significant details pertaining to the President’s
Proclamation made under Article 356(1) of the Constitution
and under Section 51 of the Government of Union Territories
Act, 1963 during the last 41 years of the Republic, that is
up to 1991, indicates the frequency of user of Article
356(1). It appears from the summary table given in the
tabular form (Appendix IV) that on 82 occasions the
President’s Rule in States have been imposed by invoking or
resorting to Article 356(1) and on 13 occasions the
President’s Rule have been imposed in Union Territories
including erstwhile Union Territories which have become
States under Section 51 of the Government of Union
Territories Act, 1963. All total up to 95 times, of which
on 23 occasions the assemblies were dissolved on the advice
of the Chief Ministers/or due to their resignations. It may
be recalled that on 18 occasions the assemblies suspended
were subsequently revived. The above statistics does not
include the Proclamations which are presently under
challenge before us. We may hasten to add that the
Proclamations were made on different occasions on the advice
of the Council of Ministers of the Central Government
belonging to different political complexions. Some of the
States, dissolved valiantly fought, honorably bled and
pathetically lost their legal battle.
8. Since my learned brothers have elaborately dealt with
the constitutional provisions relating to the issue of the
Proclamation and as I am in agreement with the reasoning
given by B.P. Jeevan Reddy, J., it is not necessary for me
to make further discussion on this matter except saying that
I am of the firm opinion that the power under Article 356
should be used very sparingly and only when President is
fully satisfied that a situation has arisen where the
Government of the State cannot be carried on in accordance
with the provisions of the Constitution. Otherwise, the
frequent use of this power and its exercise are likely to
disturb the constitutional balance. Further if the
Proclamation is freely made, then the Chief Minister of
every State who has to discharge his constitutional
functions will be in perpetual fear of the axe of
Proclamation falling on him because he will not be sure
whether he will remain in power or not and consequently he
has to stand up every
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time from his seat without properly discharging his
constitutional obligations and achieving the desired target
in the interest of the State.
9. All the matters are disposed of accordingly with no order
as to costs.
AHMADI, J.-I have had the advantage of perusing the views
expressed by my esteemed colleagues P.B. Sawant, K.
Ramaswamy and B.P. Jeevan Reddy, JJ. and while I am largely
in agreement with the ‘conclusions’ recorded by K.
Ramaswamy, J., I would like to briefly indicate the area of
my agreement.
11. In a country geographically vast, inhabited by over 850
million people belonging to different religions, castes and
creeds, majority of them living in villages under different
social orders and in abject poverty, with a constant tug of
war between the organised and the unorganised sectors, It is
not Surprising that problems crop up time and again
requiring strong and at times drastic State action to
preserve the unity and integrity of the country.
Notwithstanding- these problems arising from time to time on
account of class conflicts, religious intolerance and
socioeconomic imbalances, the fact remains that India has a
reasonably stable democracy. The resilience of our Republic
to face these challenges one after another has proved the
peoples’ faith in the political philosophy of socialism,
secularism and democracy enshrined in the Preamble of our
Constitution. Yet, the fact remains that the nation has had
from time to time with increasing frequency to combat
upheavals occasioned on account of militancy, communal and
class conflicts, politico-religious turmoils, strikes,
bandhs and the like occurring in one corner of the country
or the other, at times assuming ugly proportions. We are a
crisis-laden country; crisis situations created by both
external and internal forces necessitating drastic State
action to preserve the security, unity and integrity of the
country. To deal with such extraordinarily difficult
situations exercise of emergency powers becomes an
imperative. Such emergency powers existed under the
Government of India Act, 1935, vide Sections 93 and 45 of
that enactment. However, when similar powers were sought to
be conferred on the President of India by the Constitution,
there, was a strong opposition from many members of the
Constituent Assembly, vide Constituent Assembly Debates on
draft Articles 277 and 277-A. Dr Ambedkar pacified the
members by stating :
“In fact I share the sentiments expressed …
that the proper thing we ought to expect is
that such articles will never be called into
operation and that they would remain a dead
letter. If at all, they are brought into
operation, I hope the President, who is
endowed with all 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.” (Constituent Assembly Debates,
Vol. IX, p. 177)
Dr. Ambedkar’s hope that in rarest of rare cases only there
will be an occasion to invoke the emergency provisions was
soon belied as we were
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told at the Bar that the provisions of Article 356 of the
Constitution have had to be invoked over ninety times by
now. What was, therefore, expected to be a ‘dead letter’
has in fact become an oft-invoked provision. This is not
the occasion to embark on an enquiry into the circumstances
leading to the utilisation of this emergency power, but the
fact remains that the President has had to invoke the power
quite frequently. This may be on account of the degradation
in the political environment of the country. Since I am not
probing into the circumstances in which the said power had
to be invoked, I do not express myself on the question
whether or not there existed adequate justification for
resorting to this emergency power.
12. Although the emergency provisions found in part XVIII of
the Constitution are more or less modeled on the pattern of
similar provisions contained in the Government of India Act,
1935, the exercise of that power under the said provisions
cannot be compared with its exercise under the Constitution
for the obvious reason that they operated under totally
different conditions. Under the Government of India Act,
1935, the Governor General and the Governor exercised as
representatives of the Crown near absolute powers, only
limited powers were given to the elected Governments and
those too could be taken away if it was felt that the
Government concerned could not be carried on in accordance
therewith. So also reference to the British Joint
Parliamentary Report is inapposite for the simple reason
that the situation under the Constitution is not comparable
with that which formed the basis for the Report. The power
conferred on the President of India under Article 356 has to
be exercised in a wholly different political setup as
compared to that obtaining under the Government of India
Act, 1935. The constitutional philosophy of a free country
is totally different from the philosophy of a similar law
introduced for the governance of a country by its colonial
masters. It is, therefore, unnecessary to examine the case-
law based on the exercise of similar powers under the
Government of India Act, 1935.
Federal Character of the Constitution
13. India, as the Preamble proclaims, is a Sovereign,
Socialist, Secular, Democratic Republic. It promises
liberty of thought, expression, belief, faith and worship,
besides equality of status and opportunity. What is
paramount is the unity and integrity of the nation. In
order to maintain the unity and integrity of the nation our
Founding Fathers appear to have leaned in favour of a strong
Centre while distributing the powers and functions between
the Centre and the States. This becomes obvious from even a
cursory examination of the provisions of the Constitution.
There was considerable argument at the Bar on the question
whether our Constitution could be said to be ‘Federal’ in
character.
14. In order to understand whether our Constitution is
truly federal, it is essential to know the true concept of
federalism. Dicey calls it a political contrivance for a
body of States which desire Union but not unity. Federalism
is, therefore, a concept which unites separate States into a
Union without sacrificing their own fundamental political
integrity. Separate States,
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therefore, desire to unite so that all the member-States may
share in formulation of the basic policies applicable to all
and participate in the execution of decisions made in
pursuance of such basic policies. Thus the essence of a
federation is the existence of the Union and the States and
the distribution of powers between them. Federalism,
therefore, essentially implies demarcation of powers in a
federal compact.
15. The oldest federal model in the modem world can be said
to be the Constitution of the United States of America. The
American Federation can be described as the outcome of the
process of evolution, in that, the separate States first
formed into a Confederation (1781) and then into a
Federation (1789). Although the States may have their own
Constitutions, the Federal Constitution is the suprema lex
and is made binding on the States. That is because under
the American Constitution, amendments to the Constitution
are required to be ratified by three-fourths of the States.
Besides under that Constitution there is a single
legislative list enumerating the powers of the Union and,
therefore, automatically the other subjects are left to the
States. This is evident from the Tenth Amendment. Of
course, the responsibility to protect the States against
invasion is of the Federal Government. The States are,
therefore, prohibited from entering into any treaty,
alliance, etc., with any foreign power. The principle of
dual sovereignty is carried in the judicial set-up as well
since disputes under federal laws are to be adjudicated by
federal courts, while those under State laws are to be
adjudicated by State courts, subject of course to an appeal
to the Supreme Court of the United States. The
interpretation of the Constitution is by the United States
Supreme Court.
16. We may now read some of the provisions of our
Constitution. States.” Article 2 empowers Parliament to
admit into the Union, or establish, new States on such terms
and conditions as it thinks fit. Under Article 3 Parliament
can by law form a new State by separation of territory from
any State or by uniting two or more States or parts of
States or by uniting any territory to a part of any State;
increasing the area of any State; diminishing the area of
any State; altering the boundaries of any State; or altering
the name of any State. The proviso to that article requires
that the Bill for the purpose shall not be introduced in
either House of Parliament except on the recommendation of
the President and unless, where the proposal contained in
the Bill affects the area, boundaries or name of any of the
States, the Bill has been referred by the President to the
Legislature of that State for expressing its views thereon.
On a conjoint reading of these articles, it becomes clear
that Parliament has the right to form new States, alter the
areas of existing States, or the name of any existing State.
Thus the Constitution permits changes in the territorial
limits of the States and does not guarantee their
territorial integrity. Even names can be changed. Under
Article 2 it is left to Parliament to determine the terms
and conditions on which it may admit any area into the Union
or establish new States. In doing so, it has not to seek
the concurrence of the State whose area, boundary or name is
likely to be
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affected by the proposal. All that the proviso to Article 3
requires is that in such cases the President shall refer the
Bill to the Legislatures of the States concerned likely to
be affected “to express their views”. Once the views of the
States are known, it is left to Parliament to decide on the
proposed changes. Parliament can, therefore, without the
concurrence of the State or States concerned change the
boundaries of the State or increase or diminish its area or
change its name. These provisions show that in the matter
of constitution of States, Parliament is paramount. This
scheme substantially differs from the federal set-up
established in the United States of America. The American
States were independent sovereign States and the territorial
boundaries of those independent States cannot be touched by
the Federal Government. It is these independent sovereign
units which together decided to form into a federation
unlike in India where the States were not independent
sovereign units but they were formed by Article 1 of the
Constitution and their areas and boundaries could,
therefore, be altered, without their concurrence, by
Parliament. It is well-known that since independence, new
States have been created, boundaries of existing States have
been altered, States have been renamed and individual States
have been extinguished by parliamentary legislation.
17. Our Founding Fathers did not deem it wise to shake the
basic structure of Government and in distributing the
legislative functions they, by and large, followed the
pattern of the Government of India Act, 1935. Some of the
subjects of common interest were, however, transferred to
the Union List, thereby enlarging the powers of the Union to
enable speedy and planned economic development of the
nation. The scheme for the distribution of powers between
the Union and the States was largely maintained except that
some of the subjects of common interest were transferred
from the Provincial List to the Union List thereby
strengthening the administrative control of the Union. It
is in this context that this Court in State of W.B. v. Union
of India’ observed : (SCR p. 397)
“The exercise of powers, legislative and
executive, in the allotted fields is hedged in
by the numerous restrictions, so that the
powers of the States are not co-ordinate with
the Union and are not in many respects
independent.”
18. In Union of India v. H.S. Dhillon2 (SCC p. 789, para
15: AIR power was pointed out, in that, under the Government
of India Act, 1935, the residuary power was not given either
to the Union Legislature or to the provincial legislatures,
but under our Constitution, by virtue of Article 248, read
with Entry 97 in List 1 of the Vllth Schedule, the residuary
power has been conferred on the Union. This arrangement
substantially differs from the scheme of distribution of
powers in the United States of America where the residual
powers are with the States.
1 (1964) 1 SCR 37 1: AIR 1963 SC 1241
2 (1971) 2 SCC 779: AIR 1972 SC 1061: (1972) 2 SCR 33
71
19. The Preamble of our Constitution shows that the people
of India had resolved to constitute India into a Sovereign
Secular Democratic Republic and promised to secure to all
its citizens Justice, Liberty and Equality and to promote
among them all Fraternity assuring the dignity of the
individual and the unity and integrity of the Nation. In
the people of India, therefore, vests the legal sovereignty
while the political sovereignty is distributed between the
Union and the States. Article 73 extends the executive
power of the Union to matters with respect to which
Parliament has power to make laws and to the exercise of
such rights, authority and jurisdiction as are exercisable
by the Government of India by virtue of any treaty or
agreement. The executive power which is made co-extensive
with Parliament’s power to make laws shall not, save as
expressly provided by the Constitution or in any law made by
Parliament, extend in any State to matters with respect to
which the Legislature of the State also has power to make
laws. Article 162 stipulates that the executive power of a
State shall extend to matters with respect to which the
Legislature of the State has power to make laws provided
that in any matter with respect to which the Legislature of
a State and Parliament have power to make laws, the
executive power of the State shall be subject to, and
limited by, the executive power expressly conferred by the
Constitution or by any law made by Parliament upon the Union
or authorities thereof. It may also be noticed that the
executive power of every State must be so exercised as not
to impede or prejudice the exercise of the executive power
by the Union. The executive power of the Union also extends
to giving such directions to a State as may appear to the
Government of India to be necessary for those purposes and
as to the construction, maintenance of means of
communication declared to be of national or military
importance and for protection of railways. The States have
to depend largely on financial assistance from the Union.
Under the scheme of Articles 268 to 273, States are in
Certain cases allowed to collect and retain duties imposed
by the Union; in other cases taxes levied and collected by
the Union are assigned to the States and in yet other cases
taxes levied and collected by the Union are shared with
States. Article 275 also provides for the giving of grants
by the Union to certain States. There is, therefore, no
doubt that States depend for financial assistance upon the
Union since their power to raise resources is limited. As
economic planning is a concurrent subject, every major
project must receive the sanction of the Central Government
for its financial assistance since discretionary power under
Article 282 to make grants for public purposes is vested in
the Union or a State, notwithstanding that the purpose is
one in respect to which Parliament or State Legislature can
make laws. It is only after a project is finally sanctioned
by the Central Government that the State Government can
execute the same which demonstrates the control that the
Union can exercise even in regard to a matter on which the
State can legislate. In addition to these controls Article
368 confers powers on Parliament to amend the Constitution,
albeit by a specified majority. The power extends to
amending matters pertaining to the executive as well as
legislative powers of the States
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if the amendments are ratified by the legislatures of not
less than one-half of the States. This provision empowers
Parliament to so amend the Constitution as to curtail the
powers of the States. A strong Central Government may not
find it difficult to secure the requisite majority as well
as ratification by one half of the legislatures if one goes
by past experience. These limitations taken together
indicate that the Constitution of India cannot be said to be
truly federal in character as understood by lawyers in the
United States of America.
20. In State of Rajasthan v. Union of India3 Beg, C.J.,
observed in (AIR) paragraph 51 as under: (SCC p. 62 1, para
56)
“A conspectus of the provisions of our
Constitution will indicate that, whatever
appearance of a federal structure our
Constitution may have, its operations are
certainly, judged both by the contents of
power which a number of its provisions carry
with them and the use that has been made of
them, more unitary than federal.”
Further, in (AIR) paragraph 52, the learned Chief Justice
proceeded to add (SCC p. 622, para 57)
“In a sense, therefore, the Indian Union is
federal. But, the extent of federalism in it
is largely watered down by the needs of
progress and development of a country which
has to be nationally integrated, politically
and economically coordinated, and socially,
intellectually and spiritually uplifted. In
such a system, the States cannot stand in the
way of legitimate and comprehensively planned
development of the country in the manner
directed by the Central Government.”
Pointing out that national planning involves disbursement of
vast amount of money collected as taxes from citizens spread
over all the States and placed at the disposal of the
Central Government for the benefit of the States, the
learned Chief Justice proceeds to observe in (AIR) paragraph
56 of the judgment : (SCC p. 623, para 6 1)
“If then our Constitution creates a Central
Government which is ,amphibian’, in the sense
that it can move either on the federal or
unitary plane, according to the needs of the
situation and circumstances of a case, the
question which we are driven back to consider
is whether an assessment of the ‘situation’ in
which the Union Government should move either
on the federal or unitary plane are matters
for the Union Government itself or for this
Court to consider and determine.”
When the Union Government issued a notification dated May
23, 1977 constituting a Commission of Inquiry in exercise of
its power under Section 3 of the Commissions of Inquiry Act,
1952, to inquire into certain allegations made against the
Chief Minister of the State, the State of Karnataka
instituted a suit under Article 131 of the Constitution
challenging the legality and validity of the notification as
unjustifiable trespass upon the domain of State powers.
While dealing with the issues arising in that suit
3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1
73
State of Karnatakt v. Union of India4-Beg C.J., once again
examined the relevant provisions of the Constitution and the
Commissions of Inquiry Act, 1952, and observed in (AIR)
paragraph 33 as under: (SCC p. 645, para 34)
“In our country, there is at the top a Central
or the Union Government responsible to
Parliament, and there are, below it, State
Governments, responsible to the State
Legislatures, each functioning within the
sphere of its own powers which are divided
into two categories, the exclusive and the
concurrent. Within the exclusive sphere of
the powers of the State Legislature is local
government. And, in all States there is a
system of local government in both urban and
rural areas, functioning under State
enactments. Thus, we can speak of a three
tier system of Government in our country in
which the Central or the Union Government
comes at the apex…….
It would thus seem that the Indian Constitution has, in it,
not only features of a pragmatic federalism which, while
distributing legislative powers and indicating the spheres
of governmental powers of State and Central Governments, is
overlaid by strongly ‘unitary’ features, particularly
exhibited by lodging in Parliament the residuary legislative
powers, and in the Central Government the executive power of
appointing certain constitutional functionaries including
High Court and Supreme Court Judges and issuing appropriate
directions to the State Governments and even displacing the
State Legislatures and the Governments in emergency
situations, vide Articles 352 to 360 of the Constitution.
21. It is common knowledge that shortly after we
constituted ourselves into a Republic, the Princely States
gradually disappeared leading to the unification of India
into a single polity with duality of governmental agencies
for effective and efficient administration of the country
under central direction and, if I may say so, supervision.
The duality of governmental organs on the Central and State
levels reflect demarcation of functions in a manner as would
ensure the sovereignty and integrity of our country. The
experience of partition of the country and its aftermath had
taught lessons which were too fresh to be forgotten by our
Constitution makers. It was perhaps for that reason that
our Founding Fathers thought that a strong Centre was
essential to ward off separatist tendencies and consolidate
the unity and integrity of the country.
22. A Division Bench of the Madras High Court in M.
Karunnanidhi v. Union of India5 while dealing with the
contention that the Constitution is a federal one and that
the States are autonomous having definite powers and
independent rights to govern, and the Central Government has
no right to interfere in the governance of the State,
observed as under :
“[T]here may be a federation of independent
States, as it is in the case of United States
of America. As the name itself denotes, it is
a Union of States, either by treaty or by
legislation by the concerned
4 (1977) 4 SCC 608: AIR 1978 SC 68: (1978)
2 SCR 1
5 AIR 1977 Mad 192: (1977) 1 MLJ 182
74
States. In those cases, the federating units
gave certain powers to the federal Government
and retained some. To apply the meaning to
the word ‘federation’ or ‘autonomy’ used in
the context of the American Constitution, to
our Constitution will be totally misleading.”
After tracing the history of the governance of the country
under the British rule till the framing of our Constitution,
the Court proceeded to add is follows :
“The feature of the Indian Constitution is the
establishment of a Government for governing
the entire country. In doing so, the
Constitution prescribes the powers of the
Central Government and the powers of the State
Governments and the relations between the two.
In a sense, if the word ‘federation’ can be
used at all, it is a federation of various
States which were designated under the
Constitution for the purpose of efficient
administration and governance of the country.
The powers of the Centre and States are
demarcated under the Constitution. It is
futile to suggest that the States are
independent, sovereign or autonomous units
which had joined the federation under certain
conditions. No such State ever existed or
acceded to the Union.”
23. Under our Constitution the state as such has no inherent
sovereign power or autonomous power which cannot be
encroached upon by the Centre. The very fact that under our
Constitution, Article 3, Parliament may by law form a new
State by separation of territory from any State or by
uniting two or more States or parts of States or by uniting
any territory to a part of any State, etc., militates
against the view that the States are sovereign or autonomous
bodies having definite independent rights of governance. In
fact, as pointed out earlier in certain circumstances the
Central Government can issue directions to States and in
emergency conditions assume far reaching powers affecting
the States as well, and the fact that the President has
powers to take over the administration of States demolishes
the theory of an independent or autonomous existence of a
State. It must also be realised that unlike the
Constitution of the United States of America which
recognises dual citizenship [Section 1(1), 14th Amendment],
the Constitution of India, Article 5, does not recognise the
concept of dual citizenship. Under the American
Constitution all persons born or naturalised in the United
States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein they
reside whereas under Article 5 of the Indian Constitution at
its commencement, every person domiciled in the territory of
India and (a) who was born in the territory of India; or (b)
either of whose parents was born in the territory of India;
or (c) who has been ordinarily resident in the territory of
India for not less than five years immediately preceding
such commencement shall be a citizen of India. Article 9
makes it clear that if any person voluntarily acquires the
citizenship of any foreign country, he will cease to be a
citizen of India. These provisions clearly negative the
concept of dual citizenship, a concept expressly recognised
under the American Constitution. The concept of citizenship
assumes some importance in a federation because in a country
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which recognises dual citizenship, the individual would owe
allegiance both to the Federal Government as well as the
State Government but a country recognising a single
citizenship does not face complications arising from dual
citizenship and by necessary implication negatives the
concept of State sovereignty.
24. Thus the significant absence of the expressions like
‘federal’ or ‘federation’ in the constitutional vocabulary,
Parliament’s powers under Articles 2 and 3 elaborated
earlier, the extraordinary powers conferred to meet
emergency situations, the residuary powers conferred by
Article 248 read with Entry 97 in List 1 of the VlIth
Schedule on the Union, the power to amend the Constitution,
the power to issue directions to States, the concept of a
single citizenship, the set-up of an integrated judiciary,
etc., etc., have led constitutional experts to doubt the
appropriateness of the appellation ‘federal’ to the Indian
Constitution. Said Prof. K.C. Wheare in his work
Federal Government:
“What makes one doubt that the Constitution
of India is strictly and fully federal,
however, are the powers of intervention in the
affairs of the States given by the
Constitution to the Central Government and
Parliament.”
Thus in the United States, the sovereign States enjoy their
own separate existence which cannot be impaired;
indestructible States having constituted an indestructible
Union. In India, on the contrary, Parliament can by law
form a new State, alter the size of an existing State, alter
the name of an existing State, etc., and even curtail the
power, both executive and legislative, by amending the
Constitution. That is why the Constitution of India is
differently described, more appropriately as ‘quasi-federal’
because it is a mixture of the federal and unitary elements,
leaning- more towards the latter but then what is there in a
name, what is important to bear in mind is the thrust and
implications of the various provisions of the Constitution
bearing on the controversy in regard to scope and ambit of
the Presidential power under Article 356 and related
provisions.
Secularism under the Constitution
25. India can rightly be described as the world’s most
heterogeneous society. It is a country with a rich
heritage. Several races have converged in this sub-
continent. They brought with them their own cultures,
languages, religions and customs. These diversities threw
up their own problems but the early leadership showed wisdom
and sagacity in tackling them by preaching the philosophy of
accommodation and tolerance. This is the message which
saints and sufis spread in olden days and which Mahatma
Gandhi and other leaders of modem times advocated to
maintain national unity and integrity. The British policy
of divide and rule, aggravated by separate electorates based
on religion, had added a new dimension of mixing religion
with politics which had to be countered and which could be
countered only if the people realised the need for national
unity and integrity. It was with the weapons of secularism
and non-violence that Mahatma Gandhi fought the
76
battle for independence against the mighty colonial rulers.
As early as 1908, Gandhiji wrote in Hind Swaraj:
“India cannot cease to be one nation, because
people belonging to different religions live
in it. … In no part of the world are one
nationality and one religion synonymous terms;
nor has it ever been so in India.”
Gandhiji was ably assisted by leaders like Pandit Jawaharlal
Nehru, Maulana Abul Kalam Azad and others in the task of
fighting a peaceful battle for securing independence by
uniting the people of India against separatist forces. In
1945 Pandit Nehru wrote :
“I am convinced that the future government of
free India must be secular in the sense that
government will not associate itself directly
with any religious faith but will give freedom
to all religious functions.” And this was
followed up by Gandhiji when in 1946 he wrote
in Harijan “I swear by my religion. I will
die for it. But it is my personal affair.
The State has nothing to do with it. The
State will look after your secular welfare,
health, communication, foreign relations,
currency and so on, but not my religion. That
is everybody’s personal concern.”
26. The great statesman-philosopher Dr
Radhakrishnan said
“When India is said to be a secular State, it
does not mean that we reject reality of an
unseen spirit or the relevance of religion to
life or that we exalt irreligion. It does not
mean that secularism itself becomes a positive
religion or that the State assumes divine
prerogatives. Though faith in the Supreme is
the basic principle of the Indian tradition,
the Indian State will not identify itself with
or be controlled by any particular religion.
We hold that no one religion should be given
preferential status, or unique distinction,
that no one religion should be accorded
special privileges in national life or
international relations for that would be a
violation of the basic principles of democracy
and contrary to the best interests of religion
and Government. This view of religious
impartiality, of comprehension and
forbearance, has a prophetic role to play
within the national and international life.
No group of citizens shall arrogate to itself
rights and privileges which it denies to
others. No person should suffer any form of
disability or discrimination because of his
religion but all alike should be free to share
to the fullest degree in the common life.
This is the basic principle involved in the
separation of Church and State.”
(emphasis supplied)
(Recovery of Faith, New York, Harper Brothers
1955, p. 202)
27. Immediately after we attained independence, the
Constituent Assembly, aware of the danger of communalism,
passed the following resolution on April 3, 1948
“Whereas it is essential for the proper
functioning of democracy and growth of
national unity and solidarity that communalism
should be eliminated from Indian life, this
Assembly is of the opinion that no communal
Organisation which by its constitution or by
exercise of
77
discretionary power vested in any of its
officers and organs admits to, or excludes
from, its membership persons on grounds of
religion, race and caste, or any of them
should be permitted to engage in any
activities other than those essential for the
bona fide religious, cultural, social and
educational needs of the community, and that
all steps, legislative and administrative,
necessary to prevent such activities should be
taken.”
28. Since it was felt that separate electorates for
minorities were responsible for communal and separatist
tendencies, the Advisory Committee resolved that the system
of reservation for minorities. excluding SC/ST, should be
done away with. Pursuant to the goal of secularism, the
Constituent Assembly adopted clauses 13, 14 and 15 roughly
corresponding to the present Articles 25, 26 and 27. During
the debates Prime Minister Jawaharlal Nehru declared that
secularism was an ideal to be achieved and that
establishment of a Secular State was an act of faith, an act
of faith above all for the majority community because they
will have to show that they can behave towards others in a
enerous, fair and just way. When objection was sought to be
voiced from certain quarters, Pandit Laxmikantha Mitra
explained :
” By Secular State, as I understand, it is
meant that the State is not going to make any
discrimination whatsoever on the ground of
religion or community against any person
professing any particular form of religious
faith. This means in essence that no
particular religion in the State will receive
any State patronage whatsoever. The State is
not going to establish, patronize or endow any
particular religion to the exclusion of or in
preference to others and that no citizen in
the State will have any preferential treatment
or will be discriminated against simply on
tile ground that he professed a particular
form of religion. In other words, in the
affairs of the State the preferring of any
particular religion will not be taken into
consideration at all. This I consider to be
the essence of a Secular State. At the same
time we must be very careful to see that in
this land of ours we do not deny to anybody
the right not only to profess or practice but
also propagate any particular religion.”
This in brief was the notion of secularism and democracy
during the pre-independence era and immediately before we
gave unto ourselves the Constitution. We may now very
briefly notice the provisions in the Constitution.
29. Notwithstanding the fact that the words ‘Socialist’ and
‘Secular’ were added in the Preamble of the Constitution in
1976 by the 42nd Amendment, the concept of Secularism was
very much embedded in our constitutional philosophy. The
term ‘Secular’ has advisedly not been defined presumably
because it is a very elastic term not capable of a precise
definition and perhaps best left undefined. By this
amendment what was implicit was made explicit. The Preamble
itself spoke of liberty of thought, expression, belief,
faith and worship. While granting this liberty the Preamble
promised equality of status and opportunity. It also spoke
of
78
promoting fraternity, thereby assuring the dignity of the
individual and the unity and integrity of the nation. While
granting to its citizens liberty of belief, faith and
worship, the Constitution abhorred discrimination on grounds
of religion, etc., but permitted special treatment for
Scheduled Castes and Tribes, vide Articles 15 and 16.
Article 25 next provided, subject to public order, morality
and health, that all persons shall be entitled to freedom of
conscience and the right to profess, practice and propagate
religion. Article 26 grants to every religious denomination
or any section thereof, the right to establish and maintain
institutions for religious purposes and to manage its own
affairs in matters of religion. These two articles clearly
confer a right to freedom of religion. Article 27 provides
that no person shall be compelled to pay any taxes, the
proceeds whereof are specifically appropriated in payment of
expenses for the promotion or maintenance of any particular
religion or religious denomination. This is an important
article which prohibits the exercise of State’s taxation
power if tile proceeds thereof are intended to be
appropriated in payment of expenses for the promotion and
maintenance of any particular religion or religious
denomination. That means that State’s revenue cannot be
utilised for the promotion and maintenance of any religion
or religious group. Article 28 relates to attendance at
religious instructions or religious worship in certain
educational institutions. Then come Articles 29 and 30
which refer to the cultural and educational rights. Article
29 inter alia provides that no citizen will be denied
admission to an educational institution maintained wholly or
partly from State funds on grounds only of religion, etc.
Article 30 permits all minorities, whether based on religion
or language, to establish and administer educational
institutions of their choice and further prohibits the State
from discriminating against such institutions in the matter
of granting and. These fundamental rights enshrined in
Articles 15, 16, and 25 to 30 leave no manner of doubt that
they form part of the basic structure of the Constitution.
Besides, by the 42nd Amendment, Part IV-A entitled
‘Fundamental Duties’ was introduced which inter alia casts a
duty on every citizen to cherish and follow the noble ideals
which inspired our national struggle for freedom, to uphold
and protect the sovereignty, unity and integrity of India,
to promote harmony and the spirit of common brotherhood
amongst all the people of India transcending religious,
linguistic and regional or sectional diversities, and to
value and preserve the rich heritage of our composite
culture. These provisions which I have recalled briefly
clearly bring out the dual concept of secularism and
democracy, the principles of accommodation and tolerance as
advocated by Gandhiji and other national leaders. I am,
therefore, in agreement with the views expressed by my
learned colleagues Sawant, Ramaswamy and Reddy, JJ., that
secularism is a basic feature of our Constitution. They
have elaborately dealt with this aspect of the matter and I
can do no better than express my concurrence but I have said
these few words merely to complement their views by pointing
out how this concept was understood immediately before
79
the Constitution and till the 42nd Amendment. By the 42nd
Amendment what was implicit was made explicit. 30. After
the demise of Gandhiji national leaders like Pandit
Nehru,Maulana Azad, Dr Ambedkar and others tried their best
to see that the secular character of the nation, as
bequeathed by Gandhiji, was not jeopardised. Dr Ambedkar,
Chairman of the Drafting Committee, aware of the
undercurrents cautioned that India was not yet a
consolidated and integrated nation but had to become one.
This anxiety was also reflected in his speeches in the
Constituent Assembly. He was, therefore, careful while
drafting the Constitution to ensure that adequate safeguards
were provided in the Constitution to protect the secular
character of the country and to keep divisive forces in
check so that the interests of religious, linguistic and
ethnic groups were not prejudiced. He carefully weaved
Gandhiji’s concept of secularism and democracy into the
constitutional fabric. This becomes evident from a cursory
look at the provisions of the Constitution referred to
earlier.
Judicial Review and Justiciability
Constitution, the possibility of different political parties
ruling at the Centre and in one or more States cannot be
ruled out. The Constitution clearly permits it. Therefore,
the mere defeat of the ruling party at the Centre cannot by
itself, without anything more, entitle the newly elected
party which comes to power at the Centre to advise the
President to dissolve the Assemblies of those States where
the party in power is other than the one in power at the
Centre. Merely because a different political party is
elected to power at the Centre, even if with a thumping
majority, is no ground to hold that ‘a situation has arisen
in which the Government of the State cannot be carried on in
accordance with the provisions of this Constitution’, which
is the requirement for the exercise of power under Article
356(1) of the Constitution. To exercise power under the
said provision and to dissolve the State Assemblies solely
on the ground of a new political party having come to power
at the Centre with a sweeping majority would, to say the
least, betray intolerance on the part of the Central
Government clearly basing the exercise of power under
Article 356(1) on considerations extraneous to the said
provision and, therefore, legally mala fide. It is a matter
of common knowledge that people vote for different political
parties at the Centre and in the States and, therefore, if a
political party with an ideology different from the ideology
of the political party in power in any State comes to power
in the Centre, the Central Government would not be justified
in exercising power under Article 356(i) unless it is shown
that the ideology of the political party in power in the
State is inconsistent with the constitutional philosophy
and, therefore, it is not possible for that party to run the
affairs of the State in accordance with the provisions of
the Constitution. It is axiomatic that no State Government
can function on a programme which is destructive of the
constitutional philosophy as such functioning can never be
in accordance with the provisions of the Constitution. But
where a State
80
Government is functioning in accordance with the provisions
of the Constitution and its ideology is consistent with the
constitutional philosophy, the Central Government would not
be justified in resorting to Article 356(1) to get rid of
the State Government ‘solely’ on the ground that a different
political party has come to power at the Centre with a
landslide victory. Such exercise of power would be clearly
mala fide. The decision of this Court in State of Rajasthan
v. Union of’ India3 to the extent it is inconsistent with
the above discussion, does not, in my humble view, lay down
the law correctly.
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. The debate at the Bar was
limited to this area; the learned Attorney General as well
as Mr Parasaran contending for the view that the law laid
down in the Rajasthan case3 in this behalf was correct and
did not require reconsideration while the counsel for the
State Governments concerned which were superseded by
exercise of power under Article 356(1) contending that the
said decision required reconsideration.
33. Before I deal with the said issue I may dispose of the
question whether the provision of Article 74(2) of the
Constitution permits withholding of the reasons and material
forming the basis for the ministerial advice tendered to the
President. Article 74(1) ordains that the President ,shall’
act in accordance with the advice tendered by the Council of
Ministers. The proviso, however, entities him to require
the Council of Ministers to reconsider its advice if he has
any doubts or reservation but once the Council of Ministers
has reconsidered the advice, he is obliged to act in
accordance therewith. 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. Of course the privilege available under the Evidence
Act, Sections 123 and 124, would stand on a different
footing and can be claimed dehors Article 74(2) of the
Constitution. To the extent the decision in Rajasthan case3
conflicts with this view, I respectfully disagree.
3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1
81
34. That takes me to the question of the scope and extent of
judicial review i.e. the area of justiciability insofar as
the subjective satisfaction of the President under Article
356(1) of the Constitution is concerned. Part XVIII, which
deals with emergency provisions provides for exercise of
emergency powers under different situations. Article 352
provides that “if the President is satisfied” that a grave
emergency exists threatening the security of India or any
part thereof, whether by war or external aggression or armed
rebellion, the President may make a declaration to that
effect specifying the area of its operation in the
Proclamation. Notwithstanding the use of the language “if
the President is satisfied” which suggests that the decision
would depend on the subjective satisfaction of the
President, counsel agreed that such a decision cannot be
made the subject-matter of judicial scrutiny for the obvious
reason that the existence or otherwise of a grave emergency
does not fall within the purview of judicial scrutiny since
the Courts are ill-equipped to undertake such a delicate
function. So also under Article 360 the exercise of
emergency power is dependent on the satisfaction of the
President that a situation has arisen whereby the financial
stability or credit of India or any part thereof is
threatened. The decision to issue a Proclamation containing
such a declaration is also based on the subjective
satisfaction of the President, i.e., Council of Ministers,
but the court would hardly be in a position to X-ray such a
subjective satisfaction for want of expertise in regard to
fiscal matters. These provisions, therefore, shed light on
the extent of judicial review.
35. The marginal note of Article 356 indicates that the
power conferred by that provision is exercisable “in case of
failure of constitutional machinery in the States”. While
the text of the said article does not use the same
phraseology, it empowers the President, on his being
satisfied that, “a situation has arisen” in which the
Government of the State ‘cannot’ be carried on in accordance
with the provisions of the Constitution, i.e., on the
failure of the constitutional machinery, to take action in
the manner provided in sub-clauses (a), (b) and (c) and (sic
of) clause (1) thereof. This action he must take on receipt
of a report from the Governor of the State concerned or
,otherwise’, if he is satisfied therefrom about the failure
of the constitutional machinery. Article 356(i) confers
extraordinary powers on the President, which he must
exercise sparingly and with great circumspection, only if he
is satisfied from the Govern’s report or otherwise that a
situation has arisen in which the Government of the State
cannot be carried out in accordance with the provisions of
the Constitution. The expression ‘otherwise’ is of very
wide import and cannot be restricted to material capable of
being tested on principles relevant to admissibility of
evidence in courts of law. It would be difficult to
predicate the nature of material which may be placed before
the President or which he may have come across before taking
action under Article 356(1). Besides, since the President
is not expected to record his reasons for his subjective
satisfaction, it would be equally difficult for the Court to
enter ‘the political thicket’ to ascertain what weighed with
the President for the exercise of power under the said
provision. The test laid
82
down by this Court in Barium Chemicals Ltd. v. Company Law
Board6 and subsequent decisions for adjudging the validity
of administrative action can have no application for testing
the satisfaction of the President under Article 356. It
must be remembered that the power conferred by Article 356
is of an extraordinary nature to be exercised in grave
emergencies and, therefore, the exercise of such power
cannot be equated to the power exercised in administrative
law field and cannot, therefore, be tested by the same
yardstick. Several imponderables would enter consideration
and govern the ultimate decision, which would be based, not
only on events that have preceded the decision, but would
also depend on likely consequences to follow and, therefore,
it would be wholly incorrect to view the exercise of the
President’s satisfaction on a par with the satisfaction
recorded by executive officers in the exercise of
administrative control. The opinion which the President
would form on the basis of the Govern’s report or otherwise
would be based on his political judgment and it is difficult
to evolve judicially manageable norms for scrutinising such
political decisions. It, therefore, seems to me that by the
very nature of things which would govern the decision-making
under Article 356, it is difficult to hold that the decision
of the President is justiciable. To do so would be entering
the political thicket and questioning the political wisdom
which the courts of law must avoid. The temptation to delve
into the President’s satisfaction may be great but the
courts would be well advised to resist the temptation for
want of judicially manageable standards. Therefore, in my
view, the court cannot interdict the use of the
constitutional power conferred on the President under
Article 356 unless the same is shown to be mala fide.
Before exercise of the court’s jurisdiction sufficient
caution must be administered and unless a strong and cogent
prima facie case is made out, the President i. e. the
Executive must not be called upon to answer the charge. In
this connection I agree with the observation of Ramaswamy,
J. I am also in agreement with Verma, J. when he says that
no quia timet action would be permissible in such cases in
view of the limited scope of judicial review in such cases.
I am, therefore, in respectful agreement with the view
expressed in the Rajasthan case3 as regards the extent of
review available in relation to a Proclamation issued under
Article 356 of the Constitution. In other words it can be
challenged on the limited ground that the action is mala
fide or ultra vires Article 356 itself.
36. Applying the above test I am in agreement with the view
that the Proclamations issued and consequential action taken
against the States of Madhya Pradesh, Himachal Pradesh,
Rajasthan and Karnataka are not justiciable while the
Proclamation issued in connection with Meghalaya may be
vulnerable but it is not necessary to issue any order or
direction in that behalf as the issue is no more live in
view of the subsequent developments that have taken place in
that State after fresh elections. I am, therefore, in
6 1966 Supp SCR 311: AIR 1967 SC 295: (1966) 36 Comp Cas 639
3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1
83
respectful agreement with the final order proposed by Verma,
J. and Ramaswamy, J. I may also add that I agree with the
view expressed by all the three learned colleagues on the
concept of secularism.
37. This also indicates the areas of agreement and
disagreements with the views expressed by Sawant and Reddy,
JJ.
38. Before concluding, I must express my gratitude for the
excellent assistance rendered by the learned Attorney
General and all the learned counsel who appeared for the
contesting parties.
VERMA, J. (for himself and Yogeshwar Dayal, J.)- This
separate opinion is occasioned by the fact that in our view
the area of justiciability is even narrower than that
indicated in the elaborate opinions prepared by our learned
brethren. The purpose of this separate note is merely to
indicate the area of such difference. It is unnecessary to
mention the facts and discuss the factors which must guide
the exercise of power under Article 356 which have been
elaborately discussed in the other opinions. Indication of
these factors including the concept of secularism for proper
exercise of the power does not mean necessarily that the
existence of these factors is justiciable. In our view,
these factors must regulate the issuance of a Proclamation
under Article 356 to ensure proper exercise of the power but
the judicial scrutiny thereof is available only in the
limited area indicated hereafter, the remaining area being
amenable to scrutiny and correction only by Parliament and
the subsequent electoral verdict.
40. There is no dispute that the Proclamation issued under
Article 356 is subject to judicial review. The debate is
confined essentially to the scope of judicial review or
the area of justiciability in that sphere. It does appear
that the area of justiciability is narrow in view of the
nature of that power and the wide discretion which inheres
in its exercise. This indication appears also from the
requirement of approval of the Proclamation by Parliament
which is a check provided in the Constitution of scrutiny by
political process of the decision taken by the Executive.
The people’s verdict in the election which follow is
intended to be the ultimate check.
41. To determine the justiciable area, we prefer to recall
and keep in view that which was said in K. Ashok Reddy v.
Government of India7 thus: (SCC pp. 315-16, paras 21-23)
“21. A useful passage from Craig’s
Administrative Law (Second Edn., p. 291) is as
under:
‘The traditional position was that the courts
would control the existence and extent of
prerogative power, but not the manner of
exercise thereof. … The traditional position
has however now been modified by the decision
in the GCHQ case8. Their Lordships emphasised
that the review ability of discretionary power
should be dependent upon the subject-matter
thereof, and not whether its
7 (1994) 2 SCC 303: JT (1994) 1 SC 401
8 Council (of Civil Service Unions v.
Minister for the Civil Service, (1985) AC 374:
(1984) 3 All ER 935
84
prerogative power would, because of their
subject-matter, be less justiciable, with Lord
Roskill compiling the broadest list of such
forbidden territory. …’
22. In Council of Civil Service Unions v. Minister for the
Civil Service8 (GCHQ case), Lord Roskill stated thus: (AC p.
418, All ER P. 956)
, But I do not think that right of challenge
can be unqualified. It must, I think, depend
upon the subject-matter of the prerogative
power which is exercised. Many examples were
given during the argument of prerogative
powers which as at present advised I do not
think could properly be made the subject of
judicial review. Prerogative powers such as
those relating to the making of treaties, the
defence of the realm, the prerogative of
mercy, the grant of honors, the dissolution of
Parliament and the appointment of ministers as
well as others are not, I think, susceptible
to judicial review because their nature and
subject-matter is such as not to be amenable
to the judicial process. …’
23. The same indication of judicial self-restraint in such
matters is to be found in De Smith’s Judicial Review of
Administrative Action, thus: (p. 3 2)
” Judicial self-restraint was still more
marked in cases where attempts were made to
impugn the exercise of discretionary powers by
alleging abuse of the discretion itself rather
than alleging nonexistence of the state of
affairs on which the validity of its exercise
was predicated. Quite properly, the courts
were slow to read implied limitations into
grants to wide discretionary powers which
might have to be exercised on the basis of
broad considerations of national policy.’ ”
42. It is also useful to refer to Puhlhofer v. Hillingdon
London Borough Council9 wherein Lord Brightman with whom the
other Law Lords agreed, stated thus: (All ER p. 474)
“Where the existence or non-existence of a
fact is left to the judgment and discretion of
a public body and that fact involves a broad
spectrum ranging from the obvious to the
debatable to the just conceivable, it is the
duty of the court to leave the decision of
that fact to the public body to whom
Parliament has entrusted the decision-making
power save in a case where it is obvious that
the public body, consciously or unconsciously,
are acting perversely.”
In our view, this principle is equally applicable in the
present case to determine the extent to which alone a
Proclamation issued under Article 356 is justiciable.
8 (1985) AC 374: (1984) 3 All ER 935
9 (1986) AC 484: (1986) 1 All ER 467
85
43. The question now is of the test applicable to determine
the situation in which the power of judicial review is
capable of exercise or, in other words, the controversy is
justiciable. The deeming provision in Article 365 is an
indication that cases falling within its ambit are capable
of judicial scrutiny by application of objective standards.
The facts which attract the legal fiction that the
constitutional machinery has failed are specified and their
existence is capable of objective determination. It is,
therefore, reasonable to hold that the cases falling under
Article 365 are justiciable.
44. The expression ‘or otherwise’ in Article 356 indicates
the wide range of the materials which may be taken into
account for the formation of opinion by the President.
Obviously, the materials could consist of several
imponderables including some matter which is not strictly
legal evidence, the credibility and authenticity of which is
incapable of being tested in law courts. The ultimate
opinion formed in such cases, would be mostly a subjective
political judgment. There are no judicially manageable
standards for scrutinising such materials and resolving such
a controversy. By its very nature such controversy cannot
be justiciable. It would appear that all such cases are,
therefore, not justiciable.
45. It would appear that situations wherein the failure of
constitutional machinery has to be inferred subjectively
from a variety of facts and circumstances, including some
imponderables and inferences leading to a subjective
political decision, judicial scrutiny of the same is not
permissible for want of judicially manageable standards.
These political decisions call for judicial hands off
envisaging correction only by a subsequent electoral
verdict, unless corrected earlier in Parliament.
46. In other words, only cases which permit application of
totally objective standards for deciding whether the
constitutional machinery has failed, are amenable to
judicial review and the remaining cases wherein there is any
significant area of subjective satisfaction dependent on
some imponderables or inferences are not justiciable because
there are no judicially manageable standards for resolving
that controversy; and those cases are subject only to
political scrutiny and correction for whatever its value in
the existing political scenario. This appears to be the
constitutional scheme.
47. The test for adjudging the validity of an
administrative action and the grounds of its invalidity
indicated in Barium Chemicals Ltd. v. Company Law Board& and
other cases of that category have no application for testing
and invalidating a Proclamation issued under Article 356.
The test applicable has been indicated above and the grounds
of invalidity are those mentioned in State of Rajasthan v.
Union of India3.
48. Article 74(2) is no bar to production of the materials
on which the ministerial advice is based, for ascertaining
whether the case falls within the justiciable area and
acting on it when the controversy, is found justiciable,
6 1966 Supp SCR 311: AIR 1967 SC 295: (1966) 36 Comp Cas
639
3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1
86
but that is subject to the claim of privilege under Section
123 of the Evidence Act, 1872. This is considered at length
in the opinion of Sawant, J. We, therefore, regret our
inability to concur with the different view on this point
taken in State of Rajasthan v. Union of India3 even though
we agree that the decision does not require any
reconsideration on the aspect of area of justiciability and
the grounds of invalidity indicated therein.
49. In the above view, it follows that no quia timet action
would be permissible in such cases in view of the limited
scope of judicial review; and electoral verdict being the
ultimate check, courts can grant substantive relief only if
the issue remains live in cases which are justiciable. In
Kihoto Hollohan v. Zachillhu10 it was stated thus: (SCC p.
711, para 110)
“In view of the limited scope of judicial
review that is available on account of the
finality clause in paragraph 6 and also having
regard to the constitutional intendment and
the status of the repository of the
adjudicatory power i.e. Speaker/Chairman,
judicial review cannot be available at a stage
prior to the making of a decision by the
Speaker/ Chairman and a quia timet action
would not be permissible. Nor would
interference be permissible at an
interlocutory stage of the proceedings.”
50. It is also clear that mere parliamentary approval does
not have the effect of excluding judicial review to the
extent permissible. In Sarojini Ramaswami v. Union of
India11 it has been stated thus: (SCC pp. 560-61)
“72. We may, however, add that the
intervention of the parliamentary part of the
process, in case a finding of guilty is made,
which according to Shri Sibal would totally
exclude judicial review thereafter is a
misapprehension since limited judicial review
even in that area is not in doubt after the
decision of this Court in Keshav Singhl2.
73. At this stage, a reference to the nature
and scope of judicial review as understood in
similar situations is helpful. In
Administrative Law (Sixth Edition) by H.W.R.
Wade, in the chapter ‘Constitutional
Foundations of the Powers of the Courts’ under
the heading ‘The Sovereignty of Parliament’,
the effect of Parliament’s intervention is
stated thus: (at p. 29)
‘There are many cases where some
administrative order or regulation is required
by statute to be approved by resolutions of
the Houses. But this procedure in no way
protects the order or regulation from being
condemned by the court, under the doctrine of
ultra vires, if it is not strictly in
accordance with the Act. Whether the
challenge is made before or after the Houses
have given their approval is immaterial.’
3 (1977) 3 SCC 592 : AIR 1977 SC 1361: (1978)
1 SCR 1
10 1992 Supp (2) SCC 651
11 (1992) 4 SCC 506
12 special Reference No.of 1964, (1965) 1
SCR 413 : AIR 1965 SC 745
87
Later at p. 41 1, Wade has said that ‘in accordance with
constitutional principle, parliamentary approval does not
affect the normal operation of judicial review’. At p. 870
while discussing ‘Judicial Review’, Wade indicates the
position thus:
‘As these cases show, judicial review is in no
way inhibited by the fact that rules or
regulations have been laid before Parliament
and approved, despite the ruling of the House
of Lords that the test of unreasonableness
should not then operate in its normal way.
The Court of Appeal has emphasised that in the
case of subordinate legislation such as an
Order in Council approved in draft by both
Houses, “the courts would without doubt be
competent to consider whether or not the order
was properly made in the sense of being intra
vires”.’
74. The clear indication, therefore, is that
mere parliamentary approval of an action or
even a report by an outside authority when
without such approval, the action or report is
ineffective by itself, does not have the
effect of excluding judicial review on the
permissible grounds.”
51. Applying this principle, only the Meghalaya case is
justiciable and that Proclamation was invalid while those
relating to Madhya Pradesh, Himachal Pradesh, Rajasthan and
Karnataka are not justiciable. There is rightly no
challenge to the Proclamation relating to Uttar Pradesh.
However, in view of the subsequent elections held in
Meghalaya, that is no longer a live issue and, therefore,
there is no occasion to grant any substantial relief even in
that case,
52. It is to this extent our view differs on the question
of justiciability. On this view, it is unnecessary for us
to express any opinion on the remaining matters, According
to us, except to the extent indicated, the decision in State
of Rajasthan v. Union of India3 does not require
reconsideration.
SAWANT, J. (on behalf of Kuldip Singh, J. and himself)-
Article 356 has a vital bearing on the democratic
parliamentary form of Government and the autonomy of the
States under the federal constitution that we have adopted.
The interpretation of the article has, therefore, once again
engaged the attention of this Court in the background of the
removal of the Governments and the dissolution of the
Legislative Assemblies in six States with which we are
concerned here, on different occasions and in different
situations by the exercise of power under the article. The
crucial question that falls for consideration in all these
matters is whether the President has unfettered powers to
issue Proclamation under Article 356(1) of the Constitution.
The answer to this question depends upon the answers to the
following questions: (a) Is the Proclamation amenable to
judicial review? (b) If yes, what is the scope of the
judicial review in this respect? and (c) What is the meaning
of the expression “a situation has arisen in which the
3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1
88
Government of the State cannot be carried on in accordance
with the provisions of this Constitution” used in Article
356(1)?
54. Article 356 reads as follows:
“356. Provisions in case of failure of
constitutional machinery in States.- (1) If
the President, on receipt of report from the
Governor of a State or otherwise, is satisfied
that a situation has arisen in which the
Government of the State cannot be carried on
in accordance with the provisions of this
Constitution, the President may by
Proclamation-
(a) assume to himself all or any of the
functions of the Government of the State and
all or any of the powers vested in or
exercisable by the Governor or anybody or
authority in the State other than the
Legislature of the State;
(b) declare that the powers of the
Legislature of the State shall be exercisable
by or under the authority of Parliament;
(c) make such incidental and consequential
provisions as appear to the President to be
necessary or desirable for giving effect to
the objects of the Proclamation, including
provisions for suspending in whole or in part
the operation of any provisions of this
Constitution relating to anybody or authority
in the State :
Provided that nothing in this clause shall authorise the
President to assume to himself any of the powers vested in
or exercisable by a High Court, or to suspend in whole or in
part the operation of any provision of this Constitution
relating to High Courts.
(2) Any such Proclamation may be revoked or varied by a
subsequent Proclamation.
(3) Every Proclamation issued under this article shall be
laid before each House of Parliament and shall, except where
it is a Proclamation revoking a previous Proclamation, cease
to operate at the expiration of two months unless before the
expiration of that period it has been approved by
resolutions of both Houses of Parliament
Provided that if any such Proclamation (not being a
Proclamation revoking a previous Proclamation) is issued at
a time when the House of the People is dissolved or the
dissolution of the House of the People takes place during
the period of two months referred to in this clause, and if
a resolution approving the Proclamation has been passed by
the Council of States, but no resolution with respect to
such Proclamation has been passed by the House of the People
before the expiration of that period, the Proclamation shall
cease to operate at the expiration of thirty days from the
date on which the House of the People first sits after its
reconstitution unless before the expiration of the said
period of thirty days a resolution approving the
Proclamation has been also passed by the House of the
People.
89
(4) A Proclamation so approved shall, unless revoked, cease
to operate on the expiration of a period of six months from
the date of issue of the Proclamation :
Provided that if and so often as a resolution approving the
continuance in force of such a Proclamation is passed by
both Houses of Parliament, the Proclamation shall, unless
revoked, continue in force for a further period of six
months from the date on which under this clause it would
otherwise have ceased to operate, but no such Proclamation
shall in any case remain in force for more than three years
:
Provided further that if the dissolution of the House of the
People takes place during any such period of six months and
a resolution approving the continuance in force of such
Proclamation has been passed by the Council of States, but
no resolution with respect to the continuance in force of
such Proclamation has been passed by the House of the People
during the said period, the Proclamation shall cease to
operate at the expiration of thirty days from the date on
which the House of the People first sits after its
reconstitution unless before the expiration of the said
period of thirty days a resolution approving the continuance
in force of the Proclamation has been also passed by the
House of the People :
Provided also that in the case of the Proclamation issued
under clause (1) on the 11th day of May 1987 with respect to
the State of Punjab, the reference in the first proviso to
this clause to ‘three years’ shall be construed as a
reference to ‘five years’.
(5) Notwithstanding anything contained in clause (4), a
resolution with respect to the continuance in force of a
Proclamation approved under clause (3) for any period beyond
the expiration of one year from the date of issue of such
Proclamation shall not be passed by either House of
Parliament unless-
(a) a Proclamation of Emergency is in
operation, in the whole of India or, as the
case may be, in the whole or any part of the
State, at the time of the passing of such
resolution, and
(b) the Election Commission certifies that
the continuance in force of the Proclamation
approved under clause (3) during the period
specified in such resolution is necessary on
account of difficulties in holding general
elections to the Legislative Assembly of the
State concerned:
Provided that nothing in this clause shall
apply to the Proclamation issued under clause
(1) on the 11th day of May 1987 with respect
to the State of Punjab.”
55. Before we analyse the provisions of Article 356, it is
necessary to bear in mind the context in which the article
finds place in the Constitution. The article belongs to the
family of Articles 352 to 360 which have been incorporated
in Part XVIII dealing with “Emergency Provisions” as the
title of the said part specifically declares. Among the
preceding articles, Article
90
352 deals with Proclamation of emergency. It states that if
the President is satisfied that a grave emergency exists
whereby the security of India or of any part of the
territory thereof is threatened whether by war or external
aggression or armed rebellion, he may by Proclamation make a
declaration to that effect in respect of the whole of India
or of such part of the territory thereof as may be specified
in the Proclamation. Explanation to clause (1) of the said
article states that Proclamation of emergency declaring that
the security of India or any part of the territory thereof
is threatened by war or by external aggression or by armed
rebellion, may be made before the actual occurrence of war
or of any such aggression or rebellion if the President is
satisfied that there is imminent danger thereof. Clause (4)
of the said article requires that every Proclamation issued
under the said article shall be laid before each House of
Parliament and shall cease to operate at the expiration of
one month, unless before the expiration of that period it
has been approved by resolutions of both Houses of
Parliament. It is not necessary for our purpose to refer to
other provisions of the said article. Article 353 refers to
the effect of the Proclamation of emergency. It states that
while the Proclamation of emergency is in operation,
executive power of the Union shall extend to the giving of
the directions to any State as to the manner In which the
executive power thereof is to be exercised. It further
states that during the emergency the power of Parliament to
make laws with respect to any matter, shall include power to
make laws conferring powers and imposing duties or
authorising the conferring of powers and the imposition of
duties upon the Union or officers and authorities of the
Union as respects that matter even if it is not enumerated
in the Union List. Article 354 gives power to the President
to direct that Articles 268 and 269 which relate to the
distribution of revenue between the Union and the States
shall cease to operate during the period of emergency.
Article 358 gives power during the emergency to suspend the
provisions of Article 19 to enable the State (i.e. the
Government and Parliament of India and the Government and
the Legislature of each of the States and all local or other
authorities within the territory of India or under the
control of the Government of India) to make any law or to
take any executive action which the State would be competent
to make or to take but for the provisions contained in Part
III of the Constitution while the Proclamation of emergency
declaring that the security of India or any part of the
territory thereof is threatened by way or by external
aggression, is in operation. Such power, it appears, cannot
be assumed by the State when the security of India is
threatened by armed rebellion and the Proclamation of
emergency is issued for that purpose. Article 359 gives
power to the President to declare that the right to move any
court for the enforcement of rights conferred by Part III of
the Constitution except those conferred by Articles 20 and 2
1, shall remain suspended when a Proclamation of emergency
is in operation.
56. Article 355 makes an important provision. It casts a
duty on the Union to protect States against external
aggression and internal disturbance, and to ensure that the
Government of every State is carried “in accordance
91
with the provisions of the Constitution”. This article
corresponds to Article 277-A of the Draft Constitution.
Explaining the purpose of the said article to the
Constituent Assembly, Dr Ambedkar stated as follows:
“Some people might think that Article 277-A is
merely a pious declaration, that it ought not
to be there. The Drafting Committee has taken
a different view and I would therefore like to
explain why it is that the Drafting Committee
feels that Article 277-A ought to be there. I
think it is agreed that our Constitution,
notwithstanding the many provisions which are
contained in it whereby the Centre has been
given powers to override the Provinces,
nonetheless is a Federal Constitution and when
we say that Constitution is a Federal
Constitution, it means this, that the
Provinces are as sovereign in their field
which is left to them by the Constitution as
the Centre is in the field which is assigned
to it. In other words, barring the provisions
which permit the Centre to override any
legislation that may be passed by the
Provinces, the Provinces have a plenary
authority to make any law for the peace, order
and good government of that Province. Now,
when once the Constitution makes the provinces
sovereign and gives them plenary powers to
make any law for the peace, order and good
government of the province, really speaking,
the intervention of the Centre or any other
authority must be deemed to be barred, because
that would be an invasion of the sovereign
authority of the province. That is a
fundamental proposition which, I think, we
must accept by reason of the fact that we have
a Federal Constitution. That being so, if the
Centre is to interfere in the administration
of provincial affairs, as we propose to
authorise the Centre by virtue of Articles 278
and 278-A, it must be by and under some
obligation which the Constitution imposes upon
the Centre. The invasion must not be an
invasion which is wanton, arbitrary and
unauthorised by law. Therefore, in order to
make it quite clear that Articles 278 and 278-
A are not to be deemed as a wanton invasion by
the Centre upon the authority of the province,
we propose to introduce Article 277-A. As
Members will see, Article 277-A says that it
shall be the duty of the Union to protect
every unit, and also to maintain the
Constitution. So far as such obligation is
concerned, it will be found that it is not our
Constitution alone which is going to create
this duty and this obligation. Similar
clauses appear in the American Constitution.
They also occur in the Australian
Constitution, where the constitution, in
express terms, provides that it shall be the
duty of the Central Government to protect the
units or the States from external aggression
or internal commotion. All that we propose to
do is to add one more clause to the principle
enunciated in the American and Australian
Constitutions, namely, that it shall also be
the duty of the Union to maintain the
Constitution in the provinces as enacted by
this law. There is nothing new in this and as
I said, in view of the fact that we are
endowing the provinces with plenary powers and
making them sovereign within their own field,
it is necessary to provide that if any
invasion of the provincial
92
field is done by the Centre it is in virtue of
this obligation. It will be an act in
fulfillment of the duty and the obligation and
it cannot be treated, so far as the
Constitution is concerned, as a wanton,
arbitrary, unauthorised act. That is the
reason, why we have introduced Article 277A.”
(Constituent Assembly Debates, Vol. IX, p.
133)
57. Articles 278 and 278-A of the Draft Constitution
referred to above correspond to present Articles 356 and 357
of the Constitution respectively. Thus it is clear from
Article 355 that it is not an independent source of power
for interference with the functioning of the State
Government but is in the nature of justification for the
measures to be adopted under Articles 356 and 357. What is
however, necessary to remember in this connection is that
while Article 355 refers to three situations, viz., (i)
external aggression, (ii ) internal disturbance, and (iii)
non-carrying on of the Government of the States, in
accordance with the provisions of the Constitution, Article
356 refers only to one situation, viz., the third one. As
against this, Article 352 which provides for Proclamation of
emergency speaks of only one situation, viz., where the
security of India or any part of the territory thereof, is
threatened either by war or external aggression or armed
rebellion. The expression “internal disturbance” is
certainly of larger connotation than ” armed rebellion” and
includes situations arising out of “armed rebellion” as
well. In other words, while a Proclamation of emergency can
be made for internal disturbance only if it is created by
armed rebellion, neither such Proclamation can be made for
internal disturbance caused by any other situation nor a
Proclamation can be issued under Article 356 unless the
internal disturbance gives rise to a situation in which the
Government of tile State cannot be carried on in accordance
with the provisions of the Constitution. A mere internal
disturbance short of armed rebellion cannot justify a
Proclamation of emergency under Article 352 nor such
disturbance can justify issuance of Proclamation under
Article 356(1), unless it disables or prevents carrying on
of the Government of the State in accordance with the
provisions of the Constitution. Article 360 envisages the
Proclamation of financial emergency by the President when he
is satisfied that a situation has arisen whereby the
financial stability or credit of the country or of any part
of the territory thereof is threatened. It declares that
such Proclamation shall be laid before each House of
Parliament and shall cease to operate at the expiration of
two months unless it is approved by the resolutions of both
Houses of Parliament. We have thus emergency provisions
contained in other articles in the same part of the
Constitution.
58. The common thread running through all these articles in
Part XVIII relating to emergency provisions is that the said
provisions can be invoked only when there is an emergency
and the emergency is of the nature described therein and not
of any other kind. The Proclamation of emergency under
Articles 352, 356 and 360 is further dependent on the
satisfaction of the President with regard to the existence
of the relevant conditions precedent. The duty cast on the
Union under Article 355 also arises in the twin conditions
stated therein.
93
59. It is in the light of these other provisions relating to
the emergency that we have to construe the provisions of
Article 356. The crucial expressions in Article 356(i) are
if the President, “on the receipt of report from the
Governor of a State or otherwise” “is satisfied” that “the
situation has arisen in which the Government of the State
cannot be carried on” “in accordance with the provisions of
this Constitution”. The conditions precedent to the
issuance of the Proclamation, therefore, are: (a) that the
President should be satisfied either on the basis of a
report from the Governor of the State or otherwise, (b) that
in fact a situation has arisen in which the Government of
the State cannot be carried on in accordance with the
provisions of the Constitution. In other words, the
President’s satisfaction has to be based on objective
material. That material may be available in the report sent
to him by the Governor or otherwise or both from the report
and other sources. Further, the objective material so
available must indicate that the Government of the State
cannot be carried on in accordance with the provisions of
the Constitution. Thus the existence of the objective
material showing that the Government of the State cannot be
carried on in accordance with the provisions of the
Constitution is a condition precedent before the President
issues the Proclamation. Once such material is shown to
exist, the satisfaction of the President based on the
material is not open to question. However, if there is no
such objective material before the President, or the
material before him cannot reasonably suggest that the
Government of the State cannot be carried on in accordance
with the provisions of the Constitution, the Proclamation
issued is open to challenge.
60. It is further necessary to note that the objective
material before the President must indicate that the
Government of the State “cannot be carried on in accordance
with the provisions of this Constitution”. In other words,
the provisions require that the material before the
President must be sufficient to indicate that unless a
Proclamation is issued, it is not possible to carry on the
affairs of the State as per the provisions of the
Constitution. It is not every situation arising in the
State but a situation which shows that the constitutional
Government has become an impossibility, which alone will
entitle the President to issue the Proclamation. These
parameters of the condition precedent to the issuance of the
Proclamation indicate both the extent of and the limitations
on, the power of the judicial review of the Proclamation
issued. 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, According to us, the language of the provisions of
the article contains sufficient guidelines on both the scope
and the limitations, of the judicial review.
61. Before we examine the scope and the limitations of the
judicial review of the Proclamation issued under Article
356(1), it is necessary to deal with the contention raised
by Shri Parasaran appearing for the Union of India. He
contended that there is difference in the nature and scope
of the power of judicial review in the administrative law
and the constitutional law. While in the field of
administrative law, the court’s power extends to legal
94
control of public authorities in exercise of their statutory
power and therefore not only to preventing excess and abuse
of power but also to irregular exercise of power, the scope
of judicial review in the constitutional law extends only to
preventing actions which are unconstitutional or ultra vires
the Constitution. The areas where the judicial power,
therefore can operate are limited and pertain to the domain
where the actions of the Executive or the legislation
enacted infringe the scheme of the division of power between
the executive, the legislature and the judiciary or the
distribution of powers between the States and the Centre.
Where, there is a Bill of Rights as under our Constitution,
the areas also cover the infringements of the Fundamental
Rights. The judicial power has no scope in constitutional
law beyond examining the said infringements. He also
contended that likewise, the doctrine of proportionality or
unreasonableness has no play in constitutional law and the
executive action and legislation cannot be examined and
interfered with on the anvil of the said doctrine.
62. We are afraid that this contention is too broad to be
accepted. The implication of this contention, among others,
is that even if the Constitution provides preconditions for
exercise of power by the constitutional authorities, the
courts cannot examine whether the preconditions have been
satisfied. Secondly, if the powers are entrusted to a
constitutional authority for achieving a particular purpose
and if the authority concerned under the guise of attaining
the said purpose, uses the powers to attain an impermissible
object, such use of power cannot be questioned. We have not
been pointed out any authority in support of these
propositions. We also find that many of the parameters of
judicial review developed in the field of administrative law
are not antithetical to the field of constitutional law, and
they can equally apply to the domain covered by the
constitutional law. That is also true of the doctrine of
proportionality.
63. We may now examine the principles of judicial review
evolved in the field of administrative law. As has been
stated by Lord Brightman in Chief Constable of the North
Wales Police v. Evans” “judicial review, as the words imply,
is not an appeal from a decision, but a review of the manner
in which the decision was made”. In other words, judicial
review is concerned with reviewing not the merits of the
decision but the decision-making process itself. Lord
Diplock in Council of Civil Service Unions v. Minister for
the Civil Service8 (AC at p. 408) has enunciated three heads
of grounds upon which administrative action is subject to
control by judicial review, viz., (i) illegality, (ii)
irrationality and (iii) procedural impropriety. He has also
stated there that the three grounds evolved till then did
not rule out that “further developments on a case by case
basis may not in course of time add further grounds” and has
added that “principle of proportionality” which is
recognised in the administrative law by several members of
European Economic Community may be a possible ground for
judicial review for
13 (1982) 3 AlI ER 141:(1982) 1 WLR 1155
8 (1985) AC 374: (1984) 3 All ER 935
95
adoption in the future. It may be stated here that we have
already adopted the said ground both statutorily and
judicially in our labour and service jurisprudence. Lord
Diplock has explained the three heads of grounds. By
“illegality” he means that the decision-maker must
understand correctly the law that regulates its decision-
making power and must give effect to it, and whether he has
or has not, is a justiciable question. By “irrationality”
he means unreasonableness. A decision may be so outrageous
or in defiance of logic or of accepted moral standards that
no sensible person who had applied his mind to the question
to be decided, could have arrived at it, and it is for the
judges to decide whether a decision falls in the said
category. By “procedural impropriety” he means not only
failure to observe the basic rules of natural justice or
failure to act with procedural fairness, but also failure to
observe procedural rules that are expressly laid down in the
legislative instrument by which the tribunal’s jurisdiction
is conferred even where such failure does not involve any
denial of natural justice. Where the decision is one which
does not alter rights or obligations enforceable in private
law, but only deprives a person of legitimate expectations,
“procedural impropriety” will normally provide the only
ground on which the decision is open to judicial review.
64. It was observed by Donaldson, L.J. in R. v. Crown Court
at Carlisle, ex p Marcus-Moore 1 4 that judicial review was
capable of being extended to meet changing circumstances,
but not to the extent that it became something different
from review by developing an appellate nature. The purpose
of the remedy of judicial review is to ensure that the
individual is given fair treatment to substitute the opinion
of the judiciary or of individual judges for that of the
authority constituted by law to decide the matters in issue.
In R v. Panel on Take-overs and Mergers, ex p Guinness plc15
(LR at p. 842) he referred to the judicial review
jurisdiction as being supervisory or as ‘longstep’
jurisdiction. He observed that unless that restriction on
the power of the court is observed, the court will under the
guise of preventing the abuse of power be itself guilty of
usurping power. That is so whether or not there is a right
of appeal against the decision on the merits. The duty of
the court is to confine itself to the question of legality.
Its concern is with whether a decision-making authority
exceeded its powers, committed an error of law, committed a
breach of the rules of natural justice, reached a decision
which no reasonable tribunal could have reached or abused
its powers.
65. Lord Roskil in Council of Civil Service Unions v.
Minister for the Civil Service8 (AC at p. 414), opined that
the phrase “principles of natural justice” “be better
replaced by speaking of a duty to act fairly. … It is not
for the courts to determine whether a particular policy or
particular decisions taken in fulfillment of that policy are
fair. They are only concerned with the
14 (1981) Times 26 (October, DC)
15 (1987) QB 815: (1989) 1 All ER 509
8 (1985) AC 374: (1984) 3 All ER 935
96
manner in which those decisions have been taken and the
extent of the duty to act fairly will vary greatly from case
to case. … Many features will come into play including the
nature of the decision and the relationship of those
involved on either side before the decision was taken”.
66. In Puhlhofer v. Hillingdon London Borough Council9 Lord
Brightman stated: (AC p. 518: All ER p. 474)
“Where the existence or non-existence of a
fact is left to the judgment and discretion of
a public body and that fact involves a broad
spectrum ranging from the obvious to the
debatable to the just conceivable, it is the
duty of the court to leave the decision of
that fact to the public body to whom
Parliament has entrusted the decision-making
power save in a case where it is obvious that
the public body, consciously or unconsciously,
are acting perversely.”
67. In Leech V. Dy. Governor of Parkhurst
Prisonl6 Lord Oliver stated: (AC p. 583: All
ER p. 512)
“… the susceptibility of a decision to the
supervision of the courts must depend, in the
ultimate analysis, on the nature and
consequences of the decision and not on the
personality or individual circumstances of the
person called upon to make the decision.”
68. While we are on the point, it will be instructive to
refer to a decision of the Supreme Court of Pakistan on the
same subject, although the language of the provisions of the
relevant articles of the Pakistan Constitution is not
couched in the same terms. In Muhammad Sharif v. Federation
of Pakistan 17 the question was whether the order of the
President dissolving the National Assembly on May 29, 1988
was in accordance with the powers conferred on him under
Article 58(2)(b) of the Constitution. Article 58(2)(b) is
as follows:
“58. (2) Notwithstanding anything contained in
clause (2) of Article 48, the President may
also dissolve the National Assembly in his
discretion where, in his opinion,.
(a)
(b) a situation has arisen in which the
Government of the Federation cannot be carried
on in accordance with the provisions of the
Constitution and an appeal to the electorate
is necessary.”
The provisions of Article 48(2) are as
follows:
“Notwithstanding anything contained in clause
(1), the President shall act in his discretion
in respect of any matter in respect of which
he is empowered by the Constitution to do so
(and the validity of anything done by the
President in his discretion shall not be
called in question on any ground whatsoever).”
9 (1986) AC 484: (1986) 1 All ER 467
16 (1988) AC 533: (1988) 1 All ER 485
17 PLD (1988) Lah 725
97
The Presidential Order read as follows:
“Whereas the objects and purposes for which
the National Assembly was elected have not
been fulfilled;
And whereas the law and order in the country
have broken down to an alarming extent
resulting in tragic loss of innumerable
valuable lives as well as loss of property;
And whereas the life, property, honour and
security of the citizens of Pakistan have been
rendered totally unsafe and the integrity and
ideology of Pakistan have been seriously
endangered;
And whereas public morality has deteriorated
to unprecedented level;
And whereas in my opinion a situation has
arisen in which the Government of the
Federation cannot be carried on in accordance
with the provisions of the Constitution and an
appeal to the electorate is necessary.
Now therefore, 1, General Muhammad Zia-ul-Haq,
President of Pakistan in exercise of the
powers conferred on me by clause (2)(b) of
Article 58 of the Constitution of the Islamic
Republic of Pakistan hereby dissolve the
National Assembly with immediate effect and in
consequence thereof the Cabinet also stands
dissolved forthwith.”
69. The main argument against the order was that an order
under the said provision is to be issued not in subjective
discretion or opinion but on objective facts in the sense
that the circumstances must exist to lead one to the
conclusion that the relevant situation had arisen. As
against this, the argument of the Attorney General and other
counsel supporting the Presidential Order was that it is the
subjective satisfaction of the President and it is in his
discretion and opinion to dissolve the National Assembly.
It was also argued on their behalf that in spite of the fact
that Article 58 (2)(b) states that “notwithstanding anything
contained in clause (2) of Article 48”, the President may
also dissolve the National Assembly in his discretion under
Article 58(2) and when he does exercise his discretion to
dissolve the Assembly, the validity thereof cannot be
questioned on any ground whatsoever as provided for under
Article 48(2). Dealing with the first argument, the learned
Chief Justice Salam stated as follows:
“Whether it is ‘subjective’ or ‘objective’
satisfaction of the President or it is his
‘discretion’ or ‘opinion’, this much is quite
clear that the President cannot exercise his
powers under the Constitution on wish or whim.
He has to have facts, circumstances which can
lead a person of his status to form an
intelligent opinion requiring exercise of
discretion of such a grave nature that the
representative of the people who are primarily
entrusted with the duty of running the affairs
of the State are removed with a stroke of the
pen. His action must appear to be called for
and justifiable under the Constitution if
challenged in a Court of Law. No doubt, the
Courts will be chary to interfere in his
‘discretion’ or formation of the ‘opinion’
about the ‘situation’ but if there be no basis
or justification for the order under the
Constitution, the Courts will have to
98
perform their duty cast on them under the
Constitution. While doing so, they will not
be entering in the political arena for which
appeal to electorate is provided for.”
Dealing with the second argument, the learned
Chief Justice held:
“If the argument be correct then the provision
‘Notwithstanding anything contained in clause
(2) of Article 48’ would be rendered redundant
as if it was no part of the Constitution. It
is obvious and patent that no letter or part
of a provision of the Constitution can be said
to be redundant or non-existent under any
principle of construction of Constitutions.
The argument may be correct in exercise of
other discretionary powers but it cannot be
employed with reference to the dissolution of
National Assembly. Blanket coverage of
validity and unquestionability of discretion
under Article 48(2) was given up when it was
provided under Article 58(2) that
‘Notwithstanding clause (2) of Article 48 …
the discretion can be exercised in the given
circumstances. Specific provision will govern
the situation. This will also avoid
redundancy. Courts’ power whenever intended
to be excluded is expressly stated; otherwise
it is presumed to be there in Courts of
record. … Therefore, it is not quite right
to contend that since it was in his
‘discretion’, on the basis of his ‘opinion’
the President could dissolve the National
Assembly. He has to have reasons which are
justifiable in the eyes of the people and
supportable by law in a Court of Justice. …
It is understandable that if the President has
any justifiable reason to exercise his
‘discretion’ in his ‘opinion’ but does not
wish to disclose, he may say so and may be
believed or if called upon to explain the
reason he may take the Court in confidence
without disclosing the reason in public, may
be for reason of security of State. After all
patriotism is not confined to the officeholder
for the time being. He cannot simply say like
Caesar it is my will, opinion or discretion.
Nor give reasons which have no nexus to the
action, are bald, vague, general or such as
can always be given and have been given with
disastrous effects. …”
Dealing with the same arguments, R.S. Sidhwa,
J. stated as follows:
“I have no doubt that both the Governments are
not compelled to disclose all the reasons they
may have when dissolving the Assemblies under
Articles 58(2)(b) and 112(2)(b). If they do
not choose to disclose all the material, but
only some, it is their pigeon, for the case
will be decided on a judicial scrutiny of the
limited material placed before the Court and
if it happens to be totally irrelevant or
extraneous, they must suffer.
15. The main question that arises in this
case is when can it be said that a situation
has arisen in which the Government of the
Federation cannot be carried on in accordance
with the provisions of the Constitution. The
expression ‘Government of the Federation’ is
not limited to any one particular function,
such as the executive, the
99
legislative, or the judicial, but includes the
whole functioning of the Federation Government
in all its ramifications.”
70. We may now refer to the decisions of this Court on the
subject. In Barium Chemicals Ltd. v. Company Law Board6 the
facts were that an order was issued on behalf of the Company
Law Board under Section 237(b) of the Companies Act
appointing four inspectors to investigate the affairs of the
appellant-Company on the ground that the Board was of the
opinion that there were circumstances suggesting that the
business of the appellant Company was being conducted with
intent to defraud its creditors, members or any other
persons and that the persons concerned in the management of
the affairs of the Company had in connection therewith, been
guilty of fraud, misfeasance and other misconduct towards
the Company and its members. The appellant-Company had
filed a writ petition before the High Court challenging the
said order and one of the grounds of challenge was that
there was no material on which such order could have been
made. In reply to the petition, the Chairman of the Company
Law Board filed an affidavit in which it was contended,
inter alia, that there was material on the basis of which
the order was issued and that he had himself examined this
material and formed the necessary opinion within the meaning
of the said Section 237(b) before the issue of the order and
that it was not competent for the Court to go into the
question of the adequacy or otherwise of such material.
However, in the course of reply to some of the allegations
in the petition, the affidavit in paragraph 14 had also
proceeded to state the facts on the basis of which the
opinion was formed. The majority of the judges held that
the circumstances disclosed in paragraph 14 of the said
affidavit must be regarded as the only material on the basis
of which the Board formed the opinion before ordering an
investigation under Section 237(b) and that the said
circumstances could not reasonably suggest that the business
of the Company was being conducted to defraud the creditors,
members or other persons or that the management was guilty
of fraud towards the Company and its members. They were,
therefore, extraneous to the matters mentioned in Section
237(b) and the impugned order was ultra vires the section.
Hidayatullah J., as he then was, in this connection stated
that the power under Section 237(b) is discretionary power
and the first requirement for its exercise is the honest
formation of an opinion that an investigation is necessary
and the next requirement is that there are circumstances
suggesting the inferences set out in the section. An action
not based on circumstances suggesting an inference of the
enumerated kind will not be valid. Although the formation
of opinion is subjective, the existence of circumstances
relevant to the inference as the sine qua non for action,
must be demonstrable. If their existence is questioned, it
has to be proved at least prima facie. It is not sufficient
to assert that the circumstances exist, and give no clue to
what they are, because the circumstances must be such as to
lead to conclusions of certain definiteness. Shelat, J.
commenting on the same
6 1966 Supp SCR 31 1: AIR 1967 SC 295: (1966) 36 Comp Cas
639
100
issue, stated that although the formation of opinion is
purely subjective process and such an opinion cannot be
challenged in a court on the ground of propriety,
reasonableness or sufficiency, the authority concerned is
nevertheless required to arrive at such an opinion from
circumstances suggesting what is set out in sub-clauses (i),
(ii) or (iii) of Section 237(b). The expression
“circumstances suggesting” cannot support the construction
that even the existence of circumstances is a matter of
subjective opinion. It is hard to contemplate that the
legislature could have left to the subjective process both
the formation of opinion and also the existence of
circumstances on which it is to be founded. It is also not
reasonable to say that the clause permitted the authority to
say that it has formed the opinion on circumstances which in
its opinion exists and which in its opinion suggest an
intent to defraud or a fraudulent or unlawful purpose. If
it is shown that the circumstances do not exist or that they
are such that it is impossible for anyone to form an opinion
therefrom suggestive of the matters enumerated in Section
237(b), the opinion is challengeable on the ground of non-
application of mind or perversity or on the ground that it
was formed on collateral grounds and was beyond the scope of
the statute.
71. In M.A. Rasheed v. State of Kerala18 the facts were that
the respondent-State issued a notification under Rule 114(2)
of the Defence of India Rules, 1971 imposing a total ban on
the use of machinery for defibring husks in the Districts of
Trivandrum, Quilon and Alleppey. The appellants who were
owners of Small Scale Industrial Units, being affected by
the notification, challenged the same. In that connection,
this Court observed that where powers are conferred on
public authorities to exercise the same when “they are
satisfied” or when “it appears to them” or when “in their
opinion” a certain state of affairs existed, or when powers
enable public authorities to take “such action as they think
fit” in relation to a subjectmatter, the courts will not
readily defer to the conclusiveness of an executive
authority’s opinion as to the existence of a matter of law
or fact upon which the validity of the exercise of the power
is predicated. Administrative decisions in exercise of
powers conferred in subjective terms are to be made in good
faith and on relevant considerations. The courts can
inquire whether a reasonable man could have come to the
decision in question without misdirecting himself or the law
or the facts in a material respect. The standard of
reasonableness to which the administrative body is required
to conform may range from the court’s opinion of what is
reasonable to the criterion of what a reasonable body might
have decided; and courts will find out whether conditions
precedent to the formation of the opinion have a factual
basis. But the onus of establishing unreasonableness rests
upon the person challenging the validity of the acts.
72. In State of Rajasthan v. Union of India3 Bhagwati, J.
on behalf of Gupta, J. and himself, while dealing with the
“satisfaction of the President”
18 (1974) 2 SCC 687: (1975) 2 SCR 93
3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1
101
prior to the issuance of the Proclamation under Article
356(1) stated as follows: (SCR pp. 80-83: SCC pp. 661, 662-
63, paras 149 and 150)
“So long as a question arises whether an
authority under the Constitution has acted
within the limits of its power or exceeded it,
it can certainly be decided by the Court.
Indeed it would be its constitutional
obligation to do so. … This Court is the
ultimate interpreter of the Constitution and
to this Court is assigned the delicate task of
determining what is the power conferred on
each branch of Government, whether it is
limited, and if so, what are the limits and
whether any action of that branch transgresses
such limits. It is for this Court to uphold
the constitutional values and to enforce the
constitutional limitations. That is the
essence of the rule of law.
We must make it clear that the constitutional
jurisdiction of this Court is confined only to
saying whether the limits on the power
conferred by the Constitution have been
observed or there is transgression of such
limits. Here the only limit on the power of
the President under Article 356, clause (1) is
that the President should be satisfied that a
situation has arisen where the Government of
the State cannot be carried on in accordance
with the provisions of the Constitution. The
satisfaction of the President is a subjective
one and cannot be tested by reference to any
objective tests. It is deliberately and
advisedly subjective because the matter in
respect to which he is to be satisfied is of
such a nature that its decision must
necessarily be left to the executive branch of
Government. 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. It is not
a decision which can be based on what the
Supreme Court of the United States has
described as ‘judicially discoverable and
manageable standards’. It would largely be a
political judgment based on assessment of
diverse and varied factors, fast changing
situations, potential consequences, public
reaction, motivations and responses of
different classes of people and their
anticipated future behaviour and a host of
other considerations, in the light of
experience of public affairs and pragmatic
management of complex and often curious
adjustments that go to make up the highly
sophisticated mechanism of a modem democratic
government. It cannot, therefore, by its very
nature be a fit subject-matter for judicial
determination and hence it is left to the
subjective satisfaction of the Central
Government which is best in a position to
decide it. The court cannot in the
circumstances, go into the question of
correctness or adequacy of the facts and
circumstances on which the satisfaction of the
Central Government is based. … But one thing
is certain that 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
102
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,
clause (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. … It must of
course be conceded that in most cases it would
be difficult, if not impossible, to challenge
the exercise of power under Article 356,
clause (1) even on this limited ground,
because the facts and circumstances on which
the satisfaction is based would not be known,
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. … This is
the narrow minimal area in which the exercise
of power under Article 356, clause (1) is
subject to judicial review and apart from it,
cannot rest with the court to challenge the
satisfaction of the President that the
situation contemplated in that clause exists.”
73. In Kehar Singh v. Union of India19 it is held that the
President power under Article 72 of the Constitution dealing
with the grant of pardons, reprieves, respites, remissions
of punishments or suspensions, remissions or commutations of
sentences of any person convicted of any offence falls
squarely within the judicial domain and can be examined by
the court by way of judicial review. However, the order of
the President cannot be subjected to judicial review on its
merits except within the strict limitations defined in Maru
Rain v. Union of India2O. Those limitations are whether the
power is exercised on considerations or actions which are
wholly irrelevant, irrational, discriminatory or mala fide.
Only in these rare cases the court will examine the exercise
of the said power.
74. From these authorities, one of the conclusions which
may safely be drawn is that the exercise of power by the
President under Article 356(1) to issue Proclamation is
subject to the judicial review at least to the extent of
examining whether the conditions precedent to the issuance
of the Proclamation have been satisfied or not. This
examination will necessarily involve the scrutiny as to
whether there existed material for the satisfaction of the
President that a situation had arisen in which the
Government of the State could not be carried on in
accordance with the provisions of the Constitution.
Needless to emphasise that it is not any material but
material which would lead to the conclusion that the
Government of the State cannot be carried on in accordance
with the provisions of the Constitution which is relevant
for the purpose. It has further to be remembered that the
article requires that the President “has to be satisfied”
that the situation in question has arisen. Hence the
material in question has to be such as would induce a
reasonable man to come to the conclusion in question. The
expression used
19 (1989) 1 SCC 204: 1989 SCC (Cri) 86: 1988 Supp 3 SCR 1102
20 (1981) 1 SCC 107: 1981 SCC (Cri) 112: (1981) 1 SCR 1196
103
in the article is “if the President … is satisfied”. The
word “satisfied” has been defined in Shorter Oxford English
Dictionary (3rd Edn. at p. 1792) :
“4. To furnish with sufficient proof or
information, to set free from doubt or
uncertainty, to convince; 5. To answer
sufficiently (an objection, question); to
fulfill or comply with (a request); to solve
(a doubt, difficulty); 6. To answer the
requirements of (a state of things,
hypothesis, etc.); to accord with
(conditions).”
Hence, it is not the personal whim, wish, view or opinion or
the ipse dixit of the President dehors the material but a
legitimate inference drawn from the material placed before
him which is relevant for the purpose. In other words, the
President has to be convinced of or has to have sufficient
proof of information with regard to or has to be free from
doubt or uncertainty about the state of things indicating
that the situation in question has arisen. Although,
therefore, the sufficiency or otherwise of the material
cannot be questioned, the legitimacy of inference drawn from
such material is certainly open to judicial review.
75. It has also to be remembered in this connection that
the power exercised by the President under Article 356(1) is
on the advice of the Council of Ministers tendered under
Article 74(1) of the Constitution. The Council of Ministers
under our system would always belong to one or the other
political party. In view of the pluralist democracy and the
federal structure that we have accepted under our
Constitution, the party or parties in power (in case of
coalition Government) at the Centre and in the States may
not be the same. Hence there is a need to confine the
exercise of power under Article 356(1) strictly to the
situation mentioned therein which is a condition precedent
to the said exercise. That is why the Framers of the
Constitution have taken pains to specify the situation which
alone would enable the exercise of the said power. The
situation is no less than one in which “the Government of
the State cannot be carried on in accordance with the
provisions of this Constitution”. A situation short of the
same does not empower the issuance of the Proclamation. The
word “cannot” emphatically connotes a situation of impasse.
In Shorter Oxford Dictionary, 3rd Edn., at page 255, the
word “can” is defined as “to be able; to have power or
capacity”. The word “cannot”, therefore, would mean “not to
be able” or “not to have the power or capacity”. In
Stroud’s Judicial Dictionary, 5th Edn., the word “cannot” is
defined to include a legal inability as well as physical
impossibility. Hence situations which can be remedied or do
not create an impasse, or do not disable or interfere with
the governance of the State according to the Constitution,
would not merit the issuance of the Proclamation under the
article.
76. It has also to be remembered that a situation
contemplated under the article is one where the Government
of the State cannot be carried on “in accordance with the
provisions of this Constitution”. The expression indeed
envisages varied situations. Article 365 which is in Part
XIX entitled “Miscellaneous”, has contemplated one such
situation. It states that:
104
“Where any State has failed to comply with or
to give effect to any directions given in the
exercise of the executive power of the Union
under any of the provisions of this
Constitution, it shall be lawful for the
President to hold that a situation has arisen
in which the Government of the State cannot be
carried on in accordance with the provisions
of this Constitution.”
77. The failure to comply with or to give effect to the
directions given by the Union under any of the provisions of
the Constitution, is of course, not the only situation
contemplated by the expression “Government of the State
cannot be carried on in accordance with the provisions of
this Constitution”. Article 365 is more in the nature of a
deeming provision. However, the situations other than those
mentioned in Article 365 must be such where the governance
of the State is not possible to be carried on in accordance
with the provisions of the Constitution. In this
connection, we may refer to what Dr Ambedkar had to say on
the subject in the Constituent Assembly:
“Now I come to the remarks made by my Friend
Pandit Kunzru. The first point, if I remember
correctly, which was raised by him was that
the power to take over the administration when
the constitutional machinery fails is a new
thing, which is not to be found in any
constitution. I beg to differ from him and I
would like to draw his attention to the
article contained in the American
Constitution, where the duty of the United
States is definitely expressed to be to
maintain the Republican form of the
Constitution. When we say that the
Constitution must be maintained in accordance
with the provisions contained in this
Constitution we practically mean what the
American Constitution means, namely that the
form of the constitution prescribed in this
Constitution must be maintained. Therefore,
so far as that point is concerned we do not
think that the Drafting Committee has made any
departure from an established principle.”
(Constituent Assembly Debates, Vol. IX, pp.
175-76)
78. As pointed out earlier, more or less similar expression
occurs in Article 58(2)(b) of the Pakistani Constitution.
The expression there is that the “Government of the
Federation cannot be carried on in accordance with
provisions of the Constitution and an appeal to the
electorate is necessary”. Commenting upon the said
expression, Shafiur Rahman, J. in Khaja Ahmad Tariq Rahim v.
Federation of Pakistan2l (PLD at p. 664) observed:
“It is an extreme power to be exercised where
there is actual or imminent breakdown of the
constitutional machinery, as distinguished
from a failure to observe a particular
provision of the Constitution. There may be
occasions for the exercise of this power where
there takes place extensive, continued and
pervasive failure to observe not one but
numerous, provisions of the Constitution,
creating the impression that the country is
governed not so much by the Constitution but
by the methods extra-Constitutional.”
21 PLD (1992) SC 646, 664
105
79. Sidhwa, J. in the same case observed that:
“to hold that because a particular provision
of the Constitution was not complied with, the
National Assembly could be dissolved under
Article 58(2)(b) of the Constitution would
amount to an abuse of power. Unless such a
violation independently was so grave that a
court could come to no other conclusion but
that it alone directly led to the breakdown of
the functional working of the Government, it
would not constitute a valid ground.”
80. The expression and its implication have also been the
subject of elaborate discussion in the Report of the
Sarkaria Commission on Centre State relations. It will be
advantageous to refer to the relevant part of the said
discussion, which is quite illuminating:
“6.3.23 In Article 356, the expression ‘the
Government of the State cannot be carried on
in accordance with the provisions of the
Constitution’, is couched in wide terms. It
is, therefore, necessary to understand its
true import and ambit. In the day-to-day
administration of the State, its various
functionaries in the discharge of their
multifarious responsibilities take decisions
or actions which may not, in some particular
or the other, be strictly in accord with all
the provisions of the Constitution. Should
every such breach or infraction of a
constitutional provision, irrespective of its
significance, extent and effect, be taken to
constitute a ‘failure of the constitutional
machinery’ within the contemplation of Article
356. In our opinion, the answer to the
question must be in the negative. We have
already noted that by virtue of Article 355 it
is the duty of the Union to ensure that the
Government of every State is carried on in
accordance with the provisions of the
Constitution. Article 356, on the other hand,
provides the remedy when there has been an
actual breakdown of the constitutional
machinery of the State. Any abuse or misuse
of this drastic power damages the fabric of
the Constitution, whereas the object of this
article is to enable the Union to take
remedial action consequent upon breakdown of
the constitutional machinery, so that
governance of the State in accordance with the
provisions of the Constitution, is restored.
A wide literal construction of Article 356(1),
will reduce the constitutional distribution of
the powers between the Union and the States to
a licence dependent on the pleasure of the
Union Executive. Further it will enable the
Union Executive to cut at the root of the
democratic parliamentary form of Government in
the State. It must, therefore, be rejected in
favour of a construction which will preserve
that form of Government. Hence, the exercise
of the power under Article 356 must be limited
to rectifying a ‘failure of the constitutional
machinery in the State’. The marginal heading
of Article 356 also points to the sam
e
construction.
6.3.24 Another point for consideration is,
whether ‘external aggression’ or ‘internal
disturbance’ is to be read as an indispensable
element of the situation of failure of the
constitutional machinery in a State, the
existence of which is a prerequisite for the
exercise of the
106
power under Article 356. We are clear in our
mind that the answer to this question should
be in the negative. On the one hand,
‘external aggression’ or ‘internal
disturbance’ may not necessarily create a
situation where Government of the State cannot
be carried on in accordance with the
Constitution. On the other, a failure of the
constitutional machinery in the State may
occur, without there being a situation of
‘external aggression’ or ‘internal
disturbance’.
6.4.01 A failure of constitutional
machinery may occur in a number of ways.
Factors which contribute to such a situation
are diverse and imponderable. It is,
therefore, difficult to give an exhaustive
catalog of all situations which would fall
within the sweep of the phrase, ‘the
Government of the State cannot be carried on
in accordance with the provisions of this
Constitution’. Even so, some instances of
what does and what does not constitute a
constitutional failure within the
contemplation of this article, may be grouped
and discussed under the following heads:
(a) Political crises.
(b) Internal subversion.
(c) Physical breakdown.
(d) Non-compliance with constitutional
directions of the Union Executive.
It is not claimed that this categorisation is
comprehensive or perfect. There can be no
watertight compartmentalisation, as many
situations of constitutional failure will have
elements of more than one type. Nonetheless,
it will help determine whether or not, in a
given situation it will be proper to invoke
this last-resort power under Article 356.”
81. The Report then goes on to discuss the various
occasions on which the political crisis, internal
subversion, physical breakdown and noncompliance with
constitutional directions of the Union Executive may or can
be said to, occur. It is not necessary here to refer to the
said elaborate discussion. Suffice it to say that we are in
broad agreement with the above interpretation given in the
Report, of the expression “the Government of the State
cannot be carried on in accordance with the provisions of
this Constitution”, and are of the view that except in such
and similar other circumstances, the provisions of Article
356 cannot be pressed into service.
82. It will be convenient at this stage itself, also to
illustrate the situations which may not amount to failure of
the constitutional machinery in the State inviting the
Presidential power under Article 356(1) and where the use of
the said power will be improper. The examples of such
situations are given in the Report in paragraph 6.5.01. They
are:
“(i) A situation of maladministration in a
State where a duly constituted Ministry
enjoying majority support in the Assembly, is
in office. Imposition of President’s rule in
such a situation will be
107
extraneous to the purpose for which the power
under Article 356 has been conferred. It was
made indubitably clear by the Constitution-
framers that this power is not meant to be
exercised for the purpose of securing good
Government.
(ii) Where a Ministry resigns or is dismissed
on losing its majority support in the Assembly
and the Governor recommends, imposition of
President’s rule without exploring the
possibility of installing an alternative
Government enjoying such support or ordering
fresh elections.
(iii)Where, despite the advice of a duly
constituted Ministry which has not been
defeated on the floor of the House, the
Governor declines to dissolve the Assembly and
without giving the Ministry an opportunity to
demonstrate its majority support through the
‘floor test’, recommends its supersession and
imposition of President’s rule merely on his
subjective assessment that the Ministry no
longer commands the confidence of the
Assembly.
(iv) Where Article 356 is sought to be
invoked for superseding the duly constituted
Ministry and dissolving the State Legislative
Assembly on the sole ground that, in the
General Elections to the Lok Sabha,
the ruling party in the State, has suffered a
massive defeat.
(v) Where in a situation of ‘internal
disturbance’, not amounting to or verging on
abdication of its governmental powers by the
State Government, all possible measures to
contain the situation by the Union in the
discharge of its duty, under Article 355, have
not been exhausted.
(vi) The use of the power under Article 356
will be improper if, in the illustrations
given in the preceding paragraphs 6.4.10,
6.4.11 and 6.4.12, the President gives no
prior warning or opportunity to the State
Government to correct itself. Such a warning
can be dispensed with only in cases of extreme
urgency where failure on the part of the Union
to take immediate action, under Article 356,
will lead to disastrous consequences.
(vii) Where in response to the prior warning
or notice or to an informal or formal
direction under Articles 256, 257, etc., the
State Government either applies the corrective
and thus complies with the direction, or
satisfies the Union Executive that the warning
or direction was based on incorrect facts, it
shall not be proper for the President to hold
that ‘a situation has arisen in which the
Government of the State cannot be carried on
in accordance with the provisions of this
Constitution’. Hence, in such a situation,
also, Article 356 cannot be properly invoked.
(viii) The use of this power to sort out
internal differences or intra-party problems
of the ruling party would not be
constitutionally correct.
(ix) This power cannot be legitimately
exercised on the sole ground of stringent
financial exigencies of the State.
108
(x) This power cannot be invoked, merely on
the ground that there are serious allegations
of corruption against the Ministry.
(xi) The exercise of this power, for a
purpose extraneous or irrelevant to the one
for which it has been conferred by the
Constitution, would be vitiated by legal mala
fides.”
We have no hesitation in concurring broadly with the above
illustrative occasions where the exercise of power under
Article 356(1) would be improper and uncalled for.
83. It was contended on behalf of the Union of India that
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
clause (2) of the said article 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 tile Proclamation also stands
barred. This contention is fallacious for reasons more than
one. In the first instance, it is based on a misconception
of the purpose of Article 74(2). As has been rightly
pointed out by Shri Shanti Bhushan, the object 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.
What advice, if any, was tendered by the Ministers to the
President was thus to be beyond the scrutiny of the court.
84. A good deal of light on the said purpose of the
provision is thrown by its history. Identical provisions
were contained in Sections 10(4) and 51(4) of the Government
of India Act, 1935. However, in the Government of India
Act, 1915, as amended by the Act of 1919 it was provided
under Section 52(3) as follows:
“In relation to the transferred subjects, the
Governor shall be guided by the advice of his
Ministers, unless he sees sufficient cause to
dissent from their opinion, in which case he
may require action to be taken otherwise than
in accordance with that advice:”
85. The relations of the Governor General and the Governor
with the Ministers were not regulated by the Act but were
left to be governed by an Instrument of Instructions issued
by the Crown. It was considered undesirable to define these
relations in the Act or to impose an obligation on the
Governor General or Governor to be guided by the advice of
their Ministers, since such a course might convert a
constitutional convention into a rule of law and thus bring
it within the cognisance of the court. Prior to the
Constitution (42nd Amendment) Act, 1976, under the
constitutional convention, the President was bound to act in
accordance with the advice of
109
the Council of Ministers (Re: Shamsher Singh v. State of
Punjab22.) By the 42nd Amendment, it was expressly so
provided in Article 74(1). The object of Article 74(2) was
thus not to exclude any material or document from the
scrutiny of the courts. This is not to say that the rule of
exclusion laid down in Section 123 of the Indian Evidence
Act is given a go-by. However, it only emphasises that the
said rule can be invoked in appropriate cases.
86. What is further, 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 courts are not
interested in either the advice given by the Ministers to
the President or the reasons for such advice. 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. 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. In this connection, we may
quote Justice Mathew, who in the case of State of U. P. v.
Raj Narain23 observed as follows: (SCR p. 360: SCC p. 454,
para 74)
“To justify a privilege, secrecy must be
indispensable to induce freedom of official
communication or efficiency in the transaction
of official business and it must be further a
secrecy which has remained or would have
remained inviolable but for the compulsory
disclosure. In how many transactions of
official business is there ordinarily such a
secrecy? If there arises at any time a
genuine instance of such otherwise inviolate
secrecy, let the necessity of maintaining it
be determined on its merits.”
87. Since further the Proclamation issued under Article
356(1) is required by clause (3) of that article to be laid
before each House of Parliament and ceases to operate on the
expiration of two months unless it has been approved by
resolutions by both the Houses of Parliament before the
expiration of that period, it is evident that the question
as to whether a Proclamation should or should not have been
made, has to be discussed on the floor of each House and the
two Houses would be entitled to go into the material on the
basis of which the Council of Ministers had tendered the
advice to the President for issuance of the Proclamation.
Hence the secrecy claimed in respect of the material in
question cannot remain inviolable, and the plea of non-
disclosure of the material can hardly be pressed. When the
Proclamation is challenged by making out a prima facie case
with regard to its invalidity, the burden would be on the
Union Government to satisfy that
22 (1974) 2 SCC 831: 1974 SCC (L&S) 550: (1975) 1 SCR 814
23 (1975) 4 SCC 428: (1975) 3 SCR 333
110
there exists material which showed that the Government could
not be carried on in accordance with the provisions of the
Constitution. Since such material would be exclusively
within the knowledge of the Union Government, in view of the
provisions of Section 106 of the Evidence Act, the burden of
proving the existence of such material would be on the
Union Government.
88. A further question which has been raised in this
connection is whether the validity of the Proclamation
issued under Article 356(1) can be under clause (3) of
Article 356. There is no reason to make a distinction
between the Proclamation so approved and a legislation
enacted by Parliament. If the Proclamation is invalid, it
does not stand validated merely because it is approved of by
Parliament. The grounds for challenging the validity of the
Proclamation may be different from those challenging the
validity of a legislation. However, that does not make any
difference to the vulnerability of the Proclamation on the
limited grounds available. As has been stated by Prof.
H.W.R. Wade in Administrative Law, 6th Edn.:
“There are many cases where some
administrative order or regulation is required
by statute to be approved by resolutions of
the Houses. But this procedure in no way
protects the order or regulation from being
condemned by the court, under the doctrine of
ultra vires, if it is not strictly in
accordance with the Act. Whether the
challenge is made before or after the Houses
have given their approval is immaterial. (p.
29)
parliamentary approval does not affect the
normal operation of judicial review. (p. 411)
As these cases show, judicial review is in no
way inhibited by the fact that rules or
regulations have been laid before Parliament
and approved, despite the ‘ruling of the House
of Lords that the test of unreasonableness
should not then operate in its normal way.
The Court of Appeal has emphasised that in the
case of subordinate legislation such as an
Order in Council approved in draft by both
Houses, ‘the courts would without doubt be
competent to consider whether or not the Order
was properly made in the sense of being intra
vires’.” (p. 870)
89. In this connection a reference may also be made to R v.
H.M. Treasury ex p Smedley24 from which decision the learned
author has extracted the aforesaid observations.
90. We may also point out that the deletion of clause (5)
of Article 356, as it stood prior to its deletion by the
Constitution ‘ 44th Amendment) Act in 1978, has made no
change in the legal position that the satisfaction of the
President under clause (1) of Article 356, was always
judicially reviewable. The clause read as follows:
24 (1985) QB 657: (1985) 2 WLR 576 (CA)
111
“5. Notwithstanding anything in this
Constitution, the satisfaction of the
President mentioned in clause (1), shall be
final and conclusive and shall not be
questioned in any court on any ground.”
91. On the other hand, the deletion of the clause has
reinforced the earlier legal position, viz., that
notwithstanding the existence of the clause (5), the
satisfaction of the President under clause (1) was
judicially reviewable and the judicial review was not barred
on account of the presence of the clause. In this
connection, we may usefully refer to the decision of this
Court in State of Rajasthan v. Union of India3 where it was
unanimously held that in spite of the said finality clause,
the Presidential Proclamation was subject to judicial review
on various grounds. It was observed there as
follows: (SCR pp. 72, 82: SCC pp. 653, 663, paras 143, 150)
“This is indeed a very drastic power which, if
misused or abused, can destroy the
constitutional equilibrium between the Union
and the States and its potential for harm was
recognised even by the Constitution-makers.
Of course by reason of clause (5) of Article
356, the satisfaction of the President is
final and conclusive and cannot be assailed on
any ground, but this immunity from attack
cannot apply where the challenge is not that
the satisfaction is improper or unjustified,
but that there is no satisfaction at all. In
such a case it is not the satisfaction arrived
at by the President which is challenged, but
the existence of the satisfaction itself.”
92. It was accordingly held that in view of the finality
clause, the narrow area in which the exercise of power under
Article 356 was subject to judicial review included the
grounds where the satisfaction is perverse or mala fide or
based on wholly extraneous and irrelevant grounds and was,
therefore, no satisfaction at all.
93. In A.K. Roy v. Union of India25 (SCC p. 297: SCR p.
297) the Court has observed that “clause (5) has been
deleted by the 44th Amendment and, therefore, any
observations made in the State of Rajasthan case3 on the
basis of that clause cannot any longer hold good”. These
observations imply that after the deletion of clause (5),
the judicial review of the Proclamation issued under Article
356(1) has become wider than indicated in the State Of
Rajasthan case3.
94. In Kihoto Hollohan v. Zachillhu10 the Court has
observed that: (SCC p. 708, para 101)
“An ouster clause confines judicial review in
respect of actions falling outside the
jurisdiction of the authority taking such
action but precludes challenge to such action
on the ground of an error committed in the
exercise of jurisdiction vested in the
authority because such an action cannot be
said to be an action without jurisdiction.”
3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1
SCR 1
25 (1982) 1 SCC 271: 1982 SCC (Cri) 152:
(1982) 2 SCR 272
10 1992 Supp (2) SCC 651
112
95. Again in Union of India v. Jyoti Prakash Mitter26 and
Union of India clause restricting the scope of judicial
review, the judicial review would be confined to
jurisdictional efforts only, viz., infirmities based on
violation of constitutional mandates, mala fides, non-
compliance with rule of natural justice and perversity”.
These observations are of course, in the field of
administrative law and hence a reference to the rule of
natural justice has to be viewed in that light.
96. 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 we may place 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.
97. We may in this connection, refer to the principles of
federalism and democracy which are embedded in our
Constitution. Article 1 of the Constitution states that
India shall be a Union of States. Thus the States are
constitutionally recognised units and not mere convenient
administrative divisions. Both the Union and the States
have sprung from the provisions of the Constitution. The
learned author, H.M. Seervai, in his commentary
Constitutional Law of India (p. 166, 3rd Edn. _ 5.36) has
summed up the federal nature of our Constitution by
observing that the federal principle is dominant in our
Constitution and the principle of federalism has not been
watered down for the following reasons:t
“(a) It is no objection to our Constitution
being federal that the States were not
independent States before they became parts of
a Federation. A federal situation existed,
first, when the British Parliament
26 (1971) 1 SCC 396: (1971) 3 SCR 483
27 (1985) 3 SCC 398: 1985 SCC (L&S) 672:
1985 Supp 2 SCR 131
+ Ed.: See in 4th Edn. at p. 301 s 5.34
113
adopted a federal solution in the G.I. Act,
1935, and secondly, when the Constituent
Assembly adopted a federal solution in our
Constitution;
(b) Parliament’s power to alter the boundaries
of States without their consent is a breach of
the federal principle, but in fact it is not
Parliament which has, on its own, altered the
boundaries of States, By extra-constitutional
agitation, the States have forced Parliament
to alter the boundaries of States. In
practice, therefore, the federal principle has
not been violated;
(c) The allocation of the residuary power of
legislation to Parliament (i.e. the
Federation) is irrelevant for determining the
federal nature of a Constitution. The U.S.
and the Australian Constitutions do not confer
the residuary power on the Federation but on
the States, yet those Constitutions are
indisputably federal;
(d) External sovereignty is not relevant to
the federal nature of a Constitution, for such
sovereignty must belong to the country as a
whole. But the division of internal
sovereignty by a distribution of legislative
powers is an essential feature of federalism,
and our Constitution possesses that feature.
With limited exceptions, the Australian
Constitution confers overlapping legislative
powers on the States and the Commonwealth,
whereas List 11, Schedule VII of our
Constitution confers exclusive powers of
legislation on the States, thus emphasising
the federal nature of our Constitution;
(e) The enactment in Article 352 of the
emergency power arising from war or external
aggression which threatens the security of
India merely recognises de jure what happens
de facto in great federal countries like the
U.S., Canada and Australia in times of war, or
imminent threat of war, because in war, these
federal countries act as though they were
unitary. The presence in our Constitution of
exclusive legislative powers conferred on the
States makes it reasonable to provide that
during the emergency created by war or
external aggression, the Union should have
power to legislate on topics exclusively
assigned to the States and to take
corresponding executive action. The Emergency
Provisions, therefore, do not dilute the
principle of Federalism, although the abuse of
those provisions by continuing the emergency
when the occasion which caused it had ceased
to exist does detract from the principle of
Federal Government. The amendments introduced
in Article 352 by the 44th Amendment have, to
a considerable extent, reduced the chances of
such abuse. And by deleting the clauses which
made the declaration and the continuance of
emergency by the President conclusive, the
44th Amendment has provided opportunity for
judicial review which, it is submitted, the
courts should not lightly decline when as a
matter of common knowledge, the emergency has
ceased to exist. This deletion of the
conclusive satisfaction of the President has
been prompted not only by the abuse of the
Proclamation of emergency arising out of war
or external aggression, but, even more, by th
e
wholly unjustified Proclamation of emergency
issued in 1975 to protect the personal
position of the Prime Minister;
114
(f) The power to proclaim an emergency
originally on the ground of internal
disturbance, but now only on the ground of
armed rebellion, does not detract from the
principle of federalism because such a power,
as we have seen exists in indisputably federal
constitutions. Deb Sadhan Roy v. State of
W.B.28 has established that internal violence
would ordinarily interfere with the powers of
the federal Government to enforce its own laws
and to take necessary executive action.
Consequently, such interference can be put
down with the total force of the United
States, and the same position obtains in
Australia;
(g) The provisions of Article 355 imposing a
duty on the Union to protect a State against
external aggression and internal disorder are
not inconsistent with the federal principle.
The war power belongs to the Union in all
Federal Governments, and therefore the defence
of a State against external aggression is
essential in any Federal Government. As to
internal disturbance, the position reached in
Deb case28 shows that the absence of an
application by the State does not materially
affect the federal principle. Such
application has lost its importance in the
United States and in Australia;
(h) Since it is of the essence of the
federal principle that both federal and State
laws operate on the same individual, it must
follow that in case of conflict of a valid
federal law and a valid State law, the federal
law must prevail and our Constitution so
provides in Article 254, with an exception
noted earlier which does not affect the
present discussion;
(i) It follows from what is stated in (g)
above, that federal laws must be implemented
in the States and that the federal executive
must have power to take appropriate executive
action under federal ‘laws in the State,
including the enforcement of those laws.
Whether this is done by setting up in each
State a parallel federal machinery of law
enforcement, or by using the existing State
machinery, is a matter governed by practical
expediency which does not affect the federal
principle. In the United States, a defiance
of Federal law can be, and, as we have seen,
has been put down by the use of Armed Forces
of the U.S. and the National Militia of the
States. This is not inconsistent with the
federal principle in the United States. Our
Constitution has adopted the method of
empowering the Union Government to give
directions to the States to give effect to the
Union law and to prevent obstruction in the
working of the Union law. Such a power,
though different in form, is in substance the
same as the power of the Federal Government in
the U.S. to enforce its laws, if necessary by
force. Therefore, the power to give
directions to the State Governments does not
violate the federal principle;
(j) Article 356 (read with Article 355)
which provides for the failure of
constitutional machinery was based of Article
4, Section 4 of the U.S. Constitution and
Article 356, like Article 4, Section 4, is not
inconsistent with the federal principle. As
stated earlier, these provisions were meant to
be the last resort, but have been gravely
abused and can therefore be
28 (1972) 1 SCC 308: 1972 SCC (Cri) 45: AIR
1972 SC 1924
115
said to affect the working of the Constitution
as a Federal Government. But the recent
amendment of Article 356 by the 44th
Amendment, and the submission to be made
hereafter that the doctrine of the political
question does not apply in India, show that
the courts can now take a more active part in
preventing a mala fide or improper exercise of
the power to impose a President’s rule,
unfettered by the American doctrine of the
political question;
(k) The view that unimportant matters were
assigned to the States cannot be sustained in
face of the very important subjects assigned
to the States in List 11, and the same applies
to taxing powers of the States, which are made
mutually exclusive of the taxing powers of the
Union so that ordinarily the States have
independent source of revenue of their own.
The legislative entries relating to taxes in
List 11 show that the sources of revenue
available to the States are substantial and
would increasingly become more substantial.
In addition to the exclusive taxing powers of
the States, the States become entitled either
to appropriate taxes collected by the Union or
to a share in the taxes collected by the
Union.”
98. In this connection, we may also refer to what Dr
Ambedkar had to say while answering the debate in the
Constituent Assembly in the context of the very Articles
355, 356 and 357. The relevant portion of his speech has
already been reproduced above. He has emphasised there that
notwithstanding the fact that there are many provisions in
the Constitution whereunder the Centre has been given powers
to override the States, our Constitution is a federal
Constitution. It means that the States are sovereign in the
field which is left to them. They have a plenary authority
to make any law for the peace, order and good Government of
the State.
99. The above discussion thus shows that 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 Centre. The
fact that during emergency and in certain other
eventualities their powers are overridden or invaded by the
Centre 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.
100. For our purpose, further it is really not
necessary to determine whether, in spite of the provisions
of the Constitution referred to above, our Constitution is
federal, quasi-federal or unitary in nature. It is not the
theoretical label given to the Constitution but the
practical implications of the provisions of the Constitution
which are of importance to decide the question that arises
in the present context, viz., whether the powers under
Article 356(1) can be exercised by the President arbitrarily
and unmindful of its consequences to the governance in the
State concerned. So long as the States are not mere
administrative units but in their own right constitutional
116
potentates with the same paraphernalia as the Union, and
with independent Legislature and the Executive constituted
by the same process as the Union, whatever the bias in
favour of the Centre, it cannot be argued that merely
because (and assuming it is correct) the Constitution is
labeled unitary or quasi-federal or a mixture of federal and
unitary structure, the President has unrestricted power of
issuing Proclamation under Article 356(1). If the
Presidential powers under the said provision are subject to
judicial review within the limits discussed above, those
limitations will have to be applied strictly while
scrutinising the concerned material.
101. It must further not be forgotten that in a representive
democracy in a populous country like ours when Legislatures
of the States are dissolved pursuant to the power used under
Article 356(1) of the Constitution and the elections are
proposed to be held, it involves for the public exchequer an
enormous expenditure and consequently taxes the public. The
machinery and the resources of the State are diverted from
other useful work. The expenses of contesting elections
which even otherwise are heavy and unaffordable for common
man are multiplied. Frequent elections consequent upon
unjustified use of Article 356(1) has thus a potentially
dangerous consequence of negating the very democratic
principle by making the election-contest the exclusive
preserve of the affluent. What is further, the frequent
dissolution of the legislature, has the tendency to create
disenchantment in the people with the process of election
and thus with the democratic way of life itself. History
warns us that the frustration with democracy has often in
the past, led to an invitation to fascism and dictatorship
of one form or the other.
102. The Presidential power under Article 356(1) has also to
be viewed from yet another and equally important angle.
Decentralisation of power is not only valuable
administrative device to ensure closer scrutiny,
accountability and efficiency, but is also an essential part
of democracy. It is for this purpose that Article 40 in
Part IV of our Constitution dealing with the Directive
Principles of State Policy enjoins upon the State to take
steps to organise village panchayats and endow them with
such powers and authorities as may be necessary to enable
them to function as units of self governance. The
participation of the people in the governance is a sine qua
non of democracy. The democratic way of life began by
direct participation of the people in the day to day affairs
of the society. With the growth of population and the
expansion of the territorial boundaries of the State,
representative democracy replaced direct democracy and
people gradually surrendered more and more of their rights
of direct participation, to their representatives.
Notwithstanding the surrender of the requisite powers, in
matters which are retained, the powers are jealously guarded
and rightly so. If it is true to say that in democracy,
people are sovereign and all power belongs primarily to the
people, the retention of such power by the people and the
anxiety to exercise them is legitimate. The normal rule
being the self-govemance, according to the wishes expressed
by the people, the occasions to interfere with the self-
govemance should both be rare and demonstrably compelling.
117
103. In this connection, a very significant and special
feature of our society has to be constantly kept in mind.
Our society is, among other things, multilingual, multi-
ethnic and multi-cultural. Prior to independence, political
promises were made that the States will be formed on
linguistic basis and the ethnic and cultural identities will
not only be protected but promoted. It is in keeping with
the said promises, that the States eventually have come to
be organised broadly on linguistic, ethnic and cultural
basis. The people in every State desire to fulfil their own
aspirations through self-govemance within the framework of
the Constitution. Hence interference with the self-
governance also amounts to the betrayal of the people and
unwarranted interference. The betrayal of the democratic
aspirations of the people is a negation of the democratic
principle which runs through our Constitution.
104. What is further and this is an equally if not more
important aspect of our Constitutional law we have adopted a
pluralist democracy. It implies, among other things, a
multi-party system. Whatever the nature of federalism, the
fact remains that as stated above, as per the provisions of
the Constitution, every State is constituent political unit
and has to have an exclusive Executive and Legislature
elected and constituted by the same process as the Union
Government. Under our political and electoral system,
political parties may operate at the State and national
level or exclusively at the State level. There may be
different political parties in different States and at the
national level. Consequently, situations may arise, as
indeed they have, when the political parties in power in
various States and at the Centre may be different. It may
also happen as has happened till date that through political
bargaining, adjustment and understanding, a State level
party may agree to elect candidates of a national level
party to Parliament and vice versa. This mosaic of
variegated pattern of political life is potentially inherent
in a pluralist multi-party democracy like ours. Hence the
temptation of the political party or parties in power (in a
coalition Government) to destabilise or sack the Government
in the State not run by the same political party or parties
is not rare and in fact the experience of the working of
Article 356(1) since the inception of the Constitution,
shows that the State Governments have been sacked and the
Legislative Assemblies dissolved on irrelevant,
objectionable and unsound grounds. So far the power under
the provision has been used on more than 90 occasions and in
almost all cases against Governments run by political
parties in opposition. If the fabric of pluralism and
pluralist democracy and the unity and integrity of the
country are to be preserved, judiciary in the circumstances
is the only institution which can act as the saviour of the
system and of the nation.
105. It is for these reasons that we are unable to agree
with the view that if the ruling party in the States suffers
an overwhelming defeat in the elections to the Lok Sabha
however complete the defeat may be it will be a ground for
the issue of the Proclamation under Article 356(1). We do
not read the decision in State of Rajasthan case3 to have
taken such a view.
3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1
118
This is particularly so since it is observed in the judgment
that: (SCR pp. 84-85: SCC pp. 664-65, para 153)
“Now, we have no doubt at all that merely
because the ruling party in a State suffers
defeat in the elections to the Lok Sabha or
for the matter of that, in the panchayat
elections, that by itself can be no ground for
saying that the Government of the State cannot
be carried on in accordance with the
provisions of the Constitution. The Federal
structure under our Constitution clearly
postulates that there may be one party in
power in the State and another at the Centre.
It is also not an unusual phenomenon that the
same electorate may elect a majority of
members of one party to the Legislative
Assembly, while at the same time electing a
majority of members of another party to the
Lok Sabha. Moreover, the Legislative
Assembly, once elected, is to continue for a
specific term and mere defeat at the elections
to the Lok Sabha prior to the expiration of
the term without anything more would be no
ground for its dissolution. The defeat would
not necessarily in all cases indicate that the
electorate is no longer supporting the ruling
party because the issues may be different.
But even if it were indicative of a definite
shift in the opinion of the electorate, that
by itself would be no ground for dissolution,
because the Constitution contemplates that
ordinarily the will of the electorate shall be
expressed at the end of the term of the
Legislative Assembly and a change in the
electorate’s will in between would not be
relevant … the defeat of the ruling party in
a State at the Lok Sabha elections cannot by
itself, without anything more, support the
inference that the Government of the State
cannot be carried on in accordance with the
provisions of the Constitution. To dissolve
the Legislative Assembly solely on such ground
would be an indirect exercise of the right of
recall of all the members by the President
without there being any provision in the
Constitution for recall even by the
electorate.”
There is no doubt that certain observations in the said
decision create an impression to the contrary. We have
already endorsed earlier the recommendation in the Report of
the Sarkaria Commission that the concerned ground cannot be
available for invoking power under Article 356(1). It has
no relevance to the conditions precedent for invoking the
said power, viz., the breakdown of the constitutional
machinery in the State.
106. Thus the federal principle, social pluralism and
pluralist democracy which form the basic structure of our
Constitution demand that the judicial review of the
Proclamation issued under Article 356(1) is not only an
imperative necessity but is a stringent duty and the
exercise of power under the said provision is confined
strictly for the purpose and to the circumstances mentioned
therein and for none else. It also requires that the
material on the basis of which the power is exercised is
scrutinised circumspectly. In this connection, we may refer
to what Dr Ambedkar had to say in reply to the apprehensions
expressed by the other Hon’ble Members of the Constituent
Assembly, in this context which also bring out the concerns
weighing on the mind of the Hon’ble Members:
119
“In regard to the general debate which has
taken place in which it has been suggested
that these articles are liable to be abused, I
may say that I do not altogether deny that
there is a possibility of these articles being
abused or employed for political purposes.
But that objection applies to every part of
the Constitution which gives power to the
Centre to override the Provinces. In fact I
share the sentiments expressed by my
honorable Friend Mr Gupte yesterday that the
proper thing we ought to expect is that such
articles will never be called into operation
and that they would remain a dead letter. If
at all they are brought into operation, I hope
the President, who is endowed with thes
e
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: It is only in
those circumstances he would resort to this
article. I do not think we could then say
that these articles were imported in vain or
that the President had acted wantonly.”
(Constituent Assembly Debates, Vol. IX, p.
177)
107. The extract from the Report of the Sarkaria Commission
which has been reproduced in paragraph 82 above will show
that these hopes of Dr Ambedkar and other Hon’ble Members of
the Constituent Assembly have not come true.
108. The further equally important question that arises in
this context is whether the President when he issues
Proclamation under Article 356(1), would be justified in
removing the Government in power or dissolving the
Legislative Assembly and thus in exercising all the powers
mentioned in sub-clauses (a), (b) and (c) of clause (1) of
Article 356 whatever the nature of the situation or the
degree of the failure of the constitutional machinery. A
strong contention was raised that situations of the failure
of the constitutional machinery may be varied in nature and
extent, and hence measures to remedy the situation may
differ both in kind and degree. It would be a
disproportionate and unreasonable exercise of power if the
removal of Government or dissolution of the Assembly is
ordered when what the situation required, was for example,
only assumption of some functions or powers of the
Government of the State or of anybody or authority in the
State under Article 356(1)(a). The excessive use of power
also amounts to illegal, irrational and mala fide exercise
of power. Hence, it is urged that the doctrine of
proportionality is relevant in this context and has to be
applied in such circumstances. To appreciate the discussion
on the point, it is necessary to realise that the removal of
Government and the dissolution of Assembly are effected by
the President, if he exercises powers of the Governor under
Articles 164(1) and 174(2)(b) respectively under sub-clause
(a) of Article 356(1), though that is neither necessary nor
obligatory while issuing the Proclamation. In other words,
the removal of the Ministry or the dissolution
120
of the Legislative Assembly is not an automatic consequence
of the issuance of the Proclamation. The exercise of the
powers under sub-clauses (a), (b) and (c) of Article 356(1)
may also co-exist with a mere suspension of the political
executive and the Legislature of the State. Sub-clause (c)
of Article 356(1) makes it clear. It speaks of incidental
and consequential provisions to give effect to the objects
of the Proclamation including suspension in whole or part of
the operation of any provision of the Constitution relating
to anybody or authority in the State. It has to be noted
that unlike sub-clause (a), it does not exclude the
Legislature of the State. Sub-clause (b) only speaks of
exercise of the powers of the Legislature of the State by or
under the authority of Parliament. What is further, the
assumption of only some of the functions of the Government
and the powers of the Governor or of anybody or authority in
the State other than the Legislature of the State under sub-
clause (a), is also conceivable with the retention of the
other functions and powers with the Government of the State
and the Governor or anybody or authority in the State. The
language of sub-clause (a) is very clear on the subject. It
must be remembered in this connection that where there is a
bicameral legislature, the upper house, i.e., the
Legislative Council cannot be dissolved. Yet under sub-
clause (b) of Article 356(1) its powers are exercisable by
or under the authority of Parliament. The word used there
is “Legislature” and not “Legislative Assembly”.
Legislature includes both the lower house and the upper
house, i.e., the Legislative Assembly and the Legislative
Council. It has also to be noted that when the powers of
the Legislature of the State are declared to be exercisable
by or under the authority of Parliament under Article
356(1)(b), it is competent for Parliament under Article 357,
to confer on the President the power of such legislature to
make laws and to authorise the President to delegate the
powers so conferred, to any other authority to be specified
by him. The authority so chosen may be the Union or
officers and authorities thereof. Legally, therefore, it is
permissible under Article 356(1), firstly, only to suspend
the political executive or anybody or authority in the State
and also the Legislature of the State and not to remove or
dissolve them. Secondly, it is also permissible for the
President to assume only some of the functions of the
political executive or of anybody or authority of the State
other than the Legislature while neither suspending nor
removing them. The fact that some of these exercises have
not been resorted to in practice so far, does not militate
against the legal position which emerges from the clear
language of Article 356(1). In this connection, we may
refer to what Dr Ambedkar had to say on the subject in the
Constituent Assembly. The relevant extract from his speech
is reproduced in paragraph 106 above. Hence it is possible
for the President to use only some of the requisite powers
vested in him under Article 356(1) to meet the situation in
question. He does not have to use all the powers to meet
all the situations whatever the kind and degree of the
failure of the constitutional machinery in the State. To
that extent, the contention is indeed valid. However,
whether in a particular situation the extent of powers used
is proper and justifiable is a question which would remain
debatable and beyond judicially discoverable and manageable
121
standards unless the exercise of the excessive power is so
palpably irrational or mala fide as to invite judicial
intervention. In fact, once the issuance of the
Proclamation is held valid, the scrutiny of the kind and
degree of power used under the Proclamation, falls in a
narrower compass. There is every risk and fear of the court
undertaking upon itself the task of evaluating with fine
scales and through its own lenses the comparative merits of
one rather than the other measure. The court will thus
travel unwittingly into the political arena and subject
itself more readily to the charges of encroaching upon
policy-making. The “political thicket” objection sticks
more easily in such circumstances. Although, therefore, on
the language of Article 356(1), it is legal to hold that the
President may exercise only some of the powers given to him,
in practice it may not always be easy to demonstrate the
excessive use of the power.
109. An allied question which arises in this connection is
whether, notwithstanding the fact that a situation has
arisen where there is a breakdown of the constitutional
machinery in the State, it is always necessary to resort to
the power of issuing Proclamation under Article 356(1). The
contention is that since under Article 355, it is the duty
of the Union to ensure that the Government of every State is
carried on in accordance with the provisions of the
Constitution and since further the issuance of the
Proclamation under Article 356(1) is admittedly a drastic
step, there is a corresponding obligation on the President
to resort to other measures before the step is taken under
Article 356(1). This is all the more necessary considering
the principles of federal and democratic polity embedded in
our Constitution. In this connection, we may refer again to
what Dr Ambedkar himself had to say on the subject. We have
quoted the relevant extract from his speech in paragraph 77
above. He has expressed the hope there that resort to
Article 356(1) would be only as a last measure and before
the article is brought into operation, the President would
take proper precaution. He hoped that the first thing the
President would do would be to issue a mere warning. If the
warning failed, he would order an election and it is only
when the said two remedies fail that he would resort to the
article. We must admit that we are unable to appreciate the
second measure to which Dr Ambedkar referred as a
preliminary to the resort to Article 356(1). We should have
thought that the elections to the Legislative Assembly are a
last resort and if they are held, there is nothing further
to be done by exercising power under Article 356(1). We
may, therefore, ignore the said suggestion made by him. But
we respectively endorse the first measure viz. of warning to
which the President should resort before rushing to exercise
the power under Article 356(1). In addition to warning, the
President will always have the power to issue the necessary
directives. We are of the view that except in situations
where urgent steps are imperative and exercise of the
drastic power under the article cannot brook delay, the
President should use all other measures to restore the
constitutional machinery in the State. The Sarkaria
Commission has also made recommendations in that behalf in
paragraphs 6.8.01 to 6.8.04 of its Report. It is not
necessary to quote them here. We endorse the said
recommendations.
122
110. The next important question to be considered is of the
nature and effect of the action to be taken by the President
pursuant to the Proclamation issued by him. The question
has to be considered with reference to three different
situations. Since clause (3) of Article 356 requires every
Proclamation issued under clause (1) thereof, to be laid
before each House of Parliament and also states that it
shall cease to operate at the expiration of two months
unless before the expiration of that period it has been
approved by resolutions of both Houses of Parliament, the
question which emerges is what is the legal consequence of
the actions taken by the President, (a) if the Proclamation
is valid, yet, it is approved by both Houses of Parliament;
(b) if the Proclamation is invalid and not approved by
either or both Houses of Parliament; and (c) if the
Proclamation is valid but not approved by either or both
Houses of Parliament. The other question that arises in
this connection is, whether the legal consequences differ in
these three classes of cases, depending upon the nature of
the action taken by the President.
111. The Proclamation falling under classes (a) and (b)
will not make any difference to the legal status of the
actions taken by the President under them. The actions will
undoubtedly be illegal. However, the court by suitably
moulding the relief, and Parliament and the State
Legislature by legislation, may validate those acts of the
President which are capable of being validated. As far as
Parliament is concerned, such acts will not include the
removal of the Council of Ministers and the dissolution of
the Legislative Assembly since there is no provision in the
Constitution which gives such power to Parliament. That
power is given exclusively to the Governor under Articles
164(1) and 174(2)(b) respectively. It is this power, among
others, which the President is entitled to assume under
Article 356(1)(a). Parliament can only approve or
disapprove of the removal of the Council of Ministers and
the dissolution of the Legislative Assembly under clause (3)
of that article, if such action is taken by the President.
The question then arises is whether the Council of Ministers
and the Legislative Assembly can be restored by the Court
when it declares the Proclamation invalid. There is no
reason why the Council of Ministers and the Legislative
Assembly should not stand restored as a consequence of the
invalidation of the Proclamation, the same being the normal
legal effect of the invalid action. In the context of the
constitutional provisions which we have discussed and in
view of the power of the judicial review vested in the
court, such a consequence is also a necessary constitutional
fall out. Unless such result is read, the power of judicial
review vested in the judiciary is rendered nugatory and
meaningless. To hold otherwise is also tantamount to
holding that the Proclamation issued under Article 356(1) is
beyond the scope of judicial review. For when the validity
of the Proclamation is challenged, the court will be
powerless to give relief and would always be met with the
fait accompli. Article 356 would then have to be read as an
exception to judicial review. Such an interpretation is
neither possible nor permissible. Hence the necessary
consequence of the invalidation of the Proclamation would be
the restoration of the Ministry as well as the Legislative
Assembly in the State. In this connection, we may refer to
the decision of the Supreme Court of Pakistan in
123
Mian Muhammad Nawaz Sharif v. President of Pakistan29. The
Court there held that the impugned order of dissolution of
National Assembly and the dismissal of the Federal Cabinet
were without lawful authority and, therefore, of no legal
effect. As a consequence of the said declaration, the Court
declared that the National Assembly, Prime Minister and the
Cabinet stood restored and entitled to function as
immediately before the impugned order was passed. The Court
further declared that all steps taken pursuant to the
impugned order including the appointment of caretaker
Cabinet and caretaker Prime Minister were also of no legal
effect. The Court, however, added that all orders passed,
acts done and measures taken in the meanwhile, by the
caretaker Government which had been done, taken and given
effect to in accordance with the terms of the Constitution
and were required to be done or taken for the ordinary and
orderly running of the State, shall be deemed to have been
validly and legally done.
112. As regards the third class of cases where the
Proclamation is held valid but is not approved by either or
both Houses of Parliament, the consequence of the same would
be the same as where the Proclamation is revoked
subsequently or is not laid before each House of Parliament
before the expiration of two months or where it is revoked
after its approval by Parliament or ceases to operate on the
expiration of a period of six months from the date of its
issue, or of the further permissible period under clause (4)
of Article 356. It does not, however, appear from the
provisions of Article 356 or any other provision of the
Constitution, that mere nonapproval of a valid Proclamation
by Parliament or its revocation or cessation, will have the
effect either of restoring the Council of Ministers or the
Legislative Assembly. The inevitable consequence in such a
situation is fresh elections and the constitution of the new
Legislative Assembly and the Ministry in the State. The law
made in exercise of the power of the Legislature of the
State by Parliament or the President or any other authority
during the period the valid Proclamation subsists before it
is revoked or disapproved, or before it expires, is
protected by clause (2) of Article 357.
113. It is therefore, necessary to interpret clauses (1) and
(3) of Article 356 harmoniously since the provisions of
clause (3) are obviously meant to be a check by Parliament
(which also consist of members from the States concerned) on
the powers of the President under clause (1). The check
would become meaningless and rendered ineffective if the
President takes irreversible actions while exercising his
powers under sub-clauses (a), (b) and (c) of clause (1) of
the said article. The dissolution of the Assembly by
exercising the powers of the Governor under Article
174(2)(b) will be one such irreversible action. Hence, it
will have to be held that in no case, the President shall
exercise the Govern’s power of dissolving the Legislative
Assembly till at least both the Houses of Parliament have
approved of the Proclamation issued by him under clause (1)
of the said article. The dissolution of the assembly prior
to the approval of the Proclamation by Parliament under
clause (3) of the said article will be per se invalid. The
29 PLD (1993)SC473
124
President may, however, have the power of suspending the
Legislature under sub-clause (c) of clause (1) of the said
article.
114. Our conclusion therefore firstly is that the President
has no power to dissolve the Legislative Assembly of the
State by using his power under sub-clause (a) of clause (1)
of Article 356 till the Proclamation is approved by both the
Houses of Parliament under clause (3) of the said article.
He may have power only to suspend the Legislative Assembly
under sub-clause (c) of clause (1) of the said article.
Secondly, the court may invalidate the Proclamation whether
it is approved by Parliament or not. The necessary
consequence of the invalidation of the Proclamation could be
to restore the status quo ante and, therefore, to restore
the Council of Ministers and the Legislative Assembly as
they stood on the date of the issuance of the Proclamation.
The actions taken including the laws made during the
interregnum may or may not be validated either by the court
or by Parliament or by the State Legislature. It may,
however, be made clear that it is for the court to mould the
relief to meet the requirements of the situation. It is not
bound in all cases to grant the relief of restoration of the
Legislative Assembly and the Ministry. The question of
relief to be granted in a particular case pertains to the
discretionary jurisdiction of the court.
115. The further important question that arises is whether
the court will be justified in granting interim relief and
what would be the nature of such relief and at what stage it
may be granted. The grant of interim relief would depend
upon various circumstances including the expeditiousness
with which the court is moved, the prima facie case with
regard to the invalidity of the Proclamation made out, the
steps which are contemplated to be taken pursuant to the
Proclamation, etc. However, if other conditions are
satisfied, it will defeat the very purpose of the judicial
review if the requisite interim relief is denied. The least
relief that can be granted in such circumstances is an
injunction restraining the holding of fresh elections for
constituting the new Legislative Assembly. There is no
reason why such a relief should be denied if a precaution is
taken to hear the challenge as expeditiously as possible
taking into consideration the public interests involved.
The possibility of a delay in the disposal of the challenge
cannot be a ground for frustrating the constitutional right
and defeating the constitutional provisions. It has,
however, to be made clear that the interlocutory relief that
may be granted on such challenge is to prevent the
frustration of the constitutional remedy. It is not to
prevent the constitutional authority from exercising its
powers and discharging its functions. Hence it would be
wholly impermissible either to interdict the issuance of the
Proclamation or its operation till a final verdict on its
validity is pronounced. Hence the normal rules of quia
timet action have no relevance in matters pertaining to the
challenge to the Proclamation. To conclude, the court in
appropriate cases will not only be justified in preventing
holding of fresh elections but would be duty-bound to do so
by granting suitable interim relief to make effective the
constitutional remedy of judicial review and to prevent the
emasculation of the Constitution.
125
116. In the light of our conclusions with regard to the
scope of the power of the President to issue Proclamation
under Article 356(1), of the parameters of judicial review
and of the quia timet action, we may now examine the facts
in the individual cases before us. It has, however, to be
made clear at the outset that the facts are not being
discussed with a view to give relief prayed for, since in
all cases fresh elections have been held, new Legislative
Assemblies have been elected and new Ministries have been
installed. Nor do the petitioners/appellants seek any such
relief. The facts are being discussed to find out whether
the action of the President was justified in the light of
our conclusions above. The finding may serve as a guidance
for future. For the sake of convenience, we propose to deal
with the cases of the States of Karnataka, Meghalaya and
Nagaland separately from those of the States of Himachal
Pradesh, Madhya Pradesh and Rajasthan.
KARNATAKA
C.A. No. 3645 of 1989
117. Taking first the challange to the Proclamation issued
by the President on April 21, 1989 dismissing the Government
of Karnataka and dissolving the State Assembly, the
Proclamation does not contain any reasons and merely recites
that the President is satisfied on a consideration of the
report of the Governor and other information received by
him, that the Government of the State cannot be carried on
in accordance with the provisions of the Constitution. The
facts were that the Janata Party being the majority party in
the State Legislature had formed Government under the
leadership of Shri S.R. Bommai on August 30, 1988 following
the resignation on August 1, 1988 of the earlier Chief
Minister, Shri Hegde who headed the Ministry from March 1985
till his resignation. In September 1988, the Janata Party
and Lok Dal (B) merged into a new party called Janata Dal.
The Ministry was expanded on April 15, 1989 with addition of
13 members. Within two days thereafter, i.e., on April 17,
1989, one Shri K.R. Molakery, a legislator of Janata Dal
defected from the party and presented a letter to the
Governor withdrawing his support to the Ministry. On the
next day, he presented to the Governor 19 letters allegedly
signed by 17 Janata Dal legislators, one independent but
associate legislator and one legislator belonging to the
Bhartiya Janata Party which was supporting the Ministry,
withdrawing their support to the Ministry. On receipt of
these letters, the Governor is said to have called the
Secretary of the Legislature Department and got the
authenticity of the signatures on the said letters verified.
On April 19, 1989, the Governor sent a report to the
President stating therein that there were dissensions in the
Janata Party which had led to the resignation of Shri Hegde
and even after the formation of the new party, viz., Janata
Dal, there were dissensions and defections. 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, Shri 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
126
not command the majority in the House. He also added that
no other political party was in a position to form the
Government. He, therefore, recommended to the President
that he should exercise power under Article 356(1). It is
not disputed that the Governor did not ascertain the view of
Shri Bommai either after the receipt of the 19 letters or
before making his report to the President. On the next day,
i.e., April 20, 1989, 7 out of the 19 legislators who had
allegedly written the said letters to the Governor sent
letters to him complaining that their signatures were
obtained on the earlier letters by misrepresentation and
affirmed their support to the Ministry. The State Cabinet
met on the same day and decided to convene the Session of
the Assembly within a week, i.e., on April 27, 1989. The
Chief Minister and his Law Minister met the Governor the
same day and informed him about the decision to summon the
Assembly Session. It is also averred in the petition that
they had pointed out to the Governor the recommendation of
the Sarkaria Commission that the strength of the Ministry
should be tested on the floor of the House. The Chief
Minister also offered to prove his majority on the floor of
the House even by preponing the Assembly Session, if needed.
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, i. e. April 20, 1989, in
particular, referring to the letters of 7 members pledging
their support to the Ministry and withdrawing their earlier
letters. He, however, opined in the report that the letters
from the 7 legislators were obtained by the Chief Minister
by pressurising them and added that horsetrading was going
on and atmosphere was getting vitiated. In the end, he
reiterated his opinion that the Chief Minister had lost the
confidence of the majority in the House and repeated his
earlier request for action under Article 356(1). On that
very day, the President issued the Proclamation in question
with the recitals already referred to above. The
Proclamation was, thereafter approved by Parliament as
required by Article 356(3). Shri Bommai and some other
members of the Council of Ministers challenged the validity
of the Proclamation before the Karnataka High Court by a
writ petition on various grounds. The petition was resisted
by the Union of India, among others. A three-Judge Bench of
the High Court dismissed the petition holding, among other
things, that the facts stated in the Governor’s report could
not be held to be irrelevant and that the Governor’s
satisfaction that no other party was in a position to form
the Government had to be accepted since his personal bona
fides were not questioned and his satisfaction was based
upon reasonable assessment of all the relevant facts. The
court also held that recourse to floor-test was neither
compulsory nor obligatory and was not a prerequisite to
sending the report to the President. It was also held that
the Govern’s report could not be challenged on the ground of
legal mala fides since the Proclamation had to be issued on
the satisfaction of the Union Council of Ministers. The
Court further relied upon the test laid down in the State of
Rajasthan case3 and held that on the basis of the material
disclosed, the satisfaction arrived at by the President
could not be faulted.
3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1
127
118. In view of the conclusions that we have reached with
regard to the parameters of the judicial review, it is clear
that the High Court had committed an error in ignoring the
most relevant fact that in view of the conflicting letters
of the 7 legislators, it was improper on the part of the
Governor to have arrogated to himself the task of holding,
firstly, that the earlier 19 letters were genuine and were
written by the said legislators of their free will and
volition. He had not even cared to interview the said
legislators, but had merely got the authenticity of the
signatures verified through the Legislatures Secretariat.
Secondly, he also took upon himself the task of deciding
that the 7 out of the 19 legislators had written the
subsequent letters on account of the pressure from the Chief
Minister and not out of their free will. Again he had not
cared even to interview the said legislators. Thirdly, it
is not known from where the Governor got the information
that there was horse-trading going on between the
legislators. Even assuming that it was so, the correct and
the proper course for him to adopt was to await the test on
the floor of the House which test the Chief Minister had
willingly undertaken to go through on any day that the
Governor chose. In fact, the State Cabinet had itself taken
an initiative to convene the meeting of the Assembly on
April 27, 1989, i.e., only a week ahead of the date on which
the Governor chose to send his report to the President.
Lastly, what is important to note in connection with this
episode is that the Governor at no time asked the Chief
Minister even to produce the legislators before him who were
supporting the Chief Minister, if the Governor thought that
the situation posed such grave threat to the governance of
the State that he could not await the result of the floor-
test in the House. We are of the view that this is a case
where all cannons of propriety were thrown to the wind and
the undue haste made by the Governor in inviting the
President to issue the Proclamation under Article 356(1)
clearly smacked of mala fides. The Proclamation issued by
the President on the basis of the said report of the
Governor and in the circumstances so obtaining, therefore,
equally suffered from mala fides. A duly constituted
Ministry was dismissed on the basis of material which was
neither tested nor allowed to be tested and was no more than
the ipse dixit of the Governor. The action of the Governor
was more objectionable since as a high constitutional
functionary, he was expected to conduct himself more firmly,
cautiously and circumspectly. Instead, it appears that the
Governor was in a hurry to dismiss the Ministry and dissolve
the Assembly. The Proclamation having been based on the
said report and so-called other information which is not
disclosed, was therefore liable to be struck down.
119. In this connection, it is necessary to stress that in
all cases where the support to the Ministry is claimed to
have been withdrawn by some legislators, the proper course
for testing the strength of the Ministry is holding the test
on the floor of the House. That alone is the
constitutionally ordained forum for seeking openly and
objectively the claims and counterclaims in that behalf.
The assessment of the strength of the Ministry is not a
matter of private opinion of any individual, be he the
Governor or the President. It is capable of being
demonstrated and ascertained publicly in the
128
House. Hence when such demonstration is possible, it is not
open to bypass it and instead depend upon the subjective
satisfaction of the Governor or the President. Such private
assessment is an anathema to the democratic principle, apart
from being open to serious objections of personal mala
fides. It is possible that on some rare occasions, the
floor-test may be impossible, although it is difficult to
envisage such situation. Even assuming that there arises
one, it should be obligatory on the Governor in such
circumstances, to state in writing, the reasons for not
holding the floor-test. The High Court was, therefore,
wrong in holding that the floor-test was neither compulsory
nor obligatory or that it was not a prerequisite to sending
the report to the President recommending action under
Article 356(1). Since we have already referred to the
recommendations of the Sarkaria Commission in this
connection, it is not necessary to repeat them here.
120. The High Court was further wrong in taking the view
that the facts stated in the Govern’s report were not
irrelevant when the Governor without ascertaining either
from the Chief Minister or from the 7 MLAs whether their
retraction was genuine or not, proceeded to give his
unverified opinion in the matter. What was further
forgotten by the High Court was that assuming that the
support was withdrawn to the Ministry by the 19 MLAS, it was
incumbent upon the Governor to ascertain whether any other
Ministry could be formed. The question of personal bona
fides of the Governor is irrelevant in such matters. What
is to be ascertained is whether the Governor had proceeded
legally and explored all possibilities of ensuring a
constitutional Government in the State before reporting that
the constitutional machinery had broken down. Even if this
meant installing the Government belonging to a minority
party, the Governor was duty-bound to opt for it so long as
the Government could enjoy the confidence of the House.
That is also the recommendation of the five-member Committee
of the Governors appointed by the President pursuant to the
decision taken at the Conference of Governors held in New
Delhi in November 1970, and of the Sarkaria Commission
quoted above. It is also obvious that beyond the report of
the Governor, there was no other material before the
President before he issued the Proclamation. Since the
“facts” stated by the Governor in his report, as pointed out
above contained his own opinion based on unascertained
material, in the circumstances, they could hardly be said to
form an objective material on which the President could have
acted. The Proclamation issued was, therefore, invalid.
121. We may on this subject refer to the unanimous Report of
the five member Committee of Governors which recommended as
follows:
“… the test of confidence in the ministry
should normally be left to a vote in the
Assembly … where the Governor is satisfied
by whatever process or means, that the
ministry no longer enjoys majority support, he
should ask the Chief Minister to face the
Assembly and prove his majority within the
shortest possible time. If the Chief Minister
shirks this primary responsibility and fails
to comply, the Governor would be in duty bound
to initiate steps to form an alternative
ministry. A Chief
129
Minister’s refusal to test his strength on
the floor of the Assembly can well be
interpreted as prima facie proof of his no
longer enjoying the confidence of the
legislature. If then, an alternative ministr
y
can be formed, which, in the Governor’s view,
is able to command a majority in the Assembly,
he must dismiss the ministry in power and
instal the alternative ministry in office. On
the other hand, if no such ministry is
possible, the Governor will be left with no
alternative but to make a report to the
President under Article 356.
As a general proposition, it may be stated
that, as far as possible, the verdict as to
majority support claimed by a Chief Minister
and his Council of Ministers should be left to
the legislature, and that it is only if a
responsible Government cannot be maintained
without doing violence to correct
constitutional practice that the Governor
should resort to Article 356 of the
Constitution.
What is important to remember is that recourse
to Article 356 should be the last resort for a
Governor to seek.
the guiding principle being, as already
stated, that the constitutional machinery in
the state should, as far as possible,
be maintained.”
MEGHALAYA T. C. Nos. 5 and 7 of 1992
122. In this case the challenge is to the Proclamation dated
October 11, 1991 issued under Article 356(1). The facts are
that the writ petitioner G.S. Massar belonged to a front
known as Meghalaya United Parliamentary Party (MUPP) which
had a majority in the Legislative Assembly and had formed in
March 1990, a Government under the leadership of Shri B.B.
Lyngdoh. On July 25, 1991, one Kyndiah Arthree who was at
the relevant time, the Speaker of the House, was elected as
the leader of the opposition group known as United Meghalaya
Parliamentary Forum (UMPF). The majority in this group
belonged to the Congress Party. On his election, Shri
Arthree claimed support of majority of the members in the
Assembly and requested the Governor to invite him to form
the Government. Thereupon, the Governor asked the then
Chief Minister Shri Lyngdoh to prove his majority on the
floor of the House. Accordingly, a special session of the
Assembly was convened on August 7, 1991 and a motion of
confidence in the Ministry was moved. Thirty legislators
supported the motion and 27 voted against it. However,
instead of announcing the result of the voting on the
motion, the Speaker declared that he had received a
complaint against 5 independent MLAs of the ruling coalition
front alleging that they were disqualified as legislators
under the anti-defection law and since they had become
disentitled to vote, he was suspending their right to vote.
On this announcement, uproar ensued in the House and it had
to be adjourned. On August 11, 1991, the Speaker issued
show-cause notices to the alleged
130
defectors, the 5 independent MLAs on a complaint filed by
one of the legislators Shri Shylla. The 5 MLAs replied to
the notice denying that they had joined any of the parties
and contended that they had continued to be independent. On
receipt of the replies, the Speaker passed an order on
August 17, 1991, disqualifying the 5 MLAs on the ground that
4 of them were Ministers in the then Ministry and one of
them was the Deputy Government Chief Whip. Thereafter,
again on the Governor’s advice, the Chief Minister Shri
Lyngdoh summoned the session of the Assembly on September 9,
1991 for passing a vote of confidence in the Ministry. The
Speaker however, refused to send the notices of the session
to the 5 independent MLAs disqualified by him and
simultaneously made arrangements to prohibit their entry
into the Assembly. On September 6, 1991, the 5 MLAS,
approached this Court. This Court issued interim order
staying the operation of the Speaker’s orders dated August
7, 1991 and August 17, 1991 in respect of four of them. It
appears that one of the members did not apply for such
order. The Speaker, thereafter, issued a Press statement in
which he declared that he did not accept any interference by
any court With his order of August 17, 1991. The Governor,
therefore, prorogued the Assembly indefinitely by his order
dated September 8, 1991. The Assembly was again convened at
the instance of the Governor on October 8, 1991. In the
meanwhile, the 4 independent MLAs who had obtained the
interim orders moved a contempt petition in this Court
against the Speaker who had not only made the declaration in
the Press statement defying the interim order of this Court
but also taken steps to prevent the independent MLAs from
entering the House. On October 8, 1991, this Court passed
another order directing that all authorities of the State
should ensure the compliance of the Court’s interim order of
September 6, 1991. Pursuant to this direction, 4 of the 5
independent MLAs received invitation to attend the session
of the Assembly convened on October 8, 1991. In all, 56
MLAs including the 4 independent MLAs attended the session.
After the motion of confidence in the Ministry was put to
vote, the Speaker declared that 26 voted for the motion and
26 against it and excluded the votes of the 4 independent
MLAS. Thereafter, declaring that there was a tie in voting,
he cast his own vote against the motion and declared that
the motion had failed and adjourned the House sine die.
However, 30 MLAs, viz., 26 plus 4 independent MLAs who had
voted for the motion, continued to stay in the House and
elected the Speaker from amongst themselves to conduct the
business. The new Speaker declared that the motion of
confidence in the Ministry had been carried since 30 MLAs
had voted in favour of the Government. They further
proceeded to pass a motion of no-confidence in the Speaker.
The 30 MLAs thereafter sent a letter to the Governor stating
therein that they had voted in favour of the Ministry and
had also passed a motion of no-confidence in the Speaker.
However, on October 9, 1991, the Governor wrote a letter to
the Chief Minister asking him to resign in view of what had
transpired in the Session on October 8, 1991.
Unfortunately, the Governor in the said letter also
proceeded to observe that the non-cognisance
131
by the Speaker of the Supreme Court’s orders relating to the
4 independent MLAs was a matter between the Speaker and the
Court. The Chief Minister moved this Court, thereafter,
against the letter of the Governor, and this Court on
October 9, 1991, among other things, asked the Governor to
take into consideration the orders of this Court and votes
cast by the 4 independent MLAs before taking any decision on
the question whether the Government had lost the motion of
confidence. In spite of this, the President on October 11,
1991 issued Proclamation under Article 356(1). The
Proclamation stated that the President was satisfied on the
basis of the report from the Governor and other information
received by him that the situation had arisen in which the
Government of the State could not be carried on in
accordance with the provisions of the Constitution. The
Government was dismissed and the Assembly was dissolved.
This Court by an order of October 12, 1991, set aside the
order dated August 17, 1991 of the then Speaker. However,
thereafter, both the Houses of Parliament met and approved
the Proclamation issued by the President.
123. The unflattering episode shows in unmistakable
terms the Governor’s unnecessary anxiety to dismiss the
Ministry and dissolve the Assembly and also his failure as a
constitutional functionary to realise the binding legal
consequences of and give effect to the orders of this Court.
What is worse, the Union Council of Ministers also chose to
give advice to the President to issue the Proclamation on
the material in question. It is not necessary to comment
upon the validity of the Proclamation any further save and
except to observe that prima facie the material before the
President was not only irrational but motivated by factual
and legal mala fides. The Proclamation was, therefore,
invalid.
NAGALAND
C.A. Nos. 193-94 of 1989
124. The Presidential Proclamation dated August 7, 1988 was
issued under Article 356(1) imposing President’s rule in the
State of Nagaland. At the relevant time, in the Nagaland
Assembly consisting of 60 members, 34 belonged to Congress
1, 18 to Naga National Democratic Party, one belonged to
Naga Peoples Party and 7 were independent. Shri Sema, the
leader of the ruling party was the Chief Minister heading
the State Government. On July 28, 1988, 13 out of the 34
MLAs of the ruling Congress I Party informed the Speaker of
the Assembly that they had formed a party separate from
Congress I ruling party and requested him for allotment of
separate seats for them in the House. The session was to
commence on August 28, 1988. By his decision of July 30,
1988, the Speaker held that there was a split in the party
within the meaning of the Tenth Schedule of the
Constitution. On July 31, 1988, Shri Vamuzo, one of the 13
defecting MLAs who had formed a separate party, informed the
Governor that he commanded the support of 35 out of the then
59 members in the Assembly and was in a position to form the
Government. On October 1988, the Chief Secretary of the
State wrote to Shri Vamuzo that cording to his information,
Shri Vamuzo had wrongfully confined the
132
MLAs who had formed the new party. Shri Vamuzo denied the
said allegation and asked the Chief Secretary to verify the
truth from the members themselves. On verification, the
members told the Chief Secretary that none of them was
confined, as alleged. On August 6, 1988, the Governor sent
a report to the President of India about the formation of a
new party by the 13 MLAS. He also stated that the said MLAs
were allured by money. He further stated that the said MLAs
were kept in forcible confinement by Shri Vamuzo and one
other person, and that the story of split in the ruling
party was not true. He added that the Speaker was hasty in
according recognition to the new group of the 13 members and
commented that horse-trading was going on in the State. He
made a special reference to the insurgency in Nagaland and
also stated that some of the members of the Assembly were
having contacts with the insurgents. He expressed the
apprehension that if the affairs were allowed to continue as
they were, it would affect the stability of the State. In
the meanwhile, the Chief Minister submitted his resignation
to the Governor and recommended the imposition of the
President’s rule. The President thereafter, issued the
impugned Proclamation and dismissed the Government and
dissolved the Assembly. Shri Vamuzo, the leader of the new
group challenged the validity of the Proclamation in the
Gauhati High Court. The petition was heard by a Division
Bench comprising the Chief Justice and Hansaria, J. 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. It may be stated here that the Division Bench was
agreed that the validity of the Proclamation could be
examined by the court and it was not immune from judicial
review. We have already discussed the implications of
Article 74(2) earlier and have pointed out that although the
advice given by the Council of Ministers is free from the
gaze of the court, the material on the basis of which the
advice is given cannot be kept away from it and is open to
judicial scrutiny. On the facts of this case also we are of
the view that the Governor should have allowed Shri Vamuzo
to test his strength on the floor of the House. This was
particularly so because the Chief Minister, Shri Sema had
already submitted his resignation to the Governor. This is
notwithstanding the fact that the Governor in his report had
stated that during the preceding 25 years, no less than 11
Governments had been formed and according to his
information, the Congress I MLAs were allured by the
monetary benefits and that amounted to incredible lack of
political morality and complete disregard of the wishes of
the electorate. It has to be emphasised here that although
the Tenth Schedule was added to the Constitution to prevent
political bargaining and defections, it did not prohibit the
formation of another political party if it was backed by no
less than 1/3rd members of the existing legislature party.
Since no opportunity was given to Shri Vamuzo to prove his
strength on the floor of the House as claimed by him and to
form the Ministry, the Proclamation issued was
unconstitutional.
133
125. We may now deal with the cases of the States of Madhya
Pradesh, Rajasthan and Himachal Pradesh. The elections were
held to the Legislative Assemblies in these States along
with the elections to the Legislative Assembly of Uttar
Pradesh, in February 1990. The Bhartiya Janata Party (BJP)
secured majority in the Assemblies of all the four States
and formed Governments there.
126. Following appeals of some organisations including the
BJP, thousands of kar sevaks from Uttar Pradesh as well as
from other States including Madhya Pradesh, Rajasthan and
Himachal Pradesh gathered near the Ram Janam Bhumi-Babri
Masjid structure on December 6, 1992 and eventually some of
them demolished the disputed structure. Following the
demolition, on the same day the Uttar Pradesh Government
resigned. Thereafter, on the same day the President issued
Proclamation under Article 356(1) and dissolved the
Legislative Assembly of the State. The said Proclamation is
not challenged. Hence we are not concerned in these
proceedings with its validity.
127. As a result of the demolition of the structure which
was admittedly a mosque standing at the site for about 400
years, there were violent reactions in this country as well
as in the neighbouring countries where some temples were
destroyed. This in turn created further reactions in this
country resulting in violence and destruction of the
property. The Union Government tried to cope up with the
situation by taking several steps including a ban on several
organisations including Rashtriya Swayamsevak Sangh (RSS),
Vishva Hindu Parishad (VHP) and Bajrang Dal which had along
with BJP given a call for kar sevaks to march towards
Ayodhya on December 6, 1992. The ban order was issued on
December 10, 1992 under the Unlawful Activities (Prevention)
Act, 1967. The dismissal of the State Governments and the
State Legislative Assemblies in Madhya Pradesh, Rajasthan
and Himachal Pradesh were admittedly a consequence of these
developments and were effected by the issuance of
Proclamations under Article 356(1), all on December 15,
1992.
MADHYA PRADESH
CA. Nos. 1692, 1692-A to 1692-C of 1993 and CA. Nos. 4627-
30 of 1993
128. The Proclamation was a consequence of three reports
sent by the Governor to the President. The first was of
December 8, 1992. It referred to the fast deteriorating
law and order situation in the wake of widespread acts of
the State Government to stem the tide primarily because of
the political leadership’s “overt and covert support to the
associate communal organisations” which seemed to point out
that there was a breakdown of the administrative machinery
of the State. This report was followed by second report on
December 10, 1992 which referred to the spread of violence
to the other till then peaceful areas. Yet another report
was sent by him on December 13, 1992 along with a copy of a
letter dated December 11, 1992 received by him from the
Executive Director, Bharat Heavy Electricals Ltd.,
134
Bhopal (BHEL). This letter had referred to the total
failure of the law and order machinery to provide safety and
security of life and property in the areas in and around the
BHEL factory and the pressure brought on the administration
of the factory to accommodate the kar sevaks in the BHEL
area. The Governor also referred to the statement of the
Chief Minister of Madhya Pradesh, Shri Sunder Lal Patwa
describing the ban of RSS and VHP as unfortunate. In view
of the statement of the Chief Minister, the Governor
expressed his doubt about the credibility of the State
Government to implement sincerely the Centre’s direction to
ban the said organisations, particularly because the BJP
leaders including the Chief Minister, Shri Patwa had always
sworn by the values and traditions of the RSS. In this
context, he also referred to the decision of the VHP to
observe 13th December as blackday to protest against the ban
and to observe protest week against the “heinous law” from
December 14 to 20, 1992. He expressed his anxiety that all
these moves were fraught with danger in the context of the
situation obtaining then. The Governor, therefore,
recommended that considering the said facts and the fact
that the RSS was contemplating a fresh strategy to chalk out
its future plan, and also the possibility of the leaders of
the banned organisations going underground, particularly
with the connivance of the State Administration, the
situation demanded immediate issuance of the Proclamation.
Hence the Proclamation.
HIMACHAL PRADESH
T. C. No. 8 of 1993
129. The Proclamation issued by the President succeeded the
report of the Governor of Himachal Pradesh which was sent to
him on December 15, 1992. In his report the Governor had
stated, among other things, that the Chief Minister and his
Cabinet had instigated kar sevaks from Himachal Pradesh to
participate in the kar seva on December 6, 1992 at Ayodhya.
Not only that, but some of the Ministers had expressed their
desire publicly to participate in kar seva if the party
high-command permitted them to do so. As a result, a number
of kar sevaks including some BJP MLAs participated in the
kar seva at Ayodhya. A member of the Legislative Assembly
belonging to the ruling BJP had also openly stated that he
had participated in the demolition of the Babri Masjid. The
Governor then added that Chief Minister, Shri Shanta Kumar
had met him on December 13, 1992, i.e., two days before he
sent the letter to the President, and had informed him “that
he desired to implement the ban orders imposed by the
Government of India on RSS, VHP and three other
organisations and that he had already issued directions in
that behalf’. The Governor, however, opined that since the
Chief Minister himself was a member of RSS, he was not in a
position to implement the directions honestly and
effectively and that most of the people in the State felt
the same way. He also stated that some of the Ministers
were publicly criticising the ban on the said three communal
organisations and when the Chief Ministers and some of his
colleagues in the Ministry were members of the RSS, it was
not possible for the administrative machinery to
135
implement the ban honestly and effectively. It is on the
basis of this report that the Proclamation in question was
issued.
RAJASTHAN
T. C. No. 9 of 1993
130. The President Proclamation was pursuant to the report
of the Governor sent to the Prime Minister that Government
of Rajasthan had played “an obvious role” in the episode at
Ayodhya; that the BJP had control over RSS, VHP and Bajrang
Dal which were the banned organisations, and the ban was not
being implemented at all. One of the Ministers had resigned
and along with him, 22 MLAs and 15500 BJP workers had
participated in the kar seva at Ayodhya. They were given a
royal send-off on their departure from the State and a royal
welcome on their return by the influential people in the
political party running the Government, i.e., BJP. For more
than a week, the law and order situation had deteriorated
and the dominant feature of the breakdown of the law and
order situation was the anti-minority acts. He opined that
it was not possible for the Administration to function
effectively, objectively and in accordance with the rule of
law in the then political set-up and hence a situation had
arisen in which the Government of the State could not be
carried on in accordance with the provisions of the
Constitution.
131. The validity of the three Proclamations was challenged
by writ petitions in the respective State High Courts. The
writ petition challenging the Proclamations in respect of
Madhya Pradesh Government and the Legislative Assembly was
allowed by the High Court+ and the appeal against the
decision of the High Court is preferred in this Court by the
Union of India. By its order dated April 16, 1993, the writ
petitions challenging the Proclamations in respect of the
Governments and the Legislative Assemblies of Rajasthan and
Himachal Pradesh which were pending in the respective High
Courts, stood transferred to this Court.
132. It is contended that the imposition of the President’s
rule in the States of Madhya Pradesh, Rajasthan and Himachal
Pradesh was mala fide, based on no satisfaction and was
purely a political act. Mere fact that communal
disturbances and/or instances of arson and looting took
place is no ground for imposing the President’s rule.
Indeed, such incidents took place in several Congress (I)-
ruled States as well, as in particular, in the State of
Maharashtra on a much larger scale and yet no action was
taken to displace those Government whereas action was taken
only against BJP Governments. It is pointed out that so far
as Himachal Pradesh is concerned, here were no communal
disturbances at all. There was no law and order problem
worth the name. Even the Governor’s report did not speak of
any such incidents. The Governments of Madhya Pradesh,
Rajasthan and Himachal Pradesh, it is argued, cannot be held
responsible for what happened at Ayodhya on December 6,
1992. For that incident, the Government of Uttar Pradesh
had resigned owning responsibility therefor. It also
pointed out that according to the report of the Governor of
Himachal
Ed.: Sunderlal Patwa v. Union of India, 1993 Jab LJ 387 (FB)
136
Pradesh, the Chief Minister met him and indicated I clearly
that he was desirous of and was implementing the ban, and
that some arrests were also made. In such a situation,
there was no reason for the Governor to believe, or to
report, that the Chief Minister is not sincere or keen to
implement the ban on the said organisations. As a matter of
fact, the Tribunal under Unlawful Activities (Prevention)
Act, 1967, has declared the ban on RSS as illegal and
accordingly the ban has since been revoked. The non-
implementation of an illegal ban cannot be made the basis of
action under Article 356. Assuming that there was such
inaction or refusal, it cannot be made a ground for
dismissing the State Government and for dissolving the
Assembly. The White Paper now placed before the Court was
not in existence on December 15, 1992. The manifestos
issued by the BJP from time to time cannot constitute the
information referred to in the Proclamations not, in any
event, legally relevant material.
133. In the counter to the writ petition in the Madhya
Pradesh high Court, the case of the Union of India inter
alia, was that the Proclamation was issued on the
satisfaction of the President that the Government of Madhya
Pradesh cannot be carried on in Accordance with the
provisions of the Constitution. The reports of the Governor
disclosed that the State Government had miserably failed to
protect the citizens and property of the State against
internal disturbance. On the basis of the said reports, the
President formed the requisite satisfaction. The
Proclamation under clause (1) has been approved by both
Houses of Parliament. In such a situation the court ought
not to entertain the writ petition to scrutinise the wisdom
or otherwise of the Presidential Proclamation or of the
approval of Parliament.
134. It was further contended that the circumstances in the
State of M.P. were different from several other States where
too serious disturbance to law and order took place. There
is no comparison between both situations. “Besides Bhopal,
over-all situation in the State of M.P. was such that there
were sufficient and cogent reasons to be satisfied that the
Government in the State could not be carried on in
accordance with the provisions of the Constitution. It is
denied that there was no law and order situation in the
State.” The Governor’s reports are based upon relevant
material and are made bona fide, and after due verification.
135. In the counter-affidavit filed in the writ petition (TC
No. 8 of 1993) relating to Himachal Pradesh, it is stated
that the events of December 6, 1992 were not the handiwork
of few persons. It is “the public attitude and statements
of various groups and political parties including BJP which
led to the destruction of the structure in question and
caused great damage to the very secular fabric of the
country and created communal discord and disharmony all over
the country including Himachal Pradesh.” It is stated that
the repercussions of the event cannot be judged by comparing
the number of persons killed in different States. It is
asserted that the Council of Ministers and the President
“had a wealth of material available to them in the present
case which are relevant to the satisfaction formed under
Article 356.
137
They were also aware of the serious damage to communal amity
and harmony which has been caused in the State of Madhya
Pradesh, among others. They were extremely concerned with
repercussions which events at Ayodhya might still have in
the States” and “the ways and means to bring back normalcy
not only in the law and order situation but also communal
amity and harmony which had been so badly damaged as a
result of the activities, attitude and stand of inter alia
the party in power in the State”. It is also stated that,
according to the definite information available to the
Government of India, members of the RSS were not only
present on the spot at Ayodhya but actually participated in
the demolition and they were responsible for promotion of
communal disharmony. It is also asserted that the action
was taken by the President not only on the basis of the
report of the Governor but also on the basis of other
information received by him.
136. In the counter-affidavit field in the writ petition
relating to Rajasthan (TC No. 9 of 1993), it is stated that
after the demolition on December 6, 1992, violence started
in various parts of the country leading to loss of life and
property. It is asserted that it is not possible to assess
the law and order situation in different States only on the
basis of casualty figures. The situation in each State has
to be assessed differently. The averment of the petitioner
that the State Government implemented the ban on RSS
properly is denied. There is no requirement that the report
of the Governor should be addressed to the President. It
can also be addressed to the Prime Minister. Besides the
report of the Governor, other information was also available
on which the President had formed his satisfaction. The
allegations of mala fide, capricious and arbitrary exercise
of power are denied. The Presidential Proclamation need not
contain reasons for the action, it is submitted. No
irrelevant material was taken into consideration by the
President.
137. The learned counsel for Union of India and other
counsel supporting the impugned Proclamations argued that
the main plank and the primary programme of BJP was the
construction of a Ram Temple at the very site where the
Babri Masjid stood. The party openly proclaimed that it
will remove relocate, as it called it the Babri Masjid
structure since according to it the Babri Masjid was
superimposed on an existing Ram Temple by Emperor Babar.
The party came to power in all the four States on the said
plank and since then had been working towards the said goal.
It has been the single goal of all the leaders of BJP, their
Ministers, legislators and all cadres. For this purpose,
they had been repeatedly collecting kar sevaks from all
comers at Ayodhya from time to time. In the days
immediately preceding December 6, 1992, their leaders had
been inciting and exhorting their followers to demolish the
Babri Masjid and to build a temple there. The Ministers in
Madhya Pradesh, Himachal Pradesh and Rajasthan had taken
active part in organising and sending kar sevaks to Ayodhya.
When the kar sevaks returned from Ayodhya after demolishing
the Masjid, they were welcomed as heroes by those very
persons. Many of the Ministers and Chief Ministers were
members of RSS and were protesting against the ban on it.
138
They could not, therefore, be trusted to enforce the ban,
notwithstanding the protestations to the contrary by some of
them. The counsel relied for the purpose upon the following
facts to support their contentions :
138. In May/June 1991, mid-term poll was held to Lok Sabha.
The manifesto issued by the BJP on the eve of May/June 1991
mid-term poll states that the BJP “seeks the restoration of
Ram Janambhoomi in Ayodhya only by way of a symbolic
righting of historic wrongs, so that the old unhappy chapter
of acrimony could be ended, and a Grand National
Reconciliation effected”. At another place under the head
“Sri Ram Mandir at Janmasthan”, the following statement
occurs : “BJP firmly believes that construction of Ram
Mandir at Janmasthan is a symbol of the vindication of our
cultural heritage and national self-respect. For BJP it is
purely a national issue and it will not allow any vested
interests to give it a sectarian and communal colour.
Hence, the party is committed to build Sri Ram Mandir at
Janmasthan by relocating superimposed Babri structure with
due respect.” By themselves, the above statements may not
mean that the programme envisaged unlawful or forcible
demolition of the disputed structure. The said statements
are also capable of being understood as meaning that the
party proposed to vindicate their stand by constitutional
means that the disputed structure was in fact the Ram
Janmasthan which was forcibly converted into a mosque by
Emperor Babar and that only thereafter they would relocate
the said structure and build Sri Ram Temple at that site.
However, the above statements when read in the light of the
speeches and acts of the leaders of the BJP, give room for
another interpretation as well. Those facts are brought out
in the “White Paper on Ayodhya” issued by the Government of
India in February 1993. They are as follows :
“A movement to construct the Sri Ram Temple at
the site of the disputed structure by removing
or relocating it gathered strength in recent
years. A determined bid to storm the
structure in October/November 1990 resulted in
some damage to the structure and loss of lives
as a result of police firing. The Central
Government was negotiating with various
parties and organisations for a peaceful
settlement of the issue. However, a new
dimension was added to the campaign for
construction of the temple with the formation
of the Government in Uttar Pradesh in June
1991. The Government declared itself
committed to the construction of the temple
and took certain steps like the acquisition of
land adjoining the disputed structure,
demolition of certain other structures,
including temples standing on the acquired
land, and digging and levelling of a part of
the acquired land. The disputed structure
itself was left out of the acquisition.-The
plan of the proposed temple released by the
VHP envisaged location of the sanctum
sanctorum of the temple at the very site of
the disputed structure. The Union Government
was concerned about the safety of the
structure. But at the meeting of the National
Integration Council held on November 2, 1991,
the Chief Minister of Uttar Pradesh, Shri
Kalyan Singh, undertook to protect the
structure and assured everybody there that it
is the
139
responsibility of the State Government to
protect the disputed structure and that no one
would be allowed to go there. He also
undertook that all the orders of the court
will be faithfully implemented. In July 1992,
a large number of kar sevaks gathered on the
acquired land and proposed to start the
construction. The situation was averted and
kar seva was called off on July 26, 1992. The
BJP decided to re-enact the Rath Yatra by Shri
L.K. Advani and Shri M.M. Joshi on the pattern
of 1990 Rath Yatra with the objective of
mobilising people and kar sevaks for the
construction of Sri Ram Temple. Shri Advani
said that they have now plunged into the
temple movement in full strength. The leaders
of the BJP were acting in concert with VHP,
RSS and allied organisations. The Rath Yatras
started on December 1, 1992. Shri Advani
started from Varanasi and Shri Joshi from
Mathura. The starting points had their own
sinister significance for the future demands
and programmes for restoration of the temples
at both these places. Both the leaders
travelled through eastern and western parts of
Uttar Pradesh and reached Ayodhya. During
their Yatra, both these leaders gave
provocative speeches and mobilised kar sevaks
and asked their workers and people to reach
Ayodhya in large numbers to perform kar seva.
Shri L.K. Advani, during the Rath Yatra, kept
constantly appealing to the kar sevaks to take
the plunge and not bother about the survival
of the Kalyan Singh Government. He also kept
saying that kar seva in Ayodhya would not
remain restricted to ‘bhajan or kirtan’ but
would involve physical labour. Shri Joshi,
during the Rath Yatra, maintained that the BJP
Government in U.P. would not use force against
the kar sevaks in Ayodhya and that the nature
of kar seva would be decided by Sants/Mahants
and the RJBBM issue was a religious matter
which can be solved only by the Dharmacharyas
but not by the Supreme Court. He threatened
of serious consequences if the BJP Government
in U.P. was dismissed. On December 1, 1992,
Shri Joshi appealed to the gathering (at
Mathura) to assemble at Ayodhya in large
numbers for kar seva and demolish the socalled
Babri Masjid. Smt Vijayaraje Scindia, another
leader of the BJP stated at Patna on November
23, 1992 that the Babri Masjid will have to be
demolished, Shri V.H. Dalmiya, a leader of VHP
declared on November 9, 1992 at Delhi that the
RJB Temple would be constructed in the same
way it was demolished by Babar. He stated
that kar sevaks were pressurising the
leadership that they should be called not to
construct the RJB Temple but to demolish the
masjid. As early as December 1, 1992, 25,000
kar sevaks had reached Ayodhya. By December
5, their number crossed two lakhs.
Arrangements were made for their accommodation
in tents, schools and colleges and even in the
open near the disputed structure. The local
Administration stepped up its efforts to
increase civic amenities in view of the
arrival of kar sevaks in such large numbers.
The Central Government had posted paramilitary
forces at Ayodhya to meet any eventuality and
to be ready for any assistance that the local
140
Administration or the BJP Goverment may ask
for . Instead of utilising the services of the
said forces, the Chief Minister of Uttar
Pradesh had been protesting to the Central
Government about the camping of the said
forces at Ayodhya. In his letter dated
December 1, 1992 addressed to the Prime
Minister, Shri Kalyan Singh recorded his
protest about the continued presence of the
said forces at Ayodhya, termed it as
unauthorised and illegal on the ground that
they were stationed there without the consent
and against the wishes of the State
Government.
On December 6, 1992, while the crowd of kar
sevaks was being addressed by leaders of the
BJP, VHP, etc., roughly 150 persons in a
sudden move broke through the cordon on the
terrace, regrouped and started pelting stones
at the police personnel. A large crowd broke
into the disputed structure. The mob swelled
enormously within a short time and started
demolishing the structure. The local police
stood by as mute spectators since they were
under orders of the Chief Minister not to use
force against the kar sevaks. The central
forces were equally helpless since they were
not allowed to intervene by the local
Magistrate on the spot.”
139. It was also emphasised that according to the statement
of the Union Home Minister made in Rajya Sabha on December
21, 1992, “all these kar sevaks, when they returned, were
received by the Chief Ministers and Ministers”.
140. Relying on these facts and events, it was contended
that what happened on December 6, 1992 did not happen in a
day. It was the culmination of a sustained campaign carried
on by the BJP and other allied organisations over the last
few years. It was then pointed out that in the manifesto
issued by the BJP in connection with the 1993 General
Elections, there is not a word of regret about what happened
on December 6, 1992. On the contrary, the following
statement occurs there under the heading “Ayodhya” :
Ayodhya
In their actions and utterances, the forces of
pseudo-secularism convey the unmistakable
impression of a deep repugnance for all things
Hindu. Indeed, in their minds ‘Hindu’ has
come to be associated with ‘communal’. The
controversy over the Ram Janambhoomi temple in
Ayodhya is a powerful illustration of this
phenomenon. For them ‘Sahmat’ is secular and
‘Saffron’ communal. Although the facts of the
dispute are well known, certain features merit
repetition. First, it was always apparent
that a vast majority of Hindus were totally
committed to the construction of a grand
temple for Lord Rama at the site where puja
has been performed uninterruptedly since 1948
and where besides, no namaz has been offered
since 1936. The structure built by the Moghul
Emperor Babar was viewed by the Hindus as a
symbol of national humiliation.
141
Second the election of 1991 in Uttar Pradesh
centered on the Ayodhya dispute. It was a
virtual referendum on Ram Janmabhoomi and the
BJP with its promise to facilitate the
construction of the Ram Temple won the
election. However, this mandate did not
prevent the Congress and other pseudo-secular
parties from wilfully obstructing the
initiatives of the Uttar Pradesh Government.
Everything, from administrative subterfuge to
judicial delay, was used by the opponents of
the temple to prevent the BJP Government from
fulfilling its promise to the electorate.
On December 6, 1992 kar sevaks from all over
India assembled in Ayodhya to begin the
reconstruction of the Rama Temple at the site
adjoining the garbha griha. Matters took an
unexpected turn when, angered by the
obstructive tactics of the Narasimha Rao
Government, inordinate judicial delays and
pseudo-secularist taunts, the kar sevaks took
matters into their own hands, demolished the
disputed structure and constructed a makeshift
temple for Lord Rama at the garbha griha.
Owning responsibility for its inability to
prevent the demolition, the BJP Government
headed by Shri Kalyan Singh submitted its
resignation. A disoriented Central Government
was not content with the imposition of
President’s rule in Uttar Pradesh. In
violation of democratic norms, the Centre
dismissed the BJP Governments in Rajasthan,
Madhya Pradesh and Himachal Pradesh. Further,
it banned the Rashtriya Swaymsevak Sangh,
Vishwa Hindu Parishad and Bajrang Dal.
Worst of all, in collusion with other rootless
forces the Government unleashed a vicious
propaganda offensive aimed at belittling the
Hindus. The kar sevaks were denigrated as
fascists, lumpens and vandals, and December 6,
was described as a ‘national shame’.
Recently, the CBI has filed charge-sheets
against leaders of the BJP and the Vishwa
Hindu Parishad with the purpose of projecting
them as criminals.
This relentless onslaught of the pseudo-
secular forces against the people of India had
very serious consequences. For a start, it
created a wide emotional gulf between the
rulers and the people. Ayodhya was a popular
indictment of the spurious politics of double-
standards. Far from recognising it as such,
the Congress and other anti-BJP parties used
it as a pretext for furthering the cause of
unprincipled minorityism.
It is this minorityism that prevents the
Congress, Janata Dal, Samajvadi Party and the
Communist Parties from coming out with an
unambiguous declaration of intent on Ayodhya.
This BJP is the only party which is
categorical in its assurance to facilitate the
construction of the Rama Temple at the site of
the erstwhile Babri structure. This is what
the people desire.”
141. The further submission was that the demolition of the
disputed structure was the outcome of the speeches,
programme and the several campaigns including Rath Yatras
undertaken by the leaders of the BJP. It is neither
possible nor realistic to dissociate the Governments of
Madhya Pradesh, Rajasthan and Himachal Pradesh from the acts
and deeds of their
142
party. It is one party with one programme. It is stated in
the report of the Himachal Pradesh Governor that the Chief
Minister himself was a member of the RSS. In the report of
the Governor of Madhya Pradesh also, it is stated that the
Chief Minister and other Ministers swore by the values and
traditions of the RSS. The reports also indicate that these
Governments actively participated in organising and
despatching the kar sevaks to Ayodhya and welcomed them and
praised when they came back after doing the deed. Thus, a
common thread runs through ail the four BJP Governments and
binds them together. The manifestos of the party on the
basis of which these Governments came to power coupled with
their speeches and actions clearly demonstrate a commonness
and unity of action between the party and the four
Governments. The very manifestos and their programme of
action were such as to hurt the religious feelings of the
Muslim community. The demolition of the disputed structure
was no ordinary event. The disputed structure had become
the focal point and the bone of contention between two
religious communities. The process which resulted in the
demolition and the manner in which it was perpetrated, dealt
a serious blow to the communal harmony and peace in the
country. It had adverse international repercussions as
well. A number of Hindu temples were demolished in Pakistan
and Bangladesh in reprisal of the demolition at Ayodhya. It
was difficult in this situation for the minorities in the
four States to have any faith in tile neutrality of the four
Governments. It was absolutely necessary to recreate a
feeling of security among them. They required to be assured
of the safety and security of their person and property.
This was not possible with the BJP Governments in power.
142. It was also stressed that the Chief Ministers of
Himachal Pradesh and Madhya Pradesh were the members of the
banned RSS. In such circumstances, the respective Governors
were rightly of the view that the said Chief Ministers could
not be expected to, or relied upon to implement the ban
sincerely. Hence it could not be said to be an unfounded
opinion. Allowing a party which had consciously and
actively brought about such a situation to continue in
office in these circumstances would not have helped in
restoring the faith of people in general and of the
minorities in particular. It is no answer to say that
disturbance took place on a much larger scale in certain
States ruled by Congress (1) parties and that no action was
taken against those Governments.
143. In reply to these contentions, the counsel for the
petitioners submitted that if the reasoning of the counsel
for the Union of India was accepted, it would mean that BJP
cannot form Government in any State and the party has to be
banned and that the acceptance of such submissions would
create a serious political situation. They also pointed out
that the majority judgment of the two judges of the Madhya
Pradesh High Court+ had quashed the Proclamation taking the
view that it was not possible to accept that failure on the
part of the State Government to save the lives and
properties of citizens in a few cities in the State as a
result of sudden
+ Ed.: Sunderlal Pa a v. Union of India, 1993 Jab LJ 387
(FB)
143
outbreak of violence could reasonably lead to the
satisfaction of the President that the Government was unable
to function in accordance with the Constitution and,
therefore, the consequent dissolution of the Assembly was
also bad in law.
144. The gist of the contentions of the petitioners was that
mere disturbance in some parts of Madhya Pradesh and
Rajasthan involving the loss of some lives and destruction
of some property did not amount to a situation where it
could be said that the Governments of those States could not
be carried on in accordance with the provisions of the
Constitution. Further, the fact that the Ministries of
these States belonged to BJP whose one of the political
planks in the election manifesto was the construction of Sri
Ram Temple at the site of the mosque by relocating the
mosque somewhere else, did not amount to an act to give rise
to the apprehension that the Ministries of that party were
infidel to the objective of secularism enshrined in the
Constitution. So also, the pursuit of the programme of
constructing the temple on the site of the mosque by
relocating the latter elsewhere, by speeches and by
exhorting the kar sevaks to assemble at Ayodhya on December
6, 1992 and by giving them a warm send-off for the purpose
did not amount to a deviation from the creed of secularism
nor did the welcome to the kar sevaks in the State after the
destruction of the mosque or the inaction of the leaders of
the BJP present at the site in preventing the kar sevaks
from destroying the mosque or want of the expression of
regret on their part over such destruction amount to a
breach of the goal of secularism. A mere continuance in
office of the Ministries which were formed on the said
political plank in the aftermath of the destruction of the
mosque by itself could not further have led to the feelings
of insecurity in the minds of the Muslims when the State
Governments of Rajasthan and Madhya Pradesh could not be
said to be remiss in taking all necessary actions to prevent
riots and violence and when there was no incident of
violence or destruction in Himachal Pradesh. As against
this, the sum and substance of the contentions on behalf of
the Union of India and others supporting the Proclamations
in these States was that the Ministries heading the
Administration in these States could not be trusted to
adhere to secularism when they had admittedly come to power
on the political plank of constructing Sri Ram Mandir on the
site of the mosque by relocating the mosque elsewhere which
meant by destroying it and then reconstructing it at other
place. This was particularly so, when by its actual deed on
December 6, 1992, the party in question demonstrated what
they meant by their said political manifesto. It was facile
thereafter to contend that the party only wanted to follow
the constitutional means to pursue the goal of constructing
the Ram Temple on the said site. The destruction of mosque
was a concrete proof of the creed which the party in
question wanted to pursue. In such circumstances, the
Ministries formed by the said party could not be trusted to
follow the objective of secularism which was part of the
basic structure of the Constitution and also the soul of the
Constitution.
145. These contentions inevitably invite us to discuss the
concept of secularism as accepted by our Constitution. Our
Constitution does not
144
prohibit the practice of any religion either privately or
publicly. Through the Preamble of the Constitution, the
people of this country have solemnly resolved to constitute
this country, among others, into a secular republic and to
secure to all its citizens (i) JUSTICE, social, economic and
political; (ii) LIBERTY of thought, expression, belief,
faith and worship; (iii) EQUALITY of status and of
opportunity; and (iv) to promote among them all FRATERNITY
assuring the dignity of the individual and the unity and
integrity of the Nation. Article 25 of the Constitution
guarantees to all persons equally the freedom of conscience
and the right to freely profess, practise and propagate
religion subject to public order, morality and health and
subject to the other Fundamental Rights and the State’s
power to make any law regulating or restricting any
economic, financial, political or other secular activity
which may be associated with religious practice. Article 26
guarantees every religious denomination or any section
thereof the right (a) to establish and maintain institutions
for religious and charitable purposes, (b) to manage its own
affairs in matters of religion, (c) to own and acquire
movable and immovable property and (d) to administer such
property in accordance with law. Article 29 guarantees
every section of the citizens its distinct culture, among
others. Article 30 provides that all minorities based on
religion shall have the right to establish and administer
educational institutions of their choice. It prohibits the
State from making any discrimination in granting aid to an
educational institution managed by a religious minority.
Under Articles 14, 15 and 16, the Constitution prohibits
discrimination against any citizen on the ground of his
religion and guarantees equal protection of law and equal
opportunity of public employment. Article 44 enjoins upon
the State to endeavour to secure to its citizens a uniform
civil code. Article 51-A casts a duty on every citizen of
India, among others, (a) to abide by the Constitution and
respect its ideals and institutions, (b) to promote harmony
and the spirit of common brotherhood, among all the people
of India, transcending, among others, religious and
sectional diversities, (c) to value and preserve the rich
heritage of our composite culture, (d) to develop scientific
temper, humanism and the spirit of inquiry and reform; and
(e) to safeguard public property and to abjure violence.
146. These provisions by implication prohibit the
establishment of a theocratic State and prevent the State
either identifying itself with or favouring any particular
religion or religious sect or denomination. The State is
enjoined to accord equal treatment to all religions and
religious sects and denominations.
147. As has been explained by Shri M.C. Setalvad (Patel
Memorial Lectures– 1965 on Secularism)-
“Secularism often denotes the way of life and
conduct guided by materialistic considerations
devoid of religion. The basis of this
ideology is that material means alone can
advance mankind and that religious beliefs
retard the growth of the human beings … this
ideology is of
145
recent growth and it is obvious that it is
quite different from the concept of secular
State in the West which took root many
centuries ago. …
A different view in relation to religion is
the basis of ‘secularism’ understood in the
sense of what may be called a ‘secular
attitude’ towards life. Society generally or
the individual constituting it tend
progressively to isolate religion from the
more significant areas of common life. Many
of us, Hindus and Muslims and others, are in
our way of life, and outlook on most matters
largely governed by ideas and practices which
are connected with or are rooted in our
religion. The secular attitude would wean us
away from this approach so that in our
relations with our fellow beings or in
dealings with other social groups, we have
less and less regard for religion and
religious practices and base our lives and
actions more on worldly considerations,
restricting religion and its influence to what
has been called its ‘proper’ sphere, i.e., the
advancement of the spiritual life and well-
being of the individual. Secularism of this
character is said to be essential to our
progress as human beings and as a nation
because it will enable us to shake off the
narrow and restrictive outlook arising out of
casteism, communalism and other like ideas
which come in the way of our development.
‘secularism’ of the kinds we have adverted to
above. … No doubt, the two concepts are
interdependent in the sense that it is
difficult to conceive of a society or a group
of individuals being induced to adopt a
secular philosophy or a secular attitude
without the aid of a secular State.
A secular State is not easy to define.
According to the liberal democratic tradition
of the West, the secular State is not hostile
to religion but holds itself neutral in
matters of religion…….
Thereafter, referring to the Indian concept of
secularism, the learned jurist stated as
follows :
“… the secularist way of life was repeatedly
preached by leaders of movement so that
religious matters came to be regarded entirely
as relating to the conscience of the
individuals…….
“The coming of the partition emphasised the
great importance of secularism.
Notwithstanding the partition, a large Muslim
minority consisting of a tenth of the
population continued to be the citizens of
independent India. There are other important
minority groups of citizens. In the
circumstances, a secular Constitution for
independent India under which all religions
could enjoy equal freedom and all citizens
equal right and which could weld together into
one nation, the different religious
communities, become inevitable.”
Thereafter, the learned jurist has gone on to point out that
our Constitution undoubtedly lacks a complete separation
between the church and the State as in the United States and
at the same time we have no established church as in Great
Britain or some other countries. In our country, all
religions are placed on the basis of equality and it would,
therefore, seem that it is erroneous to
146
describe our country as a secular State. He quoted Dr
Radhakrishnan who said that “the religious impartiality of
the Indian State is not to be confused with secularism or
atheism”. He also pointed out that the proceedings of the
Constituent Assembly show that “two attempts made to
introduce the word ‘secular’ in the Constitution had
failed. …” At the same time, he asserted that…….
nevertheless, it could not be said that the Indian State did
not possess some important characteristics of a Secular
State” and has pointed out some of the provisions of the
Constitution to which we have already made a reference
above. He has then stated that the ideal of a Secular State
in the sense of a State which treats all religions alike and
displays benevolence towards them is in a way more suited to
the Indian environment and climate than that of a truly
Secular State by which he meant a State which creates
complete separation between religion and the State. Justice
Chinnappa Reddy, delivering his Ambedkar Memorial Lecture on
‘Indian Constitution and Secularism’ has observed that :
“Indian constitutional secularism is not
supportive of religion at all but has adopted
what may be termed as permissive attitude
towards religion out of respect for individual
conscience and dignity. There, even while
recognising the right to profess and practise
religion, etc., it has excluded all secular
activities from the purview of religion and
also of practices which are repugnant to
public order, morality and health and are
abhorrent to human rights and dignity, as
embodied in the other fundamental rights
guaranteed by the Constitution.”
148. One thing which prominently emerges from the above
discussion on secularism under our Constitution is that
whatever the attitude of the State towards the religions,
religious sects and denominations, religion cannot be mixed
with any secular activity of the State. In fact, the
encroachment of religion into secular activities is strictly
prohibited. This is evident from the provisions of the
Constitution to which we have made reference above. The
State’s tolerance of religion or religions does not make it
either a religious or a theocratic State. When the State
allows citizens to practise and profess their religions, it
does not either explicitly or implicitly allow them to
introduce religion into non-religious and secular activities
of the State. The freedom and tolerance of religion is only
to the extent of permitting pursuit of spiritual life which
is different from the secular life. The latter falls in the
exclusive domain of the affairs of the State. This is also
clear from sub-section (3) of Section 123 of the
Representation of the People Act, 1951 which prohibits an
appeal by a candidate or his agent or by any other person
with the consent of the candidate or his election agent to
vote or refrain from voting for any person on the ground of
his religion, race, caste, community or language or the use
of or appeal to religious symbols. Subsection (3-A) of the
same section prohibits the promotion or attempt to promote
feelings of enmity and hatred between different classes of
the citizens of India on the grounds of religion, race,
caste, community or language by a candidate or his agent or
any other person with the consent of the candidate or his
election agent for the furtherance of the prospects of the
147
election of that candidate or for prejudicially affecting
the election of any candidate. A breach of the provisions
of the said sub-sections (3) and (3-A) are deemed to be
corrupt practices within the meaning of the said section.
149. Mr. Ram Jethmalani contented that what was prohibited
by Section 123(3) was not an appeal to religion as such but
an appeal to religion of the candidate and seeking vote in
the name of the said religion. According to him, it did not
prohibit the candidate from seeking vote in the name of a
religion to which the candidate did not belong. With
respect, we are unable to accept this contention. Reading
sub-sections (3) and (3-A) of Section 123 together, it is
clear that appealing to any religion or seeking votes in the
name of any religion is prohibited by the two provisions.
To read otherwise is to subvert the intent and purpose of
the said provisions. What is more, assuming that the
interpretation placed by the learned counsel is correct, it
cannot control the content of secularism which is accepted
by and is implicit in our Constitution.
150. In view of the content of secularism adopted by our
Constitution as discussed above, the question that poses
itself for our consideration in these matters is whether the
three Governments when they had to their credit the acts
discussed above, could be trusted to carry on the governance
of the State in accordance with the provisions of the
Constitution and the President’s satisfaction based on the
said acts could be challenged in law. To recapitulate, the
acts were (i) the BJP manifesto on the basis of which the
elections were contested and pursuant to which elections the
3 Ministries came to power stated as follows :
“BJP firmly believes that construction of Sri
Ram Mandir at Janmasthan is a symbol of the
vindication of our cultural heritage and
national self-respect. For BJP it is purely a
national issue and it (sic) not allow any
vested interest to give it a sectarian and
communal colour. Hence party is committed to
build Sri Ram Mandir at Janmasthan by
relocating superimposed Babri structure with
due respect.”
(emphasis supplied)
(ii) Leaders of the BJP had consistently made speeches
thereafter to the same effect. (iii) Some of the Chief
Ministers and Ministers belonged to RSS which was a banned
Organisation at the relevant time. (iv) The Ministers in he
Ministries concerned exhorted people to join kar seva in
Ayodhya on December 6, 1992. One MLA belonging to the
ruling BJP in Himachal Pradesh made a public statement that
he had actually participated in the estruction of the
mosque. (v) Ministers had given public send-off to the kar
sevaks and had also welcomed them on their return after the
destruction of he mosque. (vi) The implementation of the
policy pursuant to the ban of the SS was to be executed by
the Ministers who were themselves members of he said
Organisation. (vii) At least in two States, viz., Madhya
Pradesh and Rajasthan there were atrocities against the
Muslims and loss of lives and destruction of property.
151. As stated above, religious tolerance and equal
treatment of all religious groups and protection of their
life and property and of the places of
148
their worship are an essential part of secularism enshrined
in our Constitution. We have accepted the said goal not
only because it is our historical legacy and a need of our
national unity and integrity but also as a creed of
universal brotherhood and humanism. It is our cardinal
faith. Any profession and action which go counter to the
aforesaid creed are a prima facie proof of the conduct in
defiance of the provisions of our Constitution. If
therefore, the President had acted on the aforesaid
“credentials” of the Ministries in these States which had
unforeseen and imponderable cascading consequences, it can
hardly be argued that there was no material before him to
come to the conclusion that the Governments in the three
States could not be carried on in accordance with the
provisions of the Constitution. The consequences of such
professions and acts which are evidently against the
provisions of the Constitution cannot be measured only by
what happens in praesenti. A reasonable prognosis of events
to come and of their multifarious effects to follow can
always be made on the basis of the events occurring, and if
such prognosis had led to the conclusion that in the
circumstances, the Governments of the States could not be
carried on in accordance with the provisions of the
Constitution, the inference could hardly be faulted. We
are, therefore, of the view that the President had enough
material in the form of the aforesaid professions and acts
of the responsible section in the political set-up of the
three States including the Ministries, to form his
satisfaction that the Governments of the three States could
not be carried on in accordance with the provisions of the
Constitution. Hence the Proclamations issued could not be
said to be invalid.
152. The appeals filed against the judgment of the Madhya
Pradesh High Court have, therefore, to be allowed and the
transfer cases challenging the Proclamation, have to be
dismissed.
Summary of conclusions:
153. Our conclusions, therefore, may be
summarised as under
1. 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 mala fide exercise of the power.
When a prima facie case is made out in the
challenge to the Proclamation, the burden is
on the Union Government to prove that the
relevant material did in fact exist, such
material may be either the report of the
Governor or other than the report.
11. Article 74(2) is not a bar against the
scrutiny of the material on the basis of which
the President had arrived at his satisfaction.
111. When the President issues Proclamation
under Article 356(1), he may exercise all or
any of the powers under sub-clauses (a), (b)
and (c) thereof. It is for him to decide
which of the said powers he will exercise,
+ Ed.: Sunderlal Parwa v. Union of India, 1993
Jab LJ 387 (FB)
149
and at what stage, taking into consideration
the exigencies of the situation.
IV. Since the provisions contained in clause
(3) of Article 356 are intended to be a check
on the powers of the President under clause
(1) thereof, it will not be permissible for
the President to exercise powers under sub-
clauses (a), (b) and (c) of the latter clause,
to take irreversible actions till at least
both the Houses of Parliament have approved of
the Proclamation. It is for this reason that
the President will not be justified in
dissolving the Legislative Assembly by using
the powers of the Governor under Article
174(2)(b) read with Article 356(1)(a) till at
least both the Houses of Parliament approve of
the Proclamation.
V. If the Proclamation issued 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 to the issuance of the
Proclamation and hence to restore the
Legislative Assembly and the Ministry.
VI. In appropriate cases, 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. However, the court will
not interdict the issuance of the Proclamation
or the exercise of any other power under the
Proclamation.
VII. While restoring the status quo ante, it
will be open for the court to mould the relief
suitably and declare as valid actions taken by
the President till that date. It will also be
open for Parliament and the Legislature of the
State to validate the said actions of the
President.
VIII. Secularism is a part of the basic
structure of the Constitution. The acts of a
State Government which are calculated to
subvert or sabotage secularism as enshrined
in our Constitution, can lawfully be deemed to
give rise to a situation in which the
Government of the State cannot be carried on
in accordance with the provisions of the
Constitution.
IX. The Proclamations dated April 21, 1989
and October 11, 1991 and the action taken by
the President in removing the respective
Ministries and the Legislative Assemblies of
the State of Karnataka and the State of
Meghalaya challenged in Civil Appeal No. 3645
of 1989 and Transfer Case Nos. 5 & 7 of 1992
respectively are unconstitutional. The
Proclamation dated August 7, 1988 in respect
of State of Nagaland is also hel
d
unconstitutional. However, in view of the fac
t
that fresh elections have since taken place
and the new Legislative Assemblies and
Ministries have been constituted in all the
three States, no relief is granted consequent
upon the above declarations. However, it is
declared that all actions which might have
been taken during the period the Proclamation
operated, are valid. The Civil Appeal No.
3645 of 1989
150
and Transfer Case Nos. 5 and 7 of 1992 are
allowed accordingly with no order as to costs.
Civil Appeal Nos. 193-94 of 1989 are disposed
of by allowing the writ petitions filed in the
Gauhati High Court accordingly but without
costs.
X. The Proclamations dated December 15,
1992 and the actions taken by the President
removing the Ministries and dissolving the
Legislative Assemblies in the States of Madhya
Pradesh, Rajasthan and Himachal Pradesh
pursuant to the said Proclamations are not
unconstitutional. Civil Appeal Nos. 1692,
1692-A-1692-C, 4627-30 of 1993 are accordingly
allowed and Transfer Case Nos. 8 and 9 of 1993
are dismissed with no order as to costs.
K. RAMASWAMY, J.- The appeals and transferred cases raise
questions of far-reaching,consequences in the working of the
federal structure under the Constitution of India. Whether
the President of India can keep fiddling like Emperor Nero
while Rome was burning or like Hamlet, Prince of Denmark of
Shakespeare keep the pendulum oscillating between “to be or
not to be” for the issuance of the Proclamation under
Article 356 of the Constitution dismissing the State
Government and dissolving the State Legislatures and to
bring the administration of the State under his rule. If he
so acts, the scope and width of the exercise of the power
and parameters of judicial review, by this Court, as
sentinel on the qui vive, under Article 32 or Article 136 or
High Court under Article 226 to consider the satisfaction,
reached by the President under Article 356; when the actions
of one State Government found seismic vibrations in other
States governed by the same political party, (in the
language of S/Shri Parasaran and P.P. Rao, learned Senior
Counsel, ‘common thread rule’) are also liable to be brought
under the President Rule need to be critically examined arid
decided for successful working of the democratic
institutions set up by the suprema lex. Though the need to
decide these questions practically became academic due to
conducting elections to the State Assemblies and the new
Legislative Assemblies were constituted in the States of
U.P., Rajasthan, Madhya Pradesh and Himachal Pradesh, all
the counsel requested us to decide the questions regardless
of the relief to be granted in this case. As stated earlier
since the decision on these questions is of paramount
importance for successful working of the Constitution, we
acceded to their prayer.
155. In S.R. Bommai’s appeal the facts are that on March 5,
1985 elections held to the Karnataka State Legislative
Assembly and the Janata Dal won 139 seats out of 225 seats
and the Congress Party was the next largest party securing
66 seats. Shri R.K. Hegde was elected as the leader of
Janata Dal and became the Chief Minister. Due to his
resignation on August 12, 1988, Shri S.R. Bommai, was
elected as leader of the party and became the Chief
Minister. As on February 1, 1989 the strength of Janata Dal
was 111 and the Congress was 65 and Janata 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 from Janata Dal and
he wrote letters on April 17 and 18, 1989 to the Governor
enclosing the
151
letters of 19 others expressing want of confidence in Shri
Bommai. On April 19, 1989 the Governor of Karnataka sent a
report to the President. On April 20, 1989, 7 out of 19
MLAs that supported Kalyan Molakery, wrote to the Governor
that their signatures were obtained by misrepresentation and
reaffirmed their support to Shri 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
Shri 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. Bommai v. Union of India30). Thus this appeal by
special leave.
156. In the elections held in February 1990, the Bhartiya
Janata Party, for short BJP, emerged as majority party in
the Legislative Assemblies of Uttar Pradesh, Madhya Pradesh,
Rajasthan and Himachal Pradesh and formed the Governments in
the respective States. One of the programmes of the BJP was
to construct a temple for Lord Sri Rama at his birthplace
Ayodhya. That was made an issue in its manifesto for the
elections to the legislative assemblies. On December 6,
1992 Ram Janmabhoomi-Babri Masjid structure (there is a
dispute that after destroying Lord Sri Rama temple Babur,
the Moghul invader, built Babri Masjid at the birthplace of
Lord Sri Rama. It is an acutely disputed question as to its
correctness.) However Ram Janmabhoomi-Babri Masjid structure
was demolished by the kar sevaks gathered at Ayodhya, as a
result of sustained momentum generated by BJP, Vishwa Hindu
Parishad for short VHP, Rashtriya Swayamsevak Sangh, for
short RSS, Bajrang Dal for short BD, Shiv Sena for short SS
and other organisations. Preceding thereto when the dispute
was brought to this Court, the Government of India was made
to act on behalf of the Supreme Court and from time to time
directions were issued to the State Government which gave an
assurance of full protection to Sri Ram Janmabhoomi-Babri
Masjid structure. On its demolition though the Government
of Uttar Pradesh resigned, the President of India by
Proclamation issued under Article 356 dissolved the State
Legislature on December 6, 1992. The disastrous fall out of
the demolition was in the nature of loss of precious lives
of innocents, and property throughout the country and in the
neighbouring countries. The President, therefore, exercised
the power under Article 356 and by the Proclamations of
December 15, 1992, dismissed the State Governments and
dissolved the Legislative Assemblies of Rajasthan, Madhya
Pradesh and Himachal Pradesh and assumed administration of
the respective States.
30 AIR 1990 Kant 5: ILR 1989 Kant 2425 (FB)
152
157. Shri J. Sorabjee, the learned Senior Counsel appearing
for Shri Bommai contended that power of the President under
Article 356 is not unfettered nor unlimited; its exercise is
dependent upon the existence of an objective fact, namely a
situation has arisen in which the Government of the State
cannot be carried on in accordance with the provisions of
the Constitution. This condition precedent is sine qua non
to the exercise of power and issuance of the Proclamation
under Article 356. The Proclamation must set forth the
grounds and reasons for reaching the satisfaction supported
with the materials or the gist of the events in support
thereof. The grounds and reasons should be cogent and
credible and must bear proximate nexus to the exercise of
the power under Article 356. The breakdown of the
constitutional machinery is generally capable of objective
determination. The power under Article 356 cannot be
exercised on the basis of the report of the Governor or
otherwise of an inefficient or malfunctioning of the
Government or mere violation of some provisions of the
Constitution. It could be exercised only when the
Government misuses its power contrary to the basic scheme
and purpose of the Constitution or for its inability to
discharge its basic constitutional duties and functions due
to political or economic crises which have led to complete
paralysing of the State Administration.
158. The federal character of the Constitution carries by
its implication an obligation to exercise the power under
Article 356 only when there is a total breakdown of the
administration of the State. In interpreting Article 356
the court should keep in view the legislative and
constitutional history of Article 356 and corresponding
provisions of Government of India Act, 1935. The exercise
of the power under Article 356 impinges upon federalism and
visits with great political consequences. Therefore, court
should exercise the power of judicial review and interdict
and restrict wide scope of power under Article 356. The
scope of judicial review would be on the same or similar
grounds on which the executive action of the State is
challengeable under constitutional or administrative law
principles evolved by this Court, namely, non-compliance
with the requirements of natural justice, irrational or
arbitrary, perverse, irrelevant to the purpose or extraneous
grounds weighed with the President, misdirection in law or
mala fide or colourable exercise of power, on all or some of
the principles. The petitioner has to satisfy the Court
only prima facie that the Proclamation is vitiated by any
one or some of the above grounds and burden then shifts on
the Council of Ministers to satisfy the Court of the
legality and validity of the Presidential Proclamation
issued under Article 356. The prohibition of Article 74(2)
has to be understood and interpreted in that background.
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 Executive
cannot seek shelter under “or other information” mentioned
in Article 356(1) as an embargo under Article 361 to state
reasons or as a shield to disclose all the materials in
their custody preventing the court to exercise judicial
review. Only the actual advice or part of the advice
tendered by the
153
Minister or Council of Ministers alone would be beyond the
ken and scrutiny of judicial review. The administrative
decision taken by the Council of Ministers is entirely
different from the advice tendered to the President, and the
latter 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.
159. Shri Shanti Bhushan learned Senior Counsel while
adopting the above contentions argued that the exercise of
the power under Article 356 must be regarded as arbitrary
when there was no constitutional breakdown. Every act of
the State Government cannot be regarded as violation of the
provisions of the Constitution or constitutional breakdown.
The power under Article 356 must be exercised only when
there was actual breakdown of the constitutional machinery
and not mere opinion in that behalf of the Council of
Ministers. The Government, to justify its action, must
place all relevant materials before the court and only when
court is satisfied that the cases relate to actual breakdown
of the constitutional machinery in the State, the
Proclamation may be upheld. The burden of proof is always
on the Government to establish the validity or legality of
the Proclamation issued under Article 356. Shri Ram
Jethmalani tracing historical evidence from the debates that
took place on the floor of the Constituent Assembly,
contended that the keywords for construction are “cannot be
carried on” and “failure of machinery”. The provisions of
Article 356 would be strictly construed so as to preserve
the federal character of the Constitution. The State is a
sovereign and autonomous entity in its own field and
intervention by the Centre would be permissible only when
there is no other way for the Centre to perform its duties
under Article 356. It cannot be invoked for the sake of
good governance of the State or to prevent misgovernance of
the State. The words “cannot be carried on” are not to be
confused with, and are vitally different from the words “is
not being carried on”. The significance of the keyword gets
accentuation from the marginal note of the article “failure
of the constitutional machinery” and the legislative history
of Sections 45 and 93 of the Government of India Act, 1935
must be kept in view for proper construction of Article 356.
According to the learned counsel, Article 356 gives an
indication that extreme step of Proclamation under Article
356 could be invoked sparingly only when all the
alternatives are exhausted. Secularism part of the preamble
is not a part of the Constitution and religion is a
fundamental right to every citizen who composes of a
political party. The election law prohibits election
prospects on religious grounds if the other candidate’s
religion is attacked. It cannot be tested on vague
secularism nor be buttressed into religious right in
particular to a political party. There is no pleading
founded by factual base in these cases that BJP had used
Hindutva as a ground, or criticised lslamic faith. It used
in its manifesto the need for construction of Sri Ram Temple
at his birthplace by demolishing Babri Masjid with most
respectful and dignified language. Even otherwise Sections
29-A and 123(3-A) of R.P. Act are ultra vires Article 25.
The consistent view of this Court that corrupt practice on
grounds of religion is
154
only of the other candidate and not of the petitioner much
more so to a political party. Shri K. Parasaran, learned
Senior Counsel for the Union and Shri P.P. Rao, learned
counsel for the State of Madhya Pradesh refuted the
contentions.
160. The crux of the question is the width of the presidents
power under Article 356. It finds its birth from a family
of Emergency Provisions in Part XVIII of the Constitution.
Article 355 imposes duty on the Union to protect States
against external aggression and internal disturbance and to
ensure that the Government of every State is carried on in
accordance with the provisions of the Constitution. As a
corollary when the Government of the State is not being
carried on in accordance with the provisions of the
Constitution, a constitutional duty and responsibility is
put on the Union to set it right. The foundational factual
matrix is the report of the Governor or other information in
possession of the Union received otherwise to reach a
satisfaction that a situation has arisen for the
intervention by the Union of India. Then comes the exercise
of the power under Article 356 by the President. On the
receipt of a report from the Governor of a State or
otherwise if the President (the Council of Ministers with
Prime Minister as its head) 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, the President may by Proclamation: (a) assume
to himself all or any of the functions of the Government of
a State and all or any of the powers vested in or exercised
by the Governor or any body or authority in the State other
than the Legislature of the State; (b) declare that the
powers of the Legislature of the State shall be exercisable
by or under the authority of Parliament; (c) make such
incidental or consequential provisions as appear to the
President to be necessary or desirable for giving effect to
the objects of the Proclamation including provisions for
suspending in whole or in part the operation of any
provisions of the Constitution relating to any body or
authority in the State. By operation of the proviso to
clause (1) of Article 356, the President shall not assume to
himself any of the powers vested in or exercisable by a High
Court or to suspend in whole or in part the operation of any
provisions of the Constitution relating to High Courts.
161. Clause (2) of Article 356 controls the President’s
exercise of power, if the Proclamation is not revoked or
varied by a subsequent Proclamation, in other words, the
President, through the Council of Ministers has been given
full play to reconsider the question and may revoke it
before Parliament’s approval is sought. It shall remain in
operation for a period of two months unless it is either
revoked by another Proclamation or approved by Parliament.
Clause (3) guarantees built-in check and control on the
exercise of the power. It postulates that every
Proclamation issued under clause (1) shall be laid before
each House of Parliament and shall, except where it is a
Proclamation revoking a previous Proclamation, cease to
operate at the expiration of two months unless before the
expiration of that period it has been approved by a
resolution of both Houses of Parliament. In other words,
the duration of the operation of the Proclamation issued by
the President was
155
limited only for a period of two months from the date of
issue of such Proclamation.
162. Unless it is revoked or disapproved by Parliament in
the meanwhile, it casts an obligation to lay the
Proclamation on the floor of both Houses of Parliament in
accordance with the provisions of the Constitution and the
business rules. This clearly meant that it was to operate
up to the time of two months and when it was in force it
carries with it its necessary implication that all acts done
or actions taken under the Proclamation during the period
are legal and valid.
163. Under the proviso to clause (3) of Article 356 if any
such Proclamation not being a Proclamation revoking a
previous Proclamation is issued at a time when House of
People is dissolved or the dissolution of the House of
People takes place during the period of two months referred
to in the clause and if a resolution approving the
Proclamation has been passed by the Council of States but no
resolution with respect to such Proclamation has been passed
by the House of People before the expiry of that period, the
Proclamation shall cease to operate at the expiration of 30
days from the date on which the House of People first sits
after its reconstitution unless before the expiration of the
said period of 30 days a resolution approving the
Proclamation has been also passed by the House of People.
164. By operation of clause (4) of Article 356 a
Proclamation so approved under proviso to clause (3) shall,
unless revoked, cease to operate on the expiration of a
period of six months from the date of issue of Proclamation
provided that if and so often as a resolution approving the
continuance in force of such Proclamation is passed by both
Houses of Parliament, the Proclamation shall unless revoked
continue in force for a further period of six months from
the date on which it would otherwise have ceased to operate
and no such Proclamation shall in any case remain in force
for more than one year with second approval. The second
proviso adumbrates that if the resolution of the House of
People takes place during any such period of six months and
a resolution approving the continuance in force of such
Proclamation has been passed by the Council of States but no
resolution with respect to the continuance in force of such
Proclamation has been passed by the House of People during
the said date the Proclamation shall cease to operate at the
expiration of 30 days from the date on which the House of
People first sits after the reconstitution unless before the
expiration of the said period of 30 days a resolution
approving the continuance in force of the Proclamation have
also been passed by the House of People. The third proviso
is not material for the purpose of this case. Hence
omitted. Under clause (5) for continuance of the
Proclamation beyond one year and not more than three years,
two conditions are necessary i.e. (i) existence of emergency
issued under Article 352 in the whole of India or whole or
part of the State at the time of passing the resolution and
(ii) the Certificate of the Election Commissioner of his
inability to hold elections to the Assembly of that State.
Article 357 provides the consequential exercise of
legislative power by
156
Parliament or delegation thereof to the President to
exercise them under Article 123, etc.
FEDERALISM AND ITS EFFECT By ACTS DONE UNDER ARTICLE 356
165. The polyglot Indian society of wide geographical
dimensions habiting by social milieu, ethnic variety or
cultural diversity, linguistic multiplicity, hierarchical
caste structure among Hindus, religious pluralism, majority
of rural population and minority urban habitus, the social
and cultural diversity of the people furnish a manuscript
historical material for and the Founding Fathers of the
Constitution to lay federal structure as foundation to
integrate India as a united Bharat. Federalism implies
mutuality and common purpose for the aforesaid process of
change with continuity between the Centre and the States
which are the structural units operating on balancing wheel
of concurrence and promises to resolve problems and promote
social, economic and cultural advancement of its people and
to create fraternity among the people. Article 1 is a
recognition of the history that Union of India’s territorial
limits are unalterable and the States are creatures of the
Constitution and they are territorially alterable
constituents with single citizenship of all the people by
birth or residence with no right to cessation. Under
Articles 2 and 4 the significant feature is that while the
territorial integrity of India is fully ensured and
maintained, there is a significant absence of the
territorial integrity of the constituent States under
Article 3. Parliament may by law form a new State by
separation of territory from any State or by uniting two or
more States or part of States or uniting any territory to a
part of any State or by increasing the area of any State or
diminishing the area of any State, or alter the boundary of
any State.
166. In Berubari Union and Exchange of Enclaves Reference
under Article 143(1) of the Constitution of India, in re3l
Gajendragadkar, J. speaking for eight-judge Bench held that
: (SCR p. 285)
“Unlike other federations, the Federation
embodied in the said Act was not the result of
a pact or union between separate and
independent communities of States who came
together for certain common purposes and
surrendered a part of their sovereignty. The
constituent units of the federation were
deliberately created and it is significant
that they, unlike the units of other
federations, had no organic roots in the past.
Hence, in the Indian Constitution, by contrast
with other Federal Constitutions, the emphasis
on the preservation of the territorial
integrity of the constituent States is absent.
The makers of the Constitution were aware of
the peculiar conditions under which, and the
reasons for which, the States (originally
Provinces) were formed and their boundaries
were defined, and so they deliberately adopted
the provisions in Article 3 with a view to
meet the possibility of the redistribution of
the said territories after the integration of
the Indian States. In fact it is well-known
that as a result of the States Reorganisation
Act, 1956 (Act XXXVII of 1956), in the place
31 (1960) 3 SCR 250 : AIR 1960 SC 845
157
of the original 27 States and one Area which
were mentioned in Part D in the First Schedule
to the Constitution, there are now only 14
States and 6 other Areas which constitute the
Union Territory mentioned in the First
Schedule. The changes thus made clearly
illustrate the working of the peculiar and
striking feature of the Indian Constitution.”
The same was reiterated in State of W.B. v.
Union of India’ and State of Karnataka v.
Union of India32.
167. Union and States Relations under the
Constitution (Tagore Law Lectures) by M.C.
Setalvad at p. IO stated that
… one notable departure from the accepted
ideas underlying a federation when the power
in the Central Government to redraw the
boundaries of States or even to destroy them.”
168. The Constitution decentralises the governance of the
States by a four tier administration i.e. Central
Government, State Government, Union Territories,
Municipalities and Panchayats. See the Constitution for
Municipalities and Panchayats : Part IX (Panchayats) and
Part IX-A (Municipalities) introduced through the
Constitution 73rd Amendment Act, making the peoples’
participation in the democratic process from grass-root
level a reality. Participation of the people in governance
of the State is sine qua non of functional democracy. Their
surrender of rights to be governed is to have direct
encounter in electoral process to choose their
representatives for resolution of common problems and social
welfare. Needless interference in self-governance is
betrayal of their faith to fulfil self-governance and their
democratic aspirations. The constitutional culture and
political morality based on healthy conventions are the
fruitful soil to nurture and for sustained growth of the
federal institutions set down by the Constitution. In the
context of the Indian Constitution federalism is not based
on any agreement between federating units but one of
integrated whole as pleaded with vision by Dr B.R. Ambedkar
on the floor of the Constituent Assembly at the very
inception of the deliberations and the Constituent Assembly
unanimously approved the resolution of federal structure.
He poignantly projected the pitfalls flowing from the word
“federation”.
169. The federal State is a political convenience intended
to reconcile national unity and integrity and power with
maintenance of the State’s right. The end aim of the
essential character of the Indian federalism is to place the
nation as a whole under control of a national Government,
while the States are allowed to exercise their sovereign
power within their legislative and coextensive executive and
administrative sphere. The common interest is shared by the
Centre and the local interests are controlled by the States.
The distribution of the legislative and executive power
within limits and coordinate authority of different organs
are delineated in the organic law of the land, namely the
Constitution itself. The essence of federalism, therefore,
is distribution of the power of the State among its
coordinate bodies. Each is
1 (1964) 1 SCR 37 1: AIR 1963 SC 1241
32 (1977) 4 SCC 608
158
organised and controlled by the Constitution. The division
of power between the Union and the States is made in such a
way that whatever has been the power distributed,
legislative and executive, be exercised by the respective
units making each a sovereign in its sphere and the rule of
law requires that there should be a responsible Government.
Thus the State is a federal status. The State qua the
Centre has quasi-federal unit. In the language of Prof.
K.C. Wheare in his Federal Government, 1963 Edn. at page 12
to ascertain the federal character, the important point is,
“whether the powers of the Government are divided between
coordinate independent authorities or not”, and at page 33
he stated that “the systems of Government embody
predominantly on division of powers between Centre and
regional authority each of which in its own sphere is
coordinating with the other independent as of them, and
if so is that Government federal?”
170. Salmond in his Jurisprudence, 9th Edn. brought out the
distinction between unitary type of Government and federal
form of Government. According to him a unitary or a simple
State is one which is not made up of territorial divisions
which are States themselves. A composite State on the other
hand is one which is itself an aggregate or group of
constituent States. Such composite States can be called as
imperial, federal or confederate. The Constitution of India
itself provided the amendments to territorial limits from
which we discern that the federal structure is not
obliterated but regrouped with distribution of legislative
powers and their scope as well as the coextensive executive
and administrative powers of the Union and the States.
Articles 245 to 255 of the Constitution deal with relative
power of the Union and the State Legislature read with
Schedule VII of the Constitution and the entries in List 1
preserved exclusively to Parliament to make law and List II
confines solely to the State Legislature and List III
Concurrent List in which both Parliament as well the State
Legislature have concurrent jurisdiction to make law in the
occupied field, with predominance to the law made by
Parliament, by operation of proviso to clause (2) of Article
254. Article 248, gives residuary legislative powers
exclusively to Parliament to make any law with respect to
any matters not enumerated in the Concurrent List or the
State List including making any law imposing a tax not
mentioned in either of those lists. The relative importance
of entries in the respective lists to the VIIth Schedule
assigned to Parliament or a State Legislature are neither
relevant nor decisive though contended by Shri K. Parasaran.
Indian federalism is in contradistinction to the federalism
prevalent in USA, Australia and Canada.
171. In regard to distribution of executive powers the
Constitution itself made demarcation between the Union and
the States. Article 73(1) read with proviso and Article 162
read with proviso bring out this demarcation. The executive
power of the Union and the State are coextensive with their
legislative powers. However, during the period of emergency
Articles 352 and 250 envisaged certain contingencies in
which the executive power of the State concerned would be
divested and taken over by the Union of India
159
which would last up to a period of 6 months, after that
emergency in that area is so lifted or ceased.
172. The administrative relations are regulated by Articles
256 and 258 A for effective working of the Union Executive
without in any way impeding or impairing the exclusive and
permissible jurisdiction of the State within the territory.
Articles 268 and 269 enjoin the Union to render financial
assistance to the States. The Constitution also made the
Union to depend on the States to enforce the Union law
within States concerned. The composition of Rajya Sabha as
laid down by Article 80 makes the Legislature of the State
to play its part including the one for ratifying the
constitutional amendments made by Article 368. The election
of the President through the elected representatives of the
State Legislatures under Article 54 makes the legislatures
of federal units an electoral college. The legislature of
the State has exclusive power to make laws for such State or
any part thereto with respect to any of the matters
enumerated in List II of the VIIth Schedule by operation of
Article 246(3) of the Constitution.
173. The Union of India by operation of Articles 340 and
245, subject to the provisions of the Constitution, has
power to make laws for the whole or any part of the
territory of India and the said law does not eclipse, nor
become invalid on the ground of extraterritorial operation.
In the national interest it has power to make law in respect
of entries mentioned in List II, State List, in the penal
field, as indicated in Article 249. With the consent of the
State, it has power to make law under Article 252. The
Union Judiciary, the Supreme Court of India, has power to
interpret the Constitution and decide the disputes between
Union and the States and the States inter se. The law laid
down by the Supreme Court is the law of the land under
Article 14 1. The High Court has judicial power over
territorial jurisdiction over the area over which it
exercises power including control over lower judiciary.
Article 261 provides full faith and credit to the
proceedings or public acts or judicial proceedings of the
Union and of the States throughout the territory of India as
its fulcrum. Indian Judiciary is unitary in structure and
operation. Articles 339, 344, 346, 347, 353, 358, 360, 365
and 371-C(2) give power to the Union to issue directions to
the States. Under Article 339(2) the Union has power to
issue directions relating to tribal welfare and the State is
enjoined to implement the same. In an emergency arising out
of war or aggression or armed rebellion, contemplated under
Article 352 or emergency due to failure of the
constitutional machinery in a State envisaged under Article
356, or emergency in the event of threat to the financial
stability or credit of India, Article 360 gives dominant
power to the Union. During the operation of emergency
Article 19 of the Constitution would become inoperative and
the Centre assumes the legislative power of a State unit.
Existence of All India Services under Article 312 and
establishment of inter-State councils under Article 263 and
existence of financial relations in Part XII of the
Constitution also indicates the scheme of distribution of
the revenue and the primacy to the Union to play its role.
Establishment of Finance Commission for recommendations to
the President under Article 280 for the distribution
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of revenue between the Union and the States and allocation
of the respective shares of such inter-State trade and
commerce envisaged in Part XIII of the Constitution and
primacy to the law made therein bring out, though, strongly
in favour of unitary character, but suggestively for
balancing operational federal character between the Union
and the States make the Constitution a quasi-federal.
174. As earlier stated the organic federalism designed by
the founding Fathers is to suit the parliamentary form of
Government to suit the Indian conditions with the objective
of promoting mutuality and common purpose rendering social,
economic and political justice, equality of status and
opportunity; dignity of person to all its citizens
transcending regional, religious, sectional or linguistic
barriers as complimentary units in working the Constitution
without confrontation. Institutional mechanism aimed to
avoid friction to promote harmony, to set constitutional
culture on firm foothold for successful functioning of the
democratic institutions, to bring about matching political
culture adjustment and distribution of the roles in the
operational mechanism are necessary for national integration
and transformation of stagnant social order into vibrant
egalitarian social order with change and continuity
economically, socially and culturally. In the State of W.B.
v. Union of India’, this Court laid emphasis that the basis
of distribution of powers between Union and the States is
that only those powers and authorities which are concerned
with the regulation of local problems are vested in the
State and those which tend to maintain the economic nature
and commerce, unity of the nation are left with the Union.
In Shamsher Singh v. Union of India 22 this Court held that
parliamentary system of quasi-federalism was accepted
rejecting the substance of Presidential style of Executive.
Dr Ambedkar stated on the floor of the Constituent Assembly
that the Constitution is, “both unitary as well as federal
according to the requirement of time and circumstances”. He
also further stated that the Centre would work for common
good and for general interest of the country as a whole
while the States work for local interest. He also refuted
the plea for exclusive autonomy of the States. It would
thus appear that the overwhelming opinion of the Founding
Fathers and the law of the land is to preserve the unity and
territorial integrity of the nation and entrusted the common
wheel (sic weal) to the Union insulating from future
divisive forces or local zealots with disintegrating India.
It neither leaned heavily in favour of wider powers in
favour of the Union while maintaining to preserve the
federal character of the States which are an integral part
of the Union. The Constitution being permanent and not
self-destructive, the Union of India is indestructible. The
democratic form of Government should nurture and work within
the constitutional parameters provided by the system of law
and balancing wheel has been entrusted in the hands of the
1 (1964) 1 SCR 37 1: AIR 1963 SC 1241
22 (1974) 2 SCC 831: 1974 SCC (L&S) 550: (1975) 1 SCR 814
161
Union Judiciary to harmonise the conflicts and adopt
constitutional construction to subserve the purpose
envisioned by the Constitution.
ROLE OF THE GOVERNOR
175. The key actor in the Centre-State relations is the
Governor, a bridge between the Union and the State. The
Founding Fathers deliberately avoided election to the office
of the Governor, as is in vogue in USA to insulate the
office from linguistic chauvinism. The President has been
empowered to appoint him as executive head of the State
under Article 155 in Part VI, Chapter 11. The executive
power of the State is vested in him by Article 154 and
exercised by him with the aid and advice of the Council of
Ministers, the Chief Minister as its head. Under Article
159 the Governor shall discharge his functions in accordance
with the oath “to protect and defend the Constitution and
the law”. The office of the Governor, therefore, is
intended to ensure protection and sustenance of the
constitutional process of the working of the Constitution by
the elected executive and gives him an umpire’s role. When
a Gandhian economist member of the Constituent Assembly
wrote a letter to Gandhiji of his plea for abolition of the
Office of the Governor, Gandhiji wrote to him for its
retention, thus:
“The Governor had been given a very useful and
necessary place in the scheme of the team. He
would be an arbiter when there was a
constitutional deadlock in the State and he
would be able to play an impartial role.
There would be administrative mechanism
through which the constitutional crises would
be resolved in the State.”
The Governor thus should play an important role. In his
dual undivided capacity as a head of the State he should
impartially assist the President. As a constitutional head
of the State Government in times of constitutional crisis he
should bring about sobriety. The link is apparent when we
find that Article 356 would be put into operation normally
based on Governor’s report. He should truthfully and with
high degree of constitutional responsibility, in terms of
oath, inform the President that a situation has arisen in
which the constitutional machinery in the State has failed
and the Government of State cannot be carried on in
accordance with the provisions of the Constitution, with
necessary detailed factual foundation. The report normally
is the foundation to reach the satisfaction by the
President. So it must furnish material with clarity for
later fruitful discussion by Parliament. When challenged in
a constitutional court it gives insight into the
satisfaction reached by the President. The Governor,
therefore, owes constitutional duty and responsibility in
sending the report with necessary fectual details and it
does require the approval of the Council of Ministers;
equally not with their aid and advice.
DEMOCRACY AND SECULARISM
176. Democracy stands for freedom of conscience and belief,
tolerance and mutual respect. India being a plural society
with multi-religious faiths, diverse creeds, castes and
cultures, secularism is the bastion to build
162
fraternity and amity with dignity of person as its
constitutional policy. It allows diverse faiths to flourish
and make it a norm for tolerance and mutual respect between
various sections of the people and to integrate them with
dignity and fulfilment of cravings for self-realisation of
religious belief with larger national loyalty and progress.
Rule of law has been chosen as an instrument for social
adjustment in the event of clash of interests. In a free
society, law interacts between competing claims in a
continuing process to establish order with stability. Law
should not only reflect social and religious resilience but
has also to provide a lead by holding forth the norms for
continuity for its orderly march towards an ideal
egalitarian social order envisioned in the preamble of the
Constitution. The culture of the law, in the Indian
Democratic Republic should be on secular lines. A balance,
therefore, has to be struck to ensure an atmosphere of full
faith and confidence. Charles Broadlaugh in seventeenth
century for the first time used secularism as antagonistic
to religious dogma as ethical and moral binding force. This
Western thought, in course of time gained humanistic
acceptance. The word secularism defined in Oxford
Dictionary means that “morality should be based solely in
regard to the well-being of the mankind in the present life
to the exclusion of all considerations drawn from the belief
in God or a future study”. In Encyclopaedia Britannica
secularism is defined as “branch of totalitarian ethics, it
is for the physical, moral and social improvement of mankind
which neither affirms nor denies theistic problems of
religion”. Prof. Goethinysem of the Berlin University
writing on secularism in the Encyclopaedia of the Social
Sciences (1939 Edn.) defined it as “the attempt to establish
autonomous sphere of knowledge purged of supernatural,
fideistic presuppositions”. He described it, in its
philosophical aspect, “as a revolt against theological and
eventually against metaphysical absolutes and universals”.
He pointed out that “the same trend may be charted out in
the attitudes towards social and political institutions”, so
that men in general broke away from their dependence upon
the Church which was regarded as the guardian of an eternal
welfare which included that in this world as well as that in
the next, and, therefore, was considered entitled to primacy
or supremacy over transient secular authorities. He
indicated how this movement expanded in the second half of
the eighteenth century, into a secularised universalism,
described as “Enlightenment”, which conceived of man on
earth as the source of all really significant and verifiable
knowledge and light. It was increasingly realised that man
depended for his welfare in this world upon his own
scientific knowledge and wisdom and their applications and
upon a socioeconomic system of which, willy-nilly, he found
himself a part. He had, therefore, argued that the man has
to take the responsibility for and bear the consequence of
his own follies and inequities and not look upon them as a
part of some inscrutable design of external powers or beings
controlling his destiny. G.L. Holyoake, an associate of
Charles Broadlaugh in his Principles of Secularism in 1859
advocated for secularism which received approval and
acceptance by celebrated political philosopher J.S. Mill.
Jeremy Bentham’s The ‘Theory of Legislation
163
formulated in the eighteenth century stands on moral-based
politics and defined law from the point of view of human
welfare sought through democratic liberal channels and
intended to attain “the greatest happiness of the greatest
number”, a maxim dear to democratic utilitarian political
philosophers.
177. Secularism became the means and consciously pursued for
full practical necessities of human life to liberate the
human spirit from bondage, ignorance, superstition which
have held back humanity. The goal of every civilised
democratic society is the maximisation of human welfare and
happiness which would be best served by a happy
Organisation.
178. Freedom of faith and religion is an integral part of
social structure. Such freedom is not a bounty of the State
but constitutes the very foundation on which the State is
erected. Human liberty sometimes means to satisfy the human
needs in one’s own way. Freedom of religion is imparted in
every free society because it is a part of the general
structure of the liberty in such a society and secondly
because restrictions imposed by one religion would be an
obstacle for others. In the past religious beliefs have
become battlegrounds for power and root cause for
suppression of liberty. Religion has often provided a
pretext to have control over vast majority of the members of
the society. Democratic society realises folly of the
vigour of religious practices in society. Strong religious
consciousness not only narrows the vision but hampers rule
of law. The Founding Fathers of the Constitution,
therefore, gave unto themselves “we people of India”, the
Fundamental Rights and Directive Principles of State Policy
to establish an egalitarian social order for all sections of
the society in the supreme law of the land itself. Though
the concept of “secularism” was not expressly engrafted
while making the Constitution, its sweep, operation and
visibility are apparent from fundamental rights and
directive principles and their related provisions. It was
made explicit by amending the preamble of the Constitution
42nd Amendment Act. The concept of secularism of which
religious freedom is the foremost appears to visualise not
only of the subject of God but also an understanding between
man and man. Secularism in the Constitution is not anti-God
and it is sometimes believed to be a stay in a free society.
Matters which are purely religious are left personal to the
individual and the secular part is taken charge by the State
on grounds of public interest, order and general welfare.
The State guarantee individual and corporate religious
freedom and dealt with an individual as citizen irrespective
of his faith and religious belief and does not promote any
particular religion nor prefers one against another. The
concept of the secular State is, therefore, essential for
successful working of the democratic form of Government.
There can be no democracy if anti-secular forces are allowed
to work dividing followers of different religious faith
flying at each other’s throats. The secular Government
should negate the attempt and bring order in the society.
Religion in the positive sense, is an active instrument to
allow the citizen full development of his person, not merely
in the physical and material but in the non-material and
non-secular life.
164
179. Prof. Goethinysem in his article referred to
hereinbefore outlined the process of secularism of life and
thoughts by which religious sectarianism comes into contact
in daily social and economic spheres of life and he
summarises with “the ideal of human and social happiness
through secularisation of life all the groups of people in
the country striving by most enlightened methods to
establish the maximum of social justice and welfare in the
world”. According to Pt. Jawaharlal Nehru democracy
necessarily implies rigorous self-discipline without which
democracy cannot succeed. Swami Vivekananda explaining the
Vedantic ideas of God and religion in comparison with
western thoughts stated that the religious attitude is
always to seek the dignity inside his ownself as a natural
characteristic of Hindu religion and religious attitude is
always presented by making the subject close his eyes
looking inward. Dr Thouless in his Introduction to the
Psychology of Religion after analysing diverse elements and
definitions of religion defined religion as “a felt
practical relationship with what is believed in a superhuman
being or beings”. The process of secularisation of life and
thought consistently increasing the withdrawal and
separation of religion properly so-called from other spheres
of life and thought which are governed by independent from
above rules and standards. According to Sir James Freezer
in his Golden Bough religion consists largely of not only of
methodological and rituals dominated by all aspects of his
life, social, economic, political, legal, cultural, ethical
or moral, but also technological. The interaction of
religion and secular factors in ultimate analysis is to
expose the abuses of religion and of belief in God by purely
partisan, narrow or for selfish purpose to serve the
economic or political interests of a particular class or
group or a country. The progress of human history is
replete with full misuse of religious notions in that
behalf. But the scientific and analytical spirit
characterises secularism as saviour of the people from the
dangers of supposed fusion of religion with political and
economic activities and inspire the people. The secularism,
therefore, represents faiths born out of the exercise of
rational faculties. It enables people to see the imperative
requirements for human progress in all aspects and cultural
and social advancement and indeed for human survival itself.
It also not only improves the material conditions of human
life, but also liberates the human spirit from bondage of
ignorance, superstition, irrationality, injustice, fraud,
hypocrisy and oppressive exploitations. In other words,
though the whole course of human history discloses an
increasing liberation of mankind, accomplished thought, all
is covered by the term secularism. Trevor Ling’s writings
on Buddhism spoke of it as a secular religion, which teaches
eight-fold path of his mastery and virtuous conduct of
ceaseless, self-critical endeavour for right belief, right
aspiration, right speech, right conduct, right modes of
livelihood, right efforts, right-mindedness and right
scripture. Buddhism rationalises the religion and
civilisation to liberate individual from blindfold adherence
to religious belief to rationalisation, in the language of
Trevor Ling “flat alluvial expansion of secularism”. Dr
Ambedkar believed that Buddhism is the religion best suited
to the Indian
165
soil. Mahatma Gandhi, Father of the Nation, spoke for the
need of religion thus:
,,The need of the mankind is not one of
religion, but mutual respect and tolerance of
the devotees of different religions. We want
to reach not a data level, but unity in
diversity. The soul of all religions is one,
but it is encased in the multitude of forms.
The latter will persist to the end of the
time.”
180. Dr S. Radhakrishnan, the philosopher, former President
of India, in his Discovery of Faith stated that the
religious impartiality of the Indian State is not to be
confused with the secularism or atheism. Secularism as
defined here is in accordance with the enormous religious
traditions of India. It is for living in harmony with each
other. This fellowship is based on the principle of
diversity in unity which alone has all qualities of
creativeness. In his foreword to Dr Abid Hussain’s The
National Culture of India, Dr S. Radhakrishnan remarked that
secularism does not mean licence or a thrust of material
comfort. It lays thrust on universality of the supreme
fellow which may be attained by variety of ways. Indian
concept of secularism means “the equal status to all
religions”. He said that “no one religion should be given
preferential status or unique distinction and that no one
religion should be accorded special privileges in national
life”. That would be violative of basic principles of
democracy. No group of citizens can so arrogate to itself
the right and privilege which it denies to others. No
person shall suffer any form of disability or discrimination
because of his religion, but also alike should be free to
share to the fullest degree in the common life. This is the
basic principle in separation of religion and the State.
Granville Austin in his The Indian Constitution :
Cornerstone of a Nation stated that the Constitution makers
intended to secure secular and socialist goals envisaged in
the preamble of the Constitution. In Ziyauddin Burhanuddin
Bukhari v. Brijmohan Ramdass Mehra 33 this Court held that :
(SCR p. 297: SCC p. 32, para 44)
“The Secular State rising above all
differences of religion, attempts to secure
the good of all its citizens irrespective of
their religious beliefs and practices. It is
neutral or impartial in extending its benefits
to citizens of all castes and creeds.
Maitland had pointed out that such a state has
to ensure, through its laws, that the
existence or exercise of a political or civil
right or the right or capacity to occupy any
office or position under it or to perform any
public duty connected with it does not depend
upon the profession or practice of any
particular religion.”
It was further pointed out : (SCR p. 297: SCC
p. 32, para 45)
“Our Constitution and the laws framed
thereunder leave citizens free to work out
happy and harmonious relationships between
their religions and the quite separable
secular fields of law and politics. But, they
do not permit an unjustifiable invasion of
what belongs to one sphere by what appertains
really to another. It is for courts to
determine, in a case
33 (1976) 2 SCC 17: 1975 Supp SCR 281
166
of dispute, whether any sphere was or was not
properly interfered with, in accordance with
the Constitution, even by a purported law.”
Thereby this Court did not accept the wall of separation
between law and the religion with a wider camouflage to
impress control of what may be described exploitative
parading under the garb of religion. Throughout ages
endless stream of humans of diverse creeds, cultures and
races have come to India from outside regions and climes and
contributed to the rich cultural diversity. Hindu religion
developed resilience to accommodate and imbibe with
tolerance the cultural richness with religious assimilation
and became a land of religious tolerance.
181. Swami Vivekanada stated that right of religious system
and ideals is the same morality; one thing is only preached:
Myself, say “Om”; another one says “Johova”, another “Allah-
ho-Mohammad”, another cries “Jesus”. Gandhiji recognised
that all religions are imperfect and because they are
imperfect they require perfecting themselves rather than
conducting individually. He stated:
“The separate religions Hinduism, Islam,
Christianity, Buddhism are different rights
converging on the same point even as the tree
has the single trunk but many branches and
leaves so there is one perfect religion but it
becomes many as it passes through the human
medium. The Allah of Muslims is the same as
the God of Christians and Ishwara of Hindus.”
182. Making of a nation State involves increasing
secularisation of society and culture. Secularism operates
as a bridge to cross over from tradition to modernity. The
Indian State opted this path for universal tolerance due to
its historical and cultural background and multi-religious
faiths. Secularism in the Indian context bears positive and
affirmative emphasis. Religions with secular craving for
spiritual tolerance have flourished more and survived for
longer period in the human history than those who claimed to
live in a non-existent world of their own. Positive
secularism, therefore, separates the religious faith
personal to man and limited to material, temporal aspects of
human life. Positive secularism believes in the basic
values of freedom, equality and fellowship. It does not
believe in hark back either into country’s history or
seeking shelter in its spiritual or cultural identity dehors
the man’s need for his full development. It moves mainly
around the State and its institution and, therefore, is
political in nature. At the same time religion does not
include other socioeconomic or cultural social structure.
The State is enjoined to counteract the evils of social
forces, maintaining internal peace and to defend the nation
from external aggression. Welfare State under the
Constitution is enjoined to provide means for well-being of
its citizens; essential services and amenities to all its
people. Morality under positive secularism is a pervasive
force in favour of human freedom or secular living. Prof.
Holyoake, as stated earlier, who is the father of modern
secularism stated that “morality should be based on regard
for well-being of the mankind in
167
the person, to the exclusion of all considerations drawn
from the belief in God or a future State”. Morality to him
was a system of human duty commencing from man and not from
God as in the case of religion. He distinguished his
secularism from Christianity, the living interest of the
world that is prospects of another life. Positive
secularism gives birth to biological and social nature of
the man as a source of morality. True religion must develop
into a dynamic force for integration without which the
continued existence of human race itself would become
uncertain and unreal. Secularism teaches spirit of
tolerance, catholicity of outlook, respect for each other’s
faith and willingness to abide by rules of self-discipline.
This has to be for both as an individual and as a member of
the group. Religion and secularism operate at different
planes. Religion is a matter of personal belief and mode of
worship and prayer, personal to the individual while
secularism operates, as stated earlier, on the temporal
aspect of the State activity in dealing with the people
professing different religious faiths. The more devoted a
person in his religious belief, the greater should be his
sense of heart, spirit of tolerance, adherence of secular
path. Secularism, therefore, is not antithesis of religious
devoutness. Swami Vivekananda, and Mahatma Gandhi, though
greatest Hindus, their teachings and examples of lives give
us the message of the blend of religion and the secularism
for the good of all the men. True religion does not teach
to hate those professing other faiths. Bigotry is not
religion, nor can narrow-minded favouritism be taken to be
an index of one’s loyalty to his religion. Secularism does
not contemplate closing each other’s voices to the
sufferings of the people of other community nor it
postulates keeping mum when his or other community make
legitimate demands. If any group of people are subjected to
hardship or sufferings, secularism always requires that one
should never remain insensitive and aloof to the feelings
and sufferings of the victims. At moments of testing times
people rose above religion and protected the victims. This
cultural heritage in India shaped that people of all
religious faiths, living in different parts of the country
are to tolerate each other’s religious faith or beliefs and
each religion made its contribution to enrich the composite
Indian culture as a happy blend or synthesis. Our religious
tolerance received reflections in our constitutional creed.
183. The preamble of the Constitution inter alia assures to
every citizen liberty of thought, expression, belief, faith
and worship. Article 5 guarantees by birth citizenship to
every Indian. No one bargained to be born in a particular
religion, caste or region. Birth is a biological act of
parents. Article 14 guarantees equality before the law or
equal protection of laws. Discrimination on grounds of
religion was prohibited by Article 15. Article 16 mandates
equal opportunity to all citizens in matters relating to
employment or appointment to any office or post under the
State and prohibits discrimination on grounds only of inter
alia religion. Article 25 while reassuring to all persons
freedom of conscience and the right to freely profess,
practice and propagate his religion, it does not affect the
operation of any existing law or preventing the State from
making any law regulating
168
or restricting any social, financial, political or other
secular activity which may be associated with the religious
practice. It is subject to providing a social welfare and
reform or throwing open all Hindu religious institutions of
public character to all classes of citizens and sections of
Hindus. Article 26 equally guarantees freedom to manage
religious affairs, equally subject to public order, morality
and health. Article 27 reinforces the secular character of
Indian democracy enjoining the State from compelling any
person or making him liable to pay any tax, the proceeds of
which are specifically prohibited to be appropriated from
the consolidated fund for the promotion or maintaining of
any particular religion or religious denomination. Taxes
going into consolidated funds should be used generally for
the purpose of ensuring the secular purposes of which only
some are mentioned in Articles 25 and 26 like regulating
social welfare, etc. Article 28(1) maintains that no
religious instruction shall be imparted in any educational
institutions wholly maintained out of the State funds or
receiving aid from the State. Equally no person attending
any educational institution recognised by the State or
receiving aid from the State funds should be compelled to
take part in any religious instruction that may be imparted
in such institution or to attend any religious worship that
may be ‘Conducted in such institution or in any premises
attached thereto unless such person or in the case of a
minor person his guardian has given his consent thereto. By
Article 30(2) the State is enjoined not to discriminate, in
giving aid to an educational institution, on the ground that
it is a minority institution whether based on religion or
language. It would thus be clear that Constitution made
demarcation between religious part personal to the
individual and secular part thereof. The State does not
extend patronage to any particular religion, State is
neither pro particular religion nor anti particular
religion. It stands aloof, in other words maintains
neutrality in matters of religion and provides equal
protection to all religions subject to regulation and
actively acts on secular part.
184. In Ratilal Panachand Gandhi v. State of Bombay34 this
Court defined religion that it is not necessarily atheistic
and, in fact, there are well-known religions in India like
Buddhism and Jainism which do not believe in the existence
of God or caste. A religion undoubtedly has different
connotations which are regarded by those who profess that
religion to be conducive to their spiritual well-being but
it would not be correct to say or seems to have been
suggested by the one of the learned Brothers therein that
matters of religion are nothing but matters of religious
faith and religious belief. The religion is not merely only
a doctrine or belief as it finds expression in acts as well.
In Commissioner, Hindu Religious Endowments, Madras v. Sri
Lakshmindra Thirtha Swamiar 35, known as Shirur Mutt case
this Court interpreted religion in a restricted sense
confining to personal beliefs and attended ceremonies or
rituals. The restrictions contemplated in Part III of the
Constitution are not the control of personal religious
practices
34 1954 SCR 1055: AIR 1954 SC 388
35 1954 SCR 1005: AIR 1954 SC 282
169
as such by the State but to regulate their activities which
are secular in character though. associated with religions,
like management of property attached to religious
institutions or endowments on secular activity which are
amenable to such regulation. Matters such as offering food
to the diety, etc. are essentially religious and the State
does not regulate the same, leaving them to the individuals
for their regulation. The caste system though formed the
kernel of Hinduism, and as a matter of practice, for
millenniums 1/4th of the Indian population Scheduled Castes
and Scheduled Tribes were prohibited entry into religious
institutions like temples, maths, etc. on grounds of
untouchability; Article 17 outlawed it and declared such
practice an offence. Articles 25 and 26 have thrown open
all public places and all places of public worship to Hindu
religious denominations or sects for worship, offering
prayers or performing any religious service in the places of
public worship and no discrimination should be meted out on
grounds of caste or sect or religious denomination. In
Kesavananda Bharati case36 and Indira Nehru Gandhi v. Raj
Narain37 this Court held that secularism is a basic feature
of the Constitution. It is true that Schedule III of the
Constitution provided the form of oath being taken in the
name of God. This is not in recognition that he has his
religion or religious belief in God of a particular religion
but he should be bound by the oath to administer and to
abide by the Constitution and laws as a moral being, in
accordance with their mandate and the individual will ensure
that he will not transgress the oath taken by him. It is
significant to note that the Oaths Act, 1873 was repealed by
Oaths Act, 1966 and was made consistent with the
constitutional scheme of secularism in particular, Sections
7 to 11.
185. Equally admission into an educational institution has
been made a fundamental right to every person and he shall
not be discriminated on grounds only of religion or caste.
The education also should be imparted in the institutions
maintained out of the State fund or receiving aid only on
secular lines. The State, therefore, has a missionary role
to reform the Hindu society, Hindu social order and dilute
the beliefs of caste hierarchy. Even in matters of entry
into religious institutions or places of public resort
prohibition of entry only on grounds of caste or religion is
outlawed.
186. Dr S. Radhakrishnan, stated that: “Religion can be
identified with emotion, sentiments, intensity, cultural,
profession, conscious belief of faith.” According to
Gandhiji : “By religion I do not mean formal religion or
customary religion but that religion which underlies all
religions.” Religion to him was spiritual commitment just
total but intentionally personal. In other words, it is for
only development of the man for the absolution of his
consciousness (sic conscience) in certain direction which he
considered to be good. Therefore, religion is one of belief
personal to the individual which binds him to his conscience
and the moral and basic principles regulating the life of a
man had constituted the religion, as understood in our
Constitution.
37 1975 Supp SCC’ 1: (1976) 2 SCR 347
170
Freedom of conscience allows a person to believe in
particular religious tenets of his choice. It is quite
distinct from the freedom to perform external acts in
pursuance of faith. Freedom of conscience means that a
person cannot be made answerable for rights of religion.
Undoubtedly, it means that no man possesses a right to
dictate to another what religion he believes in; what
philosophy he holds, what shall be his politics or what
views he shall accept, etc. Article 25(1) protects freedom
of conscience and religion of members of only of an
organised system of belief and faith irrespective of
particular affiliations and does not march out of concern
itself as a part of the right to freedom of conscience and
dignity of person and such beliefs and practices which are
reasonable. The Constitution, therefore, protects only the
essential and integral practices of the religion. The
religious practice is subject to the control of public
order, morality and health which includes economic,
financial or other secular activities. Could the religious
practice exercise control over members to vote or not to
vote, to ignore the National Flag, National Anthem, national
institutions? Freedom of conscience under Article 25
whether guarantees people of different religious faiths the
right to religious procession to antagonise the people of
different religious faiths or right to public worship? It
is a fact of social and religious history in India that
religious processions are known to ignite serious communal
riots, disturb peace, tranquillity and public order. The
right to free profession of religion and exercising right to
organise religious congregations does not carry with it the
right to make inflammatory speeches, nor be a licence to
spread violence, nor speak religious intolerance as an
aspect of religious faiths. They are subject to the State
control. In order to secure constitutional protection, the
religious practices should not only be an essential part but
should also be an integral part of proponent’s religion but
subject to State’s control. Otherwise even purely secular
practices which are not an essential or an integral part of
religion are apt to be quoted as religious forms and make a
claim for being treated as religious practices. Law as a
social engineer provides the means as well as lays down the
rules for social control and resolution of conflicts of all
kinds in a human society. But the motive force for social,
economic and cultural transformation comes from individuals
who comprise the society. They are the movers in the mould
of the law as the principal instrument of an orderly
transient to a new socioeconomic order or social integration
and fraternity among the people. The Constitution has
chosen secularism as its vehicle to establish an egalitarian
social order. I am respectfully in agreement with our
Brethren Sawant and Jeevan Reddy, JJ. in this respect.
Secularism, therefore, is part of the fundamental law and
basic structure of the Indian political system to secure to
all its people socioeconomic needs essential for man’s
excellence and of (sic his) moral wellbeing, fulfilment of
material and prosperity and political justice.
SEPARATION OF POLITICS AND RELIGION
187. Black’s Law Dictionary (6th Edn.) page 1158 defined
‘political’ as pertaining or relating to the policy or the
administration of Government, State or national; pertaining
to, or incidental to, the exercise of the functions
171
vested in those charged with the conduct of Government;
relating to the management of affairs of State as political
theories; of or pertaining to exercise of rights and
privileges or the influence by which individuals of a State
seek to determine or control its public policy; having to do
with organization or action of individuals, parties, or
interests that seek to control appointment or action of
those who manage affairs of a State. Political party was
defined as an association of individuals whose primary
parliamentary purposes are to promote or accomplish
elections or appointments to public offices, positions or
jobs. A political party, association or Organisation which
makes contributions for the purpose of influencing or
attempting to influence the electoral process of any
individual or political party whose name is presented for
election to any State or local elective public office,
whether or not such individual is elected. Politics in
positively secular State is to get over their religion, in
other words, in politics a political party should neither
invoke religion nor be dependent on it for support or
sustenance. Constitution ensures to the individual to
protect religion, right to belief or propagate teachings
conducive for secular living, later to be controlled by the
State for betterment of human life and progress. Positive
secularism concerns with such aspects of human life. The
political conduct in his “Political Thought by Dr Ambedkar”
compiled by R.K. Ksheersagar, Intellectual Public House,
1992 Edn. at page 155, stated that:
“In India the majority is not a political
majority. The majority is born but not made,
that is the difference between a communal
majority and a political majority. A
political majority is not purely a majority,
it is the majority which is always made,
unmade and remade. A communal majority is
unalterable majority in its ethics, its
attitudes. Whether the Hindu communal
majority was prepared to accept the views of
the minorities, whether it was prepared to
conceive the constitutional safeguards to the
minorities.” The problems according to Dr
Ambedkar should be solved by adopting right
principles which should be evolved and applied
equally without fear or favour. According to
him the majority community should accept a
relative majority and it should claim absolute
majority. Communal majority is not a
political majority and in politics the
principle of one vote one value should be
adopted irrespective of related
considerations. According to Abul Kalam Azad:
“India is a democracy secular where every
citizen whether he is Hindu, Muslim or Sikh
has equal rights and privileges. Rise of
fundamentalism and communalisation in national
or regional politics are anti-secular and tend
to encourage separatist and divisive forces
laying the seeds to disintegrate the
parliamentary democratic system. The
political parties or candidates should be
stopped from running after vote banks and
judicial process must promote the citizens’
active participation by interpretation of the
Constitution and the laws in proper
perspective in order to maintain the
democratic process on an even keel.”
188. For a political party or an Organisation that seeks to
influence the electorates to promote or accomplishing
success at an election for
172
governance of parliamentary form of Government, the
principles are those embedded in the Directive Principles of
the Constitution vis-a-vis the Fundamental Rights and the
Fundamental Duties in Part IV A and should abide by the
Constitution and promote tolerance, harmony and the spirit
of commonness amongst all the people of India transcending
religious, linguistic, regional or sectional diversities and
to preserve the rich heritage of our composite culture, to
develop humanism, spirit of reformation and to abstain from
violence. Therefore, the manifesto of a political party
should be consistent with these fundamental and basic
features of the Constitution, secularism, socioeconomic and
political justice, fraternity, unity and
national integrity.
189. Under Section 29-A of the Representation of the People
Act, 1951 for short ‘R.P. Act’ registration of a political
party, or a group of individual an application to the
Election Commission constituted under Article 324 for its
registration as political party with a copy of the
memorandum or rules or regulations of the association of the
body signed by its Chief Executive Officer. The application
shall contain a specific provision that the association or
the body shall bear true faith and allegiance to the
Constitution of India as by law established and its members
shall be bound by socialism, secularism and democracy and
would uphold the sovereignty and integrity of India. It is,
therefore, a mandatory duty of every political party, body
of individuals or association and its members to abide by
the Constitution and the laws; they should uphold
secularism, socialism and democracy, uphold sovereignty and
integrity of the nation. Section 123(3) prohibits use of
religion or caste in politics and declares that the
promotion or attempt to promote violence and hatred between
different classes of citizens of India on grounds of
religion and caste for the furtherance of the prospects at
the election of the candidate or for affecting the election
of any candidate was declared to be a corrupt practice. As
per sub-section (3-A) of Section 123 the promotion of, or
attempt to promote feeling of enmity or hatred between
different classes of Indian citizens on grounds of religion,
etc. by a candidate, his election agent or any person with
his consent to further the election prospects of that
candidate or for prejudicially affecting the election of any
candidate was declared as corrupt practice. A political
party, therefore, should not ignore the fundamental features
of the Constitution and the laws. Even its manifesto with
all sophistication or felicity of its language, a political
party cannot escape constitutional mandate and negates the
abiding faith and solemn responsibility and duty undertaken
to uphold the Constitution and laws after it was registered
under Section 29-A. Equally it/they should not sabotage the
same basic features of the Constitution either influencing
the electoral process or working the Constitution or the
law. The political party or the political executive
securing the governance of the State by securing majority in
the legislature through the battle of ballot throughout its
tenure by its actions and programmes, it is required to
abide by the Constitution and the laws in letter and spirit.
173
190. Article 25 inhibits the Government to patronise a
particular religion as State religion overtly or covertly.
Political party is, therefore, positively enjoined to
maintain neutrality in religious beliefs and prohibit
practices derogatory to the Constitution and the laws.
Introduction of religion into politics is not merely in
negation of the constitutional mandates but also a positive
violation of the constitutional obligation, duty,
responsibility and positive prescription of prohibition
specifically enjoined by the Constitution and the R.P. Act.
A political party that seeks to secure power through a
religious policy or caste orientation policy disintegrates
the people on grounds of religion and caste. It divides the
people and disrupts the social structure on grounds of
religion and caste which is obnoxious and anathema to the
constitutional culture and basic features. Appeal on
grounds of religion offends secular democracy.
191. An appeal to the electorates on the grounds of religion
offends secular democracy. In S. Veerabadran Chettiar v. E.
V. Ramaswami Naicker38 (SCR at pp. 1217 & 1218), this Court
held that the courts would be cognizant to the
susceptibilities of class of persons to which the appeal to
religious susceptibility is made and it is a corrupt
practice. Interpreting Section 123(3-A) this Court held
that:
“The section has been intended to respect the
religious susceptibilities of persons of
different religious persuasions or creeds …
very circumspect in such matters and to pay
due regard to feelings and religious emotions
of different classes of persons with different
beliefs irrespective of the consideration
whether or not they share those beliefs, or
whether they are rational or otherwise……
192. This Court in Shubnath Deogram v. Ramnarain Prasad39
held that (SCR p. 959)
“[I]t would appear that the pleasure of the
deities is indicated through the cock taking
the food that is given to it and that the
deities only thereafter accept the sacrifice
of the cock. Therefore, when the leaflet
stated that food should be given to the cock
in the shape of votes what was meant was that
the deities would be pleased if votes were
cast in the box with the cock symbol.”
193. In Z.B. Bukhari v. Brijmohan33 this Court held thus :
(SCR p. 288: SCC p. 24, para 11)
“Our Constitution-makers certainly intended to
set up a Secular Democratic Republic the
binding spirit of which is summed up by the
objectives set forth in the preamble to the
Constitution. No democratic political and
social order, in which the conditions of
freedom and their progressive expansion for
all make some regulation of all activities
imperative, could endure without an agreement
on the basic essentials which could unite and
hold citizens together despite all the
differences of
38 1959 SCR 121 1: AIR 1958 SC 1032
39 (1960) 1 SCR 953: AIR 1960 SC 148
33 (1976) 2 SCC 17: 1975 Supp SCR 281
174
religion, race, caste, community, culture,
creed and language. Our political history
made it particularly necessary that these
differences, which can generate powerful
emotions, depriving people of their powers of
rational thought and action, should not be
permitted to be exploited lest the imperative
conditions for the preservation of democratic
freedoms are disturbed. ”
194. In another case S. Harcharan Singh v. S. Sajjan Singh4O
this Court fully discussed the question of what constitutes
an appeal on grounds of religion falling within the scope of
Section 123(3) and Section 123(3-A) of the R.P. Act, when
there is an appeal on the ground of religion. Section
123(3) of R.P. Act should not be permitted to be
circumvented to resort to technical arguments as to
interpretation of the section as our Constitution is one of
secular democracy. In S. Veerabadran Chettiar case38 this
Court held
thus: (SCR pp. 1217-18)
“In our opinion, placing such restricted
interpretation on the words of such general
import, is against all established canons of
construction. Any object however trivial or
destitute of real value in itself, if regarded
as sacred by any class of persons would come
within the meaning of the penal section. Nor
is it absolutely necessary that the object, in
order to be held sacred, should have been
actually worshipped. An object may be held
sacred by a class of persons without being
worshipped by them. It is clear, therefore,
that the courts below were rather cynical in
so lightly brushing aside the religious
susceptibilities of that class of persons to
which the complainant claims to belong. The
section has been intended to respect the
religious susceptibilities of persons of
different religious persuasions or creeds.
Courts have got to be very circumspect in such
matters, and to pay due regard to the feelings
and religious emotions of different classes of
persons with different beliefs, irrespective
of the consideration whether or not they share
those beliefs, or whether they are rational or
otherwise, in the opinion of the court.”
195. In Mullapudi Venkata Krishna Rao v. Vedula
Suryanarayana 4l this Court held thus : (SCC p. 508, para
10: Scale p. 172)
“There is no doubt in our mind that the
offending poster is a religious symbol. The
depiction of anyone, be it N.T. Rama Rao or
any other person, in the attire of Lord
Krishna blowing a ‘shanku’ and quoting the
words from the Bhagavad Gita addressed by Lord
Krishna to Arjuna that his incarnation would
be born upon the earth in age after age to
restore dharma is not only to a Hindu by
religion but to every Indian symbolic of the
Hindu religion. The use by a candidate of
such a symbol coupled with the printing upon
it of words derogatory of a rival political
party must lead to the conclusion that the
religious symbol was used
40 (1985) 1 SCC 370: (1985) 2 SCR 159
38 1959 SCR 121 1: AIR 1958 SC 1032
41 1993 Supp (3) SCC 504: (1993) 2 Scale 170
175
with a view to prejudicially affect the election of the
candidate of the rival political party.”
196. The contention of Shri Ram Jethmalani that the
interpretation and applicability of sub-sections (3) and (3-
A) of Section 123 of R.P. Act would be confined to only
cases in which individual candidate offends religion of
rival candidate in the election contest and the ratio
therein cannot be extended when a political party has
espoused as part of its manifesto a religious cause, is
totally untenable. This Court laid the law though in the
context of the contesting candidates, that interpretation
lends no licence to a political party to influence the
electoral prospects on grounds of religion. In a secular
democracy, like ours, mingling of religion with politics is
unconstitutional, in other words a flagrant breach of
constitutional features of secular democracy. It is,
therefore, imperative that the religion and caste should not
be introduced into politics by any political party,
association or an individual and it is imperative to prevent
religious and caste pollution of politics. Every political
party, association of persons or individuals contesting
election should abide by the constitutional ideals, the
Constitution and the laws thereof. I also agree with my
learned Brethren Sawant and Jeevan Reddy, JJ., in this
behalf.
197. Rise of fundamentalism and communalisation of politics
are anti-secularism. They encourage separatist and divisive
forces and become breeding grounds for national
disintegration and fail the parliamentary democratic system
and the Constitution. Judicial process must promote
citizens’ active participation in electoral process
uninfluenced by any corrupt practice to exercise their free
and fair franchise. Correct interpretation in proper
perspective would be in the defence of the democracy and to
maintain the democratic process on an even keel even in the
face of possible friction, it is but the duty of the court
to interpret the Constitution to bring the political parties
within the purview of constitutional parameters for
accountability and to abide by the Constitution, the laws
for their strict adherence.
SCOPE OF JUDICIAL REVIEW OF ARTICLE 356
198. In the judicial review in the field of administrative
law and the constitutional law, the courts are not concerned
with the merits of the decision, but with the manner in
which the decision was taken or order was made. Judicial
review is entirely different from an ordinary appeal. The
purpose of judicial review is to ensure that the individual
is given fair treatment by the authority or the tribunal to
which he has been subjected to. It is no part of the duty
or power of the court to substitute its opinion for that of
the tribunal or authority or person constituted by law or
administrative agency in deciding the matter in question.
Under the thin guise of preventing the abuse of power, there
is a lurking suspicion that the court itself is guilty of
usurping that power. The duty of the court, therefore, is
to confine itself to the question of legality, propriety or
regularity of the procedure adopted by the tribunal or
authority to find whether it committed an error of law or
176
jurisdiction in reaching the decision or making the order.
The judicial review is, therefore, a protection, but not a
weapon. The court with an avowed endeavour to render
justice, applied principles of natural justice with a view
to see that the authority would act fairly. Therefore, the
grounds of illegality, irrationality, unreasonableness,
procedural impropriety and in some cases proportionality has
been applied, to test the validity of the decision or order,
apart from its ultra vires, mala fides or
unconstitutionality. Initially in the process of judicial
review the court tested the functions from the purview of
the “source of power”. In the course of evolution of
judicial review it tested on the “nature of the subject-
matter”, “the nature of the power”, “the purpose” or “the
indelible effect” of the order or decision on the individual
or public. The public element was evolved, confining
initially judicial review to the actions of State, public
authority or instrumentality of the State but in its due
course many a time it entrenched into private law field
where public element or public duty or public interest is
created by private person or corporate person and relegated
purely private issues to private law remedy. This Court
relaxed standing in favour of bona fide persons or
accredited associations to espouse the cause on behalf of
the underprivileged or handicapped groups of persons.
Interpreting Articles 14 and 21, tested administrative
orders or actions or processes on grounds of arbitrariness,
irrationality, unfairness or unjustness, It would thus be
apparent that in exercising the power of judicial review,
the constitutional courts in India testing the
constitutionality of an administrative or constitutional
acts did not adopt any rigid formula universally applicable
to all occasions. Therefore, it serves no useful purpose to
elaborately consider various decisions or textbooks referred
to us during the course of hearing. Suffice to state that
each case should be considered, depending upon the authority
that exercises the power, the source, the nature, or scope
of the power and indelible effects it generates in the
operation of law or affects the individual or society
without laying down any exhaustive or catalogue of
principles. Lest it would itself result in standardised
rule. To determine whether a particular policy or a
decision taken in furtherance thereof is in fulfilment of
that policy or is in accordance with the Constitution or the
law, many an imponderable feature will come into play
including the nature of the decision, the relationship of
those involved on either side before the decision was taken,
existence or nonexistence of the factual foundation on which
the decision was taken or the scope of the discretion of the
authority or the functionary. Supervision of the court,
ultimately, depends upon the analysis of the nature of the
consequences of the decision and yet times upon the
personality of the authority that takes decision or
individual circumstances in which the person was called upon
to make the decision and acted on the decision itself.
199. The scope of judicial review of the Presidential
Proclamation under Article 356 was tested for the first time
by this Court in State of Rajasthan v. Union of India3. In
that case clause (5) inserted by the Constitution
3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1979) 1 SCR 1
177
(Thirty-eighth) Amendment Act, 1975 which prohibited
judicial review of the Presidential Proclamation [which was
later on substituted by the Constitution (Forty-fourth)
Amendment Act, 1978], was called into operation. Before its
substitution the constitutionality of the letter issued by
the Home Minister and dissolution of the Assemblies of North
Indian States were in question. The reason for the
dissolution was that the Congress Party was routed
completely in 1977 parliamentary election in all those
States and thereby the people’s mandate was against the
legitimacy of the Governments of the States represented by
the Congress Party to remain in office. Suits under Article
133 and Article 32 were filed in this Court. In that
context this Court held that though the power of the
judicial review was excluded by clause (5) of Article 356,
as it then stood, judicial review was open on limited
grounds, namely mala fides, wholly extraneous or irrelevant
grounds without nexus between power exercised and the
reasons in support thereof. The contention of Shri
Parasaran, learned counsel for the Union, as stated earlier,
is that though judicial review is available, he paused and
fell upon the operation of Article 74(2), and contended that
the Union of India need not produce the records; burden is
on the writ petitioners to prove that the orders are
unconstitutional or ultra vires; the exercise of power by
the President under Article 356 is constitutional exercise
of the power like one under Article 123 or legislative
process and the principles evolved in the field of
administrative law are inapplicable. It should be tested
only on the grounds of ultra vires or unconstitutionality.
The reasons in support of the satisfaction reached by the
President are part of the advice tendered by the Council of
Ministers. Therefore, they are immuned from judicial
scrutiny, though every order passed by the President does
not receive the protection under Article 74(2) or Section
123 of the Evidence Act.
200. The question, therefore, is what is the scope of
judicial review of the Presidential Proclamation under
Article 356. Though the arm of the court is long enough to
reach injustice wherever it finds and any order or action is
not beyond its ken, whether its reach could be projected to
constitutional extraordinary functionary of the coordinate
branch of the Government, the highest executive, when it
records subjective satisfaction to issue Proclamation under
Article 356. The contention of S/Shri Shanti Bhushan, Soli
Sorabjee and Ram Jethmalani that all the principles of
judicial review of administrative action would stand
attracted to the Presidential Proclamation under Article 356
cannot be accepted in toto. Equally the wide proposition of
law canvassed by Shri Parasaran is also untenable. At the
cost of repetition it is to reiterate that judicial review
is the basic feature of the Constitution. This Court has
constitutional duty and responsibility, since judicial
review having been expressly entrusted to it as a
constituent power, to review the acts done by the coordinate
branches, the executive or the legislature under the
Constitution, or under law or administrative orders within
the parameters applicable to a particular impugned action.
This Court has duty and responsibility to find the extent
and limits of the power of the coordinate authorities and to
find the law. It is the province and duty of this Court, as
178
ultimate interpreter of the Constitution, to say what the
law is. This is a delicate task assigned to the Court to
determine what power Constitution has conferred on each
branch of the Government, whether it is limited to and if so
what are the limits and whether any action of that branch
transgresses such limits. The action of the President under
Article 356 is a constitutional function and the same is
subject to judicial review. Shri T.R. Andhyarujina, the
learned Advocate General of Maharashtra, contended that
though the Presidential Proclamation is amenable to judicial
review, it is in the thicket of political question and is
not generally justiciable. Applying self-imposed
limitations this Court may be refrained to exercise judicial
review. This contention too needs to be qualified and
circumscribed.
201. Judicial review must be distinguish 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, ex
necessitate. Judiciary has to decide the source, extent,
limitations of the power and legitimacy in some cases of the
authority exercising the power. There are no hard and fast
fixed rules as to justiciability of a controversy. The
satisfaction of the President under Article 356(1) is
basically subjective satisfaction based on the material on
record. It may not be susceptible to scientific
verification hedged with several imponderables. The
question, therefore, may be looked at from the point of view
of common sense limitation, keeping always that the
Constitution has entrusted the power to the highest
executive, the President of India, to issue Proclamation
under Article 356, with the aid and advice of the Council of
Ministers, again further subject to his own discretion given
in proviso to Article 74(1). Whether the question raised
for decision is judicially based on manageable standards?
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.
202. However, a distinction be drawn between judicial review
of the interpretation of the order or the extent of the
exercise of the power by the President under Article 356.
In the latter case the limits of the power of the President
in issuing the Proclamation under Article 356 and the limits
of judicial review itself are to be kept in view. The
question of justiciability would in either case mutually
arise for decision. In this behalf, the question would be
whether the controversy is amenable to judicial review in a
limited area but the latter depends upon the nature of the
order and its contents. The question may be camouflaged
with a political thicket, yet since the Constitution
entrusted that delicate task in the scheme of the
Constitution itself to this Court, in an appropriate case,
the court may unwrap the dressed up question, to find the
validity thereof. The doctrine of political thicket is
founded on the theory of separation of powers between the
executive, the legislature and the judiciary. The
Constitution of the United States of America, gave no
express power of judicial review to the Supreme Court of
179
USA. Therefore, the scope of political question, when came
up for consideration in Baker v. Carr 42, it was held in a
restricted sense, but the same was considerably watered down
in later decision of that Court. Vide Gilligan v. Morgan
43 . But in deciding the political question the court must
keep in forefront whether the court has judicially
discoverable and manageable standards to decide the
particular controversy placed before it, keeping in view
that the subjective satisfaction was conferred in the widest
terms to a coordinated political department, by the
Constitution itself.
203. In the State of Rajasthan case 3 Chandrachud, J., as he
then was, held that: (SCR p. 61: SCC p. 644, para 131)
“Probing at any greater depth into the reasons
given by the Home Minister is to enter a field
from which Judges must scrupulously keep away.
The field is reserved for the politicians and
the courts must avoid trespassing into it.”
Bhagwati, J., as he then was, speaking for himself and
Gupta, J., held that (SCR p. 82: SCC p. 662, para 150)
“It is not a decision which can be based on
what the Supreme Court of the United States
has described as ‘judicially discoverable and
manageable standards’. It would largely be a
political judgment based on assessment of
diverse and varied factors, fast changing
situations, potential consequences, public
reaction, motivations and responses of
different classes of people and their
anticipated future behaviour and a host of
other considerations, in the light of
experience of public affairs and pragmatic
management of complex and often curious
adjustments that go to make up the highly
sophisticated mechanism of a modem democratic
government. It cannot, therefore, by its very
nature be a fit subject-matter for judicial
determination and hence it is left to the
subjective satisfaction of the Central
Government which is best in a position to
decide it.”
Untwalia, J., laid down that: (SCR p. 94: SCC
p. 672, para 183)
“[E]ven if one were to assume such a fact in
favour of the plaintiffs or the petitioners
the facts disclosed, undoubtedly, lie in the
field or an area purely of a political nature,
which are essentially non-justiciable. It
would be legitimate to characterise such a
field as a prohibited area in which it is
neither permissible for the courts to enter,
nor should they ever take upon themselves the
hazardous task of entering into such an area.
Fazal Ali, J. reiterating the same view held,
that : (SCR p. II 5: SCC p. 689, para 208)
“It is manifestly clear that the court does
not possess the resources which are ‘In the
hands of the Government to f
42 7 L Ed 2d 663, 686: 369 US 186 (1962)
43 37 L Ed 2d 407, 416: 413 US 1 (1973)
3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1
SCR 1
180
that they seek to subserve and the feelings or
the aspirations of the nation that require a
particular action to be taken at a particular
time. It is difficult for the court to embark
on an enquiry of that type.”
Beg, C.J. held that: (SCR p. 26: SCC p. 616,
para 39)
“Insofar as article 356(1) may embrace matters
of political and executive policy and
expediency, courts cannot interfere with these
unless and until it is shown what
constitutional provision the President is
going to contravene……
204. We respectfully agree that the above approach would be
the proper course to tackle the problem. Yet another
question to be disposed of at this stage is the scope of
Article 74(2). In the cabinet system of the Government the
Council of Ministers with the Prime Minister as the head
would aid and advise the President to exercise the functions
under the Constitution except where the power was expressly
given to the President to his individual discretion. The
scope thereof was considered vis-a-vis the claim of
privilege under Section 123 of the Evidence Act. At the
outset we say that Section 123 of Evidence Act is available
to the President to claim privilege. In R. K. Jain v. Union
of India 44 in paragraph 23 at page 143 it was held that
the President exercises his executive power through the
Council of Ministers as per the rules of business for
convenient transaction of the Government business made under
Article 77(3). The Government of India (Transaction of
Business) Rules, 1961 provide the procedure in that behalf.
After discussing the scope of the cabinet system of
Government in paragraphs 24 to 28 it was held that the
cabinet known as Council of Ministers headed by the Prime
Minister is the driving and steering body responsible for
the governance of the country. They enjoy the confidence of
Parliament and remain in office so long as they maintain the
confidence of the majority. They are answerable to
Parliament and accountable to the people. They bear
collective responsibility. Their executive functions
comprise both the determination of the policy as well as
carrying its execution, the initiation of legislation,
maintenance of order, promotion of social and economic
welfare and direction of foreign policy. In short the
carrying on or supervision of the general administration of
the affairs of the Union which includes political’ activity
and carrying on all trading activities, etc. and they bear
collective responsibility to the Constitution. It was also
held therein that subject to the claim of privilege under
Section 123 of the Evidence Act, the Minister was
constitutionally bound under Article 142 to assist the court
in producing the documents before the court and the court
has to strike a balance between the competing interest of
public justice and the interest of the State before
directing to disclose the documents to the opposite party.
But the documents shall be placed before the court for its
perusal in camera.
205. Article 74(2) provides that the question whether any,
and if sc what, advice was tendered by Ministers to the
President shall not be inquired into in any court. In other
words it intends to give immunity to the Council
44 (1993) 4 SCC 11 9: 1993 SCC (L&S) 11 28: (1993) 25 ATC
464
181
of Ministers to withhold production of the advice for
consideration by the court. In other words it is a
restrictive power. Judicial review is a basic and
fundamental feature of the Constitution and it is the duty
and responsibility of the constitutional court to exercise
the power of judicial review. Article 142, in particular,
gives power to this Court in its exercise of the
jurisdiction to make any necessary order “for doing complete
justice in any cause or matter pending before it” and shall
be enforceable throughout the territory of India in such
manner as prescribed by or under any law made by Parliament
and subject to such law. The said restriction is only in
matter of procedure and does not affect the power under
Article 142. This Court has all or every power to make any
order to secure the “attendance of any person, discovery or
production of any document or investigation”. Thereby the
power of this Court to secure or direct production of any
document or discovery is a constitutional power. The
restrictive clause under Article 74(2) and the wider power
of this Court under Article 142 need to be harmonised.
206. In R.K. Jain case44 it was held that the court is
required to consider whether public interest is so strong to
override the ordinary right and interest of the litigant
that he shall be able to lay before a court of justice the
relevant evidence in balancing the competing interest. It
is the duty of the court to see hat there is a public
interest and that harm shall not be done to the nation or of
the public service by disclosure of the document and there
is a public interest that the administration of justice
shall not be frustrated by withholding the documents which
must be produced, if justice is to be done. it is,
therefore, the paramount right and duty of the court, not of
the executive, to decide whether the document will be
produced or withheld. The Court must decide which aspect of
the public interest predominates, in other words which
public interest requires that the document whether should be
produced for effectuating justice and meaningful judicial
review performing its function and/or should it not be
produced. In some cases, therefore, the court must, in a
clash of competing public interests of the State and
administration of justice, weigh the scales and decide where
the balance lies. The basic question to which the court
would, therefore, have to address itself for the purpose of
deciding the validity of the objection would be, whether the
document relates to affairs of the State, in other words, is
of such a character that its disclosure would be against the
interest of the State or the public service and if so
whether public interest in its non-disclosure is so strong
that it must prevail over the public interest in
administration of justice. On that account it should not be
allowed to be disclosed. (Vide paras 6 and 1744.)
207. When public interest immunity against disclosure of the
State documents in the transaction of the business by the
Council of Ministers of a class character was claimed, in
the clash of this interest, it is the right and duty of the
court to weigh the balance in that case also and that the
harm
(1993) 4 SCC 119: 1993 SCC (L&S) 1128: (1993) 25 ATC 464
182
shall not be done to the nation or the public service and in
the administration of justice each case must be considered
in its backdrop.
208. The President has no implied authority under the
Constitution to withhold the document. On the other hand it
is his solemn constitutional duty to act in aid of the court
to effectuate judicial review. (Vide paragraphs 54 and
5544.) That was a case of statutory exercise of power, in
accordance with the business rules in appointing the
President of CEGAT and considering the facts in that case,
it was held that it was not necessary to direct disclosure
of the documents to the other side. In view of the scheme
of the Constitution and paramount judicial review to do
complete justice it must be considered in each case whether
record should be produced. But by operation of Article
74(2) only the actual advice tendered by the Council of
Ministers gets immunity from production and the court shall
not inquire into the question whether and if so what advice
was tendered by the Minister. In other words, the records
other than the advice tendered by the Minister to the
President, if found necessary, may be required to be
produced before the constitutional court. This restrictive
interpretation would subserve the wider power under Article
142 given to this Court and the protection accorded by
Article 74(2) maintaining equibalance.
209. Article 74(2) creates bar of enquiry and not a claim of
privilege for decision in the exercise of the jurisdiction
whether and, if so, what advice was tendered by the Council
of Ministers to the President. The power of Article 74(2)
applies only to limited cases where the matter has gone to
the President for his orders on the advice of the Council of
Ministers. Exercise of personal discretion calling the
leader of a political party that secured majority to form
the Government or the leader expressing his inability, to
explore other possibilities is not liable to judicial
scrutiny. Action based on the aid and advice also
restricted the scope, for instance, the power of the
President to grant pardon or appointing a Minister, etc. is
the discretion of President. Similarly prorogation of
Parliament or dissolution of Parliament done under Article
85 is not liable to judicial review. The accountability is
of the Prime Minister to the people though the President
acts in his discretionary power, with the aid and advice of
the Prime Minister. Similarly, the right of the President
to address and send message to the Lok Sabha and Rajya Sabha
as under Article 86 are also in the area of discretion with
the aid and advice of the Council of Ministers. The power
of President to promulgate an ordinance under Article 123
and the assent of the Bills under Article 200 are reserved
for consideration under Article 201. As stated earlier, the
discretion of the President on the choice of the Prime
Minister is his personal discretion though paramount
consideration in the choice would be of the person who
should command the majority in the House. Equally when the
Government has lost its majority in the House and refuses to
lay down the office, it is his paramount duty to dismiss the
Government. Equally as said earlier, the dissolution of the
Lok Sabha would be on aid and advice
44 (1993) 4 SCC 119:1993 SCC (L&S) 1128:(1993) 25 ATC 464
183
of the Prime Minister, the President while dissolving the
Lok Sabha without getting involved in politics would
exercise his discretion under Article 85, but the ultimate
responsibility and the accountability for such advice is of
the Prime Minister and the President would act consistent
with the conventions with an appeal to the people of the
necessity to dissolve the House and their need to express
their will at the polls. In this area the communication of
the aid and advice whether receives confidentiality and bars
the enquiry as to the nature of the advice or the record
itself. Therefore, the enquiry under Article 74(2) is to
the advice and if so, what advice was tendered to the
President would be confined to limit power but not to the
decision taken on administrative routine though expressed in
the name of the President under Article 73 read with Article
71 of the Constitution.
210. The matter can be looked at from a different
perspective that under Article 361, the President shall not
be answerable to any court for the exercise or the
performance of his power and duty of his office or for any
act purported to have been done by him in the exercise and
performance of those powers and duties. When the President
acts not necessarily on the aid and advice of the Council of
Ministers but only “or otherwise” i.e. on any other
information under Article 356(1) his satisfaction is a
subjective one that a situation has arisen in which the
Government of the State cannot be carried on in accordance
with the provisions of the Constitution and issues the
Proclamation required under Article 356(1) of the
Constitution. When it is challenged and asked to give his
reasons, he is immuned from judicial process. The Union of
India will not have a say for the exercise of the
satisfaction reached by the President “on otherwise self-
satisfaction” for his issuing his Proclamation under Article
356. Then no one can satisfy the court the grounds for the
exercise of the powers by the President. Therefore, we are
of the considered view that the advice and, if so, what
advice was tendered by the Council of Ministers for exercise
of the power under Article 356(1) would be beyond the
judicial enquiry under Article 74(2) of the Constitution.
Nevertheless, the record on the basis of which the advice
was tendered constitute the material. But, however, the
material on record, the foundation for advice or a decision,
does not receive total protection under Article 74(2).
Normally the record may not be summoned by “rule nisi” or
“discovery order nisi”. Even if so summoned it may not be
looked into unless a very strong case is made out from the
pleadings, the order of Proclamation if produced and other
relevant material on record. If the court after due
deliberation and, reasoned order by a High Court, issues
“discovery order nisi” the record is liable to be reproduced
pursuant to discovery order nisi issued by this Court or the
High Court subject to the claim under Section 123 of
Evidence Act to examine the record in camera.
211. At this juncture we are to reiterate that judicial
review is not concerned with the merits of the decision but
with the decision-making process. This is on the premise
that modern democratic system has chosen that political
accountability is more important than other kinds of
accountability and the judiciary exercising its judicial
review may be
184
refrained to do so when it finds that the controversy is not
based on judicially discoverable and manageable standards.
However, if a legal question camouflaged by political
thicket has arisen, the power and the doors of
constitutional court are not closed, nor can they be
prohibited to enter in the political field under the garb of
political thicket in particular, when the
Constitution.expressly has entrusted the duty to it. If it
is satisfied that a judicially discoverable and manageable
issue arises, it may be open to the court to issue discovery
order nisi and consider the case and then issue rule nisi.
It would thus be the duty and responsibility of this Court
to determine and found law as its premise and lay the law in
its duty entrusted by the Constitution, as ultimate
interpretor of the Constitution, though it is a delicate
task, and issue appropriate declaration. This Court equally
declares and determines the limit, and whether the action is
in transgression of such limit.
Interpretation of the Constitution and scope of value
orientation
212. Before discussing the crucial question it may be
necessary to preface that the Constitution is intended to
endure for succeeding generations to come. The best of the
vision of the Founding Fathers could not visualise the
pitfalls in the political governance, except the hoary
history of the working of the emergency provisions in the
Government of India Act and wished that Article 356 should
not be “put to operation” or be a “dead letter” and at best
“sparingly” be used. In working the Constitution, Article
356 has been used 90 times so far a daunting exercise of the
power. But it is settled law that in interpreting the
Constitution neither motives nor bad faith nor abuse of
power be presumed unless in an individual case it is
assailed and arises for consideration on that premise.
Section 114(e) of the Evidence Act raises statutory
presumption that official acts have been regularly
performed.
213. Prof. Bork in his “Neutral Principles and Some First
Amendment Problems” 47 Ind. Law Journal, p. 1, 8, 1971 Edn.
stated that the choice of fundamental values by the courts
cannot be justified. When constitutional materials do not
clearly specify the value to be preferred, there is no
principle weighing to prefer any claimed human value to any
other. The judge must stick close to the text and the
history and their fair implications and not to construct new
rights. The same neutral principle was preferred by Prof.
Hans Linde in his “Judges Critics and Realistic Traditions”
[82 Yale Law Journal, 227 at 254, (1972)] that “the judicial
responsibility begins and ends with determining the present
scope and meaning of a decision that the nation, at an
earlier time, articulated and enacted into constitutional
text. Prof. Ely in his “Wages of Crying Wolf’ a comment on
Reo v. Ved 45 stated that a neutral principle if it lacks
connection with any value, the constitution marks it as
special. It is not a constitutional principle and the court
has no business in missing it. In Encyclopaedia of the
American Constitution by
45 1982 Yale LJ 1920, 1949, 1973
185
Leonard W. Levy at p. 464 it is stated that “the
Constitution is a political document; it serves political
ends; its interpretations are political acts”. Any theory
of constitutional interpretation therefore presupposes a
normative theory of the Constitution itself a theory, for
example, about the constraints that the words and intentions
of the adopters should impose on those who apply or
interpret the Constitution. As Ronald Dworkin observed:
“Some parts of any constitutional theory must
be independent of the intentions or beliefs or
indeed the acts of the people the theory
designates as framers. Some part must stand
on its own political or moral theory;
otherwise the theory would be wholly
circular.”
The courts as interpreters are called upon to fill those
significant constitutional gaps in variety of ways. The
court should vigorously describe as determinaters, of public
values as small revolution and principles. Their source of
moral reasoning and search for moral truth are at least the
best moral foundation available at the time when momentous
issues based on ethical or moral principles arise. What is
left for the other social decision makers, the State, the
legislature and the executive? Where does the non-original
political process fit in? Prof. Neil K. Komuser in his
“The Features of Interpreting Constitution” (North Western
Law Review, 1986-87, 191, 202-10) stated that the non-
originalist interpreters leave the above questions largely
unanswered. He says:
“They seem or busy of timing to convince the
world that one cannot and should not have a
non-narrow originalist approach nor that one
or another branch of philosophy of language
should prevail for they have failed to address
an essential to my mind, the essential
question of constitutional law, who decides?
None of the non-originalists vaguely phrased
assignments for the judiciary, such as ‘search
for public or traditional values’; or
‘protection of principles’ or ‘evolution of
morals’ tell us what the courts should do or
hold or describe, what they actually do.”
The judiciary can be seen as doing everything or nothing
under these schemes. If the judiciary is meant merely to
list values or principles that might be considered by
political process, the judicial role is toothless. The list
of values or principles that might be justiciably considered
is virtually infinite. Anyone with the slightest
sophistication can find some benefit, value or justiciable
principles in virtually any legislation. That is how the
minimal scrutiny or rational review techniques of judicial
review generally have been employed. This level of review
is no review at all. On the other hand one close up to the
tenor of the arguments that the non-originalists can be seen
as giving the judicial task of balancing the conflicting
public values for Proclamation which principles triumph.
Here the judiciary becomes the central societal decision-
maker. The resolution of conflicts among public values is
coterminous with social decision-making. It is what the
legislature, the executive and even the judiciary do. Put
simply, the value formulations
186
of the non-originalists do not address the essential issue
raised by the earlier discussions. How shall responsibility
for decisions be allocated in a world of highly imperfect
decision-makers? How would these scholars have judiciary
(let alone the other institution) face such terms as
distrust, uncertainty and ignorance? One does not have to
be hostile to a substantial role for judicial review to be
concerned when so much constitutional scholarship skirts so
central an issue. Indeed, one could allow for significantly
more judicial activism than our constitutional history
reveals without approaching the limits inherent in the
nebulous formulations of the various non-originalist
positions. As a general matter even in the most activist
spirit, for example “the Lochner and Warran’s Courts Eras”,
the judiciary seems to have decided, not to decide more
questions leaving the discovery of the public values or
moral evolution in most areas to other societal decision-
makers. Although such things are within the measures, it
seems that there are legislative, executive and to a greater
extent administrative agencies, interpreters have actively
influenced only a small percentage of public decision-
making. This it seems to me the non-originalists’
literature threatens to be largely irrelevant to
“constitutional analysis” so long as it does not consider
with greater care under what circumstances the usually
passive mode of judicial interpretation is to be replaced by
the less common, but more important active mode. Bennion on
Statutory Interpretation at p. 721 stated that since
constitutional law is the framework of the State it is not
to be altered by a side wind. A caveat is needed to be
entered here. In interpreting the Constitution, to give
effect to personal liberty or rights of a section of the
society, a little play provides teeth to operate the law or
filling the yearning gaps even “purposive principle” would
be adaptable which may seek to serve the law. But we are
called to interpret the constitutional operation in
political field, whether it would be permissible is the
question.
SATISFACTION OF THE PRESIDENT AND JUSTICIABILITY
214. The satisfaction of the President that a President that
a situation has arisen in which the Government of the State
cannot be carried out in accordance with the provisions of
the Constitution is founded normally upon the report from
the Governor or any other information which the President
has in possession, in other words, “the Council of
Ministers”, “the President” reached a satisfaction.
Normally, the report of the Governor would form basis. It
is already stated that the Governor’s report should contain
material facts relevant to the satisfaction reached by the
President. In an appropriate case where the Governor was
not inclined to report to the President of the prevailing
situation contemplated by Article 356, the President may
otherwise have information through accredited channels of
communications and have it in their custody and on
consideration of which the President would reach a
satisfaction that a situation has arisen in which the
Government of a State cannot be carried on in accordance
with the provisions.
187
“OTHERWISE”
215. The word “otherwise” in Article 356(1) was not
originally found in the Draft Article 278, but it was later
introduced by an amendment. Dr Ambedkar supported the
amendment on the floor of the Constituent Assembly stating
that :
“The original Article 188 merely provided that
the President should act on the report made by
the Governor. The word ‘otherwise’ was not
there. Now it is felt that in view of the
fact that Article 277-A (now Article 355)
which precedes Article 278 (Article 356)
imposed a duty and an obligation upon the
Centre, it would not be proper to restrict and
confine action of the President, which
undoubtedly will be taken in the fulfilment of
the duty, to the report made by the Governor
of the province. It may be that the Governor
does not make a report. None-theless, the
facts are such that the President feels that
his intervention is necessary and imminent. I
think as a necessary consequence to the
introduction of Article 277-A, we must also
give liberty to the President to act even when
there is no report by the Governor and when
the President has got certain facts within his
knowledge on which he thinks he ought to act
in fulfilment of his duty.”
The width of the power is very wide, the satisfaction of the
President is subjective satisfaction. It must be based on
relevant materials. The doctrine that the satisfaction
reached by an administrative officer based on irrelevant and
relevant grounds and when some irrelevant grounds were taken
into account, 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 satisfaction of the
President cannot be equated with the discretion conferred
upon an administrative agency, of his subjective
satisfaction upon objective material like in detention
cases, administrative action or by subordinate legislation.
The analogy of the provisions in the Government of India Act
or similar provision in the Constitution of Pakistan and the
interpretation put upon it by the Supreme Court of Pakistan
do not assist us. The exercise of the power under Article
356 is with the aid and advice of the Council of Ministers
with the Prime Minister as its head. They are answerable to
Parliament and accountable to the people.
216. To test the satisfaction reached by the President there
is no satisfactory criteria for judicially discoverable and
manageable standards that what grounds prevailed with the
President to reach his subjective satisfaction. There may
be diverse, varied and variegated considerations for the
President to reach the satisfaction. The question of
satisfaction is basically a political one, practically it is
an impossible question to adjudicate on any judicially
manageable standards. Obviously the Founding Fathers
entrusted that power to the highest executive, the President
of India, with the aid and advice of the Council of
Ministers. The satisfaction of the President
188
being subjective, it is not judicially discoverable by any
manageable standards and the court would not substitute
their own satisfaction for that of the President. The
President’s satisfaction would be the result of his
comprehending in his own way the facts and circumstances
relevant to the satisfaction that the Government of the
State cannot be carried on in accordance with the provisions
of the Constitution. There may be wide range of situations
and sometimes may not be enumerated, nor can there be any
satisfactory criteria, but on a conspectus of the facts and
circumstances the President may reach the satisfaction that
the Government of the State cannot be carried on in
accordance with the provisions of the Constitution.
Therefore, the subjective satisfaction is not justiciable on
any judicially manageable standards. Moreover, the
executive decision of the President receives the flavour of
the legislative approval after both Houses of Parliament
have approved the Proclamation and executive satisfaction
ceases to be relevant. Article 100 of the Constitution
protects the parliamentary approval from assailment on any
ground. The judicial review becomes unavailable. That
apart a writ petition under Article 226, if is maintainable
to question the satisfaction, equally a declaration that a
situation has arisen in the State to clamp emergency or to
declare President’s rule by judicial order is permissible
and cannot be wished away. Could it be done?
217. The use of the word “may” in clause (1) of Article 356
discerns discretion vested in the President (Council of
Ministers) to consider whether the situation contemplated
under Article 356 has arisen and discernible from the report
submitted by the Governor or other information otherwise had
necessitated to dismiss the State Government and dissolve
the Assembly to take over the administration of a State or
any one of the steps envisaged in sub-clauses (a) to (c) of
clause (1). The issuance of Proclamation is subject to
approval which includes (disapproval in inappropriate case)
by both Houses of Parliament. In other words, the issuance
of the Proclamation and actions taken in furtherance thereof
are subject to the parliamentary control which itself is a
check and safeguard to protect the federal character of the
State and the democratic form of Government. The President
is not necessarily required to approve the advice given by
the Council of Ministers to exercise the power under Article
356. The proviso to sub-article (1) of Article 74, brought
by the Constitution 44th Amendment Act, itself is a further
assurance that it was issued after due and great
deliberations. It also assures that the President actively
applied his mind to the advice tendered and the material
placed before him to arrive at his subjective satisfaction.
In an appropriate case he may require the Council of
Ministers to reconsider such advice, either generally or he
may himself suggest an alternative course of action to the
proposed advice tendered by the Council of Ministers. By
necessary implication it assures that the President is an
active participant not merely acting as a constitutional
head under Article 73, but also active participant in the
decision-making process and the Proclamation was issued
after due deliberations. The court cannot, therefore, go
behind the issue of
189
Proclamation under Article 356 and substitute its own
satisfaction for that of the President.
“CANNOT BE CARRIED ON” MEANING AND SCOPE
218. We are to remind ourselves that application of
“principle of the source” from Part XVIII, the family of
emergency provisions conveniently employed or the
grammarian’s rule would stultify the operation of Article
356 wisely incorporated in the Constitution. Instead
placing it in the spectrum of “purposive operation” with
prognosis would yield its efficacy for succeeding
generations to meet diverse situations that may arise in its
operation. The phrase “cannot be carried on” in clause (1)
of Article 356 does not mean that it is impossible to carry
on the Government of the State. It only means that a
situation has so arisen that the Government of the State
cannot be carried on its administration in accordance with
the provisions of the Constitution. It is not the violation
of one provision or another of the Constitution which
bears no nexus to the object of the action under Article
356. The key word in the marginal note of Article 356 that
“the failure of constitutional machinery” open up its mind
of the operational area of Article 356(1). Suppose after
general elections held, no political party or coalition of
parties or groups is able to secure absolute majority in the
legislative assembly and despite the Governor’s exploring
the alternatives, the situation has arisen in which no
political party is able to form stable Government, it would
be a case of completely demonstrable inability of any
political party to form a stable Government commanding the
confidence of the majority members of the legislature. It
would be a case of failure of constitutional machinery.
After formation of the Ministry, suppose due to internal
dissensions, a deliberate deadlock was created by a party or
a group of parties or members and the Governor recommends to
the President to dissolve the Assembly, situation may be
founded on imponderable variable opinions and if the
President is satisfied that the Government of the State
cannot be carried on and dissolves the Assembly by
Proclamation under Article 356, would it be judicially
discoverable and based on manageable standard to decide the
issue? Or a Ministry is voted down by motion of no
confidence but the Chief Minister refuses to resign or he
resigns due to loss of support and no other political party
is in a position to form an alternative Government or a
party having majority refuses to form the Ministry would not
a constitutional deadlock be created? When in such
situations the Governor reported to the President, and
President issued Proclamation could it be said that it would
be unreasonable or mala fide exercise of power? Take
another instance where the Government of a State, although
enjoying the majority support in the Assembly, It has
deliberately conducted, over a period of time, its
administration in disregard of the Constitution and the law
and while ostensibly acting within the constitutional form,
inherently flouts the constitutional principles and
conventions as a responsible Government or in secret
collaboration with the foreign powers or agencies creates
subvertive situation, in all the cases each is a case of
failure of the constitutional machinery.
190
219. While it is not possible to exhaustively catalogue
diverse situation when the constitutional breakdown may
justifiably be inferred from, for instance (i) large-scale
breakdown of the law and order or public order situation;
(ii) gross mismanagement of affairs by a State Government;
(iii) corruption or abuse of its power; (iv) danger to
national integration or security of the State or aiding or
abetting national disintegration or a claim for independent
sovereign status and (v) subversion of the Constitution
while professing to work under the Constitution or creating
disunity or disaffection among the people to disintegrate
democratic social fabric.
220. The Constitution itself provides indication in Article
365 that on the failure of the State Government to comply
with or to give effect to any directions given by the Union
Government in exercise of its executive powers and other
provisions of the Constitution it shall be lawful for the
President to hold that a situation has arisen in which the
Government of the State cannot be carried on in accordance
with the provisions of the Constitution. For instance, the
State failed to preserve the maintenance of means of
communication declared to be of national or material means
envisaged under Article 257(2) of the Constitution and
despite the directions, the State Government fails to comply
with the same. It would be an instance envisaged under
Article 356. Similarly protection of the railways within
the State is of paramount importance. If a direction issued
under Article 257(3) was failed to be complied with by the
State to protect the railways, it would be another instance
envisaged under Article 365. In these or other analogous
situations the warning envisaged by Dr Ambedkar needs to be
given and failure to comply with the same would be obvious
failure of the constitutional machinery. During
Proclamation of emergency under Article 352 if directions
issued under Article 353-A were not complied with or given
effect to, it would also be an instance under Article 365.
Equally directions given under Article 360(3) as to
observance of financial propriety or the Proclamation as to
financial emergency is yet another instance envisaged by
Article 365. The recent phenomena that the Chief Minister
gets life-size photo published in all national and regional
dailies everyday at great public expenditure. Central
Government has responsibility to prevent such wasteful
expenditure. Sufficient warning given yielded no response
nor the Chief Minister desisted to have it published is it
not a case for action under Article 356? These instances
would furnish evidence as to the circumstances in which the
President could be satisfied that the Government of the
State cannot be carried on in accordance with the provisions
of the Constitution. These instances appear to be curative
in nature. In these cases forewarning may be called for
before acting under Article 356.
221. Take another instance that under Article 339(2) of the
Constitution the Union of India gives direction to the State
to draw and execute the schemes specified therein for the
welfare of the Scheduled Tribes in that State and allocated
funds for the purpose. The State, in defiance, neither drew
the plans nor executed the schemes, but diverted the
finances allocated for other purposes, it would be a failure
of the constitutional machinery to
191
elongate the constitutional purpose of securing
socioeconomic justice to the tribals envisaged in the
directive principles warranting the President to reach his
satisfaction that the Government of the State is not being
carried on in accordance with the provisions of the
Constitution. Where owing to armed rebellion or
extraordinary natural calamity, like earthquake, the
Government of the State is unable to perform its duty in
accordance with the provisions of the Constitution, then
also satisfaction of the President that the Government of
the State is unable to perform as a responsible Government
in accordance with the provisions of the Constitution is not
justiciable.
222. Conversely, on the resignation of the Chief Minister
the Governor without attempting or probing to form an
alternative Government by an opposition party recommends for
dissolution of the Assembly, it would be an obvious case of
highly irrational exercise of the power. Where the Chief
Minister himself expresses inability to cope with his
majority legislators, recommends to the Governor for
dissolution, and dissolution accordingly was made,
exercising the power by the President, it would also be a
case of highly irrational exercise of the power. Where the
Governor recommends to the President to dissolve the
Assembly on the ground that the Chief Minister belongs to a
particular religion, caste or creed, it would also be a case
that the President reached satisfaction only on highly
irrational consideration and does not bear any nexus or
correlation to the approximate purpose of the action. It is
clearly unconstitutional. Take an instance that national
language is Hindi. Centre directs a non-Hindi-speaking
State to adopt Hindi in the Devanagari script as State
language, though predominantly 95% of the population does
not know Hindi, nor has need to adopt it as lingua franca,
the violation of the directives does not entail imposition
of President’s rule.
223. The exercise of power under Article 356 by the
President through Council of Ministers places a great
responsibility on it and inherent therein are the seeds of
bitterness between the Union of India and the States. A
political party with people’s mandate of requisite majority
or of coalition with value-based principles or programmes
and not of convenience are entitled to form Government and
carry on administration for its full term unless voted down
from power in accordance with the Constitution. We have
multi-party system and in recent past regional parties are
also emerging. So one political party would be in power at
the Centre and another at the State level. In particular,
when the Union of India seeks to dismiss a State Ministry
belonging to a different political party, there is bound to
exist friction. The motivating factor for action under
Article 356(1) should never be for political gain to the
party in power at the Centre, rather it must be only when it
is satisfied that the constitutional machinery has failed.
It is to reiterate that the federal character of the
Government reimposes the belief that the people’s faith in
democratically elected majority or coalition Government
would run its full term, would not be belied unless the
situation is otherwise unavoidable. The frequent elections
would belie the people’s belief and faith in parliamentary
form of Government, apart from enormous election expenditure
to the State and the candidates. It also generates
192
disbelief in the efficacy of the democratic process which is
a death-knell for the parliamentary system itself. It is,
therefore, extremely necessary that the power of
Proclamation under Article 356 must be used with
circumspection and in a non-partisan manner. It is not
meant to be invoked to serve political gain or to get rid of
an inconvenient State Government for good or bad governance.
But only in cases of failure of the constitutional machinery
of the State Government.
224. As stated earlier, the constitutional and political
features should be nurtured and set conventions be laid by
consensus among the political parties either by mutual
agreement or resolution passed in this behalf. It is
undoubted that Sarkaria Commission appointed by the Union of
India and Rajamannar Commission appointed by the State
Government of Tamil Nadu suggested certain amendments to
Article 356, distinguished Judges gave guidelines. Though
they bear weight, it is for the consideration of the
political parties or Governments, but judicially it would
not be adapted as guidance as some of them would be beset
with difficulties in implementation. However, their creases
could be ironed out by conference or by consensus of the
political parties. As regards horse-trading by the
legislators, there are no judicially discoverable and
manageable standards to decide in judicial review. A floor-
test may provide impetus for corruption and rank force and
violence by musclemen or wrongful confinement or volitional
captivity of legislators occurs till the date of the floor-
test in the House, to gain majority on the floor of the
House.
225. At some quarters it is believed that power under
Article 356 was misused. We are not called to examine each
case. Taking a bird’s-eye view of the Proclamations issued
by the President under Article 356 it would appear that on
three occasions the Speaker of the Legislative Assembly
created deadlock to pass the financial bills. The power was
used to resolve the deadlock. When there was breakdown of
law and order and public order due to agitations for
creation of separate States for Telangana and Andhra, the
Andhra Pradesh Legislative Assembly was dissolved and the
Congress Ministry itself was dismissed while the same party
was in power at the Centre. Similar instance would show
that the power under Article 356 was used when
constitutional machinery failed. This would establish that
the width of the power under Article 356 cannot be cut down,
clipped or crabbed. Moreover, the elected representatives
from that State represent in Parliament and do participate
in the discussion of the Presidential Proclamation when its
approval is sought and the transaction of legislative
business concerning that State and express their dissent
when it is misused. Though temporarily the democratic form
of Government was not in the governance of that State, the
basic feature of the Constitution, namely democracy is not
affected for the governance by the elected executives
temporarily at times for maximum period of three years.
226. The President being the highest executive of the State,
it is impermissible to attribute personal mala fides or bad
faith to the President. The proviso to Article 74(1)
presumptively prohibits such a charge, unless
193
established by unimpeachable evidence at the threshold. For
the exercise of the power under Article 356 the Prime
Minister and his Council of Ministers, he/they are
collectively responsible to Parliament and accountable to
the people. The only recourse, in case of misuse or abuse
of power by the President, is to take either impeachment
proceedings under Article 61 against the President or seek
confidence of the people at the polls.
227. These conclusions do not reach the journey’s end.
However, it does not mean that the court can merely be
an onlooker and a helpless spectator to exercise of the
power under Article 356. It owes duty and responsibility to
defend the democracy. If the court, upon the material
placed before it finds that the satisfaction reached by the
President is unconstitutional, highly irrational or without
any nexus, then the court would consider the contents of the
Proclamation or reasons disclosed therein and in extreme
cases the material produced pursuant to discovery order nisi
to find the action is wholly irrelevant or bears no nexus
between purpose of the action and the satisfaction reached
by the President or does not bear any rationale to the
proximate purpose of the Proclamation. In that event the
court may declare that the satisfaction reached by the
President was either on wholly irrelevant grounds or
colourable exercise of power and consequently Proclamation
issued under Article 356 would be declared unconstitutional.
The court cannot go into the question of adequacy of the
material or circumstances justifying the declaration of
President’s rule. Roscoupoun in his Development of the
Constitutional Guarantees of Liberty, 1963 Edn. quoted
Jahering that, “Form is sworn enemy of caprice, the twin
sisters of liberty, fixed forms are the school of discipline
and order and thereby of liberty itself.” The exercise of
the discretion by the President is hedged with the
constitutional constraint to obtain approval of Parliament
within two months from the date of the issue, itself is an
assurance of proper exercise of the power that the President
exercises the power properly and legitimately that the
administration of the State is not carried on in accordance
with the provisions of the Constitution.
SCOPE OF REINDUCTION OF THE DISMISSED GOVERNMENT,
RENOTIFICATION AND REVIVAL OF DISSOLVED ASSEMBLY AND ITS
EFFECT
228. Contention was raised that until all avenues of
preventing failure of the machinery by appropriate
directions by the Central Government failed or found it
absolutely impossible for the State Government to carry on
the administration in accordance with the provisions of the
Constitution or by dual exercise of the power partly by
State and partly by the President or alternatively with
dissolution of the Assembly should be deferred till approval
by Parliament is given and stay the operation of the
Presidential Proclamation till that time have been canvassed
by the counsel for the States. It is already considered
that warnings are only in limited areas in the appropriate
cases of financial mismanagement, but not in all the other
situations.
194
CONSTITUTIONAL CONVENTIONS PROVIDE FLESH WHICH
CLOTHES DRY BONES OF LAW
229. Ever since Article 356 was put in operation convention
has been developed that the Legislative Assembly is
dissolved, the State Government is removed and the executive
power assumed by the President is entrusted to the Governor
to carry on the executive actions with the aid and advice of
the appointed Advisors. Parliament exercises the
legislative powers of the entries in List 11 of the Schedule
and delegates legislative power to the President. The
President makes incidental and consequential provisions.
The Government of the State is thus under the administration
of the Union Government. The Constitution though provided
an elaborate procedure with minute details, that in the
event Parliament did not approve the Proclamation issued
under Article 356, the contingency of restitution of removed
Government and restoration of dissolved Assembly, obviously
with the fond hope that Article 356 would remain a “dead
letter” or it will “not be put to operation”, or at best
“sparingly” used. Dr Ambedkar in his closing speech in the
Constituent Assembly stated that “the conventions and
political morality” would help successful working of the
Constitution. Constitution cannot provide detailed rules
for every eventuality. Conventions are found in all
established Constitutions. The conventions are meant to
bring about constitutional development without formal change
in the law. Prof K.C. Wheare in his book The Statute of
Westminster and Dominion Status (4th Edn.) defined the
conventions thus :
“The definition of conventions may thus be
amplified by saying that their purpose is to
define the use of constitutional discretion.
To put this in slightly different words, it
may be said that conventions are non-legal
rules regulating the way in which legal rules
shall be applied.”
230. Sir W. Ivor Jennings, in his Law and the Constitution
(5th Edn.) elaborated the constitutional convention :
“Thus within the framework of the law there is
room for the development of rules of practice,
rules which may be followed as consistently as
the rules of law, and which determine the
procedure which the men concerned with
government must follow.”
231. The constitutional conventions provide the flesh which
clothes the dry bones of the law; they make the constitution
work; they keep it in touch with the growth of ideas. A
constitution does not work itself; it has to be worked by
men. It is an instrument of national cooperation which is
as necessary as the instrument. The conventions are the
rules elaborated for effecting that cooperation.
Conventions entrust power granted in the constitution from
one person to the other when the law is exercised by whom
they are granted, they are in practice by some other person
or body of persons. The primary role of conventions is to
regulate exercise of the discretion facing that
irresponsible abuse of power.
232. K.C. Wheare in his book Modern Constitution (1967 Edn.)
stated that:
195
“The conventions not only give discretionary
powers to the Government but also in executive
governance and a legislature or executive
relations, where such rules and practice
operate. They may be found in other spheres
of constitutional activities also.”
He stated that:
“A course of conduct may be persisted over a
period of time and gradually attain first
persuasive and then obligatory force. A
convention may arise much more quickly than
that. There may be an agreement among the
people concerned to work in a particular way
and to adopt a particular rule of conduct”.
Sir W. Ivor Jennings had stated that:
“The law provides only a framework; those who
put the laws into operation give the framework
a meaning and fill in the interstices. Those
who take decisions create precedents which
others tend to follow, and when they have been
followed long enough they acquire the sanctity
and the respectability of age. They not only
are followed but they have to be followed.”
One of us, learned Brother Kuldip Singh, J. had elaborately
considered the scope of conventions which obviated the need
to tread the path once over and held in Supreme Court
Advocates-on-Record Association v. Union of India46, that :
(SCC p. 651, para 340)
“The written Constitutions cannot provide for
every eventuality. Constitutional
institutions are often created by the
provisions which are generally worded. Such
provisions are interpreted with the help of
conventions which grow with the passage of
time. Conventions are vital insofar as they
fill up the gaps in the Constitution itself,
help solve problems of interpretation, and
allow for the future development of the
constitutional framework. Whatever the nature
of the Constitution, a great deal may be left
unsaid in legal rules allowing enormous
discretion to the constitutional
functionaries. Conventions regulate the
exercise of that discretion.”
233. The convention in working Article 356 of the
Constitution has been established and became the
constitutional law filling the interstices of legislative
process. The actions done by the President in accordance
with the choice left to him by sub-clauses (a) to (c) of
Article 356(1) and by Parliament under Article 357, i.e.,
dissolution of the Legislative Assembly, removing the State
Government, assumption of administration and entrustment of
the administration and the executive power to the Governor
of that State with the aid and advice of the appointed
Advisors and to take over legislative functions by
Parliament and the power of promulgation of Ordinance by the
President, etc. by operation of Article 357 and making all
incidental and consequential provisions for convenient
administration of executive Government of the State attained
status of constitutional law. This constitutional
convention firmly set the working of the Constitution on
46 (1993) 4 SCC 441: JT (1993) SC 479
196
smooth working base and is being operated upon all these
years. We hold that upsetting the settled convention and
the law and adopting value-oriented interpretation would
generate uncertainty and create constitutional crises in the
administration and the Government and would lead to failing
the Constitution itself.
PRESIDENTIAL PROCLAMATION – So FAR PARLIAMENT
DID NOT DISAPPROVE
234. The Proclamation issued under Article 356 requires to
be laid before each House of Parliament within two months
from the date of its issue. Unless it receives the
approval, it shall cease to operate at the expiration of two
months. The legal consequences of the Proclamation, as
stated earlier, is that the State Government is removed, the
Legislative Assembly is dissolved and in exercising the
power mentioned in sub-clauses (a), (b) and (c) of clause
(1) of Article 356 the President takes either steps
mentioned therein and Parliament exercises the power under
Article 357 conferring the legislative power on the
President and arrangement for convenient administration made
while exercising legislative powers in the entries in List
11 of Schedule VII of the Constitution. The contention is
that till expiry of two months the Legislative Assembly
should not be dissolved and on the approval received from
both the Houses of Parliament the President should dissolve
it. If the President fails to get the approval then the
dissolved Assembly must be revived and the dismissed
Ministry should be reinducted into office. We find it
difficult to give acceptance to this contention and if given
acceptance it would be beset with grave incongruities and
result in operational disharmony. Parliament did not
disapprove any Proclamation so far issued. There is no
express provision engrafted in the Constitution to fill in
this contingency. In Rajasthan case3 this Court considered
the contingency and held that dissolution of the Legislative
Assembly is part of the same Proclamation or by a subsequent
order and that even if Parliament does not approve the
Proclamation the dissolved Assembly and the removed Ministry
cannot be restored. We respectfully agree with the view for
the reasons we independently give hereinunder.
FUNCTIONAL INCONGRUITY AND DISHARMONY
235. The executive power of the Union or the State is
coextensive with their legislative powers respectively.
When the President assumed administration of the State under
Article 356, without dissolving the Legislative Assembly
could the President discharge the executive powers without
legislative powers being armed with by Parliament? Could
the President discharge the duties under the directions of
the State Legislature, if need arises for passing
appropriate legislative sanctions. Bicameral operation of
the legislative and executive powers both by the State
Legislature and Parliament in List 11 of VIlth Schedule is
an anathema to the democratic principle and constitutional
scheme. The question of conflict of
3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1
197
parliamentary supremacy and executive overbearing is more
imaginary than actual or real.
236. The reinduction of the Government of the State is also
beset with several incongruities. It cannot be assumed
that the President lightly removed the State Government. It
must be for formidable grounds, though not judicially
discoverable nor discernable to strict judicial scrutiny.
All the Proclamations so far issued were not disapproved by
Parliament. The dismissed Government, if restituted into
power, may violate with impunity the provisions of the
Constitution and laws for the balance period taking
advantage of majority in the legislature and full-scale
corruption or other unconstitutional acts will have their
free play. The political party itself and all their members
of the legislature should collectively own responsibility
for the removal of their Government and their
unconstitutional governance writes its own death warrant.
Restitution thereby puts a premium on failing the
Constitution. The political party must seek afresh mandate
from the electorates and establish their credibility by
winning majority seats. The existence of the Legislative
Council which is not dissolvable, like Rajya Sabha, cannot
by itself transact any business, in particular the finance
bills or appropriation bills or annual financial statements.
Therefore, its continuance shall render no criteria to the
continuance of legislature or to assume it be not dissolved
on grammarian rule to reconstitute the dissolved Legislative
Assembly of which the majority members belong to the same
party. No doubt dissolution of the Legislature literally
would include Legislative Council but not every State has a
council. No distinction between two types of States, one
with Council and another without Council and the former
would be eligible for revival and later per force would not
be, was not meant by the Constitution. Grammarian rule
carries no consistence. Moreover this problem could also be
tested from the expediency and functional efficacy. The
possibility of reinduction creates functional hiatus.
Suppose the court grants stay till Parliament approves the
Proclamation, if urgent need arose to issue ordinance or
transact legislative or financial business, who would do it?
The suspended Assembly cannot do nor Parliament. The
dismissed Ministry cannot transact the legislative business.
Even if permitted to function and ultimately the
Proclamation is approved by Parliament, what would happen to
the validity of the executive and legislative acts done in
the interregnum. As stated, is there no possibility of
large-scale abuse of office for personal or political gain?
If the orders are issued by the courts on value-based
opinion, where is the finality and at what point a stop is
to be put? If stay is granted, by a High Court and writ
petition is not disposed of and the term of the legislative
Assembly expires what would happen to the Ministry in
office? whether it would continue by order of the court?
How elections are to be conducted by the Election
Commission? Is it under the orders of the court or by the
exercise of the power under Article 324? Are day to day
executive, legislative and administrative actions to be done
under the writ of the court? of a High Court issues a
direction to allow the dissolved assembly its full course of
balance period including the suspended period what would
198
happen? Is it not violative of Article 172? Whether it
could be prevented to be done? If such order is not
complied with, is not the President liable to contempt of
the court and if so what happens to the protection of
Article 361 ? Instead of solving the problems, does not the
writ of the court create constitutional crisis? Giving deep
and anxious consideration and visualising the far-reaching
constitutional crisis, we are firmly of the view that the
self-restraint constrains us to express no value opinion
leaving it to Parliament to ponder over and if deemed
necessary amend Article 356 suitably.
237. The Constitution was amended more than 77 times and
Article 356 itself was amended 6 times through the
Constitution’s 38th Amendment Act; the 42nd Amendment Act;
the 44th Amendment Act; the 59th Amendment Act; the 64th
Amendment Act and the 68th Amendment Act. Apart from the
Congress Party, three non-Congress political parties were in
power at the Centre during these 44 years and no amendment
was brought to Article 356(3) that on disapproval of the
Proclamation by Parliament the dissolved Assembly stands
revived and removed Government stood reinducted. The
statutory construction fortifies this conclusion.
CASUS OMISSUS – WHETHER PERMISSIBLE To SUPPLY
238. The question, further arises whether by interpretative
process, would it be permissible to fill in the gaps.
Though it is settled law that in working the law and finding
yearning gaps therein, to give life and force to the
legislative intent, instead of blaming the draftsman, the
courts ironed out the creases by appropriate technique of
interpretation and infused life into dry bones of law. But
such an interpretation in our respectful view is not
permissible, when we are called upon to interpret the
organic Constitution and working the political institutions
created therein. When Parliament has had an opportunity to
consider what exactly is going wrong with the political
system designed by the Constitution but took no steps to
amend the Constitution in this behalf, it is a principle of
legal policy, that the law should be altered deliberately,
rather than casually by a sidewind only, by major and
considered process. Amendment of the Constitution is a
serious legislative business and change in the basic law,
carefully work out, more fundamental changes are brought out
by more thorough-going and in-depth consideration and
specific provisions should be made by which it is
implemented. Such is the way to contradict the problem by
the legislative process of a civilised State. It is a well-
established principle of construction that a statute is not
to be taken as affecting parliamentary alteration in the
general law unless it shows words that are found
unmistakably to that conclusion. No motive or bad faith is
attributable to the legislature. Bennion at page 338
extracting from the Institute of the Law of Scotland Vol. 3,
page 1 of The Practice by David Maxwell at page 127
abstracted that “Where a matter depends entirely on the
construction of the words of a statute, there cannot be any
appeal to the nobile officium”. He stated at page 344 that
199
“where the literal meaning of the enactment
goes narrower than the object of the
legislator, the court may be required to apply
a rectifying construction. Nowadays it is
regarded as not in accordance with public
policy to allow a draftsman’s ineptitude to
prevent justice being done. This was not
always the case.”
Where the language of a statute is clear and unambiguous,
there is no room for the application either of the doctrine
of casus omissus or of pressing into service external aid,
for in such a case the words used by the Constitution or the
statute speak for themselves and it is not the function of
the court to add words or expressions merely to suit what
the court thinks is the supposed intention of the
legislature. In American Jurisprudence 2d Series, Vol. 73
at page 397 in para 203 it is stated that:
“It is a general rule that the courts may not,
by construction insert words or phrases in a
statute or supply a casus omissus by giving
force and effect to the language of the
statute when applied to a subject about which
nothing whatever is said, and which, to all
appearances, was not in the minds of the
legislature at the time of the enactment of
the law.”
Under such circumstances new provisions or ideas may not be
interpolated in a statute or engrafted thereon. At page 434
in para 366 it is further stated that :
” While it has been held that it is duty of
the courts to interpret a statute as they find
it without reference to whether its provisions
are expedient or unexpedient, it has also been
recognised that where a statute is ambiguous
and subject to more than one interpretation,
the expediency of one construction or the
other is properly considered. Indeed, where
the arguments are nicely balanced, expediency
may tip the scales in favour of a particular
construction. It is not the function of a
court in the interpretation of statutes, to
vindicate the wisdom of the law. The mere
fact that the statute leads to unwise results
is not sufficient to justify the court in
rejecting the plain meaning of unambiguous
words or in giving to a statute a meaning of
which its language is not susceptible, or in
restricting the scope of a statute. By the
same token, an omission or failure to provide
for contingencies, which it may seem wise to
have provided for specifically, does not
justify any judicial addition to the language
of the statute. To the contrary, it is the
duty of the courts to interpret a statute as
they find it without reference to whether its
provisions are wise or unwise, necessary or
unnecessary, appropriate or inappropriate, or
well or ill-conceived. ”
239. Craies on Statute Law, 7th Edn., at page 69,
states that the second consequence of the rule of casus
omissus is that the statute may not be extended to meet a
case for which provision has clearly and undoubtedly not
been made. In Construction of Statutes by Crawford at page
269 in paragraph 169 it is stated that omissions in a
statute cannot, as a general rule, be supplied by
construction. Thus, if a particular case is omitted from
the terms of a statute, even though such a case is within
the obvious purpose of
200
the statute and the omission appears to have been due to
accident or inadvertence, the court cannot include the
omitted case by supplying the omission. This is equally
true where the omission was due to the failure of the
legislature to foresee the missing case. As is obvious, to
permit the court to supply the omissions in statutes, would
generally constitute an encroachment upon the field of the
legislature. In construing the Constitution we cannot look
beyond the letter of the Constitution to adopt something
which would command itself to our minds as being implied
from the context. In State of Tasmania v. Commonwealth of
Australia and State of Victoria47 Connor, J. dealing with
the question observed thus :
“It appears to me that the only safe rule is
to look at the statute itself and to gather
from it what is its intention. If we depart
from that rule we are apt to run the risk of
the danger described by Pollack, C.J., in
Mille v. Solomons. ‘If’, he says, ‘the
meaning of the language be plain and clear, we
have nothing to do but to obey it to
administer it as we find it; and, I think, to
take a different course is to abandon the
office of Judge, and to assume the province of
legislation’. Some passages were cited by Mr
Glynn from Black on the Interpretation of
Laws, which seem to imply that there might be
a difference in the rules of interpretation to
be applied to the Constitution and those to be
applied to any other Act of Parliament, but
there is no foundation for any such
distinction. The intention of the enactment
is to be gathered from its words. If the
words are plain, effect must be given to them;
if they are doubtful, the intention of
legislature is to be gathered from the other
provisions of the statute aided by a
consideration of surrounding circumstances.
In all cases in order to discover the
intention you may have recourse to
contemporaneous circumstances to the history
of the law, and you may gather from the
instrument itself the object of the
legislature in passing it. In considering the
history of the law, you may look into previous
legislation, you must have regard to the
historical facts surrounding the bringing of
law into existence. In the case of a Federal
Constitution the field of inquiry is naturally
more extended than in the case of a State
Statute, but the principles to be applied are
the same. You may deduce the intention of the
legislature from a consideration of the
instrument itself in the light of these facts
and circumstances, but you cannot go beyond
it. If that limitation is to be applied in
the interpretation of an ordinary Act of
Parliament, it should at least be as
stringently applied in the interpretation of
an instrument of this kind, which not only is
a statutory enactment, but also embodies the
compact by which the people of the several
colonies of Australia agreed to enter into an
indissoluble Union.”
240. In Encyclopaedia of the American Judicial System. The
Constitutional Interpretation by Craig R. Ducat it is stated
that the standard for assessing constitutionality must be
the words of the Constitution, not
47 (1904) 1 CLR 329, 358-59
201
what the judges would prefer the Constitution to mean. The
constitutional supremacy necessarily assumes that a superior
rule is what the Constitution says, it is not what the
judges prefer it to be. (Vide page 973). (emphasis supplied)
In judicial tributes balancing the competing interest Prof
Ducat quoted with approval the statement of Bickel at page
798 thus :
“The judicial process is too principle-prone
and principle-bound it has to be, there is no
other justification or explanation for the
role it plays. It is also too remote from
conditions, and deals, case by case, with too
narrow a slice of reality. It is not
accessible to all the varied interests that
are in play in any decision of great
consequence. It is, very properly,
independent. It is passive. It has
difficulty controlling the stages by which it
approaches a problem. It rushes forward too
fast, or it lags; its pace hardly ever seems
just right. For all these reasons, it is, in
a vast, complex, changeable society, a most
unsuitable instrument for the formation of
policy.”
241. In the Modes of Constitutional Interpretation by Craig
R. Ducat, 1978 Edn. at p. 125, he stated that the judges’
decision ought to mean society’s values not their own. He.
quoted Cardozo’s passage from the Nature of Judicial Process
at page 108 that, “a judge, I think would err if he were to
impose upon the community as a rule of life his own
idiosyncrasies of conduct or belief’. The court when caught
in a paralysis of dilemma should adopt self-restraint, it
must use the judicial review with greatest caution. In
clash of political forces in political statement the
interpretation should only be in rare and auspicious
occasions to nullify ultra vires orders in highly arbitrary
or wholly irrelevant Proclamation which does not bear any
nexus to the predominant purpose for which the Proclamation
was issued, to declare it to be unconstitutional and no
more.
242. Frankfurter, J. says in Dennis v. US48 thus :
“But how are competing interests to be
assessed? Since they are not subject to
quantitative ascertainment, the issue
necessarily resolves itself into asking, who
is to make the adjustment? who is to balance
the relevant factors and ascertain which
interest is in the circumstances to prevail?
Full responsibility for the choice cannot be
given to the courts. Courts are not
representative bodies. They are not designed
to be a good reflex of a democratic society.
Their judgment is best informed, and therefore
most dependable, within narrow limits. Their
essential quality is detachment, founded on
independence. History teaches that the
independence of the judiciary is jeopardize
d
when courts become embroiled in the passions
of the day and assume primary responsibility
in choosing between competing political,
economic and social pressures.”
243. Regionalism, linguism and religious fundamentalism have
become divisive forces to weaken the unity and integrity of
the country. Linguistic chauvinism adding its fuel to keep
the people poles apart. Communalism and
48 341 US 494,525:95 [Ed]137(1951)
202
casteism for narrow political gains are creating foul
atmosphere. The cessationist forces are working from within
and outside the country threatening national integration.
To preserve the unity and integrity of the nation, it is
necessary to sustain the power of the President to wisely
use Article 356 to stem them out and keep the Government of
the State functioning in accordance with the provisions of
the Constitution. Article 356 should, therefore, be used
sparingly in only cases in which the exercise of the power
is called for. It is not possible to limit the scope of
action under Article 356 to specific situations, since the
failure of the constitutional machinery may occur in several
ways due to diverse causes be it political, internal
subversion or economic causes and no strait-jacket formula
would be possible to evolve. The Founding Fathers thus
confided the exercise of the power in the highest executive,
the President of India, through his Council of Ministers
headed by the Prime Minister of the country who is
accountable to the people of the country.
STAY OF ELECTIONS WHETHER COULD BE MADE
244. Under Article 168 for every State there shall be
Legislative Assembly and in some States Legislative Council.
Article 172(1) provides that every Legislative Assembly of
every State, unless sooner dissolved shall continue for five
years from the date appointed for its first meeting and “no
longer” and the expiration of such period of five years
shall operate as a dissolution of the Assembly. The proviso
to clause (1) or clause (2) are not relevant. It is thereby
declared the constitutional policy that five years’ tenure
of the legislature starts running from the date appointed
for its first meeting and expiration of the period operates
constitutionally as date of dissolution of the Assembly.
The phrase “no longer” reinforces its mandatory character.
Article 324(1) enjoins the Election Commission to conduct
elections to Parliament and to the Legislature of every
State, etc. The R.P. Act, rules and the instructions
prescribe the procedure to conduct and complete elections
four months before the expiry of the date of dissolution.
Article 329(b) issues an injunction that “no election to
either House of Parliament or to the House or either House
of the Legislature of a State shall be called in question”
except by an election petition presented to such authority
and in such manner as may be provided for by or under any
law made by the appropriate legislature. In other words,
the election process once set in motion should run its full
course and all election disputes shall be resolved in
accordance with the procedure established by R.P. Act.
245. In N.P. Ponnuswami v. Returning Officer, Namakkal
ConstituenCy49 at the earliest, Constitution Bench of this
Court held that having regard to the important functions
which the legislatures have to perform in democratic
countries, it has always been recognised to be a matter of
first importance that elections shall be concluded as early
as possible according to the time schedule and all
controversial matters and all disputes arising out of
elections should be postponed till after the elections are
over,
49 1952 SCR 218: AIR 1952 SC 64: 1 ELR 133
203
so that the election proceedings may not be unduly retarded
or protracted. In Lakshmi Charan Sen v. A.K.M. Hassan
Uzzaman50 another Constitution Bench considered the effect
of interim stay of general elections to West Bengal
Legislative Assembly granted by the Calcutta High Court in a
writ proceeding, held that the High Courts must observe
self-imposed limitation on their power to act under Article
226 by refusing to pass orders or giving directions which
will inevitably result in an indefinite postponement of
elections to legislative bodies, which are the very essence
of the democratic foundation and functioning of our
Constitution. That limitation ought to be observed
irrespective of the fact whether the preparation and
publication of electoral rolls are a part of the process of
election within the meaning of Article 329(b) of the
Constitution. It is the duty of the court to protect and
preserve the integrity of the constitutional institutions
which are devised to foster democracy and when the method of
their functioning is questioned, which is open to the
citizen to do, the court must examine the allegations with
more than ordinary care. Very often the exercise of
jurisdiction especially the writ jurisdiction involves
questions of propriety rather than of power. The fact that
the court has power to do a certain thing does not mean that
it must exercise that power regardless of consequences.
Holding the elections to the legislatures and holding them
according to law are both matters of paramount importance
and is the constitutional obligation imposed by Article 168.
The pragmatic approach was couched thus: (at SCR p. 523):
(SCC p. 709, para 30)
“India is an oasis of democracy, a fact of
contemporary history which demands of the
courts the use of wise statesmanship in the
exercise of their extraordinary powers under
the Constitution. The High Courts must
observe a self-imposed limitation on their
power to act under Article 226, by refusing to
pass order or give directions which will
inevitably result in an indefinite
postponement of elections to legislative
bodies, which are the very essence of the
democratic foundation and functioning of our
Constitution. That limitation ought to be
observed irrespective of the fact whether the
preparation and publication of electoral rolls
are a part of the process of ‘election’ within
the meaning of Article 329(b) of the
Constitution.”
There are plethora of precedents in this behalf, but suffice
for the limited purpose to say that the exercise of the
power either under Article 226 or Article 32 or Article 136
staying the elections to the dissolved Assembly under
Article 356 not only flies in the face of the constitutional
mandates and the law laid down by this Court, but creates
uncertainty and constitutional crises as stated
hereinbefore. Enlightened public opinion both inside or
outside Parliament, informed public objective criticism,
objective assessment of the ground realities would inhibit
misuse of power and hinder highly irrational exercise of the
power.
50 (1985) 4 SCC 689: 1985 Supp 1 SCR 493
204
246. The question which finally emerges is whether issuance
of the Proclamation under Article 356 without affording a
particular Chief Minister to test his majority support of
his party in the Legislatures (sic) of Janata Dal or
coalition on the floor of the House is arbitrary and bears
no reasonable nexus or irrational. Having given our anxious
consideration to the facts in Bommai case and in the light
of the discussion made hereinbefore that the fluid situation
prevailing during the relevant period appears to have
persuaded the President that he had constitutional duty to
maintain the purity of the democratic process and required
to stamp out horse-trading among the legislators which had
resulted in the failure of constitutional machinery,
satisfied himself that necessitated to issuance of the
Proclamation under Article 356. Though the majority
strength of the ruling party or coalition in the Legislative
Assembly may be tested on the floor of the House and may be
a salutary principle as recommended by the conference of the
Governors, it would appear that in its working there emerged
several pitfalls and so it was not found enforceable as a
convention. It is for the political parties or the Chief
Ministers’ conference to take a decision in that behalf and
it is not judicially manageable for the court to give any
declaration in this behalf. In regard to dissolution of
U.P. Assembly, though there is no writ petition filed, since
the Government machinery of that Government had failed to
prevent destruction of Sri Ram Janmabhoomi-Babri Masjid
disputed structure and failed to protect the religious
property, be it belong to Hindus or Muslims and in that
surged atmosphere when it was done, it cannot be concluded
that the President acted unconstitutionally or that there is
no proximate nexus between the action and the demolition to
exercise the power under Article 356. Equally regarding
dissolution of Legislative Assemblies of Madhya Pradesh,
Rajasthan and Himachal Pradesh, the reports of the Governors
do disclose that some of the Ministers and some Chief
Ministers actively associated or encouraged kar sevaks to
participate in the demolition of Ram Janmabhoomi-Babri
Masjid disputed structure and also criticised the imposition
of ban on RSS. The law and order situation or public order
situation do not appear to have been brought under control.
The common thread of breach of secularism ran through the
events and with prognosis action was taken. Our learned
Brother Jeevan Reddy, J. elaborately considered the
pleadings of the parties and arguments by the respective
counsel. He also deduced the conclusions. The need for
discussion once over is thereby redundant. We respectfully
agree with him and in case of Meghalaya also. We conclude
that the satisfaction reached by the President cannot be
adjudicated with any judicially discoverable and manageable
standards, but one stark fact that emerged is that due to
sustained campaign by the BJP and other organizations Sri
Ram Janmabhoomi-Babri Masjid disputed structure was
destroyed. Consequential situation that has arisen due to
which the President satisfied that Governments of the States
of Madhya Pradesh, Rajasthan and Himachal Pradesh cannot be
carried on in accordance with the provisions of the
Constitution and they breached the basic features of the
Constitution, namely secularism. Therefore the satisfaction
reached by
205
the President cannot be said to be irrelevant warranting
interference. As regards Meghalaya is concerned, though a
declaration may possibly be made on the validity of the
Presidential Proclamation, since the elections have already
been held, its need became fait accompli.
CONCLUSIONS
247. Federalism envisaged in the Constitution of India is a
basic feature in which the Union of India is permanent
within the territorial limits set in Article 1 of the
Constitution and is indestructible. The State is the
creature of the Constitution and the law made by Articles 2
to 4 with no territorial integrity, but a permanent entity
with its boundaries alterable by a law made by Parliament.
Neither the relative importance of the legislative entries
in Schedule VII, Lists I and II of the Constitution, nor the
fiscal control by the Union per se are decisive to conclude
that the Constitution is unitary. The respective
legislative powers are traceable to Articles 245 to 254 of
the Constitution. The State qua the Constitution is federal
in structure and independent in its exercise of legislative
and executive power. However, being the creature of the
Constitution the State has no right to secede or claim
sovereignty. Qua the Union, State is quasi-federal. Both
are coordinating institutions and ought to exercise their
respective powers with adjustment, understanding and
accommodation to render socioeconomic and political justice
to the people, to preserve and elongate the constitutional
goals including secularism.
248. The preamble of the Constitution is an integral part of
the Constitution. Democratic form of Government, federal
structure, unity and integrity of the nation, secularism,
socialism, social justice and judicial review are basic
features of the Constitution.
249. The office of the Governor is a vital link and a
channel of impartial and objective communication of the
working of the Constitution by the State Government to the
President of India. He is to ensure protection and
sustenance of the constitutional process of the working of
the Constitution in the State playing an impartial role. As
head of the Executive he should truthfully with high degree
of constitutional responsibility inform the President that a
situation has arisen in which the constitutional machinery
has failed and the State cannot be carried on in accordance
with the provisions of the Constitution with necessary
factual details in a non-partisan attitude.
250. The Union of India shall protect the State Government
and as corollary under Article 356 it is enjoined that the
Government of every State should be carried on in accordance
with the provisions of the Constitution. On receipt of a
report from the Governor or otherwise the President (Council
of Ministers) on being 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, is
empowered to issue Proclamation under Article 356(1) and
impose President’s rule in the State in the manner laid down
in sub-clauses (a) to (c) of Article 356(1) of the
Constitution.
206
251. The exercise of the power under Article 356 is an
extraordinary one and needs to be used sparingly when the
situation contemplated by Article 356 warrants to maintain
democratic form of Government and to prevent paralysing of
the political process. Single or individual act or acts of
violation of the Constitution for good, bad or indifferent
administration does not necessarily constitute failure of
the constitutional machinery or characterises that a
situation has arisen in which the Government of the State
cannot be carried on in accordance with the provisions of
the Constitution. The exercise of power under Article 356
should under no circumstance be for a political gain to the
party in power in the Union Government. It should be used
sparingly and with circumspection that the Government of the
State function with responsibility in accordance with the
provisions of the Constitution.
252. Rule of law has been chosen as an instrument of social
adjustment and resolution of conflicting social problems to
integrate diverse sections of the society professing multi-
religious faiths, creed, caste or region fostering among
them fraternity, transcending social, religious, linguistic
or regional barriers. Citizenship is either by birth or by
domicile and not as a member of religion, caste, sect,
region or language. Secularism has both positive and
negative contents. The Constitution struck a balance
between temporal parts confining it to the person professing
a particular religious faith or belief and allows him to
practice, profess and propagate his religion, subject to
public order, morality and health. The positive part of
secularism has been entrusted to the State to regulate by
law or by an executive order. The State is prohibited to
patronise any particular religion as State religion and is
enjoined to observe neutrality. The State strikes a balance
to ensure an atmosphere of full faith and confidence among
its people to realise fill growth of personality and to make
him a rational being on secular lines, to improve individual
excellence, regional growth, progress and national
integrity. Religion being susceptible to the individuals or
groups of people professing a particular religion,
antagonistic to another religion or groups of persons
professing different religion, brings inevitable social or
religious frictions. If religion is allowed to overplay,
social disunity is bound to erupt leading to national
disintegration. Secularism is a part of the basic features
of the Constitution. Political parties, group of persons or
individuals who would seek to influence electoral process
with a view to come to political power, should abide by the
Constitution and the laws including secularism, sovereignty,
integrity of the nation. They/he should not mix religion
with politics. Religious tolerance and fraternity are basic
features and postulates of the Constitution as a scheme for
national integration and sectional or religious unity.
Programmes or principles evolved by political parties based
on religion amounts to recognising religion as a part of the
political governance which the Constitution expressly
prohibited. It violates the basic features of the
Constitution. Positive secularism negates such a policy and
any action in furtherance thereof would be violative of the
basic features of the Constitution. Any act done by a
political party or the Government of the
207
State run by that party in furtherance of its programme or
policy would also be in violation of the Constitution and
the law. When the President receives a report from a
Governor or otherwise had such information that the
Government of the State is not being carried on in
accordance with the provisions of the Constitution, the
President is entitled to consider such report and reach his
satisfaction in accordance with law.
253. A person who challenges the Presidential Proclamation
must prove strong prima facie case that the Presidential
Proclamation is unconstitutional or invalid and not in
accordance with law. On the Court’s satisfying that the
strong prima facie case has been made out and if it is a
High Court, it should record reasons before issuing
“discovery order nisi”, summoning the records from the Union
of India. The Government is entitled to claim privilege
under Section 123 of the Indian Evidence Act and also the
claim under Article 74(2) of the Constitution. The court is
to consider the records in camera before taking any further
steps in the matter. Article 74(2) is not a barrier for
judicial review. It only places limitation to examine
whether any advice and if so what advice was tendered by the
Council of Ministers to the President. Article 74(2)
receives only this limited protective canopy from
disclosure, but the material on the basis of which the
advice was tendered by the Council of Ministers is subject
to judicial scrutiny.
254. The Union of India, when discovery order nisi is issued
by this Court, would act in aid of the Court under Article
142(2) and is enjoined to produce the material, the
foundation for action under Article 356. As held earlier
before calling upon the Union to produce the material, the
court must first find strong prima facie case and when the
records are produced they are to be considered in camera.
255. Judicial review is a basic feature of the Constitution.
This Court/High Courts have constitutional duty and
responsibility to exercise judicial review as sentinel on
the qui vive. Judicial review is not concerned with the
merits of the decision, but with the manner in which the
decision was taken. The exercise of the power under Article
356 is a constitutional exercise of the power. The normal
subjective satisfaction of an administrative decision on
objective basis applied by the courts to administrative
decisions by subordinate officers or quasi-judicial or
subordinate legislation does not apply to the decision of
the President under Article 356.
256. Judicial reveiw must be distinguished from the
justiciability by the court. The two concepts are not
synonymous. The power of judicial review is a constituent
power and cannot be abdicated by judicial process of
interpretation. However, justiciability of the decision
taken by the President is one of exercise of the power by
the court hedged by self-imposed judicial restraint. It is
a cardinal principle of our Constitution that no one,
howsoever lofty, can claim to be the sole judge of the power
given under the Constitution. Its actions are within the
confines of the powers given by the Constitution.
208
257. This Court as final arbiter in interpreting the
Constitution, declares what the law is. Higher judiciary
has been assigned a delicate task to determine what powers
the Constitution has conferred on each branch of the
Government and whether the actions of that branch transgress
such limitations, it is the duty and responsibility of this
Court/High Courts to lay down the law. It is the
constitutional duty to uphold the constitutional values and
to enforce the constitutional limitations as the ultimate
interpreter of the Constitution. The judicial review,
therefore, extends to examine the constitutionality of the
Proclamation issued by the President under Article 356. It
is a delicate task, though loaded with political overtones,
to be exercised with circumspection and great care. In
deciding finally the validity of the Proclamation, there
cannot be any hard and fast rules or fixed set of rules or
principles as to when the President’s satisfaction is
justiciable and valid.
258. Justiciability is not a legal concept with a fixed
content, nor is it susceptible of scientific verification.
Its use is the result of many pressures or variegated
reasons. Justiciability may be looked at from the point of
view of common sense limitation. Judicial review may be
avoided on questions of purely political nature, though pure
legal questions camouflaged by the political questions are
always justiciable. The courts must have judicially
manageable standards to decide a particular controversy.
Justiciability on a subjective satisfaction conferred in the
widest terms to the political coordinate executive branch
created by the constitutional scheme itself is one of the
considerations to be kept in view in exercising judicial
review. There is an initial presumption that the acts have
been regularly performed by the President.
259. The proviso to Article 74(1) reinforces that on the
advice tendered by the Council of Ministers to the
President, the latter actively applies his mind and reaches
the satisfaction that a situation has arisen in which the
Government of the State cannot be carried on in accordance
with the provisions of the Constitution. The word
“otherwise” enlarges the width and ambit of satisfaction
reached by the President. In some cases such satisfaction
lacks judicially manageable standards for resolution. The
abuse of the power by high constitutional functionaries
cannot be assumed, but must be strictly proved. It also
cannot be assumed that the Presidential Proclamation was
lightly issued. The exercise of discretionary satisfaction
may depend on diverse varied and variegated circumstances.
The Constitution confided exercise of the power under
Article 356 in the highest executive of the land, the
President of India aided and advised by the Council of
Ministers at its head by the Prime Minister. The Prime
Minister and his Council of Ministers are collectively and
individually responsible to Parliament and accountable to
the people. Confidence reposed on the highest executive
itself is a circumstance to be kept in view in adjudging
whether the satisfaction reached by the President is
vitiated by law. It is impermissible to attribute bad faith
or personal mala fides to the President in the face of
constitutional prohibition of answerability by Article 361.
But if the proof of
209
mala fide abuse of power is available, appropriate remedy
would be available in the Constitution under Article 61.
260. The decision can be tested on the ground of legal mala
fides, or high irrationality in the exercise of the
discretion to issue Presidential Proclamation. Therefore,
the satisfaction reached by the President for issuing the
Proclamation under Article 356 must be tested only on those
grounds of unconstitutionality, but not on the grounds that
the material which enabled him to reach the satisfaction was
not sufficient or inadequate. The traditional parameters of
judicial review, therefore, cannot be extended to the area
of exceptional and extraordinary powers exercised under
Article 356. The doctrine of proportionality cannot be
extended to the power exercised under Article 356. The
ultimate appeal over the action of the President is to the
electorate and judicial self-restraint is called in aid, in
which event the faith of the people in the efficacy of the
judicial review would be strengthened and the judicial
remedy becomes meaningful.
261. Under Article 356 as soon as the Proclamation is
issued, under sub-clause (3) of Article 356, the President
shall seek its approval from both Houses of Parliament
within two months from the date of its issue unless it is
revoked in the meanwhile. A consistent constitutional
convention has been established that on issuing the
Proclamation the President on his assumption of the
functions of the Government of the State directs the
Governor to exercise all the executive functions of the
Government of the State with the aid and advice of the
appointed Advisors. He declares that the power of the
Legislature of the State shall be exercisable by or under
the authority of Parliament and makes incidental and
consequential provisions necessary to give effect to the
object of Proclamation by suspending whole or any part of
the operation of any provision of the Constitution relating
to any body or authority of the State which includes
dissolution of the Legislative Assembly and removal of the
State Government. Parliament exercises the legislative
power thereon under Article 357 and in turn it confers on
the President the powers relating to entries in List II of
the VIIth Schedule. The Governor of the State with the aid
and advice of the advisors exercises the executive functions
on behalf of the President. The convention attained the
status of law. This consistent law has been operating
without any constitutional hiatus. Granting of stay of
operation of Presidential Proclamation creates
constitutional and administrative hiatus and incongruity.
The Union and the State simultaneously cannot operate the
legislative and executive powers in List II of VIIth
Schedule of the Constitution. Thereby simultaneous
bicameral functions by the Union and the State is an
anathema to the democratic principle and constitutional
scheme. It would lead to incongruity and incompatibility.
262. There is no express provision in the Constitution to
revive the Assembly dissolved under the Presidential
Proclamation or to reinduct the removed Government of the
State. In interpreting the Constitution on the working of
the democratic institutions set up under the Constitution,
it is impermissible to fill the gaps or to give directions
to revive the dissolved
210
Assembly and to reinduct the dismissed Government of the
State into office. Equally, stay cannot be granted of the
operation of the Presidential Proclamation till both Houses
of Parliament approve the Presidential Proclamation. The
suspension without dissolution of theLegislative Assembly
of the State also creates functional disharmony leading to
constitutional crisis. The grant of stay of elections to the
Legislative Assembly, occasioned pursuant to the
Presidential Proclamation, also creates constitutional
crisis. Therefore, the courts should not issue such
directions leaving it to Parliament to amend the
Constitution if need be.
263.The floor-test may be one consideration which the
Governor may keep in view. But whether or not to resort to
it would depend on prevailing situation. The possibility of
horse-trading is also to be kept in view having regard to
the prevailing political situation. It is not possible to
formulate or comprehend a set of rules for the exercise of
the power by the Governor to conduct floor-test. The
Governor should be left free to deal with the situation
according to his best judgment keeping in view the
Constitution and the conventions of the parliamentary system
of Government. Though Sarkaria Commission and Rajamannar
Commission, headed by two distinguished Judges of this land,
recommended floor-test, it could only mean that that is a
consideration which must cross the mind of the Governor. It
would suffice to say that the Governor should be alive to
the situation but he would be the sole judge on the question
whether or not conditions are conducive to resort to floor-
test.
264.The satisfaction reached by the President in issuing
Presidential Proclamation and dissolving the Legislative
Assemblies of Madhya Pradesh, Rajasthan and Himachal Pradesh
cannot be faulted as it was based on the fact of violation
of the secular features of the Constitution which itself is
a ground to hold that a situation has arisen in which the
Government of the States concerned cannot be carried on in
accordance with the provisions of the Constitution.
Therefore, the satisfaction cannot be said to be
unwarranted. The appeals of the Union from the judgment of
the Madhya Pradesh High Court is allowed accordingly and the
judgment of the High Court is set aside. The dissolution of
the Meghalaya Assembly though vulnerable to attack as
unconstitutional, it has become infructuous due to
subsequent elections and the newly elected State Legislature
and the Government of the State of Meghalaya are functioning
thereafter. Therefore, no futile writs could be issued as
the Court does not act in vain. The appeal of Bommai and
the transferred petitions are accordingly dismissed, but in
the circumstances without costs.
B.P. JEEVAN REDDY, J. (on behalf of Agrawal, J. and himself)
Article 356 of the Constitution of India is a provision
without a parallel. Constitution of no other country
contains a similar provision. The only other constitution
that contains a somewhat similar provision is the
Constitution of Pakistan of 1973, viz., Article 58(2) and
Article 112(2). Both the Indian and Pakistani provisions
appear to be inspired by Section 45 and Section 93 of the
Government of India Act, 1935. Article 356, however, is
qualitatively
211
different, while the Pakistani provisions are more akin to
the provisions of 1935 Act. 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 42nd (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, as this judgment will demonstrate.
And with respect to judicial review of the action under
Article 356, serious reservations are expressed by the
counsel for the Union of India and other respondents. If
what they say is accepted, there is a danger of this power
eroding the very federal structure of our State and
introducing a serious imbalance in our constitutional
scheme. It is, therefore, necessary to define the
parameters of this power and the parameters ‘of judicial
review in these matters in the interest of our
constitutional system. It is for this reason that we heard
elaborate arguments from all the parties before us on the
meaning, scope and dimensions of the power under this
article. We may say, we are fully aware of the delicate
nature of the problem. We are aware that though the
questions raised herein are constitutional in character,
they do have political overtones. It is quite likely that
our views will not be found palatable by some but that
probably cannot be helped. Sworn to uphold the
Constitution, we must say what the article says and means.
266.It is true that on account of elections having taken
place subsequent to the issuance of the Proclamations
impugned herein, no effective relief can be granted in these
matters, we are yet requested by all the parties concerned
herein that we should express ourselves on all the issues
arising herein so that the principles enunciated by this
Court may serve as guidelines for the future for all
concerned.
ARTICLE 356: THE BACKGROUND
267.India became a British colony in the year 1858.
Roughly two-thirds of it was under direct British rule while
the remaining one-third was under the rulership of more than
500 Princes, who in turn were directly under the thumb of
the British Crown. The 1935 Act introduced, for the first
time, the concept of division of powers between the Centre
and the provinces. Most of the powers were retained with
the Centre. The Provincial Governments were kept under an
ever-watchful and all powerful Centre. The Governors in the
provinces and the Governor General at the Centre exercised
real and substantial power, unlike the Governors and the
President under the Constitution. From the British point of
view, it was an experiment, the first one, in self-rule by
the Indians. A few powers were entrusted to the elected
212
Governments at the Centre or in the provinces; even those
could be resumed and taken back by the Governor General or
Governor, as the case may be, whenever he was satisfied that
the Government at the Centre or of the province could not be
carried on in accordance with the provisions of the Act.
Governor General and Governor, under the 1935 Act, meant the
imperial colonial power. Evidently, the British Parliament
was not prepared to trust the Indian political parties.
Many of them were opposed to British rule and some of their
leaders had declared openly that they would enter the
Legislatures and the Government with a view to break the
system from within. Sections 45 and 93 were the products of
this mistrust.
268.But then Why was a provision like Article 356 ever made
in the Constitution? What was the occasion and necessity
for it? For ascertaining this, we may have to turn to the
debates in the Constituent Assembly. The draft Articles
277-A and 278 (corresponding to Articles 355 and 356) were
taken up for consideration on August 3, 1949. It would be
appropriate to read both Articles 355 and 356 as enacted by
the Constituent Assembly :
“355. Duty of the Union to protect States
against external aggression and internal
disturbance.- It shall be the duty of the
Union to protect every State against external
aggression and internal disturbance and to
ensure that the Government of every State is
carried on in accordance with the provisions
of this Constitution.
356. Provisions in case of failure of
constitutional machinery in States.- (1) If
the President, on receipt of report from the
Governor of a State orotherwise, is
satisfied that a situation has arisen in which
the Government of the State cannot be carried
on in accordance with the provisions of this
Constitution, the President may by
Proclamation(a) assume to himself all or any
of the functions of the Government of the
State and all or any of the powers vested in
or exercisable by the Governor or any body or
authority in the State other than the
Legislature of the State;
(b)declare that the powers of the
Legislature of the State shall be exercisable
by or under the authority of Parliament;
(c)make such incidental and consequential
provisions as appear to the President to be
necessary or desirable for giving effect to
the objects of the Proclamation, including
provisions for suspending in whole or in part
the operation of any provisions of this
Constitution relating to any body or authority
in the State :
Provided that nothing in this clause shall
authorise the President to assume to himself
any of the powers vested in or exercisable by
a High Court, or to suspend in whole or in
part the operation of any provision of this
Constitution relating to High Courts. (2) Any
such Proclamation may be revoked or varied by
a subsequent Proclamation.
(3)Every Proclamation issued under this
article shall be laid before each House of
Parliament and shall, except where it is a
Proclamation
213
revoking a previous Proclamation, cease to
operate at the expiration of two months unless
before the expiration of that period it has
been approved by resolutions of both Houses of
Parliament :
Provided that if any such Proclamation (not
being a Proclamation revoking a previous
Proclamation) is issued at a time when the
House of the People is dissolved or the
dissolution of the House of the People takes
place during the period of two months referred
to in this clause, and if a resolution
approving the Proclamation has been passed by
the Council of States, but no resolution with
respect to such Proclamation has been passed
by the House of the People before the
expiration of that period, the Proclamation
shall cease to operate at the expiration of
thirty days from the date on which the House
of the People first sits after its
reconstitution unless before the expiration of
the said period of thirty days a resolution
approving the Proclamation has been also
passed by the House of the People.
(4)A Proclamation so approved shall, unless
revoked, cease to operate on the expiration of
a period of six months from the date of issue
of the Proclamation
Provided further that if the dissolution of
the House of the People takes place during any
such period of six months and a resolution
approving the continuance in force of such
Proclamation has been passed by the Council of
States, but no resolution with respect to the
continuance in force of such Proclamation has
been passed by the House of the People during
the said period, the Proclamation shall cease
to operate at the expiration of thirty days
from the date on which the House of the People
first sits after its reconstitution unless
before the expiration of the said period of
thirty days a resolution approving the
continuance in force of the Proclamation has
been also passed by the House of the People.”
Dr B.R. Ambedkar was of the view that the Constitution must
provide for situation of breakdown of the constitutional
machinery in the States analogous to the provisions
contained in Section 93 of the 1935 Act. If a situation
arises, for whatever reason, where the Government of a State
cannot be carried on in accordance with the provisions of
the Constitution, he said, the President of India must be
empowered to remedy it. For that purpose, he could take
over all or any of the functions of the Government as well
as of the State Legislature. He could also make such other
provisions as he may think necessary including suspension
of the provisions of the Constitution except those relating
to High Court. This power, he stated, must be understood in
the context of draft Article 277-A (Article 355), which cast
an obligation upon the Union to protect every State against
external aggression and internal disturbance and to ensure
that the Government of every State is carried on in
accordance with the provisions of the Constitution. To
discharge this obligation, he said, the Centre must be
214
empowered to take over the Government of the State. At the
same time, he said, the President is not expected to act in
a wanton or arbitrary manner but on the basis of a report
from the Governor or on the basis of other material in his
possession, as the case may be.
269.Several members strongly opposed the incorporation of a
provision like the one contained in draft Article 278 on the
ground inter alia that it would be an invasion upon the
field reserved for the States and that permitting the
President to take over the Government of the State even on
the basis of the information received “otherwise” i.e.
without there being a report of the Governor to that effect,
was bound to be abused. A few members pleaded that this
power should be exercised only on the report of the Governor
and that the words “or otherwise” should be deleted from the
article. All these objections were overridden by Dr
Ambedkar with the argument that no provision of any
Constitution, for that matter, is immune from being abused.
He then made this significant statement : (Constituent
Assembly Debates, Vol. IX, p. 177)
“In fact I share the sentiments expressed by
my honourable friend Mr Gupte yesterday that
the proper thing we ought to expect is that
such articles will never be called into
operation and that 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.”
He added:
“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.”
270.Article 356 was thus conceived as a mechanism to ensure
that the Government of the State is carried on in accordance
with the provisions of the Constitution. Democratic rule
based on adult franchise was being introduced for the first
time. Almost 1/3rd of the country, under princely rule, had
never known elections. Rule of law was a novelty in those
areas. The infant democracy required careful nurturing.
Many a hiccup was expected in the days to come. This
perhaps explains the need for a provision like the one in
Article 356.
271.Article 356 finds place in Part XVIII which carries the
heading “Emergency Provisions”. Article 352, the first
article in this Part, empowers the President of India to
proclaim emergency in the country or any part thereof if he
is satisfied that a grave emergency exists whereby the
security of India or any part thereof is threatened whether
by war, external aggression or armed rebellion. (By the 44th
Amendment, the words “armed rebellion” were substituted in
the place of the words “internal disturbance”). Articles
353 and 354 set out the effects of such a Proclamation and
provide for certain incidental matters. Article 355, set
out hereinbefore, imposes a duty upon the Union to protect
the States against external aggression and armed rebellion
and also to ensure that the Government of every State is
carried on
215
in accordance with the provisions of the Constitution.
Articles 355, 356 and 357 go together. 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, while Article 357 sets out the
powers that can be exercised by Parliament when a
Proclamation under Article 356 is in operation. Articles
358 and 359 deal with suspending of certain fundamental
rights during the period the Proclamation under Article 352
is in operation, while Article 360 empowers the President to
declare financial emergency in certain situations.
272.In a sense, Article 356 is an emergency provision
though, it is true, it is qualitatively different from the
emergency contemplated by Article 352, or for that matter,
from the financial emergency contemplated by Article 360.
Undoubtedly, breakdown of the constitutional machinery in a
State does gives rise to a situation of emergency.
Emergency means a situation which is not normal, a situation
which calls for urgent remedial action. Article 356 confers
a power to be exercised by the President in exceptional
circumstances to discharge the obligation cast upon him by
Article 355. It is a measure to protect and preserve the
Constitution, consistent with his oath. He is as much bound
to exercise this power in a situation contemplated by
Article 356 as he is bound not to use it where such a
situation has not really arisen.
273.By the 42nd (Amendment) Act of the Constitution, clause
(5) was added in Article 356. It was deleted by the 44th
(Amendment) Act which incorporated an altogether different
provision as clause (5). It would be appropriate to take
the article as it now stands while trying to understand its
meaning, purpose and scope. But before we do that, it would
be appropriate to examine the nature of the Indian
Federation as ordained by our Constitution.
THE FEDERAL NATURE OF THE CONSTITUTION
274.The expression “Federation” or “federal form of
Government” has no fixed meaning. It broadly indicates a
division of powers between a Central (federal) Government
and the units (States) comprised therein. No two federal
constitutions are alike. Each of them, be it of USA,
Canada, Australia or of any other country, has its own
distinct character. Each of them is the culmination of
certain historical process. So is our Constitution. It is,
therefore, futile to try to ascertain and fit our
Constitution into any particular mould. It must be
understood in the light of our own historical process and
the constitutional evolution. One thing is clear it was
not a case of independent States coming together to form a
Federation as in the case of USA.
275.A review of the provisions of the Constitution shows
unmistakably that while creating a federation, the Founding
Fathers wished to establish a strong Centre. In the light
of the past history of this sub-continent, this was probably
a natural and necessary decision. In a land as varied as
India is, a
216
strong Centre is perhaps a necessity. This bias towards
Centre is reflected in the distribution of legislative heads
between the Centre and States. All the more important heads
of legislation are placed in List I. Even among the
legislative heads mentioned in List II, several of them,
e.g., Entries 2, 13, 17, 23, 24, 26, 27, 32, 33, 50, 57 and
63 are either limited by or made subject to certain entries
in List I to some or the other extent. Even in the
Concurrent List (List III), the parliamentary enactment is
given the primacy, irrespective of the fact whether such
enactment is earlier or later in point of time to a State
enactment on the same subject-matter. Residuary powers are
with the Centre. By the 42nd Amendment, quite a few of the
entries in List II were omitted and/or transferred to other
lists. Above all, Article 3 empowers Parliament to form new
States out of existing States either by merger or division
as also to increase, diminish or alter the boundaries of the
States. In the process, existing States may disappear and
new ones may come into existence. As a result of the
Reorganization of States Act, 1956, fourteen States and six
Union Territories came into existence in the place of
twentyseven States and one area. Even the names of the
States can be changed by Parliament unilaterally. The only
requirement, in all this process, being the one prescribed
in the proviso to Article 3, viz., ascertainment of the
views of the Legislatures of the affected States. There is
single citizenship, unlike USA. The judicial organ, one of
the three organs of the State, is one and single for the
entire country again unlike USA, where you have the federal
judiciary and State judiciary separately. Articles 249 to
252 further demonstrate the primacy of Parliament. If the
Rajya Sabha passes a resolution by 2/3rd majority that in
the national interest, Parliament should make laws with
respect to any matter in List II, Parliament can do so
(Article 249), no doubt, for a limited period. During the
operation of a Proclamation of emergency, Parliament can
make laws with respect to any matter in List II (Article
250). Similarly, Parliament has power to make laws for
giving effect to International Agreements (Article 253). So
far as the finances are concerned, the States again appear
to have been placed in a less favourable position, an aspect
which has attracted a good amount of criticism at the hands
of the States and the proponents of the States’ autonomy.
Several taxes are collected by the Centre and made over,
either partly or fully, to the States. Suffice it to say
that Centre has been made far more powerful vis-a-vis the
States. Correspondingly, several obligations too are placed
upon the Centre including the one in Article 355 the duty
to protect every State against external aggression and
internal disturbance. Indeed, this very article confers
greater power upon the Centre in the name of casting an
obligation upon it, viz., “to ensure that the Government of
every State is carried on in accordance with the provisions
of this Constitution”. It is both a responsibility and a
power.
276.The fact that under the scheme of our Constitution,
greater power is conferred upon the Centre vis-a-vis the
States does not mean that States are mere appendages of the
Centre. Within the sphere allotted to them, States are
supreme. The Centre cannot tamper with their powers. More
particularly, the
217
courts should not adopt an approach, an interpretation,
which has the effect of or tends to have the effect of
whittling down the powers reserved to the States. It is a
matter of common knowledge that over the last several
decades, the trend the world over is towards strengthening
of Central Governments be it the result of advances in
technological/scientific fields or otherwise, and that even
In USA the Centre has become far more powerful
notwithstanding the obvious bias in that Constitution in
favour of the States. All this must put the court on guard
against any conscious whittling down of the powers of the
States. Let it be said that the federalism in the Indian
Constitution is not a matter of administrative convenience,
but one of principle the outcome of our own historical
process and a recognition of the ground realities. This
aspect has been dealt with elaborately by Shri M.C. Setalvad
in his Tagore Law Lectures “Union and State relations under
the Indian Constitution” (Eastern Law House, Calcutta,
1974). The nature of the Indian federation with reference
to its historical background, the distribution of
legislative powers, financial and administrative relations,
powers of taxation, provisions relating to trade, commerce
and industry, have all been dealt with analytically. It is
not possible nor is it necessary for the present purposes
to refer to them. It is enough to note that our
Constitution has certainly a bias towards Centre vis-a-vis
the States Automobile Transport (Rajasthan) Ltd. v. State of
Rajasthan51. It is equally necessary to emphasise that
courts should be careful not to upset the delicately-crafted
constitutional scheme by a process of interpretation.
277.A few decisions supporting the view expressed
hereinabove may be referred to briefly. In Berubari Union
and Exchange of Enclaves31 Reference under Article 143
Gajendragadkar, J. observed : (SCR at p. 285)
“It may, therefore, be assumed that in
construing Article 3 we should take into
account the fact that the Constitution
contemplated changes of the territorial limits
of the constituent States and there was no
guarantee about their territorial integrity.”
278.Similarly in State of W.B. v. Union of
India’ (SCR at p. 405), this Court observed :
“There is no constitutional guarantee against
alteration of the boundaries of the States.
By Article 2 of the Constitution Parliament
may admit into the Union or establish new
States on such terms and conditions as it
thinks fit, and by Article 3 Parliament is by
law authorised to form a new State by
redistribution of the territory of a State or
by by uniting two or more States or parts of
States or by uniting any territory to a part
of any State, increase the area of any State,
diminish the area of any State, alter the
boundaries of any State, and alter the name of
any State. Legislation which so vitally
affects the very existence
51 (1963) 1 SCR 491, 540: AIR 1962 SC 1406
31 (1960) 3 SCR 250: AIR 1960 SC 845
1 (1964)1SCR371:AIR 1963SC 1241
218
of the States may be moved on the
recommendation of the President which in
practice means the recommendation of the Union
Ministry, and if the proposal in the Bill
affects the area, boundaries or name of any of
the States, the President has to refer the
Bill to the Legislature of that State for
merely expressing its views thereon.
Parliament is therefore by law invested with
authority to alter the boundaries of any State
and to diminish its area so as even to destroy
a State with all its powers and authority.”
AN ANALYSIS OF ARTICLE 356
279.The heading of Article 356 characterises it as a
provision providing for failure of constitutional machinery
in States. Clause (1), however, does not use the words
“failure of constitutional machinery”. Even so, the
significance of the title of the section cannot be
overlooked. It emphasises the level, the stage, the
situation in which the power is to be exercised. Clause (1)
speaks of the President being satisfied “that a situation
has arisen in which the Government of the State cannot be
carried on in accordance with the provisions of this
Constitution”. If so satisfied, he may, by Proclamation,
assume and exercise the several powers mentioned in sub-
clauses (a), (b) and (c). An analysis of clause (1) of the
article yields the following ingredients : (a) if the
President is satisfied; (b) on receipt of report from the
Governor of State or otherwise; (c) that a situation has
arisen in which the Government of the State cannot be
carried on in accordance with the provisions of the
Constitution; (d) the President may by Proclamation, (i)
assume to himself all or any of the functions of the
Government of the State or all or any of the powers of the
Governor or any other body or authority in the State except
the Legislature of the State; (ii) declare that the powers
of the Legislature of the State shall be exercised by
Parliament or under its authority; and (iii) make such
incidental or consequential provisions as appear to him to
be necessary or desirable for giving effect to the objects
of the Proclamation including provisions for suspending in
whole or in part the operation of any provisions of this
Constitution relating to any body or authority in the State.
The proviso to clause (1) clarifies that nothing in the said
clause shall authorise the President to assume to himself
any of the powers vested in or exercisable by a High Court
or to suspend in whole or part the operation of any
provisions relating to High Courts. Clause (2) says that
any Proclamation under clause (1) can be revoked or varied
by a subsequent Proclamation. Clause (3) provides that
every Proclamation issued under clause (1) (except a
Proclamation revoking a previous Proclamation) shall be laid
before each House of Parliament and “shall … cease to
operate at the expiration of two months unless before the
expiration of that period it has been approved by
resolutions of both Houses of Parliament”. The proviso to
clause (3) provides for a situation where the Lok Sabha is
dissolved on the date of the Proclamation or is dissolved
within two months of such Proclamation. Clause (4) says
that a Proclamation so approved by both Houses of Parliament
shall, unless revoked earlier, cease to operate on the
expiration of
219
period of six months. (By the 42nd Amendment, the words
‘one year’ were substituted for the words ‘six months’ but
by the 44th Amendment, the words ‘six months’ have been
restored). The three provisos to clause (4) provide for
certain situations which it is not necessary for us to
consider for the purpose of these cases. Clause (5), as
inserted by the 38th Amendment ran as follows :
“(5) Notwithstanding anything in this Constitution, the
satisfaction of the President mentioned in clause (1) shall
be final and conclusive and shall not be questioned in any
court on any grounds.”
By the 44th Amendment, however, this clause was repealed
altogether and in its place a new clause (5) introduced
which limits the maximum period, for which such a
Proclamation can be operative, to one year except in a case
where a Proclamation of emergency is in operation. It is
not necessary to consider clause (5) also for the purpose of
these cases.
280.The power conferred by Article 356 is a conditioned
power; it is not an absolute power to be exercised in the
discretion of the President. The condition is the formation
of satisfaction subjective, no doubt that a situation of
the type contemplated by the clause has arisen. 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
precondition to the formation of satisfaction. The use of
the word ‘may’ indicates not only a discretion but an
obligation to consider the advisability and necessity of the
action. It also involves an obligation to consider which of
the several steps specified in sub-clauses (a), (b) and (c)
should be taken and to what extent? The dissolution of the
Legislative Assembly assuming that it is permissible is not
a matter of course. It 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. Clause (3) is both a check on
the power and a safeguard against abuse of power.
Clause (1): Clause (1) opens with the words “if the
President … is satisfied”. These words are indicative of
the satisfaction being a subjective one. In Barium
Chemicals Ltd. v. Company Law Board6 a decision followed
uniformly ever since it was pronounced Shelat, J. pointed
out, on a consideration of several English and Indian
authorities that the expressions “is satisfied”, “is of the
opinion”, “or has reasons to believe” are indicative of
subjective satisfaction, though it is true that the nature
of the power has to be determined on a totality of
consideration of all relevant provisions. Indeed, there was
no controversy before us regarding the nature of this power.
Clause (1), it may be noted, uses the words “is satisfied”,
which indicates a more definite state of mind than is
indicated by the expressions “is of the opinion” or “has
reasons to believe”. Since it is a case of subjective
satisfaction, question of observing the principles of
natural justice does not and cannot arise. Having regard to
the nature of the power
6 1966 Supp SCR 31 1: AIR 1967 SC 295: (1966) 36 Comp Cas
639
220
and the situation in which it is supposed to be exercised,
principles of natural justice cannot be imported into the
clause. It is evident that the satisfaction has to be
formed by the President fairly, on a consideration of the
report of the Governor and/or other material, if any, placed
before him. of course, the President under our Constitution
being, what may be called, a constitutional President
obliged to act upon the aid and advice of the Council of
Ministers which aid and advice is binding upon him by virtue
of clause (1) of Article 741, the satisfaction referred to
in Article 356(1) really means the satisfaction of the Union
Council of Ministers with the Prime Minister at its head.
280-A. Clause (1) requires the President to be satisfied
that a situation has arisen in which the Government of the
State “cannot” be carried on “in accordance with the
provisions of this Constitution”. The word “cannot”
emphasises the type of situation contemplated by the clause.
These words read with the title of the article “provisions
in case of failure of constitutional machinery in States”
emphasise the nature of the situation contemplated.
281.The words “provisions of this Constitution” mean what
they say. The said words cannot be limited or confined to a
particular chapter in the Constitution or to a particular
set of articles. While construing a constitutional
provision, such a limitation ought not to be ordinarily
inferred unless the context does clearly so require. The
provisions of the Constitution include the chapter relating
to Fundamental Rights, the chapter relating to Directive
Principles of State Policy as also the preamble to the
Constitution. Though, at one time, it was thought that
preamble does not form part of the Constitution, that view
is no longer extant. It has been held by the majority of
Judges in Kesavananda Bharati v. State of Kerala35 that
preamble does form part of the Constitution. It cannot be
otherwise. The attempt to limit the said words to certain
machinery provisions in the Constitution is misconceived and
cannot be given effect to. It is difficult to believe that
the said words do not take in fundamental provisions like
the fundamental rights in Chapter III. It must, however, be
remembered that it is not each and every non-compliance with
a particular provision of the Constitution that calls for
the exercise of the power under Article 356(1). The non-
compliance or violation of the Constitution should be such
as to lead to or given rise to a situation where the
Government of the State cannot be carried on in accordance
with the provisions of the Constitution. It is indeed
difficult nor is it advisable to catalogue the various
situations which may arise and which would be comprised
within clause (1). It would be more appropriate to deal
with concrete cases as and when they arise.
282.The satisfaction of the President referred to in clause
(1) may be formed either on the receipt of the report(s) of
the Governor or otherwise. The Governor of a State is
appointed by the President under Article 155. He is indeed
a part of the Government of the State. The executive power
of the State is vested in him and is exercised by him
directly or through officers subordinate to him in
accordance with the provisions of the Constitution
35 1954 SCR 1005: AIR 1954 SC 282
221
(Article 154). All executive action of the Government of a
State is expressed to be taken in the name of the Governor,
except a few functions which he is required to exercise in
his discretion. He has to exercise his powers with the aid
and advice of the Council of Ministers with the Chief
Minister at its head (Article 163). He takes the oath,
prescribed by Article 159, to preserve, protect and defend
the Constitution and the laws to the best of his ability.
It is this obligation which requires him to report to the
President the commissions and omissions of the Government of
his State which according to him are creating or have
created a situation where the Government of the State cannot
be carried on in accordance with the provisions of the
Constitution. In fact, it would be a case of his reporting
against his own Government but this may be a case of his
wearing two hats, one as the head of the State Government
and the other as the holder of an independent constitutional
office whose duty it is to preserve, protect and defend the
Constitution (See Shamsher Singh v. State of Punjab22) (SCC
p. 849 : SCR at p. 835). Since he cannot himself take any
action of the nature contemplated by Article 356(1), he
reports the matter to the President and it is for the
President to be satisfied whether on the basis of the said
report or on the basis of any other information which he may
receive otherwise that situation of the nature contemplated
by Article 356(1) has arisen. It is then and only then that
he can issue the Proclamation. Once the Proclamation under
Article 356(1) is issued or simultaneously with it, the
President can take any or all the actions specified in
clauses (a), (b) and (c).
Power of the President to dissolve Legislative Assembly
of the State :
283.We shall now examine whether clause (1) of Article 356
empowers the President to dissolve the Legislative Assembly
of the State. There are two points of view which we may
set out before expressing our preference :
284.ONE VIEW, which is supported by the opinions of some of
the learned Judges in State of Rajasthan v. Union of India3
is that the power of the dissolution is implicit in sub-
clause (a). The reasoning runs thus : The President assumes
the functions of the Government of the State as well as the
powers of the Governor under the said sub-clause; the
Legislative Assembly can be dissolved by the Governor under
Article 174(2)(b); of course, this may have to be done on
the advice of the Council of Ministers with the Chief
Minister at its head; since the President assumes to himself
the powers and functions of both the Government and the
Governor, he can dissolve the Legislative Assembly as part
of the same Proclamation or by a subsequent order.
285.THE OTHER VIEW, which says that the President has no
such power, runs along the following lines. The clause does
not speak of dismissal of the Government or the dissolution
of the Legislative Assembly. It says that if the President
is satisfied “that a situation has arisen in which
22 (1974) 2 SCC 831: 1974 SCC (L & S) 550: (1975) 1 SCR 814
3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1
222
the Government of the State cannot be carried on in
accordance with the provisions of this Constitution”, the
President may (i) assume to himself all or any of the
functions of the Government of the State; (ii) assume to
himself all or any of the powers vested in or exercisable by
the Governor; (iii) assume to himself all or any of the
functions of any body or authority in the State other than
the Legislature of the State, (iv) declare that the powers
of the Legislature of the State shall be exercisable by or
under the authority of Parliament and (v) make such
incidental or consequential provision, as may be necessary
for giving effect to the Proclamation including suspending
in whole or part the operation of any provisions of the
Constitution relating to any body or authority in the State
except the High Court. Now, when subclause (a) speaks of
the President assuming to himself all or any of the powers
vested in or exercisable by the Governor, it surely does not
mean or imply dismissal or removal of the Governor.
Similarly, the assuming by the President of all or any of
the functions or powers of any body or authority in the
State (other than the Legislature of the State) does not
mean the dismissal or dissolution of such body or authority.
For the same reason, it must be held that the words “the
President may assume to himself all or any of the functions
of the Government of the State” in sub-clause (a) do not by
themselves mean the dismissal of the State Government. But
if these words are read along with the main limb of clause
(1) which speaks of a situation in which “the Government of
the State cannot be carried on in accordance with the
provisions of this Constitution”, it can and does mean
dismissal of the Government for the reason that Government
of the State is carried on by the Government of the State
alone,This dismissal is not absolute in the sense of a
physical death of a living being. It only means putting the
Government out of the way. Such dismissal does not preclude
the President from restoring the Government after the period
of Proclamation is over, or at any time earlier by revoking
the Proclamation, if he is so advised. Coming to sub-clause
(b), when it speaks of the powers of Legislature of the
State being made exercisable by Parliament, or under its
authority, it cannot and does not mean or imply dissolution
of the Legislature of the State. It is significant to note
that the sub-clause refers to Legislature of the State and
not Legislative Assembly. In a given State, the Legislature
may consist of Legislative Assembly as well as Legislative
Council. In such a case, there can be no question of
dissolving the Legislative Council since it is a continuing
body [Article 172(3)]. Only the Legislative Assembly can be
dissolved [Article 174(2)(b)]. In other words, there can be
no question of dissolution of the “Legislature of the State”
the expression employed in sub-clause (b). The question may
then arise, why was sub-clause (b) put in and what does it
imply? The answer must be that when the Government of the
State is dismissed or removed from office, the Legislative
Assembly cannot function normally. It is difficult to
visualise a Legislative Assembly, or for that matter
Legislature, functioning without a Council of Ministers,
i.e., Government. Thus, where the Government of a State is
dismissed or removed from the office, the Legislature of the
State becomes ipso facto unworkable. It is for
223
this reason that sub-clause (b) provides that the powers of
the Legislature of the State shall be exercisable by or
under the authority of Parliament. Indeed, the very fact
that clause (b) has provided for only one situation (viz.
the powers of the Legislature being vested in Parliament)
means and implies that any other step like dissolution of
the Legislative Assembly was not within the contemplation of
the Constitution-makers. Sub-clause (c) empowers that
President to make such incidental or consequential
provisions as may appear to be necessary or desirable for
giving effect to the objects of the Proclamation. Such
incidental or consequential provisions may also include
“suspending in whole or part the operation of any provisions
of this Constitution relating to any body or authority”
except, of course, the High Court. The provisions of the
Constitution relating to the Legislative Assembly of the
State may be suspended under sub-clause (c) during the
period of Proclamation generally referred to as keeping the
Legislative Assembly under suspended animation to prevent
the majority party (or any other party) calling upon the
Governor to invite it to form the Ministry and/or for
preventing the Legislature from passing resolutions or
transacting other business which may interfere with the
President’s rule in the State. It is significant to notice
in this connection that during the Constituent Assembly
debates on these articles, Dr Ambedkar only spoke of
suspension of the powers of the Legislatures and not their
dissolution. (Vide Constituent Assembly Debates, Vol. IX,
page 134.)
286.According to this line of reasoning ‘since the
Legislature of the State can only be kept under suspended
animation by suspending the relevant provisions of the
Constitution the Legislature of the State springs back to
life with the expiry of the period of Proclamation. This is
for the reason that with the expiry of the period of
Proclamation or on the revocation of the Proclamation, as
the case may be, the suspension of the provisions of the
Constitution will also come to an end.
287.The proponents of this view criticize the other (first)
view on several grounds firstly, they say, it does not seem
to take into consideration the fact that dissolution of the
Legislative Assembly is an extremely serious step; if this
power was supposed to be conferred on the President under
clause (1) of Article 356, the Constitution-makers would
have said so expressly and not left it to be inferred.
Secondly, it ignores the language of sub-clause (b). Sub-
clause (b) speaks of “powers of the Legislature of the
State” being exercised by Parliament or under its authority.
Sub-clause (b) does not speak of dissolution of “Legislature
of the State”, since that is an impossibility only the
Legislative Assembly can be dissolved and not the
Legislative Council as explained hereinabove. There are
quite a few States where the Legislature consists of
Legislative Assembly as well as Legislative Council.
Thirdly, clause (1) speaks of failure of the Government and
not of the Legislative Assembly, though it is true, the
Government is drawn from and very often forms the majority
party in the Legislative Assembly. But the Legislative
Assembly also consists of the opposition and other parties,
groups and independent members, who may
224
themselves have been pointing out and remonstrating against
the unconstitutional working of the Government. There does
not appear to be any good reason why the Legislative
Assembly should be dissolved for the acts and defaults of
the Government. It is true, say the proponents of this
view, if the President cannot dissolve the Legislative
Assembly, it would spring back to life after the period of
Proclamation and elect the very same Government which was
dismissed. They answer it by saying firstly that this may
or may not happen. Secondly, they say, even if the same
Government is elected again, it is in no way contrary to the
spirit of the article. The objection was not to its
existence but to its working. There is no reason to presume
that it will again carry on the Government otherwise than in
accordance with the provisions of the Constitution.
288.Having given our anxious consideration to both the
contending viewpoints and notwithstanding the obvious
appeal of the second point of view we are inclined to agree
with the first view which says that clause (1) does empower
the President to dissolve the Legislative Assembly, This
view is also supported by the decision in State of
Rajasthan3 besides the fact that over the last forty-four
years, the said power has never been questioned. We are
inclined to hold that the power to dissolve the Legislative
Assembly is implicit in sub-clause (a) of clause (1) though
there is no such thing as dissolution of the “Legislature of
the State” where it consists of two Houses. It must also be
recognised that in certain situations, dissolution of
Legislative Assembly may be found to be necessary for
achieving the purposes of the Proclamation. Power there is.
Its exercise is a different matter. The existence of power
does not mean that dissolution of Legislative Assembly
should either be treated as obligatory or should invariably
be ordered whenever a Government of the State is dismissed.
It should be a matter for the President to consider, taking
into consideration all the relevant facts and circumstances,
whether the Legislative Assembly should also be dissolved or
not. If he thinks that it should be so dissolved, it would
be appropriate, indeed highly desirable, that he states the
reasons for such extraordinary step in the order itself.
289.The question then arises at what stage should he
exercise this power? To answer this query, we must turn to
clause (3). Clause (3) says that every Proclamation issued
under Article 356(1) shall be laid before both Houses of
Parliament and shall cease to operate at the expiry of two
months unless before the expiration of that period it has
been approved by resolutions passed by both Houses. This is
conceived both as a check upon the power and as a
vindication of the principle of parliamentary supremacy over
the Executive. The President’s action which is really the
action of the Union Council of Ministers is subject to
approval of both Houses of Parliament. Unless approved by
both Houses of Parliament, the Proclamation lapses at the
end of two months and earlier if it is disapproved or
declined to be approved by both the Houses of Parliament, as
explained
3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1
225
hereinafter. Having regard to the incongruity of the
Executive (even though Union Executive) dissolving the
Legislature (even if of a State), it would be consistent
with the scheme and spirit of the Constitution particularly
in the absence of a specific provision in the Constitution
expressly empowering the President to do so to hold that
this power of dissolution can be exercised by the President
only after both Houses of Parliament approve the
Proclamation and not before such approval. Once Parliament
places its sea of approval on the Proclamation, further
steps as may be found necessary to achieve the purposes of
the Proclamation, i.e., dissolution of Legislative Assembly,
can be ordered. In other words, once Parliament approves
the initial exercise of his power, i.e., his satisfaction
that a situation had arisen where the Government of the
State could not be carried on in accordance with the
Constitution, the President can go ahead and take further
steps necessary for effectively achieving the objects of the
Proclamation. Until the approval, he can only keep the
Assembly under suspended animation but shall not dissolve
it.
290.It must be made clear even at this stage that while no
writ petition shall beentertained by any court before the
actual issuance of Proclamation under clause (1), it shall
be open to a High Court or Supreme Court to entertain a writ
petition questioning the Proclamation if it is satisfied
that the writ petition raises arguable questions with
respect to the validity of the Proclamation. The court
would be entitled to entertain such a writ petition even
before the approval of the Proclamation by Parliament as
also after such approval. In an appropriate case and if the
situation demands, the High Court/Supreme Court can also
stay the dissolution of the Assembly but not in such a
manner as to allow the Assembly to continue beyond its
original term. But in every such case where such an order
is passed the High Court/Supreme Court shall have to dispose
of the matter within two to three months. Not disposing of
the writ petition while granting such an interim order would
create several complications because the life of the
Proclamation does not exceed six months even after the
approval by Parliament and in any event the Proclamation
cannot survive beyond one year except in the situation
contemplated by clause (5) which is, of course, an
exceptional situation.
Meaning of approval in clause (3)
In State of Rajasthan3 Chandrachud, Bhagwati and A.C. Gupta,
JJ. have expressed the view that the Proclamation issued
under clause (1) remains in operation for a period of two
months in any event. It is held that even if Parliament
disapproves or declines to approve the Proclamation within
the said period of two months, the Proclamation continues to
be valid for two months. The approval of Parliament under
clause (3) is held to be relevant only for the purpose of
continuance of the Proclamation beyond two months. It has
also been held further that even if both the Houses do not
approve or disapprove the Proclamation, the Government which
has been dismissed or
3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1
226
the Assembly which may have been dissolved do not revive.
With utmost respect to the learned Judges, we find ourselves
unable to agree with the said view insofar as it says that
even where both Houses of Parliament disapprove or do not
approve the Proclamation, the Government which has been
dismissed does not revive. (The State of Rajasthan3 also
holds that such disapproval or non-approval does not revive
the Legislative Assembly which may have been dissolved but
we need not deal with this aspect since according to the
view expressed by us hereinabove, no such dissolution is
permissible before the approval of both the Houses). Clause
(3), it may be emphasised, uses the words “approved by
resolutions of both Houses of Parliament”. The word
“approval” means affirmation of the action by a higher or
superior authority. In other words, the action of the
President has to be approved by Parliament. The expression
“approval” has an intrinsic meaning which cannot be ignored.
Disapproval or non-approval means that the Houses of
Parliament are saying that the President’s action was not
justified or warranted and that it shall no longer continue.
In such a case, the Proclamation lapses, i.e.,ceases to be
in operation at the end of two months the necessary
consequence of which is the status quo ante revives. To say
that notwithstanding the disapproval or non-approval, the
status quo ante does not revive is to rob the concept of
approval of its content and meaning. Such a view renders
the check provided by clause (3) ineffective and of no
significance whatsoever. The Executive would be telling
Parliament: “I have dismissed the Government. Now, whether
you approve or disapprove is of no consequence because the
Government in no event can be revived. The deed is done.
You better approve it because you have practically no
choice.” We do not think that such a course is consistent
with the principle of parliamentary supremacy and
parliamentary control over the Executive, the basic premise
of parliamentary supremacy. It would indeed mean supremacy
of the Executive over Parliament. The dismissal of a
Government under subclause (a) of clause (1) cannot also be
equated to the physical death of a living being. There is
no irrevocability about it. It is capable of being revived
and it revives. Legislative Assembly which may have been
kept in suspended animation also springs back to life. So
far as the validity of the acts done, orders passed and
laws, if any, made during the period of operation of the
Proclamation is concerned, they would remain unaffected
inasmuch as the disapproval or non-approval does not render
the Proclamation invalid with retrospective effect. It may
be recalled that the power under Article 356(1) is the power
vested in the President subject no doubt to approval within
two months. The non-approval means that the Proclamation
ceases to be in operationat the expiry of two months,
as held in State of Rajasthan3.
291.Now, coming to the power of the court to restore the
Government to officein case it finds the Proclamation
to be unconstitutional, it is, in our opinion, beyond
question. Even in case the Proclamation is approved by
3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1
227
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. In our considered opinion, such a course is
inconceivable.
292.A question may arise what happens to the acts done,
orders made and laws enacted by Parliament or under its
authority during the period the Proclamation was in
operation in case the Proclamation is declared to be
unconstitutional by the court? Would all of them become
unconstitutional or void? Firstly, there is no reason to
presume that a court which strikes down the Proclamation
would not provide for this contingency. It would be within
the power of the court to say that these acts and orders are
saved. Indeed, it should say so in the interests of general
public and to avoid all kinds of complications, leaving it
to Government and the Legislature of the State concerned to
rectify, modify or repeal them, if they so choose. The
theory of factum valet may also be available to save the
acts, orders and things done by the President or under his
authority during the said period.
293.It was suggested by Shri Ram Jethmalani that the
President can “assume all or any of the functions” of the
State Government without dismissing the Government.
Emphasis is laid upon the words “all or any” in sub-clause
(1). In particular, he submitted, where the State
Government is found remiss in performing one or some of the
functions, that or those functions of the State Government
can be assumed by the President with a view to remedy the
situation. After rectifying the situation, the counsel
submitted, the President will give those functions back to
the State Government and that in such a situation there
would be no occasion or necessity for dismissing the State
Government. The learned counsel gave the analogy of a motor
car if one or a few of the parts of a car malfunction or
cease to function, one need not throw away the car. That or
those particular parts can be replaced or rectified and the
car would function normally again. It is difficult to agree
with the said interpretation. The power under Article
356(1) can be exercised only where the President is
satisfied that “the Government of the State cannot be
carried on in accordance with the provisions of the
Constitution”. The title to the article “failure of
constitutional machinery in the States” also throws light
upon the nature of the situation contemplated by it. It
means a situation where the Government of the State, and
not one or a few functions of the Government cannot be
carried on in accordance with the Constitution. The
inability or unfitness aforesaid may arise either on account
of the non-performance or malperformance of one or more
functions of the Government or on account of abuse or misuse
of any of the powers, duties and obligations of the
228
Government. A Proclamation under Article 356(1) necessarily
contemplates the removal of the Government of the State
since it is found unable or unfit to carry on the Government
of the State in accordance with the provisions of the
Constitution. In our considered opinion, it is not possible
to give effect to the argument of Shri Ram Jethmalani.
Acceptance of such an argument would introduce the concept
of two Governments in the same sphere the Central
Government exercising one or some of the powers of the State
Government and the State Government performing the rest.
Apart from its novelty, such a situation, in our opinion,
does not promote the object underlying Article 356 nor is it
practicable.
294.Shri Jethmalani brought to our notice the British Joint
Parliamentary Report, para 109, in support of his contention
aforementioned. We are unable to see any relevance of the
said para to the interpretation of Article 356(1). Under
the Government of India Act, 1935, the Governor General and
the Governor were not constitutional heads of State as under
the Constitution. They exercised real power in their own
right. Only a few powers were entrusted to the elected
Governments and even those could be taken away (by the
Governor General at the Centre and the Governor in the
provinces) as and when they were satisfied that a situation
has arisen where the Government at the Centre or of the
province cannot be carried on in accordance with the
provisions of the said Act. Under Article 356, the position
is entirely different. The power can be exercised only
against the States and that too by the President and not by
the Governor. The entire constitutional philosophy is
different. Therefore, merely because the same words “all or
any” in Sections 93 and 45 of the Government of India Act
occur in Article 356(1), the same meaning cannot be
attributed to them mechanically, ignoring all other factors
assuming that the said words in Sections93 and 45 meant what
Shri Jethmalani says.
ARTICLE 356 IN ACTION
295.Since the commencement of the Constitution, the
President has invoked Article 356 on as many as ninety or
more occasions. Quite a performance for a provision which
was supposed to remain a ‘dead-letter’. Instead of
remaining a ‘dead-letter’, it has proved to be the ‘death-
letter’ of scores of State Governments and Legislative
Assemblies. The Sarkaria Commission which was appointed to
look into and report on Centre-State relations considered
inter alia the manner in which this power has been exercised
over the years and made certain recommendations designed to
prevent its misuse. Since the Commission was headed by a
distinguished Judge of this Court and also because it made
its report after an elaborate and exhaustive study of all
relevant aspects, its opinions are certainly entitled to
great weight notwithstanding the fact that the report has
not been accepted so far by the Government of India.
296.In para 6.3.23, the Commission observed that though the
words “a Government of the State cannot be carried on in
accordance with the provisions of the Constitution” are of
wide amplitude, each and every breach
229
and infraction of constitutional provision, irrespective of
its significance, extent and effect, cannot be treated as
constituting failure of constitutional machinery. Article
356, the Commission said, provides remedy for a situation
where there has been an actual breakdown of the
constitutional machinery of the State. Any abuse or misuse
of this drastic power, said the Commission, damages the
fabric of the Constitution. A literal construction of
Article 356(1) should be avoided, it opined.
297.In para 6.4.01, the Commission noted that failure of
constitutional machinery may occur in a number of cases. It
set out some of the instances leading to it, viz., (a)
political crisis; (b) internal subversion; (c) fiscal
breakdown; and (d) non-compliance with constitutional
directions of the Union Executive. The Commission, however,
hastened to add that the instances set out by it are not
claimed to be comprehensive or perfect. Then it examined
each of the said four heads separately.
298.In para 6.5.01, the Commission set out illustrations in
which invokingArticle 356 would be improper. Illustration
(iii) in the said paragraph reads thus:
“(iii) Where, despite the advice of a duly
constituted ministry which has not been
defeated on the floor of the house, the
Governor decides to dissolve the assembly and
without giving the ministry an opportunity to
demonstrate its majority through the floor-
test, recommends its supersession and
imposition of President’s rule merely on
subjective assessment that the ministry no
longer commands the confidence of the
assembly.”
299.In para 6.6.01, the Commission noticed the criticism
levelled against the frequent invoking of Article 356 and
proceeded to examine its validity. In its opinion,
dismissal of nine assemblies following the general elections
to the Lok Sabha in March 1977 and a similar dismissal
following the general elections to the Lok Sabha in 1980
were clear instances of invoking Article 356 for purely
political purposes unrelated to Article 356. After
examining the facts and the principle of the decision of
this Court in State of Rajasthan v. Union of India3 and
after considering the various suggestions placed before it
by several parties, individuals and organisations, the
Commission made the following recommendations in para 6.8,
which have been strongly commended for our acceptance by the
learned counsel for the petitioners. They read as follows :
“RECOMMENDATIONS
6.8.01.Article 356 should be used very
sparingly, in extreme cases, as a measure of
last resort, when all available alternatives
fail to prevent or rectify a breakdown of
constitutional machinery in the State. All
attempts should be made to resolve the crisis
at the State level before taking recourse to
the provisions of Article 356. The
availability and choice of these alternatives
will depend on the nature of the
constitutional crisis, its causes and
exigencies of the situation. These
3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1
SCR 1
230
alternatives may be dispensed with only in
cases of extreme urgency where failure on the
part of the Union to take immediate action
under Article 356 will lead to disastrous
consequences. Paragraph 6.7.04)
6.8.02. A warning should be issued to the
errant State, in specific terms, that it is
not carrying on the Government of the State in
accordance with the Constitution. Before
taking action under Article 356, any
explanation received from the State should be
taken into account. However, this may not be
possible in a situation when not taking
immediate action would lead to disastrous
consequences. (Paragraph 6.7.08)
6.8.03.When an ‘external aggression’ or
‘internal disturbance’ paralyses the State
administration creating a situation drifting
towards a potential breakdown of the
constitutional machinery of the State, all
alternative courses available to the Union for
discharging its paramount responsibility under
Article 355 should be exhausted to contain the
situation. (Paragraph 6.3.17)
6.8.04.(a) In a situation of political
breakdown, the Governor should exploreall
possibilities for having a Government enjoying
majority support in the Assembly. If it is
not possible for such a Government to be
installed and if fresh elections can be held
without avoidable delay, he should ask the
outgoing Ministry, if there is one, to
continue as a caretaker Government, provided
the Ministry was defeated solely on a major
policy issue, unconnected with any allegations
of maladministration or corruption and is
agreeable to continue. The Governor should
then dissolve the Legislative Assembly,
leaving the resolution of the constitutional
crisis to the electorate. During the interim
period, the caretaker Government should be
allowed to function. As a matter of
convention, the caretaker Government should
merely carry on the day-to-day Government and
desist from taking any major policy decision.
(Paragraph 6.4.08)
(b) If the important ingredients described
above are absent, it would not be proper for
the Governor to dissolve the Assembly and
instal a caretaker Government. The Governor
should recommend Proclamation of President’s
rule without dissolving the Assembly.
(Paragraph 6.4.09)
6.8.05.Every Proclamation should be placed
before each House of Parliament at the
earliest, in any case before the expiry of the
two months’period contemplated in clause
(3) of Article 356. (Paragraph 6.7.13)
6.8.06.The State Legislative Assembly should
not be dissolved either by the Governor or the
President before the Proclamation issued under
Article 356(1) has been laid before Parliament
and it has had an opportunity to consider it.
Article 356 should be suitably amended to
ensure this. (Paragraph 6.6.20)
231
6.8.07.Safeguards corresponding, in principle,
to clauses (7) and (8) of Article 352 should
be incorporated in Article 356 to enable
Parliament to review continuance in force of a
Proclamation.
(Paragraph 6.6.23)
6.8.08.To make the remedy of judicial review
on the ground of mala fides a little more
meaningful, it should be provided, through an
appropriate amendment, notwithstanding
anything in clause (2) of Article 74 of the
Constitution, the material facts and grounds
on which Article 356(1) is invoked should be
made an integral part of the Proclamation
issued under that article. This will also
make the control of Parliament over the
exercise of this power by the Union Executive,
more effective. (Paragraph 6.6.25)
6.8.09.Normally, the President is moved to
action under Article 356 on the report of the
Governor. The report of the Governor is
placed before each House of Parliament. Such
a report should be a ‘speaking document’
containing a precise and clear statement of
all material facts and grounds on the basis of
which the President may satisfy himself as to
the existence or otherwise of the situation
contemplated in Article 356.
(Paragraph 6.6.26)
6.8.10.The Govern’s report, on the basis of
which a Proclamation under Article 356(1) is
issued, should be given wide publicity in all
the media and in full. (Paragraph 6.6.28)
6.8.11.Normally, President’s rule in a State
should be proclaimed on the basis of the
Governor’s report under Article 356(1).
(Paragraph 6.6.29)
6.8.12. In clause (5) of Article 356, the
word ‘and’ occurring between sub-clauses (a)
and (b) should be substituted by ‘or’.
(Paragraph 6.7.1 1)”
300.The aforesaid recommendations are evidently the outcome
of the opinion formed by the Commission that more often than
not, the power under Article 356 has been invoked
improperly. It is not for us to express any opinion whether
this impression of the Commission is justified or not. It
is not possible for us to review all the ninety cases in
which the said power has been invoked and to say in which
cases it was invoked properly and in which cases, not. At
the same time, we are inclined to say, having regard to the
constitutional scheme obtaining under our Constitution, that
the recommendations do merit serious consideration.
301.It is probably because he was of the opinion that the
invocation of this power was not warranted in many cases,
Shri P.V. Rajamannar, former Chief Justice of Madras High
Court, (who was appointed as the Inquiry Committee by the
Government of Tamil Nadu to report on the Centre-State
relations) recommended that Articles 356 and 357 be
repealed altogether. [See para (8) in Chapter IX, “Emergency
Provisions” of his report, submitted in 1971]. In the
alternative, he recommended, safeguards must be provided
232
to secure the interests of the States against the arbitrary
and unilateral action of a party commanding overwhelming
majority at the Centre. In other respects, Shri
Rajamannar’s views accord broadly with the views expressed
by the Sarkaria Commission and hence, need not be set out in
extenso.
THE CONSTITUTION OF INDIA AND THE CONCEPT OF SECULARISM:
302.Article 356(1) speaks of a situation where the
Government of a State cannot be carried on in accordance
with the provisions of the Constitution. We have said
hereinbefore that the words “the provisions of this
Constitution” take in all the provisions including the
preamble to the Constitution. The preamble to the
Constitution speaks of a secular Indian Republic. While the
respondents’ counsel contended that secularism being a basic
feature of the Constitution, a State Government can be
dismissed if it is guilty of unsecular acts, the counsel for
petitioners, Shri Ram Jethmalani strongly refuted the idea.
According to Shri Jethmalani, ‘secularism’ is a vague
concept, not defined in the Constitution and hence, cannot
furnish a ground for taking action under Article 356.
Without going into the specifics of the said contention, we
shall examine first how far this concept is embedded in our
Constitution and in what sense.
303.Having completed the process of framing the
Constitution, the Constituent Assembly proceeded to finalise
its preamble. Speaking on behalf of and in the name of the
people of India, they said, their object has been to
constitute India into a “Sovereign Democratic Republic”, and
to secure to all its citizens social justice, liberty of
belief, faith and worship, and equality of status and
opportunity. They said, the goal was also to promote among
all the people of India “fraternity assuring the dignity of
the individual…… By the 42nd Amendment to the
Constitution, the words “socialist, secular” were added
after the word “sovereign” and before the word “democratic”.
No other provision of the Constitution was amended to
adumbrate these concepts.
304.Both the expressions ‘socialist’ and ‘secular’ by
themselves are not capable of precise definition. We are,
however, not concerned with their general meaning or
content. Our object is to ascertain the meaning of the
expression “secular” in the context of our Constitution. As
the discussion hereafter would demonstrate, the 42nd
Amendment merely made explicit what was implicit in it. The
preamble speaks of “social justice”, “liberty of belief,
faith and worship” and of “equality of status and of
opportunity”. Article 14 (under the sub-heading “Right of
Equality”) enjoins the State not to deny to any person
equality before the law or the equal protection of laws
within the territory of India. Articles 15 and 16 elucidate
this doctrine of equality. They say that the State shall
not discriminate against any citizen on ground only of
religion, race or caste, whether in the matter of employment
under the State or otherwise. By Article 25, “all persons”
are declared equally entitled to freedom of conscience and
the right to freely profess, practice and propagate
religion, subject, of course, to public order, morality and
health. Articles 26, 27 and 28 elucidate the freedom
guaranteed by
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Article 25. Article 27 declares that no person shall be
compelled to pay any taxes, the proceeds of which are
specifically appropriated in payment of expenses for the
promotion or maintenance of any particular religion or
religious denomination. Article 28(1) decrees that no
religious instruction shall be provided in any educational
institution wholly maintained out of the State funds while
Article 28(3) says that no person attending an educational
institution recognised by the State or receiving aid out of
State funds shall be required to take part in any religious
worship conducted in such institution, except with his or
his guardian’s (in the case of a minor) consent. Similarly,
clause (2) of Article 30 enjoins upon the State not to
discriminate against any educational institution, in
granting aid, on the ground that it is under the management
of a minority, religious or linguistic. Clause (3) of
Article 51 A [introduced by the 42nd (Amendment) Act] says
that “it shall be the duty of every citizen of India to
promote harmony and spirit of brotherhood amongst all the
people of India transcending religious, linguistic and
regional or sectional diversities”. What do these articles,
read together with the preamble signify? While Article 25
of the Constitution guarantees to all its people freedom of
religion, Articles 14, 15 and 16 enjoin upon the State to
treat all its people equally irrespective of their religion,
caste, faith or belief. While the citizens of this country
are free to profess, practice and propagate such religion,
faith or belief as they choose, so far as the State is
concerned, i.e., from the point of view of the State, the
religion, faith or belief of a person is immaterial. To it,
all are equal and all are entitled to be treated equally.
How is this equal treatment possible, if the State were to
prefer or promote a particular religion, race or caste,
which necessarily means a less favourable treatment of all
other religions, races and castes. How are the
constitutional promises of social justice, liberty of
belief, faith or worship and equality of status and of
opportunity to be attained unless the State eschews the
religion, faith or belief of a person from its consideration
altogether while dealing with him, his rights, his duties
and his entitlements? Secularism is thus more than a
passive attitude of religious tolerance. It 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. This may be a concept
evolved by western liberal thought or it may be, as some
say, an abiding faith with the Indian people at all points
of time. That is not material. What is material is that it
is a constitutional goal and a basic feature of the
Constitution as affirmed in Kesavananda Bharati36 and Indira
N. Gandhi v. Raj Narain37. Any step inconsistent with this
constitutional policy is, in plain words, unconstitutional.
This does not mean that the State has no say whatsoever in
matters of religion. Laws can be made regulating the
secular affairs of temples, mosques and other places of
worships and maths. (See S. P. Mittal v. Union of India52.)
36 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225:
1973 Supp SCR 1
37 1975 Supp SCC 1: (1976) 2 SCR 347
52 (1983) 1 SCC 51: (1983) 1 SCR 729
234
The power of Parliament to reform and rationalise the
personal laws is unquestioned. The command of Article 44 is
yet to be realised. The correct perspective appeared to
have been placed by Shri K.M. Munshi during the Constituent
Assembly Debates. He said :
“Religion must be restricted to spheres which
legitimately appertain to religion, and the
rest of life must be regulated, unified and
modified in such a manner that we may evolve,
as early as possible, a strong and
consolidated nation. Our first problem and
the most important problem is to produce
national unity in this country. We think we
have got national unity. But there are many
factors and important factors which still
offer serious dangers to our national
consolidation, and it is very necessary that
the whole of our life, so far as it is
restricted to secular spheres, must be unified
in such a way that as early as possible, we
may be able to say. ‘Well, we are not merely
a nation because we say so, but also in
effect, by the way we live, by our personal
law, we are a strong and consolidated
nation’.”
305.Shri M.C. Setalvad in his lecture on secularism (Patel
Memorial Lectures 1965) points out that after affirming the
ideas of religious liberty and adequate protection to the
minorities at its Karachi Session (1931), the Congress Party
asserted emphatically that “the State shall observe
neutrality in regard to all religions”. He says that this
resolution is in a manner the key to the understanding of
the attitude adopted by those who framed the Indian
Constitution nearly twenty years later, embodying in it the
guarantee of religious neutrality. He also points out that
“the debates in the Constituent Assembly leave little doubt
that what was intended by the Constitution was not the
secularisation of the State in the sense of its complete
dissociation from religion, but rather an attitude of
religious neutrality, with equal treatment to all religions
and religious minorities”. The same idea is put forward by
Gajendragadkar, J., (in his inaugural address to the Seminar
on “Secularism : Its implications for law and life in
India”) in the following words :
” It is true that the Indian Constitution does
not use the word secularism’ in any of its
provisions, but its material provisions are
inspired by the concept of secularism. When
it promised all the citizens of India that the
aim of the Constitution is to establish
socioeconomic justice, it placed before the
country as a whole, the ideal of a welfare
State. And the concept of welfare is purely
secular and not based on any considerations of
religion. The essential basis of the Indian
Constitution is that all citizens are equal,
and this basic equality (guaranteed by Article
14) obviously proclaims that the religion of a
citizen is entirely irrelevant in the matter
of his fundamental rights. The State does not
owe loyalty to any particular religion as
such; it is not irreligious or antireligion;
it gives equal freedom for all religions and
holds that the religion of the citizen has
nothing to do in the matter of socioeconomic
235
problems. That is the essential
characteristic of secularism which is writ
large in all the provisions of the Indian
Constitution.”
306.Prof. Upendra Baxi says that “Secularism” in the Indian
Constitution connotes :
“(i) The State by itself, shall not espouse or
establish or practice any religion;
(ii)public revenues will not be used to
promote any religion;
(iii)the State shall have the power to
regulate any ‘economic, financial or other
secular activity’ associated with religious
practice [Article 25(2)(a) of the
Constitution];
(iv)the State shall have the power through
the law to provide for social welfare and
reform or the throwing open of the Hindu
religious institutions of a public character
to all classes and sections of Hindus’
[Article 25(2)(b) of the Constitution];
(v)the practice of untouchability (insofar
as it may be justified by Hindu religion) is
constitutionally outlawed by Article 17;
(vi)every individual person will have, in
that order, an equal right to freedom of
conscience and religion;
(vii)these rights are however subject to the
power of the State through law to impose
restrictions on the ground of ‘public order,
morality and health’,
(viii)”these rights are furthermore
subject to other fundamental rights in Part
III;”
(The Struggle for the Re-definition of
Secularism in India published in Social Action
Vol. 44 January-March 1994)
307.In short, in the affairs of the State (in its widest
connotation) religion is irrelevant; it is strictly a
personal affair. In this sense and in this behalf, our
Constitution is broadly in agreement with the U.S.
Constitution, the First Amendment whereof declares that
“Congress shall make no laws respecting an establishment of
religion or prohibiting the free exercise thereof …”
(generally referred to as the “establishment clause”).
Perhaps, this is an echo of doctrine of the separation of
Church and State; may be it is the modern political thought
which seeks to separate religion from the State it matters
very little.
308.In this view of the matter, it is absolutely erroneous
to say that secularism is a “vacuous word” or a “phantom
concept”.
309.It is perhaps relevant to point out that our Founding
Fathers read this concept into our Constitution not because
it was fashionable to do so, but because it was an
imperative in the Indian context. It is true as Shri Ram
Jethmalani was at pains to emphasise that India was divided
on the basis of religion and that areas having majority
Muslim population were constituted into a new entity
Pakistan which immediately proceeded to proclaim itself as
an Islamic Republic, but it is equally a fact that even
after partition, India contained a sizeable population of
minorities. They
236
comprised not less than 10 to 12% of the population.
Inspired by the Indian tradition of tolerance and
fraternity, for whose sake, the greatest son of Modem India,
Mahatma Gandhi, laid down his life and seeking to redeem the
promise of religious neutrality held forth by the Congress
Party, the Founding Fathers proceeded to create a State,
secular in its outlook and egalitarian in its action. They
could not have countenanced the idea of treating the
minorities as second-class citizens. On the contrary, the
dominant thinking appears to be that the majority community,
Hindus, must be secular and thereby help the minorities to
become secular. For, it is the majority community alone
that can provide the sense of security to others. The
significance of the 42nd (Amendment) Act lies in the fact
that it formalised the pre-existing situation. It put the
matter beyond any doubt, leaving no room for any
controversy. In such a situation, the debate whether the
preamble to the Constitution is included within the words
“the provisions of this Constitution” is really unnecessary.
Even if we accept the reading of Shri Jethmalani, preamble
is a key to the understanding of the relevant provisions of
the Constitution. The 42nd (Amendment) Act has furnished
the key in unmistakable terms.
310.Given the above position, it is clear that if any party
or Organisation seeks to fight the elections on the basis of
a plank which has the proximate effect of eroding the
secular philosophy of the Constitution it would certainly be
guilty of following an unconstitutional course of action.
Political parties are formed and exist to capture or share
State power. That is their aim. They may be associations
of individuals but one cannot ignore the functional
relevance. An association of individuals may be devoted to
propagation of religion; it would be a religious body.
Another may be devoted to promotion of culture; it would be
a cultural Organisation. They are not aimed at acquiring
State power, whereas a political party does. That is one of
its main objectives. This is what we mean by saying
“functional relevance”. One cannot conceive of a democratic
form of Government without the political parties. They are
part of the political system and constitutional scheme.
Nay, they are integral to the governance of a democratic
society. 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
recognise, 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. Introducing religion
into politics is to introduce an impermissible element into
body politic and an imbalance in our constitutional system.
If a political party espousing a particular religion comes
to power, that religion tends to become, in practice, the
official religion. All other religions come to acquire a
secondary status, at any rate, a less favourable position.
This would be plainly antithetical to Articles 14 to 16, 25
and the entire constitutional scheme adumbrated hereinabove.
Under our Constitution, no party or Organisation can
simultaneously be a political and a religious party. It has
to be either. Same would be the position, if a party or
Organisation acts and/or
237
behaves by word of mouth, print or in any other manner to
bring about the said effect, it would equally be guilty of
an act of unconstitutionality. It would have no right to
function as a political party. The fact that a party may be
entitled to go to people seeking a mandate for a drastic
amendment of the Constitution or its replacement by another
Constitution is wholly irrelevant in the context. We do not
know how the Constitution can be amended so as to remove
secularism from the basic structure of the Constitution**.
Nor do we know how the present Constitution can be replaced
by another; it is enough for us to know that the
Constitution does not provide for such a course that it
does not provide for its own demise.
311.Consistent with the constitutional philosophy, sub-
section (3) of Section 123 of the Representation of the
People Act, 1951 treats an appeal to the electorate to vote
on the basis of religion, race, caste or community of the
candidate or the use of religious symbols as a corrupt
practice. Even a single instance of such a nature is enough
to vitiate the election of the candidate. Similarly, sub-
section (3-A) of Section 123 provides that “promotion of, or
attempt to promote, feelings of enmity or hatred between
different classes of citizens of India on grounds of
religion, race, caste, community or language” by a candidate
or his agent, etc. for the furtherance of the prospects of
the election of that candidate is equally a corrupt
practice. Section 29-A provides for registration of
associations and bodies as political parties with the
Election Commission. Every party contesting elections and
seeking to have a uniform symbol for all its candidates has
to apply for registration. While making such application,
the association or body has to affirm its faith and
allegiance to “the principles of socialism, secularism and
democracy” among others. Since the Election Commission
appears to have made some other orders in this behalf after
the conclusion of arguments and because those orders have
not been placed before us or debated, we do not wish to say
anything more on this subject.
ARTICLE 74(2) ITS MEANING AND SCOPE
312.The Constitution of India has introduced parliamentary
democracy in this country. The parliamentary democracy
connotes vesting of real power of governance in the Prime
Minister and Council of his Ministers who are very often
drawn from the majority party in Parliament. Some jurists
indeed refer to it derisively as Prime-ministerial form of
Government. In such a democracy, the head of the State, be
he the King or the President, remains a constitutional head
of the State. He acts in accordance with the aid and advice
tendered to him by the Council of Ministers with the Prime
Minister at its head. This is what clause (1) of Article 74
provided, even before it was amended by the 42nd (Amendment)
Act. It was so understood and interpreted in Ram Jawaya
Kapur v. State of Punjab53 and in Shamsher
** The decision of this Court in Kesavananda Bharati (1973)
4 SCC 225,: 1973 Suppl SCR 1, 166, 280] says that secularism
is one of the basic features of the Constitution.
53 AIR 1955 SC 549: (1955) 2 SCR 225
238
Singh22. The 42nd Amendment merely made explicit what was
already implicit in clause (1). The 44th Amendment inserted
a proviso to clause (1) which too was in recognition of an
existing reality. It empowers the President to require the
Council of Ministers to reconsider the advice tendered by
them. The advice tendered on such reconsideration is made
binding upon the President. Since clause (2) of Article 74
has to be read and understood having regard to its context,
it would be appropriate to read both the clauses of Article
74 as they stand now :
“74. Council of Ministers to aid and advise
President.- (1) There shall be a Council of
Ministers with the Prime Minister at the head
to aid and advise the President who shall, in
the exercise of his functions, act in
accordance with such advice :
Provided that the President may require the
Council of Ministers to reconsider such
advice, either generally or otherwise, and the
President shall act in accordance with the
advice tendered after such reconsideration.
(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.” (emphasis added)
313. Article 53(1) of the Constitution says that “the
executive power of the Union shall be vested. in the
President and shall be exercised by him either directly or
through officers subordinate to him in accordance with this
Constitution.” Clause (2), however, declares that without
prejudice to clause (1), the supreme command of the Armed
Forces of the Union shall be vested in the President and
that the exercise of such power shall be regulated by law.
314.Clause (1) of Article 77 provides that “all executive
action of the Government of India shall be expressed to be
taken in the name of the President”. Clause (2) then says
that all orders made and other instruments executed in the
name of the President shall be authenticated in such manner
as may be specified in the rules to be made by the
President. It further provides that the validity of an
order or instrument which is authenticated in accordance
with the said rules shall not be called in question on the
ground that it is not an order or instrument made or
executed by the President. Rules have been made by the
President as contemplated by this clause contained in
Notification No. S.O. 2297 dated November 11, 1958 (as
amended from time to time). Several officers of the
Government have been empowered to authenticate the orders
and other instruments to be made and executed in the name of
the President. Clause (3) requires the President to make
rules for the more convenient transaction of the business of
the Government of India and for allocation among Ministers
of the said business. In other words, rules have to be made
by the President under clause (3) for two purposes, viz.,
(a) for the more convenient transaction of the business of
the Government of India and (b) for the allocation among
Ministers of the said business. Rules
22 (1974) 2 SCC 831: 1974 SCC (L&S) 550: (1975) 1 SCR 814
239
of business have indeed been made as required by this clause
and the business of the Government of India allocated
between several Ministers,
315.Yet another article which requires to be noticed in
this connection is Article 361 which declares that “the
President shall not be answerable to any court for the
exercise and performance of the powers and duties of his
office or for any act done or purporting to be done by him
in the exercise and performance of those powers and duties”.
No criminal proceedings can be instituted or continued
against the President in any court while he is in office,
nor is he subject to any process for his arrest or
imprisonment.
316.Article 78 specifies the duties of the Prime Minister
as regards the furnishing of information to President and
certain other matters. Clause (a) obliges the Prime
Minister to communicate to the President all decisions of
the Council of Ministers relating to the administration of
the affairs of the Union and proposals for legislation.
Clause (b) says that Prime Minister shall furnish such
information as the President may call for with respect to
the matters communicated under clause (a). Clause (c)
obliges the Prime Minister, if required by the President, to
submit any matter for reconsideration of the Council of
Ministers which has not been considered by it.
317.The President is clothed with several powers and
functions by the Constitution. It is not necessary to
detail them to expect to say that Article 356 is one of
them. When Article 74(1) speaks of the President acting “in
the exercise of his functions”, it refers to those powers
and functions. Besides the Constitution, several other
enactments too confer and may hereinafter confer, certain
powers and functions upon the President. They too will be
covered by Article 74(1). To wit, the President shall
exercise those powers and discharge those functions only on
the aid and advice of the Council of Ministers with the
Prime Minister at its head.
318.Article 361 is the manifestation of the theory
prevalent in English Law that “King can do no wrong” and,
for that reason, beyond the process of the court. Any and
every action taken by the President is really the action of
his Ministers and subordinates. It is they who have to
answer for, defend and justify any and every action taken by
them in the name of the President, if such action is
questioned in a court of law. The President cannot be
called upon to answer for or justify the action. It is for
the Council of Ministers to do so. Who comes forward to do
so is a matter for them to decide and for the court to be
satisfied about it. Normally speaking, the Minister or
other official or authority of the Ministry as is entrusted
with the relevant business of the Government, has to do it.
319.Article 53(1) insofar as says that the executive power
of the Union, which vests in the President, can be exercised
by him either directly or through officers subordinate to
him in accordance with the Constitution stresses the very
idea. Even where he acts directly, the President has to act
on the aid and advice of the Council of Ministers or the
Minister concerned, as the case may be. (Advice tendered by
a Minister is deemed to be the
240
advice tendered by the Council of Ministers in view of the
principle of joint responsibility of the Cabinet/Council of
Ministers). If such act is questioned in a court of law, it
is for the Minister concerned (according to rules of
business) or an official of that Ministry to defend the Act.
Where the President acts through his subordinates, it is for
that subordinate to defend the action.
320.Articles 74 and 77 are in a sense complimentary to each
other, though they may operate in different fields. Article
74(1) deals with the acts of the President done “in exercise
of his functions”, whereas Article 77 speaks of the
executive action of the Government of India which is taken
in the name of the President of India. Insofar as the
executive action of the Government of India is concerned, it
has to be taken by the Minister/official to whom the said
business is allocated by the rules of business made under
clause (3) of Article 77 for the more convenient transaction
of the business of the Government of India. All orders
issued and the instruments executed relatable to the
executive action of the Government of India have to be
authenticated in the manner and by the officer empowered in
that behalf. The President does not really come into the
picture so far as Article 77 is concerned. All the business
of the Government of India is transacted by the Ministers or
other officials empowered in that behalf, of course, in the
name of the President. Orders are issued, instruments are
executed and other acts done by various Ministers and
officials, none of which may reach the President or may be
placed before him for his consideration. There is no
occasion in such cases for any aid and advice being tendered
to the President by the Council of Ministers. Though
expressed in the name of the President, they are the acts of
the Government of India. They are distinct from the acts of
the President “in the exercise of his functions”
contemplated by Article 74. of course, even while acting in
exercise of his functions, the President has to act in
accordance with the aid and advice tendered by the Council
of Ministers with the Prime Minister at its head. He is
thus rendered a constitutional or a titular head. [The
proviso to clause (1) no doubt empowers him to require the
Council of Ministers to reconsider such advice, either
generally or in any particular case, but if and when the
Council of Ministers tenders the advice on such
reconsideration, he is bound by it.] Then comes clause (2)
of Article 74 which says that the question “whether any, and
if so, what advice was tendered by the Ministers to the
President shall not be inquired into in any court”. The
idea behind clause (2) is this : The court is not to enquire
it is not concerned with whether any advice was tendered by
any Minister or Council of Ministers to the President, and
if so, what was that advice. That is a matter between the
President and his Council of Ministers. What advice was
tendered, whether it was required to be reconsidered, what
advice was tendered after reconsideration, if any, what was
the opinion of the President, whether the advice was changed
pursuant to further discussion, if any, and how the ultimate
decision was arrived at, are all matters between the
President and his Council of Ministers. They are beyond the
ken of the court. The court is not to go into it. It is
enough that
241
there is an order/act of the President in appropriate form.
It will take it as the order/act of the President. It is
concerned only with the validity of the order and legality
of the proceeding or action taken by the President in
exercise of his functions and not with what happened in the
inner councils of the President and his Ministers. No one
can challenge such decision or action on the ground that it
is not in accordance with the advice tendered by the
Ministers or that it is based on no advice. If, in a given
case, the President acts without, or contrary to, the advice
tendered to him, it may be a case warranting his
impeachment, but so far as the court is concerned, it is the
act of the President. (We do not wish to express any opinion
as to what would be the position if in the unlikely event of
the Council of Ministers itself questioning the action of
the President as being taken without, or contrary, to their
advice).
321.Clause (2) of Article 74, understood in its proper
perspective, is thus confined to a limited aspect. It
protects and preserves the secrecy of the deliberations
between the President and his Council of Ministers. In
fact, clause (2) is a reproduction of sub-section (4) of
Section 10 of the Government of India Act, 1935. [The
Government of India Act did not contain a provision
corresponding to Article 74(1) as it stood before or after
the amendments aforementioned]. The scope of clause (2)
should not be extended beyond its legitimate field. In any
event, it cannot be read or understood as conferring an
immunity upon the Council of Ministers or the
Minister/Ministry concerned to explain, defend and justify
the orders and acts of the President done in exercise of his
functions*. The limited provision contained in Article
74(2) cannot override the basic provisions in the
Constitution relating to judicial review. If and when any
action taken by the President in exercise of his functions
is questioned in a court of law, it is for the Council of
Ministers to justify the same, since the action or order of
the President is presumed to have been taken in accordance
with Article 74(1). As to which Minister or which official
of which Ministry comes forward to defend the order/action
is for them to decide and for the court to be satisfied
about it. Where, of course, the act/order questioned is one
pertaining to the executive power of the Government of
India, the position is much simpler. It does not represent
the act/order of the President done/taken in exercise of his
functions and hence there is no occasion for any aid or
advice by the Ministers to him. It is the act/order of
Government of India, though expressed in the name of the
President. It is for the Minister or Ministry concerned, to
whom the function is allocated under the rules of business
to defend and justify such action/order.
* The orders and acts of the President of India made and
taken in exercise of his functions are generally expressed
as having been ordered or taken by the President of India
whereas the executive action of the Government of India is
expressed to have been ordered or taken by the Government of
India in the name of the President of India. This
difference in form is only indicative and no( obligatory or
mandatory.
242
322.Section 123 of the Evidence Act, in our opinion, is in
no manner relevant in ascertaining the meaning and scope of
Article 74(2). Its field and purpose is altogether
different and distinct. Section 123 reads thus :
“123. Evidence as to affairs of State.- No
one shall be permitted to give any evidence
derived from unpublished official records
relating to any affairs of State, except with
the permission of the officer at the head of
the department concerned, who shall give or
withhold such permission as he thinks fit.”
323.Evidence Act is a pre-Constitution enactment. Section
123 enacts a rule of English Common Law that no one shall be
permitted to give evidence derived from unpublished official
records relating to affairs of State except with the
permission of the concerned head of the department. It does
not prevent the head of department permitting it or the head
of the department himself giving evidence on that basis.
The law relating to Section 123 has been elaborately
discussed in several decisions of this Court and is not in
issue herein. Our only object has been to emphasise that
Article 74(2) and Section 123 cover different and distinct
areas. It may happen that while justifying the Government’s
action in court, the Minister or the official concerned may
claim a 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 that section. But,
Article 74(2) does not and cannot mean that the Government
of India need not justify the action taken by the President
in the exercise of his functions because of the provision
contained therein. No such immunity was intended or is
provided by the clause. If the act or order of the
President is questioned in a court of law, it is for the
Council of Ministers to justify it by disclosing the
material which formed the basis of the act/order. The court
will not ask whether such material formed part of the advice
tendered to the President or whether that material was
placed before the President. The court will not also ask
what advice was tendered to the President, what
deliberations or discussions took place between the
President and his Ministers and how was the ultimate
decision arrived at. The court will only see what was the
material on the basis of which the requisite satisfaction is
formed and whether it is relevant to the action under
Article 356(1). The court will not go into the correctness
of the material or its adequacy. Even if the court were to
come to a different conclusion on the said material, it
would not interfere since the article speaks of satisfaction
of the President and not that of the court.
324.In our respectful opinion, the above obligation cannot
be evaded by seeking refuge under Article 74(2). The
argument that the advice tendered to the President comprises
material as well and, therefore, calling upon the Union of
India to disclose the material would amount to compelling
the disclosure of the advice is, if we can say so
respectfully, to indulge in sophistry. The material placed
before the President by the Minister/Council of Ministers
does not thereby become part of advice. Advice is what is
based upon the said material. Material is not advice. The
material may be placed
243
before the President to acquaint him and if need be to
satisfy him that the advice being tendered to him is the
proper one. But it cannot mean that such material, by dint
of being placed before the President in support of the
advice, becomes advice itself. One can understand if the
advice is tendered in writing; in such a case that writing
is the advice and is covered by the protection provided by
Article 74(2). But it is difficult to appreciate how does
the supporting material become part of advice. The
respondents cannot say that whatever the President sees or
whatever is placed before the President becomes prohibited
material and cannot be seen or summoned by the court.
Article 74(2) must be interpreted and understood in the
context of entire constitutional system. Undue emphasis and
expansion of its Parameters would engulf valuable
constitutional guarantees. For these reasons, we find it
difficult to agree with the reasoning in State of Rajasthan3
on this score, insofar as it runs contrary to our holding.
ARTICLE 356 AND JUDICIAL REVIEW
325.Judicial review of administrative and statutory action
is perhaps tile most important development in the field of
public law in the second half of this century. In India,
the principles governing this jurisdiction are exclusively
Judge-made. A good amount of debate took place before us
with respect to the applicability, scope and reach of
judicial review vis-a-vis the Proclamation issued by the
President under Article 356 of the Constitution. a large
volume of case-law and legal literature has been placed
before us. Though it may not be possible to refer to all
that material, we shall refer to the relevant among them at
the appropriate place.
326.One of the contentions raised by the Union of India in
Writ Petition No. 237 of 1993 (filed by Shri Sunderlal Patwa
and others in Madhya pradesh High Court questioning the
Proclamation) and other writ petitions is that inasmuch as
the action under Article 356 is taken on the subjective
satisfaction of the President and further because the
President cannot be sued in a court of law by virtue of
Article 361, the impugned Proclamation is not justiciable.
This argument is, however, not pressed before us. It is
also covered that since Parliament has approved the said
Proclamation, the court sought not to entertain the writ
petition and/or examine the correctness or otherwise of the
Presidential Proclamation. (This contention has been further
aborated and pressed before us, as we shall mention
hereinafter). Article 4(2) is relied upon to submit that
the material on which the President based the requisite
satisfaction cannot be compelled to be produced in court.
(This contention has already been dealt with by us.) It is
also submitted that the report of the Governor which forms
the basis of action under Article 356 and the material upon
which it is based cannot be called in question by virtue of
Article 361 (urged in a modified form).
327.Shri K. Parasaran, learned counsel appearing for the
Union of India conceded that the action of the President
under Article 356 cannot be said to beyond judicial review
and judicial scrutiny. He, however, submitted that
(1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1
244
having regard to the nature of the function, the high
constitutional status of the authority in whom the power is
vested and the exigencies in which the said action is taken,
the court ought not to go into the question of the
advisability of the action or into the adequacy of the
material on which it is based. The Presidential action,
counsel submitted, is not susceptible to normal rules of
judicial review, having regard to the political nature of
the action and absence of any judicially manageable
standards. There may be several imponderables in the
situation which the court cannot weigh. The President’s
action under Article 356 cannot be equated to administrative
action of a government official. It is exercise of a
constitutional function by the highest dignitary of the
nation, the President of India. May be, the learned counsel
submitted, in a case like Maghalaya (Transferred Case Nos 5
and 7 of 1992), the court may interfere where the invalidity
of action is demonstrable with reference to the orders of
this Court, i.e., where the invalidity is writ large in its
face. But, generally speaking, the court is ill fitted to
judge the material on which the action is based to determine
whether the said material warranted the action taken. The
court cannot sit in judgment over the prognosis of the
President (for that matter, of the Union Council of
Ministers),that the situation in a given State was one in
which the Government of that State could not be carried on
in accordance with the provisions of the Constitution. This
is an instance, the learned counsel continued, where the
Constitution has committed a particular power to the
President to be exercised in his discretion in certain
specified situations power flowing from the obligation cast
by Article 355 upon the Union of India to ensure that “the
Government of every State is carried on in accordance with
the provisions of this Constitution”. The President is oath
bound to protect and preserve the Constitution. Placed as
he is and having regard to the material which is available
to him alone and also because he alone is best fitted to
determine on the basis of material before him whether the
situation contemplated by Article 356(1) has arisen the
matter must be left to his judgment and good sense. He
alone is presumed to possess the astute political-cum-
administrative expertise necessary for a proper and sound
exercise of the said power. Judicial approach, which the
courts are trained to adopt, is not suited to the function
under Article 356. The court would be better advised to
leave the function to those to whom it is entrusted by the
Constitution. The President of India has to be trusted. of
course President in Article 356(1) means the Union Council
of Ministers by virtue of Article 74(1) but that makes
little difference in principle. That is the system of
Government we have adopted. There is no reason to believe
that the highest authority like the President of India,
i.e., the Union Council of Ministers would not act fairly
and honestly or that they would not act in accordance with
the spirit and scheme of the Constitution. Shri Parasaran
further submitted that where a particular Proclamation is
questioned, the burden of establishing its invalidity lies
upon the petitioner. It is for him to produce the material
to substantiate his contentions. By virtue of Article
74(2), the court would not enquire into the advice tendered
by the Minister
245
to the President leading to the issuance of the impugned
Proclamation. The advice comprises and is based upon
certain material and information. The advice and material
cannot be separated. If the court cannot enquire into the
advice, it cannot also call upon the Union of India to
disclose that material. The learned counsel submitted
further that there is a distinction between judicial review
of administrative action and judicial review of
constitutional action. The decisions of this Court relating
to judicial review of administrative or statutory action and
discretion cannot be applied to judicial review of
constitutional action. Appeal against such action, properly
and truly speaking, must, and should always be, to the
ultimate political sovereign the people.
328.Shri P.P. Rao, learned counsel for the State of Madhya
Pradesh while adopting the contentions of Shri K. Parasaran
concentrated mainly upon the secular nature of our
Constitution, with the sequiter that nonsecular policies,
programmes and acts of political parties place such parties
outside the pale of constitutionalism. He submitted that by
adopting such policies and programmes and by indulging in
non-secular course of action, the Governments run by such
parties render themselves amenable to action under Article
356 According to the learned counsel, BJP’s election
manifesto, together with the speeches and acts of their
leaders and cadres make it a non-secular party and,
therefore, the dismissal of their Government in Madhya
Pradesh is perfectly justified. Shri Andhyarujina, learned
Advocate General of Maharashtra submitted that the doctrine
of political question has not been given up altogether by
the decision of the U.S. Supreme Court in Baker v. Carr42.
All that the decision has done is to limit the area of
operation of the said doctrine. The dismissal of the State
Government or dissolution of a State Legislative Assembly is
essentially a political question, the validity and
correctness whereof cannot be adjudged with reference to any
known judicial standards and/or dicta. Such matters be best
left to the wisdom of the President and ultimately of the
people. It is for the people to judge whether a particular
dismissal or dissolution was just or not.
329.S/Shri Soli Sorabjee, Ram Jethmalani and Shanti
Bhushan, learned counsel for the petitioners submitted, on
the other hand, that the action of the president under
Article 356 is not beyond judicial scrutiny. The
Constitution does not create any such immunity and it would
not be desirable to infer any such immunity by a process of
reasoning or as a matter of self-restraint by this Court.
The power has been used more often than not for purposes
other than those contemplated by Article 356. The provision
has been abused Repeatedly over the years reducing the State
Governments and the State Legislatures to the status of mere
municipalities. If the court were to refuse to enquire into
the validity of such Proclamations, a serious imbalance will
set in in the constitutional scheme. This Court is as much
bound to uphold, protect and preserve the Constitution as
the President of India. The Founding
42 7 L Ed 2d 663, 686: 369 US 186 (1962)
246
Fathers did not say or indicate anywhere that the President
shall exercise the said power in his absolute
discretion/judgment. On the contrary, the action is made
expressly subject to approval by both the Houses of
Parliament. The remedy of judicial review guaranteed by
Articles 32 and 226 extends and applies to this action as to
any other action of the President under the Constitution.
Where Parliament wished to bar judicial review, it has said
so expressly, e.g., Articles 31-B and 31 C. There is no
distinction between the judicial review of
administrative/statutory action and judicial review of
constitutional action. The tests are the same. No other
tests can possibly be suggested. The power under Article
356 is undoubtedly the power to be exercised on the
subjective satisfaction of the President, which means the
Council of Ministers. The latter is undoubtedly a political
body and the experience shows that where a different party
is in power in a State, the Central Government has been
resorting to Article 356 to destabilise that party and to
further the prospects of their own party. The circumstances
in which and the grounds on which the action based on
subjective satisfaction can be interfered with, have been
exhaustively stated by this Court in Barium Chemical56 as
far back as 1966 which decision has been followed uniformly
by this Court over the last three decades. The tests
evolved in the said decision are relevant even in the case
of action under Article 356. The power under Article 356 is
a conditioned power; it can be exercised only when the
President is satisfied that the Government of a State cannot
be carried on in accordance with the provisions of the
Constitution. Even in the case of an unqualified and
unconditional power like the one under Article 72 (power to
grant pardon, etc.) this Court has held that the action of
the President is amenable to judicial review (Kehar Singh v.
Union of India19). The satisfaction must be based upon
existing material and must be such as would lead a
reasonable man to be satisfied that the Government of the
State cannot be carried on in accordance with the provisions
of the Constitution. Even if the action is taken with the
best of intentions, it would be bad if the action is outside
the pale of Article 356. If the grounds are not relevant or
if there are no grounds warranting the requisite
satisfaction, the action would be bad. Article 74(2) has no
relevance in this behalf. It is a sort of red herring drawn
across the trail by the respondents’ counsel to confuse the
issue. The petitioners are not interested in or anxious to
know what advice, if any, was tendered by the Ministers to
the President leading to the issuance of the impugned
Proclamation. They are not interested in that aspect.
Their challenge is to the validity of the Proclamation and
since it is an action based upon subjective satisfaction and
also because the Proclamation does not recite the grounds
upon which it has been issued, it is for the Union of India
to justify their action before this Court. This is the
general principle applicable to cases of subjective
satisfaction and the Proclamation under Article 356 is no
exception to this rule say the counsel.
330.Since it is not disputed by the counsel for the Union
of India and other respondents that the Proclamation under
Article 356 is amenable to judicial review, it is not
necessary for us to dilate on that aspect. The power
247
under Article 356(1) is a conditional power. In exercise
of the power of judicial review, the court is entitled to
examine whether the condition has been satisfied or not. In
what circumstances the court would interfere is a different
matter but the amenability of the action to judicial review
is beyond dispute. It would be sufficient to quote a
passage from State of Rajasthan3 (SCR pp. 80-8 1: SCC p. 66
1, para 149)
“So long as a question arises whether an
authority under the Constitution has acted
within the limits of its power or exceeded it,
it can certainly be decided by the court.
Indeed it would be its constitutional
obligation to do so … this Court is the
ultimate interpreter of the Constitution and
to this Court is assigned the delicate task of
determining what is the power conferred on
each branch of Government, whether it is
limited, and if so, what are the limits and
whether any action of that branch transgresses
such limits. It is for this Court to uphold
the constitutional values and to enforce the
constitutional limitations. That is the
essence of the rule of law.”
The controversy really pertains to the scope,
reach and extent of the judicial review.
331.Regarding the scope and reach of
judicial review, it must be said at the very
outset that there is not, and there cannot be,
a uniform rule applicable to all cases. It is
bound to vary depending upon the subject-
matter, nature of the right and various other
factors.
332.This aspect has been emphasised by this
Court in Indra Sawhney v. Union ofIndia54 in
the following words : (SCC p. 753, para 842 :
JT p. 655)
“The extent and scope of judicial scrutiny
depends upon the nature of the subject-matter
,
the nature of the right affected, the
character of the legal and constitutional
provisions applicable and so on. The acts and
orders of the State made under Article 16(4)
do not enjoy any particular kind of immunity.
At the same time, we must say that court would
normally extend due deference to the judgment
and discretion of the Executive a co-equal
wing in these matters. The political
executive, drawn as it is from the people and
represent as it does the majority will of the
people, is presumed to know the conditions and
the needs of the people and hence its judgment
in matters within its judgment and discretion
will be entitled to due weight.”
333.A passage from the article "Justiciability and the control of
discretionary power” by Prof D.G.T. Williams
appears to echo our thought correctly. The
Professor says,
“Variability, of course, is the outstanding
feature of judicial review of administrative
action … an English Judge has commented that
(with administrative law ‘in a phase of active
development’) the Judges ‘will adapt the
rules … to protect the rule of law’ and an
Australian Judge has
3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1
SCR 1
54 1992 Supp (3) SCC 217: 1992 SCC (L&S) Supp
1: (1992) 22 ATC 385: JT (1992) 6 SC 273
248
noted that there ‘is no fixed rule which
requires the same answer to be given in every
case’. Similar sentiments have been expressed
in the case of express procedural requirements
where the courts have to wrestle with the
distinction between mandatory and directory
requirements, where the law has been described
‘as inextricable tangle of loose ends’, and
where the variables including ideas of
‘substantial compliance’ or as to whether
anyone has been prejudiced are such that even
the same statutory provision may be
differently interpreted according to the
circumstances of a case … the fluidity of
the rules on express procedural requirements
has been eloquently recognized both by Lord
Hailsham who, against a background of ‘the
rapidly developing jurisprudence of
administrative law’ spoke of a ‘spectrum of
possibilities’ when he stressed that the
Courts are not necessarily ‘bound to fit the
facts of a particular case and a developing
chain of events into rigid legal categories or
to stretch or cramp them on a bed of
Procrustes invested by lawyers for the
purposes of convenient exposition…….”.
334.Having said this, we may now proceed to examine a few
decisions where Proclamations of emergency were questioned
to notice how the challenge was dealt with. We may first
notice the decision of the Privy Council in Bhagat Singh v.
Emperor55. Section 72 of the Government of India Act, 1919
empowered the Governor General to make and promulgate
ordinance for the peace and good government of British India
in case of emergency. The ordinance so made, however, was
to be effective for a period of six months from the date of
its promulgation and was to be effective like an enactment
made by the Indian legislature and be subject to the very
same restrictions applying to an enactment made by the
Indian legislature. The section read as follows:
“72. The Governor General may, in cases of
emergency, make and promulgate ordinances for
the peace and good government of British India
or any part thereof, and any ordinance so made
shall, for the space of not more than six
months from its promulgation, have the like
force of law as an Act passed by the Indian
legislature but the power of making ordinances
under this section is subject to the like
restrictions as the power of the Indian
legislature to make laws; and any ordinance
made under this section is subject to the like
disallowance as an Act passed by the Indian
legislature and may be controlled or
superseded by any such Act.”
335.Exercising the said power, the Governor General issued
an ordinance whereunder the appellant was convicted. In the
appeal to the Board, the appellant contended that, as a
matter of fact, there was no state of emergency and that the
Governor General acted illegally in proclaiming that one
exists and issuing the ordinance on that basis. This
contention was rejected by the Board in the following words
55 AIR 1931 PC 11 1: 58 IA 169: 35 CWN 646
249
“That raises directly the question who is to
be the judge of whether a state of emergency
exists. A state of emergency is something
that does not permit of any exact definition :
It connotes a state of matters calling for
drastic action which is to be judged as such
by someone. It is more than obvious that that
someone must be the Governor General and he
alone. Any other view would render utterly
inept the whole provision. Emergency demands
immediate action and that action is prescribed
to be taken by the Governor General. It is he
alone who can promulgate the ordinance.
Yet, if the view urged by the petitioners is
right, the judgment of the Governor General
could be upset either (a) by this Board
declaring that once the ordinance was
challenged in proceedings by way of habeas
corpus the Crown ought to prove affirmatively
before a court that a state of emergency
existed, or (b) by a finding of this Board
after a contentious and protracted enquiry
that no state of emergency existed, and that
the ordinance with all that followed on it was
illegal.
In fact, the contention is so completely
without foundation on the fact of it that it
would be idle to allow an appeal to argue
about it.
It was next said that the ordinance did not
conduce to the peace and good government of
British India. The same remarks applies. The
Governor General is also the judge of that.
The power given by Section 72 is an absolute
power without any limits prescribed, except
only that it cannot do what the Indian
legislature would be unable to do, although it
is made clear that it is only to be used in
extreme cases of necessity where the good
government of India demands it.”
336.Thus, the approach of the Board was one of ‘hands-off’.
The Governor General was held to be the final judge of the
question whether an emergency exists. The power conferred
by Section 72 was described as an absolute power without any
limits prescribed, except that which apply to an enactment
made by the Indian legislature. It was also observed that
the subject-matter is not a fit one for a court to enquire
into.
337.We may point out that this extreme position is not
adopted by Shri Parasaran, learned counsel appearing for the
Union of India. He did concede that judicial review under
the Constitution is not excluded in the matter of
Proclamation under Article 356(1) though his submission was
that it should be available in an extremely narrow and
limited area since it is a power committed expressly to the
President by the Constitution and also because the issue is
not one amenable to judicial review by applying known
judicially manageable standards. The Supreme Court of
Pakistan in Federation of Pakistan v. Mohd. Saifullah
Khan56 described the approach (adopted in Bhagat Singh55) in
the following words (quoting Cornelius, J.)
56 PLD (1989)SC 166
55 AIR 1931 PC 11 1: 58 IA 169: 35 CWN 646
250
“In the period of foreign rule, such an
argument, i.e., that the opinion of the person
exercising authority is absolute may have at
times prevailed, but under autonomous rule,
where those who exercise power in the State
are themselves citizens of the same State, it
can hardly be tolerated.”
338.We have no hesitation in rejecting the said approach as
totally inconsistent with the ethos of our Constitution, as
would be evident from the discussion infra.
339.The view taken in Bhagat Singh55 was affirmed by the
Privy Council in the year 1944 in King Emperor v. Benoari
Lal Sarma57. It was held that whether an emergency existed
at the time the ordinance was made and promulgated was a
matter of which the Governor General was the sole judge. If
it were not so, it was observed, the Governor General would
be disabled from taking action necessary to meet the
emerging dangerous situation, according to his assessment of
the situation. It is enough to say that this case again
represents what we have called the extreme view. It is
inappropriate in the context of Article 356.
340.The next decision is again of the Privy Council in
Stephen Kalong Ningkan v. Govt. of Malaysia58. The
appellant was the Chief Minister of Sarawak, an Estate in
the Federation of Malaysia. On June 16, 1966, the Governor
of Sarawak requested him to resign on the ground that he had
ceased to command the confidence of the Council Negri. The
appellant refused whereupon the Governor informed him on
June 17, 1966 that he ceased to hold the office. The
appellant approached the High Court of Kuching against the
Governor’s intimation. On September 7, 1966, the High Court
upheld his plea and ruled that the Governor had no power to
dismiss him. On September 14, 1966. His Majesty Yang di-
Pertuan Agong (Head of the State of Malaysia) proclaimed a
state of emergency throughout the territories of the State
of Sarawak. The Proclamation was made under Article 150 of
the Federal Constitution of Malaysia, which reads thus :
“150. (1) If the Yang di-Pertuan Agong is
satisfied that a grave emergency exists
whereby the security or the economic life of
the Federation or of any part thereof is
threatened, he may issue a Proclamation or
emergency.”
341.The article provided for such Proclamation being placed
for approval before both the Houses of Parliament, who had
the power to disapprove the same. Clause (5) of Article 150
empowered the Federal Parliament, during the period the
Proclamation of emergency was in operation, to make laws
with respect to any matter which it appeared to it as
required by reason of the emergency. Such law, it was
provided, shall be operative notwithstanding anything
contained either in the Constitution of the Federation or
the Constitution of the State of Sarawak, and will not be
55 AIR 1931 PC 11 1: 58 IA 169: 35 CWN 646
57 (1944) 72 IA 57: AIR 1945 PC 48: 46 Cri LJ 589
58 (1970) AC 379
251
treated as amendment to the Constitution. Any such law
was, however, to be in force only for the period of
emergency. In exercise of the power conferred by clause (5)
of Article 150, the Federation Parliament passed Emergency
(Federal Constitution and Constitution of Sarawak) Act,
1966. Section 5 of this Act specifically empowered the
Governor to dismiss the Chief Minister, in his absolute
discretion, if, at any time, the Council Negri passed the
resolution of no confidence in the Government by a majority
and yet the Chief Minister failed to resign. On September
23, 1966, the Council Negri met and passed the resolution of
no confidence in the Chief Minister (appellant). On the
next day, the Governor dismissed the appellant under the new
Act. He impugned the action in the Federal Court of
Malaysia, wherein he sought for a declaration that the 1966
Act aforesaid was ultra vires the Federal Parliament. He
contended that the Proclamation of emergency was a fraud on
the Constitution and of no effect inasmuch as no state of
grave emergency existed. The Act aforesaid founded as it
was on the Proclamation of emergency, was equally void and
of no effect, he submitted. He contended that the evidence
showed that none of the usual signs and symptoms of ” grave
emergency” existed in Sarawak at or before the time of the
Proclamation; that no disturbances, riots or strikes had
occurred; that no extra troops or police had been placed on
duty; that no curfew or other restrictions on movement had
been found necessary and that the ‘ confrontation’ with
Indonesia had already come to an end. The Federation of
Malaysia repudiated all the said contentions. It submitted
that the Proclamation of emergency was conclusive and not
assailable before the court.
342.The Privy Council (Lord MacDermott speaking for the
Board) expressed the view in the first instance that it was
“unsettled and debatable” whether a Proclamation made by the
Supreme Head of the Federation of Malaysia under statutory
powers could be challenged on some or other grounds but then
proceeded on the assumption that the matter is justiciable.
On that assumption, the Board,proceeded to examine the
further contentions of the appellant. It found that the
Proclamation of emergency and the impugned Act were really
designed to meet the constitutional deadlock that had arisen
on account of the absence of provision empowering the
Governor to dismiss the Chief Minister where the latter
ceased to enjoy the confidence of the Council Negri. It
observed : “It is not for their Lordships to criticise or
comment upon the wisdom or expediency of the steps taken by
the Governor of Malaysia in dealing with the constitutional
situation which had occurred in Sarawak, or to enquire
whether that situation could itself have been avoided by a
different approach.” The Privy Council observed further that
“they can find, in the material presented, no ground for
holding that the respondent Government was acting
erroneously or in any way mala fide in taking the view that
there was a constitutional crisis in Sarawak, that it
involved or threatened a breakdown of a State Government and
amounted to an emergency calling for immediate action. Nor
can their Lordships find any reason for saying that the
emergency thus considered to exist was not grave
252
and did not threaten the security of Sarawak. These were
essential matters to be determined according to the judgment
of the respondent-ministers in the light of their knowledge
and experience … and that he (the appellant) failed to
satisfy the Board that the steps taken by the Government
including the Proclamation and the impugned Act, were in
fraudem legis or otherwise unauthorised by the relevant
legislation”. The appeal was accordingly dismissed.
343.Three strands of reasoning are evident in the decision.
Firstly, the Privy Council assumed that the issue was
justiciable. On that basis, it examined the facts of the
case and found that the situation did amount to an
emergency. Secondly and more importantly, it examined and
found that there was no “reason for saying that the
emergency thus considered to exist was not grave and did not
threaten the security of Sarawak”, though at the same time,
it held that existence of emergency is a matter to be
determined by the Council of Ministers in the light of their
knowledge and experience and thirdly, that the appellant
failed to establish that the Proclamation of emergency was a
fraud on the Constitution.
344.We may now notice the only decision of this Court
dealing with Article 356, viz., State of Rajasthan3. Two
circumstances must be kept in mind while examining the
decision, viz., (i) the writ petitions (and suits) filed by
various States were not directed against Proclamation(s) of
emergency, since no such Proclamations were issued prior to
the filing of those suits and writ petitions; and (ii) at
that time, clause (5) introduced by 38th (Amendment) Act was
in force. Clause (5) read as follows :
“5. Notwithstanding anything in this
Constitution, the satisfaction of the
President mentioned in clause (1) shall be
final and conclusive and shall not be
questioned in any court on any ground.” [This
clause was substituted by an altogether
different clause by the 44th (Amendment) Act.]
345.The subject-matter of challenge in the suits (under
Article 131) and writ petitions (under Article 32) in this
matter was a letter written by the then Home Minister to
Chief Ministers of certain States advising them to seek the
dissolution of respective Legislative Assemblies and seek a
fresh mandate from the people. The letter stated that the
elections to Lok Sabha held in March 1977 indicated that the
Congress Party, in power in those States, has lost its
mandate totally and has become alienated with the people.
The letter, together with a statement made by the then Union
Law Minister, was treated as a threat to dismiss those State
Governments. To ward off such a threat, they approached the
Supreme Court by way of suits and writ petitions. They were
heard expeditiously and dismissed on April 29, 1977.
Reasoned opinions were delivered later, by which date
Proclamations under Article 356(1) were actually issued.
One of the questions related to the maintainability of the
suits, with which question, of course, we are not concerned.
3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1
253
346.Six opinions were delivered by the seven-Judge Bench.
Though all of them agreed that the writ petitions and suits
be dismissed, their reasoning is not uniform. It would,
therefore, be appropriate to notice the ratio underlying
each of the opinions insofar as it is relevant for our
purposes :
Beg, C.J.- The opinion of Beg, C.J. contains several strands
of thought. They may be stated briefly thus :
(i)The language of Article 356 and the
practice since 1950 shows that the Central
Government can enforce its will against the
State Governments with respect to the question
how the State Governments should function and
who should hold reins of power.
(ii)By virtue of Article 356(5) and Article
74(2), it is impossible for the court to
question the satisfaction of the President.
It has to decide the case on the basis of only
those facts as may have been admitted by or
placed by the President before the court.
(iii)The language of Article 356(1) is very
wide. It is desirable that conventions are
developed channelising the exercise of this
power. The court can interfere only when the
power is used in a grossly perverse and
unreasonable manner so as to constitute patent
misuse of the provisions or to an abuse of
power. The same idea is expressed at another
place saying that if “a constitutionally or
legally prohibited or extraneous or collateral
purpose is sought to be achieved” by the
Proclamation, it would be liable to be struck
down. The question whether the majority party
in the Legislative Assembly of a State has
become totally estranged from the electorate
is not a matter for the court to determine.
(iv) The assessment of the Central
Government that a fresh chance should be
given to the electorate in certain States as
well as the question when to dissolve the
Legislative Assemblies are not matters alien
to Article 356. It cannot be said that the
reasons assigned by the Central Government for
the steps taken by them are not relevant to
the purposes underlying Article 356.
We may say at once that we are in respectful
disagreement with propositions (i), (ii) and (iv)
altogether. So far as proposition (iii) is concerned, it is
not far off the mark and in substance accords with our view,
as we shall presently show.
Y. V. Chandrachud, J.- On the scope of judicial review,
the learned Judge held that where the reasons disclosed by
the Union of India are wholly extraneous, the court can
interfere on the ground of mala fides. Judicial scrutiny,
said the learned Judge, is available “for the limited
purpose of seeing whether the reasons bear any rational
nexus with the action proposed”. The court cannot sit in
judgment over the satisfaction of the President for
determining whether any other view of the situation is
reasonably possible, opined the learned Judge. Turning to
the facts of the case before him, the learned Judge
observed that the grounds assigned by the Central Government
in its counter-affidavit cannot be said to be irrelevant to
254
Article 356. The court cannot go deeper into the matter nor
shall the court enquire whether there were any other reasons
besides those disclosed in the counter-affidavit.
P.N. Bhagwati and A. C. Gupta, JJ.- The learned Judges
enunciated the following propositions in their opinion :
The action under Article 356 has to be taken
on the subjective satisfaction of the
President. The satisfaction is not objective.
There are no judicially discoverable and
manageable standards by which the court can
examine the correctness of the satisfaction of
the President. The satisfaction to be arrived
at is largely political in nature, based on an
assessment of various and varied facts and
factors besides several imponderables and fast
changing situations. The court is not a fit
body to enquire into or determine the
correctness of the said satisfaction or
assessment, as it may be called. However, if
the power is exercised mala fide or is based
upon wholly extraneous or irrelevant grounds,
the court would have jurisdiction to examine
it. Even clause (5) is not a bar when the
contention is that there was no satisfaction
at all.
The scope of judicial review of the action
under Article 356, the learned Judges held, is
confined to a “narrow minimal area. May be
that in most cases, it would be difficult, if
not impossible, to challenge the exercise of
power under Article 356(1) on the aforesaid
limited ground, because the facts and
circumstances on which the satisfaction is
based, would not be known. However, where it
is possible, the existence of satisfaction can
always be challenged on the ground that it is
mala fide or based on wholly extraneous and
irrelevant grounds”.
We may say with great respect that we find it
difficult to agree with the above formulations
in toto. We agree only with the statements
regarding the permissible grounds of
interference by court and the effect of clause
(5), as it then obtained. We also agree
broadly with the first proposition, though not
in the absolute terms indicated therein.
Goswami and Untwalia, JJ.- The separate
opinions of Goswami and Untwalia, JJ.
emphasise one single fact, namely, that
inasmuch as the facts stated in the counter-
affidavit filed by the Home Minister cannot be
said to be “mala fide, extraneous or
irrelevant”, the action impugned cannot be
assailed in the court.
Fazal Ali, J.- The learned Judge held that
(i) the action under Article 356 is immune
from judicial scrutiny unless the action is
“guided by extraneous consideration” or
“personal considerations”.
(ii) the inference drawn by the Central
Government following the 1977 elections to the
Lok Sabha cannot be said to be unreasonable.
It cannot be said that the inference drawn had
no nexus with Article 356.
347. It would thus be seen that there is a broad consensus
among five of the seven Judges that the court can interfere
if it is satisfied that the power has been exercised mala
fide or on wholly extraneous or irrelevant grounds.
255
Some learned Judges have stated the rule in narrow terms
and some others in a little less narrow terms but not a
single learned Judge held that the Proclamation is immune
from judicial scrutiny. It must be remembered that at that
time clause (5) was there barring judicial review of the
Proclamation and yet they said that court can interfere on
the ground of mala fides or where it is based wholly on
extraneous or irrelevant grounds. Surely, the deletion of
clause (5) has not restricted the scope of judicial review.
Indeed, it removed the cloud cast on the said power. The
court should, if anything, be more inclined to examine the
constitutionality of the Proclamation after such deletion.
348. It would be appropriate at this stage to examine a few
decisions of the Pakistan Supreme Court, since the
Constitution of Pakistan, 1973 contains a provision somewhat
similar to Article 356.
349. Article 58 of the Constitution of Pakistan, 1973
provides for dissolution of National Assembly. Clause (1)
says that the President shall dissolve the National Assembly
if so advised by the Prime Minister. It further provides
that in any event on the expiry of forty-eight hours after
the Prime Minister has advised the dissolution, the National
Assembly stands dissolved. Clause (2) is relevant for our
purpose. It reads thus :
“(2) Notwithstanding anything contained in
clause (2) of Article 48, the President may
also dissolve the National Assembly in his
discretion where, in his opinion
(a) a vote of no confidence having been
passed against the Prime Minister, no other
member of the National Assembly is likely to
command the confidence of majority of the
members of the National Assembly in accordance
with the provisions of the Constitution as
ascertained in a session of the National
Assembly summoned for the purpose; or
(b) a situation has arisen in which the
Government of the Federation cannot be carried
on in accordance with the provisions of the
Constitution and an appeal to the electorate
is necessary.”
350. Sub-clause (b) of clause (2) approximates to clause (1)
of Article 356 of our Constitution. Under this clause, the
President may dissolve the National Assembly, in his
discretion, where in his opinion, a situation has arisen in
which the Government of the Federation cannot be carried on
in accordance with the provisions of the Constitution and an
appeal to the electorate is necessary.
351. The first decision is in Federation of Pakistan v.
Mohd. Saifullah Khan56 a decision of a Bench of twelve
Judges of the Pakistan Supreme Court. Acting under Article
58(2)(b), the President of Pakistan dissolved the National
Assembly and dismissed the federal cabinet with immediate
effect by a notification dated May 29, 1988. The order made
by the President
56 PLD (1 989) SC 166
256
recited “that the objects and purposes for which the
National Assembly was elected have not been fulfilled; that
the law and order in the country have broken down to an
alarming extent, resulting in tragic loss of innumerable
valuable lives as well as property; that the life, property,
honour and security of the citizens of Pakistan have been
rendered totally unsafe; and that the integrity and ideology
of Pakistan have been seriously endangered”. The validity
of the said order was challenged by a member of the National
Assembly by way of writ petition in the Lahore High Court,
which allowed it but declined to grant the further relief
sought for by the petitioner, viz., restoration of the
National Assembly, [Provincial Assembly of Punjab was also
dissolved by a similar order made by the Governor of Punjab
under Article 112(2)(b), which too was questioned in the
High Court and with the same result]. In the appeal before
the Supreme Court, it was contended that the action of the
President was immune from judicial scrutiny inasmuch as it
was an instance of exercise of his discretionary power. The
contention was repelled by the Supreme Court in the
following words :
“The discretion conferred by Article 58(2)(b)
of the Constitution on the President cannot,
therefore, be regarded to be an absolute one,
but is to be deemed to be a qualified one, in
the sense that it is circumscribed by the
object of the law that confers it.
It must further be noted that the reading of
the provisions of Articles 48(2) and 58(2)
shows that the President has to first form his
opinion, objectively, and then, it is open to
him to exercise his discretion one way or the
other, i.e., either to dissolve the Assembly
or to decline to dissolve it. Even if some
immunity envisaged by Article 48(2) is
available to the action taken under Article
58(2) that can possibly be only in relation to
his ‘opinion’. An obligation is cast on the
President by the aforesaid constitutional
provision that before exercising his
discretion he has to form his ‘opinion’ that a
situation of the kind envisaged in Article
58(2)(b) has arisen which necessitates the
grave step of dissolving the National
Assembly. In Abul Ala Mabsoodi v. Govt. of
West Pakistan59 Cornelius C.J., while
interpreting certain provisions of the
Criminal Law Amendment Act, 1908, construed
the word ‘opinion’ as under:
‘….it is a duty of Provincial Government to
take into consideration all relevant facts and
circumstances. That imports the exercise of
an honest judgment as to the existence of
conditions in which alone the opinion must be
formed honestly, that the restriction is
necessary. In this process, the only element
which I find to possess a subjective quality
as against objective determination, is the
final formation of opinion that the action
proposed is necessary. Even this is
determined, for the most part, by the
existence of circumstances compelling the
conclusion. The scope for exercise of
personal discretion is extremely limited. …
As I have pointed out, if the section be
construed in a comprehensive manner, the
requirement
59 PLD (1 964) SC 673
257 of an honest opinion based upon the
ascertainment of certain matters which are
entirely within the grasp and appreciation of
the government agency is clearly a
prerequisite to the exercise of the power. In
the period of foreign rule, such an argument,
i.e., that the opinion of the person
exercising authority is absolute may have at
times prevailed, but under autonomous rule,
where those who exercise power in the State
are themselves citizens of the same States, it
can hardly be tolerated’. ”
352. It was further held that “though the President can make
his own assessment of the situation as to the course of
action to be followed but his opinion must be founded on
some material”.
353. One of the learned Judges (Shaifur Rehman, J.) dealt
with the meaning and significance of the words “cannot be
carried on” occurring in Article 58(2)(b) in the following
words :
“the expression ‘cannot be carried on’
sandwiched as it is between ‘Federation
Government’ and ‘in accordance with the
provisions of the Constitution’, acquires a
very potent, a very positive and very concrete
content. Nothing has been left to surmises,
likes or dislikes, opinion or view. It does
not concern itself with the pace of the
progress, the shade of the quality or the
degree of the performance or the quantum of
the achievement. It concerns itself with the
breakdown of the constitutional mechanism, a
stalemate, a deadlock ensuring the observance
of the provisions of the Constitution.”
354. The next decision of the Pakistan Supreme Court brought
to our notice is in Khaja Ahmed Tariq Rahim v. Federation of
Pakistan21. On August 6, 1990, the President of Pakistan
dissolved the National Assembly in exercise of his
discretion, by an order made under Article 58(2)(b) of the
Constitution of Pakistan. The formal order referred to the
National Assembly being afflicted with internal dissensions
and frictions, persistent and scandalous ‘horse-trading’ for
political gain and furtherance of personal interests,
corrupt practices and inducement in contravention of the
Constitution and the law and failure to discharge
substantive legislative functions other than the adoption of
the finance bill all of which led the president to believe
that the National Assembly has lost the confidence of the
people. The validity of the order was challenged by a
former federal minister in the Lahore High Court. The High
Court upheld the Presidential order whereupon the matter was
carried to the Supreme Court. Both the parties agreed that
the principles enunciated by the Supreme Court in Federation
of Pakistan v. Mohd. Saifullah Khan56 do govern the
controversy.
355. On facts, the Supreme Court found that though some of
the goods given may not be relevant, there are other
relevant goods all of which read together “are sufficient to
justify the action taken”.
1 PLD(1992)SC646,664
6 PLD (1989) SC 166
258
356. The next decision relied upon by Shri Sorabjee is in
Mian Mohd. Nawaz Sharif v. President of Pakistan29. The
said decision pertains to the most recent dismissal of the
Federal Government and dissolution of the National Assembly
by the President of Pakistan by his order dated April 18,
1993.
357. In this decision, several propositions have been
enunciated by the court. Firstly, it is reiterated that “if
it could be shown that no grounds existed on the basis of
which an honest opinion could be formed ‘that a situation
had arisen in which the Government of the Federation cannot
be carried on in accordance with the provisions of the
Constitution and an appeal to the electorate is necessary’
the exercise of the power would be unconstitutional and open
to correction through judicial review”. It is next held
that “Article 58(2)(b) of the Constitution empowers the
executive head to destroy the legislature and to remove the
chosen representatives. It is an exceptional power provided
for an exceptional situation and must receive, as it has in
Federation of Pakistan v. Haji Md. Saifullah Khan56 the
narrowest interpretation”. It is also held that if there is
a doubt whether the Prime Minister had lost the confidence
of the National Assembly “the only course left
constitutionally open for the President for arriving at his
satisfaction in this matter is to ‘summon the National
Assembly and require the Prime Minister to obtain a vote of
confidence in the National Assembly’ “. This observation
was, of course, made in the context of Article 91(5), which
says:
“(5) The Prime Minister shall hold office
during the pleasure of the President, but the
President shall not exercise his powers under
this clause unless he is satisfied that the
Prime Minister does not command the confidence
of the majority of the members of the National
Assembly, in which case he shall summon the
National Assembly and require the Prime
Minister to obtain a vote of confidence from
the Assembly.”
358. The court then examined the Presidential Order and held
that none of the grounds therein bore any nexus to the order
passed and that the grounds stated were extraneous and
irrelevant and in clear departure of the constitutional
provisions. Accordingly, it was held that the Presidential
declaration was unconstitutional and that as a natural and
logical corollary, the Ministry which has been dismissed
along with the dissolved National Assembly must be restored
and revived.
359.Before we refer to the principle of these decisions, it
is necessary to bear in mind the nature of the power
conferred by the Constitution of Pakistan. Under Article
58(2)(b),. the President, who acts alone and personally, is
empowered not only to dismiss the Federal Government but
also to dissolve the National Assembly if, in his opinion, a
situation has arisen in which the Government of the
Federation cannot be carried on in accordance with the
provisions of the Constitution and an appeal to the
electorate is necessary. This is, of course, not the
position under our
29 PLD(1993)SC473
56 PLD (1989) SC 166
259
Constitution. Under our Constitution, the President has to
act and does act in accordance with the aid and advice
tendered to him by the Council of Ministers with the Prime
Minister at its head. There is no occasion for the
President to act in his personal capacity or without
reference to the Council of Ministers. The second
distinguishing feature is that under the Pakistan
Constitution the President is empowered to dismiss the
Federal Government just as the Governor of a province is
empowered to dismiss the Provincial Government, whereas
under our Constitution, there is no question of President
dismissing the Union Government; it is really a case where
the Union Government dismisses the State Government if the
situation contemplated by Article 356(1) arises. The strong
remarks made by the Pakistan Supreme Court must no doubt be
understood in the context of the aforesaid character of
Article 58(2)(b). Yet the relevance of the approach adopted
by the Pakistan Supreme Court is not without significance.
360. We may at this stage refer to the decision of the
Constitution Bench of this Court in Kehar Singh v. Union of
India19. Article 72 of the Constitution confers upon the
President the power to grant pardons, reprieves, respites or
remissions of punishment or to suspend, remit or commute the
sentence of any person convicted of any offence. The power
extends to cases where the sentence is a sentence of death.
The article does not provide any guidance in which matters
should the President exercise which power and in which cases
to refuse. In other words, the power appears ex facie to be
absolute. Kehar Singh was convicted under Section 302 IPC
in connection with the assassination of the then Prime
Minister of India, Smt Indira Gandhi and sentenced to death.
The sentence was confirmed by this Court on appeal. A
subsequent writ petition and review filed by him in this
Court failed. Kehar Singh’s son then presented a petition
to the President of India for grant of pardon under Article
72. He requested a personal hearing. Personal hearing was
refused and in a letter addressed to Kehar Singh’s counsel,
the Secretary to the President expressed the President’s
opinion that the President cannot go into the merits of the
case finally decided by the Highest Court of the land. The
petition was accordingly rejected. The rejection of the
petition was questioned by way of writ petition in this
Court. This Court expressed the view that under Article 72
it is open to the President to scrutinise the evidence on
record of a criminal case and come to a different conclusion
from that recorded by the Court both on the question of
guilt as well as sentence. This power, it was held, is not
in conflict with nor in supersession of judicial power. It
is an altogether different power, an executive power
exercised on the aid and advice of the Council of Ministers.
it was also stated that any number of considerations may
enter the decision of the President and that it is not
possible to lay any guidelines governing the exercise of the
said power. What is relevant for our purpose is the holding
regarding the extent of judicial review of the exercise of
power under the said article. It was held that the exercise
of power under Article 72 falls
9 (1989) 1 SCC 204: 1989 SCC (Cri) 86: 1988 Supp 3 SCR 1102
260
squarely within the judicial domain and can be examined by
the court by way of judicial review. While the court cannot
go into the merits, the limitations of such review are those
enunciated in Maru Ram v. Union of India6O (SCC p. 154: SCR
at p. 1249). The Court held’ :
“The function of determining whether the act
of a constitutional or statutory functionary
falls within the constitutional or legislative
conferment of power, or is vitiated by self-
denial on an erroneous appreciation of the
full amplitude of the power is a matter for
the court.”
This was so held in spite of the seemingly absolute nature
of the power conferred by Article 72 upon the President.
The argument of the learned Attorney General of India that
the exercise of power under Article 72 was not justiciable
was accordingly rejected.
361. Counsel appearing on both the sides placed strong
reliance upon the decision of the House of Lords in CCSU v.
Minister for the Civil Service8 as laying down correctly the
principles to be followed in the matter of judicial review
of administrative action whether governed by a statute or by
‘common law’. The petitioners say that this approach ought
to be adopted even in the case of constitutional action like
the one under Article 356. The respondents demur to it. It
is, therefore, necessary to examine what does the said
decision lay down precisely.
362. The Government Communications Headquarters is a branch
of the public services under the Foreign and Commonwealth
Office. Its main functions are to ensure the security of
the United Kingdom military and official communications and
to provide signals intelligence for the Government. Since
1947, i.e., from the time of its establishment, the staff
employed therein were permitted to belong to national trade
unions and most of them did so. There were several disputes
between the staff and the Government over the years all of
which were settled by negotiations with the Unions. On
January 25, 1984, however, the Secretary of the State for
Foreign and Commonwealth Affairs announced suddenly that the
staff of the Government Communications Headquarters will no
longer be permitted to belong to national trade unions and
that they would be permitted to belong to only to a
departmental staff association approved by the Director.
The said decision was given effect to by certain orders
issued on December 22, 1993. The Unions questioned the
validity of the said instructions.
363. The conditions of service of the staff working in
Government Communications Headquarters were to be regulated
by the Minister for the Civil Service, empowered as he was
by Article 4 of the 1982 Order in Council. The said Order-
in-Council was not issued under powers conferred by any Act
of Parliament. It was issued by the Sovereign by virtue of
her prerogative. According to the definition given by Dicey
in “Introduction to the study of the Law of the
Constitution” which has been accepted and
60 (1981)1 SCC 107:1981 SCC(Cri) 112:(1981) 1 SCR 1196
+ Ed.:In Kehar Singh v.Union of
India,(1989)ISCC204,214(parall)
8 (1985) AC 374: (1984) 3 All ER 935
261
followed at all points of time in U.K. “prerogative is the
name for the remaining portion of the Crown’s original
authority, and is therefore, as already pointed out, the
name for the residue of discretionary power left at any
moment in the hands of the Crown, whether such power be in
fact exercised by the King himself or by his Ministers”.
The very same idea has been stated by Lord Diplock in the
following words :
“For a decision to be susceptible to judicial
review, the decisionmaker must be empowered by
public law (and not merely, as in arbitration,
by agreement between private parties) to make
decisions that, if validly made, will lead to
administrative action or abstention from
action by an authority endowed by law with
executive powers, which have one or other of
the consequences mentioned in the preceding
paragraph. The ultimate source of the
decision-making power is nearly always
nowadays a statute or subordinate legislation
made under the statute; but in the absence of
any statute regulating the subject-matter of
the decision, the source of the decision-
making power may still be the common law
itself, i.e., that part of the common law that
is given by lawyers the label of the
prerogative.”
364. The contention on behalf of the Minister was that
action taken by him in exercise of the prerogative power is
not amenable to judicial review. The said contention was
rejected. So far as the merits are concerned, the only
contention urged by the Unions related to “the manner in
which the decision which led to these instructions being
given, was taken, that is to say, without prior consultation
of any kind with the appellant or, indeed, others”. The
right of prior consultation was founded upon the theory of
legitimate expectation. All the Law Lords agreed that
having regard to the practice in vogue since the
establishment of the said establishment, the Unions could
claim a legitimate expectation to be consulted before
effecting any change in the conditions of their service.
But, they held, the said legitimate expectation cannot
prevail over the considerations of national security which
prompted the Minister to issue the impugned instructions.
It is on this ground alone that the House of Lords dismissed
the appeal preferred by the Unions.
365.So far as India is concerned, there is no such thing as
‘prerogative’. There is the executive power of the
Government of India and there are the constitutional
functions of the President. It is not suggested by the
counsel for the respondents that all the orders passed and
every action taken by the President or the Government of
India is beyond judicial review. All that is suggested is
that some of the powers of the President and the Government
of India are immune. Shri Parasaran relies upon the opinion
of Lord Roskill where certain prerogative powers are held
not fit subject-matters for judicial scrutiny. They are the
powers relating to entering of treaties with foreign power,
defence of the realm, grant of pardon/mercy, conferring of
honours, dissolution of Parliament and appointment of
Ministers. We agree that broadly speaking the above
matters, because of their very nature, are outside the ken
of courts and the courts would not, ordinarily speaking,
interfere in matters relating to above subjects. But that
is different from saying that all
262
the President’s action are immune. In fact, the main
holding in this decision is that action taken in exercise of
the prerogative power is not immune from judicial review
apart from the clear enunciation of the grounds of judicial
review. It is also held, of course, that in matters
involving government policy, the ground of irrationality may
not be an appropriate one.
366. We may now examine the principles enunciated by this
Court in Barium Chemicals6 which is the leading decision of
this Court on the subject of subjective satisfaction. It
exhaustively lays down the parameters of judicial review in
such matters. Barium Chemicals6 was concerned with an
enquiry ordered into the affairs of the appellant-company by
the Company Law Board under Section 237(b) of the Companies
Act, 1956. Section 237 read as follows :
“237. Without prejudice to its powers under
Section 235, the Central Government
(a) shall appoint one or more competent
persons as inspectors to investigate the
affairs of a company and to report thereon in
such manner as the Central Government may
direct, if-
(i) the company, by special resolution, or
(ii) the Court, by order, declares that the
affairs of the company ought to be
investigated by an inspector appointed by the
Central Government; and (b) may do so, if, in
the opinion of the Central Government, there
are circumstances suggesting-
(i) that the business of the company is
being conducted with intent to defraud its
creditors, members or any other persons, or
otherwise for a fraudulent or unlawful
purpose, or in a manner oppressive of any of
its members, or that the company was formed
for any fraudulent or unlawful purpose;
(ii) that persons concerned in the formation
of the company or the management of its
affairs have in connection therewith been
guilty of fraud, misfeasance or other
misconduct towards the company or towards
any of its members; or
(iii)that the members of the company have not
been given all the information with respect to
its affairs which they might reasonably
expect, including information relating to the
calculation of the commission payable to a
managing or other director, the managing
agent, the secretaries and treasurers, or the
manager of the company.”
367. Clause (b) empowered the Central Government to appoint
one or more persons as inspectors to investigate into the
affairs of a company and to report thereon if in its opinion
“there are circumstances suggesting” one or the other of the
circumstances mentioned in sub-clauses (i), (ii) an iii).
main opinion was delivered by Shelat, J. That the action
contemplated under
6 1966 Supp SCR 311:AIR 1967 SC 295:(1966) 36 Comp Cas 639
263
Section 237(b) could be taken on the subjective
satisfaction of the Central Government was not in dispute.
The controversy, however, centered round the next aspect.
According to the appellant, though the opinion was
subjective, the existence of circumstances set out in clause
(b) was a condition precedent to the formation of such
opinion and, therefore, even if the impugned orders were to
contain a recital of the existence of those circumstances,
the court can go behind that recital and determine whether
they did in fact exist. On the other hand, the contention
for the Company Law Board was that clause (b) was incapable
of such dichotomy and that not only the opinion was
subjective but that the entire clause was made dependent on
such opinion. It was urged that the words “opinion” and
“suggesting” were clear indications that the entire function
was subjective, that the opinion which the authority has to
form is that circumstances suggesting what is set out in
sub-clauses (i) and (ii) exist and, therefore, the existence
of those circumstances is by itself a matter of subjective
opinion. The legislature having entrusted that function to
the authority, it was urged, the court cannot go behind its
opinion and ascertain whether the relevant circumstances
exist or not.
368. After considering a large number of decisions, Shelat,
J. held (SCR p. 362)
“… the words, ‘reason to believe’ or ‘in the
opinion of’ do not always lead to the
construction that the process of entertaining
‘reason to believe’ or ‘the opinion’ is an
altogether subjective process not lending
itself even to a limited scrutiny by the court
that such ‘a reason to believe’ or ‘opinion’
was not formed on relevant facts or within the
limits of, as Lord Radcliffe and Lord Reid
called, the restraints of the statute as an
alternative safeguard to rules of natural
justice where the function is administrative.”
The learned Judge then examined the object
underlying Section 237 and held (SCR pp. 362-
63)
“There is no doubt that the formation of
opinion by the Central Government is a purely
subjective process. There can also be no
doubt that since the legislature has provided
for the opinion of the Government and not of
the court such an opinion is not subject to a
challenge on the ground of property,
reasonableness or sufficiency. But the
Authority is required to arrive at such an
opinion from circumstances suggesting what is
set out in sub-clauses (i), (ii) or (iii). If
these circumstances were not to exist, can the
Government still say that in its opinion they
exist or can the Government say the same thing
where the circumstances relevant to the clause
do not exist? The legislature no doubt has
used the expression “circumstances
suggesting”. But, that expression means that
the circumstances need not be such as would
conclusively establish an intent to defraud or
a fraudulent or illegal purpose. The proof of
such an intent or purpose is still to be
adduced through an investigation. But the
expression “circumstances suggesting” cannot
support the construction
264
that even the existence of circumstances is a
matter of subjective opinion. That expression
points out that there must exist circumstances
from which the Authority forms an opinion that
they are suggestive of the crucial matters set
out in the three sub-clauses. It is hard to
contemplate that the legislature could have
left to the subjective process both the
formation of opinion and also the existence of
circumstances on which it is to be founded.
It is also not reasonable to say that the
clause permitted the Authority to say that it
has formed the opinion on circumstances which
in its opinion exist and which in its opinion
suggest an intent to defraud or a fraudulent
or unlawful purpose. It is equally
unreasonable to think that the legislature
could have abandoned even the small safeguard
of requiring the opinion to be founded on
existent circumstances which suggest the
things for which an investigation can be
ordered and left the opinion and even the
existence of circumstances from which it is to
be formed to a subjective process. … There
must, therefore, exist circumstances which in
the opinion of the Authority suggest what has
been set out in sub-clauses (i), (ii) and
(iii). If it is shown that the circumstances
do not exist or that they are such that it is
impossible for any one to form an opinion
therefrom suggestive of the aforesaid things,
the opinion is challengeable on the ground of
nonapplication of mind or perversity or on the
ground that it was formed on collateral
grounds and was beyond the scope of the
statute.”
369. Hidayatullah, J. observed thus in his
separate opinion : (SCR p. 336)
Since the existence of ‘circumstances’ is a
condition fundamental to the making of an
opinion, the existence of the circumstances,
if questioned, has to be proved at least prima
facie. It is not sufficient to assert that
the circumstances exist and give no clue to
what they are because the circumstances must
be such as to lead to conclusions of certain
definiteness. The conclusions must relate to
an intent to defraud, a fraudulent or unlawful
purpose, fraud or misconduct or the
withholding of information of a particular
kind.”
The learned Judge proceeded further to say :
(SCR pp. 336-37)
“We have to see whether the Chairman in his
affidavit has shown the existence of
circumstances leading to such tentative
conclusions. If he has, his action cannot be
questioned because the inference is to be
drawn subjectively and even if this Court
would not have drawn a similar inference that
fact would be irrelevant. But if the
circumstances pointed out are such that no
inference of the kind stated in Section 237(b)
can at all be drawn the action would be ultra
vires the Act and void.”
The principles enunciated in this case are not only self-
evident, they have been followed uniformly since. We do not
think it necessary to restate these principles they are too
well-known.
265
370. Counsel brought to our notice a decision of the High
Court of Australia in the Queen v. Toohey ex parte Northem
Land Council61. Under the Aboriginal Land Rights (Northern
Territory) Act, 1976, provision was made for the aboriginals
to claim return of the land traditionally occupied by them.
The application was to be made to the commissioner under the
Act. Toohey, J. was acting as the commissioner. The
application was made by the Prosecutor, Northern Land
Council. According to the Land Rights Act, no such claim
could be laid if the land claimed was comprised in a town.
The expression ‘town’ was defined to have the same meaning
as ‘in the law relating to Planning and Development of Town.
In 1979, Planning Act was enacted superseding an earlier
Act. In Section 4(1) of the Planning Act, ‘town’ meant
inter alia “lands specified by the regulations to be an area
which has to be treated as a town”. Planning regulations
were made by the Administrator of the Northern Territory
under the Planning Act specifying inter alia the Cox
peninsula as part of ‘Darwin town’. The Cox peninsula was
separated from Darwin town-proper by an arm of the sea. The
land route for reaching the peninsula from Darwin town-
proper was a difficult and long one. The Prosecutor,
Northern Land Council challenged the validity of the
planning regulation on the ground that the inclusion of Cox
peninsula in the Darwin town is not really for the purposes
germane to the Planning Act and the regulations made
thereunder but for an altogether extraneous purpose. The
question was whether such a plea can be investigated by the
courts. The contention of the other side was that the
Administrator was the Crown’s Representative in the
Territory and, therefore, the power exercised by him was
immune from any examination by the courts. This argument
was met by the Prosecutor of the Northern Land Council
saying that the Administrator is only the servant of the
Crown and not its representative and hence, possesses no
immunity and on the further ground that even if he is the
Representative of the Crown, there was no such immunity.
The majority (Murphy, J. dissenting) held that judicial
review of the regulations was not barred. The conclusion
may best be set out in the words of Stephen, J.
“Conclusion on examinability.
The trend of decisions in British and
Commonwealth courts has encouraged me to
conclude that, in the unsettled state of
Australian authority, the validity of
Regulation 5 was open to be attacked in the
manner attempted by the Council. Such a view
appears to me to be in accord with principle.
It involves no intrusion by the courts into
the sphere either of the legislature or of the
executive. It ensures that, just as
legislatures of constitutionally limited
competence must remain within their limits of
power, so too must the executive, the exercise
by it of power granted to it by the
legislature being confined to the purposes for
which it was granted. In drawing no
distinction of principle between the acts of
the representative of the Crown and those of
Ministers of the Crown it recognises that in
the exercise of statutory powers the former
61 151 Commonwealth LR 170
266
acts upon the advice of the latter : as
Latham, C.J. said in the Australian Communist
Party case, the opinion of the Queen’s
representative ‘is really the opinion of the
Government of the day’. That this is so in
the Northern Territory appears from Section 33
of the Northern Territory (Self Government)
Act, 1978.
I have already referred to the possibility of
a legislature by appropriate words excluding
judicial review of the nature here in
question. The terms of the present grant of
power conferred by Section 165(1) are devoid
of any suggestion of such exclusion. It
follows that if it be shown that a regulation
made under that power was made for a purpose
wholly alien to the Planning Act it will be
ultra vires the power and will be so treated
by the courts.”
371. This case establishes that the validity of an action
whether taken by a Minister or a Representative of the Crown
is subject to judicial review even if done under the
statute. In this case, it may be noted, the regulations in
question were made under a statute, no doubt by the
Administrator who was supposed to be the Representative of
the Crown in the Territory. This factor, the court held,
did not preclude the court from reviewing the validity of
the regulations made by him.
372. Having noticed various decisions projecting different
points of view, we may now proceed to examine what should be
the scope and reach of judicial review when a Proclamation
under Article 356(1) is questioned. While answering this
question, we should be, and we are, aware that the power
conferred by Article 356(1) upon the President is of an
exceptional character designed to ensure that the Government
of the States are carried on in accordance with the
Constitution. We are equally aware that any misuse or abuse
of this power is bound to play havoc with our constitutional
system. Having regard to the form of Government we have
adopted, the power is really that of the Union Council of
Ministers with the Prime Minister at its head. In a sense,
it is not really a power but an obligation cast upon the
President in the interest of preservation of constitutional
Government in the States. It is not a power conceived to
preserve or promote the interests of the political party in
power at the Centre for the time being nor is it supposed to
be a weapon with which to strike your political opponent.
The very enormity of this power undoing the will of the
people of a State by dismissing the duly constituted
Government and dissolving the duly elected Legislative
Assembly must itself act as a warning against its frequent
use or misuse, as the case may be. Every misuse of this
power has its consequences which may not be evident
immediately but surface in a vicious form a few years later.
Sow a wind and you will reap the whirlwind. Wisdom lies in
moderation and not in excess.
373. Whenever a Proclamation under Article 356 is
questioned, the court will no doubt start with the
presumption that it was validly issued but it will not and
it should not hesitate to interfere if the invalidity or
unconstitutionality of the Proclamation is clearly made out.
Refusal to
267
interfere in such a case would amount to abdication of the
duty cast upon the court Supreme Court and High Courts by
the Constitution. Now, what are the grounds upon which the
court can interfere and strike down the Proclamation? While
discussing the decisions hereinabove, we have indicated the
unacceptability of the approach adopted by the Privy Council
in Bhagat Singh v. Emperor55 and King Emperor v. Benoari Lal
Sharma57. That was in the years 1931 and 1944, long before
the concept of judicial review had acquired its present
efficacy. As stated by the Pakistan Supreme Court, that
view is totally unsuited to a democratic polity. Even the
Privy Council has not stuck to that view, as is evident from
its decision in the case from Malaysia Stephen Kalong
Ningkan v. Govt. of Malaysia58. In this case, the Privy
Council proceeded on the assumption that such a Proclamation
is amenable to judicial review. On facts and circumstances
of this case, it found the action justified. Now, coming to
the approach adopted by the Pakistan Supreme Court, it must
be said as indicated hereinbefore that it is coloured by
the nature of the power conferred upon the President by
Section 58(2)(b) of the Pakistani Constitution. The power
to dismiss the Federal Government and the National Assembly
is vested in the President and President alone. He has to
exercise that power in his personal discretion and judgment.
One man against the entire system, so to speak even though
that man too is elected by the representatives of the
people. That is not true of our Constitution. Here the
President acts on the aid and advice of the Union Council of
Ministers and not in his personal capacity. Moreover, there
is the check of approval by Parliament which contains
members from that State (against the Government/Legislative
Assembly of which State, action is taken) as well. So far
as the approach adopted by this Court in Barium Chemicals6
is concerned, it is a decision concerning subjective
satisfaction of an authority created by a statute. The
principles evolved then cannot ipso facto be extended to the
exercise of a constitutional power under Article 356.
Having regard to the fact that this is a high constitutional
power exercised by the highest constitutional functionary of
the Nation, it may not be appropriate to adopt the tests
applicable in the case of action taken by statutory or
administrative authorities nor at any rate, in their
entirety. We would rather adopt the formulation evolved by
this Court in State of Rajasthan’ as we shall presently
elaborate. We also recognise, as did the House of Lords in
CCSU v. Minister for the Civil Service8 that there are
certain areas including those elaborated therein where the
court would leave the matter almost entirely to the
President/Union Government. The court would desist from
entering those arenas, because of the very nature of those
functions. They are not the matters which the court is
equipped to deal with.
55 AIR 1931 PC 11 1: 58 IA 169: 35 CWN 646
57 (1944) 72 IA 57: AIR 1945 PC 48: 46 Cri LJ 589
58 (1970) AC 379
6 1966 Supp SCR 31 1: AIR 1967 SC 295: (1966) 36 Comp Cas
639
3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1
8 (1985) AC 374: (1984) 3 All ER 935
268
The court has never interfered in those matters because they
do not admit of judicial review by their very nature.
Matters concerning foreign policy, relations with other
countries, defence policy, power to enter into treaties with
foreign powers, issues relating to war and peace are some of
the matters where the court would decline to entertain any
petition for judicial review. But the same cannot be said
of the power under Article 356. It is another matter that
in a given case the court may not interfere. It is
necessary to affirm that the Proclamation under Article
356(1) is not immune from judicial review, though the
parameters thereof may vary from an ordinary case of
subjective satisfaction.
374. Without trying to be exhaustive, it can be stated that
if a Proclamation is found to be mala fide or is found to be
based wholly on extraneous and/or irrelevant grounds, it is
liable to be struck down, as indicated by a majority of
learned Judges in the State of Rajasthan3. This holding
must be read along with our opinion on the meaning and scope
of Article 74(2) and the further circumstance that clause
(5) which expressly barred the jurisdiction of the courts to
examine the validity of the Proclamation has been deleted by
the 44th Amendment to the Constitution. In other words, the
truth or correctness of the material cannot be questioned by
the court nor will it go into the adequacy of the material.
It will also not substitute its opinion for that of the
President. Even if some of the material on which the action
is taken is found to be irrelevant, the court would still
not interfere so long as there is some relevant material
sustaining the action. The ground of mala fides takes in
inter alia situations where the Proclamation is found to be
a clear case of abuse of power, or what is sometimes called
fraud on power cases where this power is invoked for
achieving oblique ends. This is indeed merely an
elaboration of the said ground. The Meghalaya case,
discussed hereinafter, demonstrates that the types of cases
calling for interference cannot either be closed or
specified exhaustively. It is a case, as will be elaborated
a little later, where the Governor recommended the dismissal
of the Government and dissolution of the Assembly in clear
disregard of the orders of this Court. Instead of carrying
out the orders of this Court, as he ought to have, he
recommended the dismissal of the Government on the ground
that it has lost the majority support, when in fact he
should have held following this Court’s orders that it did
not. His action can be termed as a clear case of mala fides
as well. That a Proclamation was issued acting upon such a
report is no less objectionable.
375. It is necessary to reiterate that the court must be
conscious while examining the validity of the Proclamation
that it is a power vested in the highest constitutional
functionary of the Nation. The court will not lightly
presume abuse or misuse. The court would, as it should,
tread wearily, making allowance for the fact that the
President and the Union Council of Ministers are the best
judges of the situation, that they alone are in possession
of information and material sensitive in nature sometimes
3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1
269
and that the Constitution has trusted their judgment in the
matter. But all this does not mean that the President and
the Union Council of Ministers are the final arbiters in the
matter or that their opinion is conclusive. The very fact
that the Founding Fathers have chosen to provide for
approval of the Proclamation by Parliament is, itself a
proof of the fact that the opinion or satisfaction of the
President (which always means the Union Council of Ministers
with the Prime Minister at its head) is not final or
conclusive. It is well-known that in the parliamentary form
of Government, where the party in power commands a majority
in Parliament more often than not, approval of Parliament by
a simple majority is not difficult to obtain. Probably, it
is for this reason that the check created by clause (3) of
Article 356 has not proved to be as effective in practice as
it ought to have been. The very fact that even in cases
like Meghalaya and Karnataka, both Houses of Parliament
approved the Proclamations shows the enervation of this
check. Even the proponents of the finality of the decision
of the President in this matter could not but concede that
the said check has not proved to be an effective one. Nor
could they say with any conviction that judicial review is
excluded in this behalf. If judicial review is not excluded
in matters of pardon and remission of sentence under Article
72 a seemingly absolute and unconditional power it is
difficult to see on what principle can it be said that it
is excluded in the case of a conditional power like the one
under Article 356.
376. We recognise that judicial process has certain inherent
limitations. It is suited more for adjudication of disputes
rather than for administering the country. The task of
governance is the job of the Executive. The Executive is
supposed to know how to administer the country, while the
function of the Judiciary is limited to ensure that the
Government is carried on in accordance with the Constitution
and the laws. Judiciary accords, as it should, due weight
to the opinion of the Executive in such matters but that is
not to say, it defers to the opinion of Executive
altogether. What ultimately determines the scope of
judicial review is the facts and circumstances of the given
case. A case may be a clear one like Meghalaya and
Karnataka cases where the court can find unhesitatingly
that the Proclamation is bad. There may also be cases like
those relating to Madhya Pradesh, Rajasthan and Himachal
Pradesh where the situation is so complex, full of
imponderables and a fast-evolving one that the court finds
it not a matter which admits of judicial prognosis, that it
is a matter which should be left to the judgment of and to
be handled by the Executive and may be in the ultimate
analysis by the people themselves. The best way of
demonstrating what we say is by dealing with the concrete
cases before us.
377. Shri Parasaran, learned counsel for the Union of India
urged that inasmuch as the Proclamation under clause (1) has
been approved by both Houses of Parliament as contemplated
by clause (3), the Proclamation assumes the character of
Legislation and that it can be struck down only on grounds
on which a Legislation can be struck down. We cannot agree.
Every act of Parliament does not amount to and does not
result in Legislation,
270
though Legislation is its main function. Parliament
performs many other functions, e.g., election of Speaker and
Deputy Speaker, vote of confidence/no confidence in the
Ministry, motion of thanks to the President after the
address by the President and so on. One of such functions
is the approval of the Proclamation under clause (3). Such
approval can by no stretch of imagination be called
‘Legislation’. It is not processed or passed as a Bill nor
is it presented to the President for his assent. Its legal
character is wholly different. It is a constitutional
function, a check upon the exercise of power under clause
(1). It is a safeguard conceived in the interest of
ensuring proper exercise of power under clause (1). It is
another matter that in practice the check has not proved
effective. But that may not be so in future or for all
times to come. Be that as it may, it is certainly not
Legislation nor Legislative in character.
378. Shri Shanti Bhushan, learned counsel for the
petitioners urged that the deletion of clause (5) by the
44th Amendment, which clause was introduced by the 38th
Amendment, necessarily implies that the exercise of power
under clause (1) is amenable to judicial review in a far
more extensive manner. Clause (5), as introduced by the
38th Amendment, read as follows :
“(5) Notwithstanding anything in this
Constitution, the satisfaction of the
President mentioned in clause (1) shall be
final and conclusive and shall not be
questioned in any court on any ground.”
379. The effect of this clause was considered by this Court
in State of Rajasthan3. It was held that the said clause
does not preclude the court from examining whether the
exercise of power is mala fide or is based on extraneous
grounds or whether it is based on no satisfaction at all.
It was held that the said clause does not prevent the court
from examining the Proclamation on the aforesaid grounds.
We, however, agree that the deletion of this clause is
certainly significant in the sense that the express bar
created in the way of judicial review has since been removed
consciously and deliberately in exercise of the constituent
power of Parliament. (See A.K. Roy v. Union of India25).
The cloud cast by the clause on the power of judicial review
has been lifted.
380. It was urged by Shri Parasaran, learned counsel
appearing for the Union of India that where a person
challenges the validity of the Proclamation under Article
356(1), the burden lies upon him to establish its validity
and that it is not part of the duty of the Union of India to
assist the petitioner in establishing his case. Reliance is
placed on certain observations in Stephen Kalong Ningkong58.
He submitted that it would not be a correct practice for the
court to call upon the Union of India to justify and
establish the validity of the Proclamation merely because a
person chooses to question it. We do not think that there
ought to be any room for confusion on this
3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1
25 (1982) 1 SCC 271: 1982 SCC (Cri) 152: (1982) 2 SCR 272
58 (1970) AC 379
271
score nor can the observations of Hidayatullah, J. in
Barium Chemicals6 quoted elsewhere be understood as saying
so. We agree that merely because a person challenges the
validity of the Proclamation, the court would not as a
matter of course call upon the Union of India to produce the
material/information on the basis of which the President
formed the requisite satisfaction. The court must be
satisfied, prima facie, on the basis of the averments made
by the petitioner and the material, if any, produced by him
that it is a fit case where the Union of India should be
called upon to produce the material/information on the basis
of which the President formed the requisite satisfaction.
It is then that the Union of India comes under a duty to
disclose the same. Since the material/information on which
the satisfaction was formed is available to, and known to,
only the Union of India, it is for it to tell the court what
that material/information was. They are matters within the
special knowledge of the Union of India. In such a case,
only the Union of India can be called upon to satisfy the
court that there was relevant material/information before
the President on the basis of which he had acted. It may be
that, in a given case, the material/information may be such
that the Union of India may feel it necessary to claim the
privilege provided by Section 123 of the Indian Evidence
Act. As and when such claim is made, it is obvious, it will
be dealt with according to law.
381. While on this question, we may mention that if in a
given case the Proclamation contains the reasons, with
adequate specificity, for which the Proclamation was issued,
the court may have to be satisfied before calling upon the
Union of India to produce the material/information that the
reasons given in the Proclamation are prima facie irrelevant
to the formation of the requisite satisfaction and/or that
it is a fit case where the Union of India must yet be called
upon to place the material/information on the basis of which
it had formed the satisfaction. The Union of India may
perhaps be well advised to follow the practice of stating
the reasons and the grounds upon which the requisite
satisfaction is founded.
ARTICLE 356 Is IT CONFINED ONLY TO CASES WHERE THE STATE
GOVERNMENT FAILS OR REFUSES To ABIDE BY THE DIRECTIONS
ISSUED BY THE CENTRAL GOVERNMENT?
382. It was submitted by Shri Jethmalani, the learned
counsel for some of the petitioners that in view of Article
365 of the Constitution, the only situation in which the
power under Article 356 can be invoked by the President is
the failure of the State Government to comply with or to
give effect to the directions given in exercise of the
executive power of the Union under any of the provisions of
the Constitution and not in any other case. Reference is
made in this connection to Articles 256 and 257. It would
be appropriate to read all the three articles at this stage
:
“256. Obligation of States and the Union.-
The executive power of every State shall be so
exercised as to ensure compliance with the
laws made by Parliament and any existing laws
which apply in that State, and
6 1966 Supp SCR 31 1: AIR 1967 SC 295: (1966)
36 Comp Cas 639
272
the executive power of the Union shall extend
to the giving of such directions to a State as
may appear to the Government of India to be
necessary for that purpose.
257. Control of the Union over States in
certain cases.- (1) The executive power of
every State shall be so exercised as not to
impede or prejudice the exercise of the
executive power of the Union, and the
executive power of the Union shall extend to
the giving of such directions to a State as
may appear to the Government of India to be
necessary for that purpose.
(2) The executive power of the Union shall
also extend to the giving of directions to a
State as to the construction and maintenance
of means of communication declared in the
direction to be of national or military
importance:
Provided that nothing in this clause shall be
taken as restricting the power of Parliament
to declare highways or waterways to be
national highways or national waterways or the
power of the Union with respect to the
highways or waterways so declared or the power
of the Union to construct and maintain means
of communication as part of its functions with
respect to naval, military and air force
works.
(3) The executive power of the Union shall
also extend to the giving of directions to a
State as to the measures to be taken for the
protection of the railways within the State.
(4) Where in carrying out any direction
given to a State under clause (2) as to the
construction or maintenance of any means of
communication or under clause (3) as to the
measures to be taken for the protection of any
railway, costs have been incurred in excess of
those which would have been incurred in the
discharge of the normal duties of the State if
such direction had not been given, there shall
be paid by the Government of India to the
State such sum as may be agreed, or, in
default of agreement, as may be determined by
an arbitrator appointed by the Chief Justice
of India, in respect of the extra costs so
incurred by the State.
365. Effect of failure to comply with, or to
give effect to, directions given by the
Union.- Where any State has failed to comply
with, or to give effect to, any directions
given in the exercise of the executive power
of the Union under any of the provisions of
this Constitution, it shall be lawful for the
President to hold that a situation has arisen
in which the Government of the State cannot be
carried on in accordance with the provisions
of this Constitution.”
383. In our opinion, the contention urged is unacceptable.
Article 256 merely states that the executive power of every
State shall be so exercised as to ensure compliance with the
laws made by Parliament whether existing or to be made in
future. It is stated therein that the executive power of
the Union shall extend to giving of such directions to a
State as may appear to the Government of India to be
necessary for the said purpose. This article is
273
confined to proper and due implementation of the
parliamentary enactments and the power to give directions
for that purpose. Article 257 says that executive power of
every State shall be so exercised as not to impede or
prejudice the exercise of the executive power of the Union;
for ensuring the same, the Union Government is empowered to
give appropriate directions. Clauses (2), (3) and (4)
illustrate and elaborate the power contained in clause (1).
Article 365, which incidentally does not occur in Part
XVIII, but in Part XIX (Miscellaneous) merely says that
where any State has failed to comply with or give effect to
any directions given by the Union of India in exercise of
its executive power under any of the provisions of the
Constitution, it shall be lawful for the President to hold
that a situation has arisen in which the Government of the
State cannot be carried on in accordance with the provisions
of the Constitution. The article merely sets out one
instance in which the President may hold that the Government
of the State cannot be carried on in accordance with the
provisions of the Constitution. It cannot be read as
exhaustive of the situation where the President may form the
said satisfaction. Suffice it to say that the directions
given must be lawful and their disobedience must give rise
to a situation contemplated by Article 356(1). Article 365
merely says that in case of failure to comply with the
directions given, “it shall be lawful” for the President to
hold that the requisite type of situation [contemplated by
Article 356(f) has arisen. It is not as if each and every
failure ipso facto gives rise to the requisite situation.
The President has to judge in each case whether it has so
arisen. Article 365 says it is permissible for him to say
so in such a case. The discretion is still
there and has to be exercised fairly.
FACTS AND MEP ITS OF INDIVIDUAL CASES
KARNATAKA
384. By a Proclamation dated April 21, 1989 the President
dismissed the Government of Karnataka, dissolved the
Legislative Assembly, took over the powers of the Government
and the Governor, vested the powers of the State Legislature
in Parliament and made other incidental and ancillary
provisions suspending several provisions of the Constitution
with respect to that State. The Proclamation does not
contain any reasons except barely reciting the satisfaction
of the President. The satisfaction is stated to have been
formed on a consideration of the report of the Governor and
other information received by him. Shri S.R. Bommai was the
Chief Minister then.
385. The Janata Legislature Party emerged as the majority
party in the State Legislature following elections to the
Assembly in March 1985. Shri Ramakrishna Hegde was elected
the leader of the Janata Legislature Party and was sworn in
as the Chief Minister in March 1985. In August 1988, Shri
Hegde resigned and Shri Bommai was elected as the leader and
sworn in as the Chief Minister on August 30, 1988. In
September 1988, Janata Party and Lok Dal (B) merged
resulting in the formation of Janata Dal. The Janata Party
in Karnataka Legislature was renamed Janata Dal. On April
15, 1989 the Ministry was expanded by Shri Bommai including
thirteen more
274
members. On April 17, 1989, a legislator, Shri Kalyan Rao
Molakery, defected from the party and presented a letter to
the Governor withdrawing his support to the Janata Dal
Government. On the next day, he met the Governor and
presented nineteen letters purported to have been signed by
seventeen Janata Dal legislators, one associate independent
legislator and one BJP legislator withdrawing their support
to the Government. The Governor is said to have called the
Secretary of the Legislature Department and got the
authenticity of the signatures on the letters verified. He
did not, of course, inform Shri Bommai about these
developments. On April 19, 1989, the Governor sent a report
to the President stating that there were dissensions in
Janata Party which led to the resignation of Shri Hegde
earlier and that even after the formation of Janata Dal,
there have been dissensions and defections. He referred to
the letters received by him from defecting members and
opined that on that account, the ruling party has been
reduced to minority in the Assembly. He stated that the
Council of Ministers headed by Shri Bommai does not command
a majority in the House and that, therefore, “it is not
appropriate under the Constitution to have the State
administered by an Executive consisting of Council of
Ministers who do not command the majority in the House”. He
opined that no other party is in a position to form the
Government and recommended action under Article 356(1).
386. On April 20, 1989, seven legislators out of those who
were said to have submitted the letters to the Governor
submitted letters to the Governor complaining that their
signatures were obtained on those letters by
misrepresentation and by misleading them. They reaffirmed
their support to the Bommai Ministry. On the same day, the
State Cabinet met and decided to convene the Assembly
Session on April 27, 1989. The Chief Minister and the Law
Minister met the Governor on that day itself and informed
him about the summoning of the Assembly Session. They also
brought to the Governor’s notice the recommendation of the
Sarkaria Commission that the support and strength of the
Chief Minister should be tested on the floor of the
Assembly. Shri Bommai offered to prove his majority on the
floor of the House. He even expressed his readiness to
prepone the Assembly Session if so desired by the Governor.
He also sent a telex message to that effect to the President
of India. In spite of all this, the Governor sent another
report to the President of India on April 20, 1989 referring
to the letter of seven members withdrawing their earlier
letters and opining that the said letters were evidently
obtained by Shri Bommai by pressurising those MLAs. He
reported that “horse-trading is going on and atmosphere is
getting vitiated”. He reiterated his opinion that Shri
Bommai has lost the confidence of the majority in the State
Assembly and requested that action be taken on his previous
letter. On that very day, the President issued the
Proclamation. It says that the said action was taken on the
basis of “the report from the Governor of the State of
Karnataka and other information received”.
387. Both the Houses of Parliament duly met and approved the
said Proclamation as contemplated by clause (3) of Article
356.
275
388. The validity of the Proclamation was challenged by Shri
Bommai and certain other members of the Council of Ministers
by way of a writ petition (W.P. 7899 of 1989) in the
Karnataka High Court. The Union of India (the first
respondent in the writ petition) submitted that the decision
of the President of India based on the report of the
Governor and other information brought to his notice is not
justiciable and cannot be challenged in the writ petition.
While making a report, it was submitted, the Governor does
not act on the aid and advice of his Council of Ministers
but in his individual capacity. The report of the Governor
cannot be challenged in view of Article 361 of the
Constitution nor can he or the President be compelled to
disclose the information or material upon which they have
acted. Article 74(2) was said to be a bar to the court
enquiring into the said information, material and advice.
It was also submitted that the Proclamation has since been
approved by both Houses of Parliament under clause (3) of
Article 356. The State of Karnataka submitted that the
Governor had taken into consideration all the facts and
circumstances prevailing in the State while submitting his
report and that the Proclamation issued on that basis is
unobjectionable.
389. A Special Bench of three Judges of High Court heard the
writ petition and dismissed the same on the following
reasoning :
(1) The Proclamation under Article 356(1) is not immune
from judicial scrutiny. The court can examine whether the
satisfaction has been formed on wholly extraneous material
or whether there is a rational nexus between the material
and the satisfaction.
(2) In Article 356, the President means the Union Council
of Ministers. The satisfaction referred to therein is
subjective satisfaction. This satisfaction has no doubt to
be formed on a consideration of all the facts and
circumstances.
(3) The two reports of the Governor conveyed to the
President essential and relevant facts which were relevant
for the purpose of Article 356. The facts stated in the
Governor’s report cannot be stated to be irrelevant. They
are perfectly relevant.
(4) Where the Governor’s “personal bona fides” are not
questioned, his satisfaction that no other party is in a
position to form the Government has to be accepted as true
and is based upon a reasonable assessment of all the
relevant facts.
(5) Recourse to floor test was neither compulsory nor
obligatory. It was not a prerequisite to sending up a
report recommending action under Article 356(1).
(6) The introduction of Xth Schedule to the Constitution
has not affected in any manner the content of the power
under Article 356.
(7) Since the Proclamation has to be issued on the
satisfaction of the Union Council of Ministers, the
Governor’s report cannot be faulted on the ground of legal
mala fides.
276
(8) Applying the test indicated in the State of Rajasthan
v. Union of India3 the court must hold, on the basis of
material disclosed, that the subjective satisfaction arrived
at by the President is conclusive and cannot be faulted.
The Proclamation, therefore, is unobjectionable.
390. We find ourselves unable to agree with the High Court
except on points (1) and (2). To begin with, we must say
that question of ‘personal bona fides’ of Governor is really
irrelevant.
391. We must also say that the observation under point (7)
is equally misplaced. It is true that action under Article
356 is taken on the basis of satisfaction of the Union
Council of Ministers but on that score it cannot be said
that ‘legal mala fides’ of the Governor is irrelevant. When
the article speaks of the satisfaction being formed on the
basis of the Govern’s report, the legal mala fides, if any,
of the Governor cannot be said to be irrelevant. The
Governor’s report may not be conclusive but its relevance is
undeniable. Action under Article 356 can be based only and
exclusively upon such report. Governor is a very high
constitutional functionary. He is supposed to act fairly
and honestly consistent with his oath. He is actually
reporting against his own Government. It is for this reason
that Article 356 places such implicit faith on his report.
If, however, in a given case his report is vitiated by legal
mala fides, it is bound to vitiate the President’s action as
well. Regarding the other points made in the judgment of
the High Court, we must say that the High Court went wrong
in law in approving and upholding the Governor’s report and
the action of the President under Article 356. The
Governor”s report is vitiated by more than one assumption
totally unsustainable in law. The Constitution does not
create an obligation that the political party forming the
ministry should necessarily have a majority in the
Legislature. Minority Governments are not unknown. What is
necessary is that that Government should enjoy the
confidence of the House. This aspect does not appear to
have been kept in mind by the Governor. Secondly and more
importantly, whether the Council of Ministers has lost the
confidence of the House is not a matter to be determined by
the Governor or for that matter anywhere else except the
floor of the House. The principle of democracy underlying
our Constitution necessarily means that any such question
should be decided on the floor of the House. The House is
the place where the democracy is in action. It is not for
the Governor to determine the said question on his own or on
his own verification. This is not a matter within his
subjective satisfaction. It is an objective fact capable of
being established on the floor of the House. It is
gratifying to note that Shri R. Venkataraman, the former
President of India has affirmed this view in his Rajaji
Memorial Lecture (Hindustan Times dated February 24, 1994).
392. Exceptional and rare situations may arise where because
of all pervading atmosphere of violence or other
extraordinary reasons, it may not be possible for the
members of the Assembly to express their opinion freely.
3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1
277
But no such situation had arisen here. No one suggested
that any such violent atmosphere was obtaining at the
relevant time.
393. In this connection, it would be appropriate to notice
the unanimous report of the committee of Governors appointed
by the President of India. The five Governors unanimously
recommended that “the test of confidence in the Ministry
should normally be left to a vote in the Assembly. … Where
the Governor is satisfied by whatever process or means, that
the Ministry no longer enjoys majority support, he should
ask the Chief Minister to face the Assembly and prove his
majority within the shortest possible time. If the Chief
Minister shirks this primary responsibility and fails to
comply, the Governor would be in duty bound to initiate
steps to form an alternative Ministry. A Chief Minister’s
refusal to test his strength on the floor of the Assembly
can well be interpreted as prima facie proof of his no
longer enjoying the confidence of the legislature. If then,
an alternative Ministry can be formed, which, in the
Governor’s view, is able to command a majority in the
Assembly, he must dismiss the Ministry in power and instal
the alternative Ministry in office. On the other hand, if
no such Ministry is possible, the Governor will be left with
no alternative but to make a report to the President under
Article 356. … As a general proposition, it may be stated
that, as far as possible, the verdict as to majority support
claimed by a Chief Minister and his Council of Ministers
should be left to the Legislature, and that it is only if a
responsible Government cannot be maintained without doing
violence to correct constitutional practice that the
Governor should resort to Article 356 of the
Constitution. … What is important to remember is that
recourse to Article 356 should be the last resort for a
Governor to seek… the guiding principle being, as already
stated, that the constitutional machinery in the State
should, as far as possible, be maintained”. (quoted from the
book President’s Rule in the States, edited by Shri Rajeev
Dhavan and published under the auspices of the Indian Law
Institute, New Delhi). It is a pity that the Governor of
Karnataka did not keep the above salutary guidelines and
principles in mind while making his report.
394. Dr G.S. Dhillon, Speaker, Lok Sabha (in his address to
the conference of the Presiding Officers of legislative
bodies in India) too affirmed in clear words that “whether
the Ministry continued to command majority support in the
Legislature, the doubt should as far as possible be left to
be resolved on the floor of the House and the Governor
should not take upon himself unenviable task of deciding the
question himself outside the Legislature”.
395. The High Court, in our opinion, erred in holding that
the floor test is not obligatory. If only one keeps in mind
the democratic principle underlying the Constitution and the
fact that it is the Legislative Assembly that represents the
will of the people and not the Governor the position would
be clear beyond any doubt. In this case, it may be
remembered that the Council of Ministers not only decided on
April 20, 1989 to convene the Assembly on 27th of that very
month, i.e., within 7 days, but also offered to prepone the
Assembly if the Governor so desired. It pains us to note
that the
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Governor did not choose to act upon the said offer. Indeed,
it was his duty to summon the Assembly and call upon the
Chief Minister to establish that he enjoyed the confidence
of the House. Not only did he not do it but when the
Council of Ministers offered to do the same, he demurred and
chose instead to submit the report to the President. In the
circumstances, it cannot be said that the Governor’s report
contained, or was based upon, relevant material. There
could be no question of the Governor making an assessment of
his own. The loss of confidence of the House was an
objective fact, which could have been demonstrated, one way
or the other, on the floor of the House. In our opinion,
wherever a doubt arises whether the Council of Ministers has
lost the confidence of the House, the only way of testing it
is on the floor of the House except in an extraordinary
situation where because of all-pervasive violence, the
Governor comes to the conclusion and records the same in
his report that for the reasons mentioned by him, a free
vote is not possible in the House.
396. We make it clear that what we have said above is
confined to a situation where the incumbent Chief Minister
is alleged to have lost the majority support or the
confidence of the House. It is not relevant to a situation
arising after a general election where the Governor has to
invite the leader of the party commanding majority in the
House or the single largest party/group to form the
Government. We need express no opinion regarding such a
situation.
397. We are equally of the opinion that the High Court was
in error in holding that enactment/addition of Xth Schedule
to the Constitution has not made any difference. The very
object of the Xth Schedule is to prevent and discourage
‘floor-crossing’ and defections, which at one time had
assumed alarming proportions. Whatever may be his personal
predilections, a legislator elected on the ticket of a party
is bound to support that party in case of a division or vote
of confidence in the House, unless he is prepared to forego
his membership of the House. The Xth Schedule was designed
precisely to counteract ‘horse-trading’. Except in the case
of a split, a legislator has to support his party willy-
nilly. This is the difference between the position
obtaining prior to and after the Xth Schedule. Prior to the
said amendment, a legislator could shift his loyalty from
one party to the other any number of times without
imperiling his membership of the House it was as if he had
a property in the office.
398. Though the Proclamation recites that the President’s
satisfaction was based also on “other information received”,
the counter-affidavit of the Union of India does not
indicate or state that any other information/material was
available to the President or the Union Council of Ministers
other than the report of the Governor much less disclose
it. In the circumstances, we must hold that there was no
other information before the President except the report of
the Governor and that the word “and other information
received by me” were put in the Proclamation mechanically.
The Governor’s report and the ‘facts’ stated therein appear
to be the only basis of dismissing the Government and
dissolving the Assembly under Article 356(1). The
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Proclamation must, therefore, be held to be not warranted
by Article 356. It is outside its purview. It cannot be
said, in the circumstances, that the President (or the Union
Council of Ministers) was ‘satisfied’ that the Government of
the State cannot be carried on in accordance with the
provisions of the Constitution. The action was mala fide
and unconstitutional. The Proclamation is accordingly
liable to be struck down and we would have struck it down
herewith but for the fact that the elections have since been
held to the Legislative Assembly of the State and a new
House has come into being. The issuance of a writ at this
juncture would be a futile one. But for the said fact, we
could certainly have considered restoring the dismissed
Government to office and reactivating the dissolved
Assembly. In any event, the judgment of Karnataka High
Court is set aside.
MEGHALAYA
(Transferred Case.Nos. 5 and 7 of 1992)
399. In March 1990, Hill Peoples’ Union, to which the
petitioner, Gonald Stone Massar, belonged and several other
State political parties and certain independent MLAs joined
together to form a ‘Front’, known as Meghalaya United
Parliamentary Party (MUPP). This Front had a majority in
the Assembly and formed the Government headed by Shri B.B.
Lyngdoh. On July 25, 1991, the then Speaker of the House,
Shri P.R. Kyndiah Arthree was elected as the leader of the
opposition group known as United Meghalaya Parliamentary
Forum (UMPF), which was led by the Congress Party to which
Shri Kyndiah belonged. He claimed the support of the
majority of members in the House and requested the Governor
to invite him to form the Government. Thereupon the
Governor requested Shri Lyngdoh to prove his majority on the
floor of the House. On August 7, 1991, a special session of
the Assembly was convened to pass a motion of confidence in
the Ministry. On the motion being moved, thirty members
supported it and twenty-seven voted against it. Before
announcing the result, however, the Speaker announced that
he had received a complaint against five independent MLAs in
the ruling coalition alleging disqualification under the
Anti-defection Law and that he was forthwith suspending
their right to vote. This resulted in an uproar in the
Assembly. The session had to be adjourned. On August 11,
1991, the Speaker sent identical show-cause notices to the
said five independent MLAs on the basis of the complaint
filed by one Shri H.S. Shylla. On August 16, the five MLAs
sent their replies denying that they have joined any of the
parties as alleged. They affirmed that they continue to
remain independents. On August 17, 1991 the Speaker passed
an order disqualifying all the 5 MLAs on the basis that four
of them were Ministers in the Lyngdoh Ministry and one of
them (Shri Chamberlain Marak) was the Deputy Government
Chief Whip. The disqualification, it may be noted, was not
on the ground alleged in the show-cause notice.
400. Meanwhile, on the Governor’s advice, the Chief Minister
summoned the session of the Assembly for September 9, 1991
for passing a vote of confidence. The Speaker refused to
send the notices of the session to
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the five MLAs disqualified by him. He also made
arrangements to. ensure that the said five members are not
allowed to enter the Assembly. On September 6, 1991, four
of the said five MLAs approached this Court and obtained an
interim order staying the operation of the orders of the
Speaker dated August 7, 1991 and August 17, 1991. (one
member, Shri Ch. Marak, did not obtain any such orders).
On coming to know of the order of this Court, the Speaker
issued a press statement saying that he does not accept any
interference by any court with his order dated August 7,
1991 disqualifying five members. He issued strict
instructions to the security guards not to allow the said
five members to enter the Assembly premises. In this
explosive situation, the Governor adjourned the Assembly
indefinitely by an order dated September 8, 1991. After a
brief interval and on the advice of the Governor, the
Assembly was again summoned to meet on October 8, 1991.
Meanwhile, a contempt petition was filed by the said four
MLAs in this Court against the Speaker. They complained
that his action in preventing them from entering into the
Assembly premises and from acting as members of the Assembly
was in violation of the orders of this Court dated September
6, 1991. On October 3, 1991, this Court passed another
order affirming that all authorities of the State including
the Governor must ensure that the orders of this Court dated
September 6, 1991 are implemented. Accordingly, the said
four independent MLAs were issued invitation to attend the
session on October 8, 1991. The agenda relating to the
business of the House showed two items for consideration on
that day (1) a motion of confidence in the Government and
(2) a motion of no confidence in the Speaker.
401.On October 8, 1991, 56 MLAs apart from the Speaker
attended the session. The four MLAs who were disqualified by
the Speaker but who had obtained orders from this Court also
attended but not Shri Ch. Marak who did not obtain any
orders from any court. After the motion of confidence in
the Government was put to vote, the Speaker declared that 26
voted for the motion and 26 against. In counting the votes
casts in favour of the motion, he excluded the votes of the
said four independent MLAs again. Holding that there was a
tie, he cast his vote against the motion and declared the
motion lost. He then adjourned the House sine die,
evidently with a view to ward off the passing of motion
against himself. The thirty, MLAs (including the said four
independent MLAS) however, continued to stay in the House.
They elected a Speaker from among themselves and continued
the business of the Assembly. The new Speaker found on a
scrutiny of the records relating to voting on the motion of
confidence that actually 30 members have signed in favour of
the motion and 26 against. Accordingly, he declared that
the motion of confidence in the Government was carried.
They also passed the motion of no confidence in the Speaker,
Shri Kyndiah. The 26 members who had voted against the
motion had, of course, left the House by that time. The
said 30 MLAs thereafter sent a letter to the Governor
affirming that they had voted in favour of the Government
and also in favour of the motion of no confidence in the
Speaker. In’ spite of all this, the Chief Minister received
a letter dated October 9, 1991 from the Governor advising
him to resign in
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view of the proceedings of the Assembly dated October 8,
1991. The Governor observed in his letter that the dispute
about the Speaker not taking cognizance of the orders of the
Supreme Court was a matter between the Speaker and the
Supreme Court and in that view of the matter, the Chief
Minister should resign. Immediately, thereupon, the Chief
Minister apprised his advocate in the Supreme Court of the
said letter of the Governor. The counsel brought the matter
to the notice of this Court and at 4.00 p.m. on the same day
(October 9, 1991), this Court passed the following order :
“Since the matter is extremely urgent, we deem it fit to
pass this further order asking the Governor while taking any
decision on the question whether the Government has lost the
motion of confidence and lost its majority in the House, to
take into account, the two earlier orders dated September 6,
1991 and October 3, 1991 of this Court and also to take into
account how the aforesaid four appellants had cast their
vote.” No heed was paid to this order and on October 11, 199
1, the President of India issued a Proclamation under
Article 356 of the Constitution declaring that he was
satisfied on the basis of a report from the Governor of
Meghalaya and other information received by him that a
situation has arisen in which the Government of the State
cannot be carried on in accordance with the provisions of
the Constitution. He accordingly dismissed the Government
and dissolved the Assembly. Before proceeding further, it
may be mentioned that by an order dated October 12, 1991, a
Constitution Bench of this Court set aside the order of the
Speaker dated August 17, 1989.
402. Both Houses of Parliament duly met and approved the
Proclamation.
403. It is a matter of deep regret that the Governor of
Meghalaya did not think it his constitutional duty to give
effect to the orders of this Court, not even after a
specific direction to that effect. He could not have been
unaware of the obligation created by Article 144, viz., the
duty of all authorities, civil and judicial, in the
territory of India to act in aid of the Supreme Court and
its orders. By order dated October 9, 1991, he was
specifically requested to take into account the orders of
this Court while deciding whether the Government has lost
the confidence of the House and yet he ignored the same and
reported to the President that the Ministry has lost the
confidence of the House. We are intrigued by the strange
logic of the Governor that obedience to the orders of this
Court relating to the disqualification of members of the
House is a matter between the Speaker and the Supreme Court.
Evidently, he invoked this strange logic to enable him to
say as he wanted to say or as he was asked to say, as the
case may be that the Speaker’s decision that the Ministry
has lost the confidence of the House, is valid and effective
at any rate, so far as he is concerned. The Governor ought
to have noted that this Court had stayed the operation of
the orders of the Speaker disqualifying the four independent
members, which meant that the said four MLAs were entitled
to participate in the proceedings of the Assembly and to
vote. They did vote in favour of the motion expressing
confidence in the Government. The Speaker was, however,
bent upon
282
unseating the Government by means fair or foul and with that
view was openly flouting the orders of this Court. He
managed to declare that the Government has lost the
confidence of the House by excluding the votes of the said
four members in clear violation of the orders of this Court.
It is surprising that the Governor chose to turn Nelson’s
eye upon the misdeeds of the Speaker and also chose to
refuse to take note of the proceedings of the majority of
members taken under the Speakership of another member
elected by them. It is equally curious that the Governor
chose to report that a situation has arisen where the
Government of the State cannot be carried on in accordance
with the provisions of the Constitution. The violation of
the provisions of the Constitution was by Shri Kyndiah and
not by the Ministry in office and yet Article 356 was
resorted to by the President to dismiss the Government on
the basis of such a report. That even such an ex facie
unconstitutional Proclamation was approved by both Houses of
Parliament shows up the inadequacy of the safeguard
envisaged in clause (3) by which provision much store was
laid by the counsel appearing for the Union of India as well
as those supporting the impugned Proclamations.
404. In this case too, the Proclamation recites that the
requisite satisfaction was arrived at on the basis of the
report of the Governor and the other information received by
the President but no such information or material has been
brought to our notice. We must conclude that there was none
and that the recital to that effect is a mere mechanical
one.
405. We must say in fairness to Shri Parasaran, learned
counsel appearing for the Union of India that he did not
seek to defend the Proclamation in this case.
406. Accordingly, we hold the Proclamation as
unconstitutional. But for the fact that since the date of
Proclamation, fresh elections have been held to the Assembly
and a new House has come into existence, we would have
certainly issued the writ and directed the restoration of
the Lyngdoh Ministry to officeand restored the Assembly as
well.
NAGALAND
407. Elections to the Nagaland Assembly were held in
November 1987. The strength of the Assembly was 60. The
position emerging from the election was : Congress (1) 35,
Naga National Democratic Party 13 and Independents 7. The
Congress (1) Party formed the Government with Shri Hokishe
Sema as the Chief Minister. In August 1988, a split
occurred in the ruling party whose strength was 34 at that
time, one member having died. The particulars of the split
in the party are the following : On July 28, 1988, 13 of the
34 MLAs informed the Speaker of the Assembly that they have
dissociated from the ruling party and have formed a separate
party called “Congress Ruling Party”. They requested the
Speaker for allotment of separate seats for them in the
Assembly, the session of which was to commence on August 28,
1988. On July 30, 1988 the Speaker held that a split had
occurred within the meaning of the Xth Schedule of the
Constitution in the ruling party. Shri Vamuzo was one among
the said 13
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MLAs. He informed the Governor on July 31, 1988 that he has
secured the support of 35 of the 59 members of the Assembly
and was in a position to form the Ministry in the State. At
this stage, the Chief Secretary to the Government of
Nagaland wrote to Shri Vamuzo on August 3, 1988 that
according to the information received by him, the group of
13 MLAs aforesaid were wrongfully confined by him. Shri
Vamuzo denied the same and invited the Chief Secretary to
come and verify the truth of the allegation from the said
members themselves. The members stated before the Chief
Secretary that they were free agents and were not confined
by anyone. On August 6, 1988 the Governor of Nagaland sent
a report to the President of India about the formation of
Congress Ruling Party. He reported that in the past 25
years, 11 Governments have been formed and that 13 MLAs who
had dissociated themselves from the Congress (1) Party were
allured with money. He characterized the said weaning away
of the 13 members as “incredible lack of political morality
and complete disregard to the wishes to the electorate on
the part of the breakaway Congressmen”. He also stated that
the said 13 persons were kept in forcible confinement by
Shri Vamuzo and another person and that the story of split
in the party is not true. He characterized the recognition
accorded to the said group of 13 members by the Speaker as
hasty. He also spoke of political ‘horse-trading’ and
machinations. He referred to the insurgency in Nagaland and
that indeed some of the members of the Assembly were having
contacts with the insurgent groups. He reported that the
stability of the State may suffer due to the said episode
and further that if the present affairs are allowed to
continue, a serious development may ensue.
408. The Chief Minster, Shri Hokishe Sema, probably finding
that he has lost the majority support in the House,
submitted his resignation to the Governor and recommended
the imposition of the President’s rule. On August 7, 1988,
the President issued the Proclamation under Article 356
assuming the functions of the Government of the State of
Nagaland. The Government was dismissed and the Assembly
dissolved. The action was challenged by Shri Vamuzo by way
of a writ petition in the Guwahati High Court being C.R. No.
1414 of 1988. The writ petition was heard by a Division
Bench comprising the Chief Justice and Hansaria, J. Both the
learned Judges agreed that the validity of the Proclamation
can be examined by the court and that the Proclamation under
Article 356 is not immune from judicial scrutiny. But on
the question of the effect and operation of Article 74(2),
they differed. The learned Chief Justice held “the Union
cannot be compelled to tender any information to this Court
covered by Article 74 of the Constitution relevant to the
dissolution of the Nagaland Assembly. I am also of the view
that the Union of India can legally claim all documents
relevant to the dissolution of the Nagaland Assembly as
privileged documents and a ‘class’ documents under Section
123 of the Evidence Act. Therefore, the objection that the
courts do not have powers to call for the information from
the President of India in view of Article 74(2) of the
Constitution is sustained. Since the Nagaland Legislative
Assembly is
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dissolved by the two Houses of Parliament, no relief can be
granted in the circumstances of this case”. Accordingly, he
proposed to dismiss the writ petition. Hansaria, J.,
however, took a contrary view. The learned Judge held that
the material which formed part of ‘other information’ but
has not been produced before the court, does not form part
of the advice tendered by the Council of Ministers to the
President. The court is, therefore, entitled to see the
said material and for that purpose the Union of India must
be given ten days’ time for producing the same. If,
however, they decline to do so, the court would have no
alternative but to act upon the present material and the
Union of India will have to take the consequences of such a
course. The learned Judge did not propose to dispose of the
writ petition but to wait for ten days and then pronounce
the final orders. In view of the said difference of
opinion, the matter was referred to a third Judge, but
before the third Judge could hear the matter, the Union of
India moved this Court for grant of special leave. Special
leave was granted and the proceedings in the High Court
stayed.
409. We have discussed the effect and scope of Article 74(2)
elsewhere. In the light of the same, the view taken by
Hansaria, J. (as he then was) must be held to be the correct
one and not the view taken by the learned Chief Justice.
This special leave petition is accordingly disposed of with
the above direction. Inasmuch as fresh elections have since
been held, the High Court may consider the advisability of
proceeding with the matter at this point of time.
MADHYA PRADESH, RAJASTHAN AND HIMACHAL PRADESH
410. In the elections held in February 1990, the BJP emerged
as the majority party in the Assemblies of Uttar Pradesh,
Madhya Pradesh, Rajasthan and Himachal Pradesh and formed
the Government therein.
411. On December 6, 1992, the Ram Janmabhoomi-Babri Masjid
structure (disputed structure) was demolished by the kar
sevaks who had gathered there in response to appeals by the
BJP, VHP, Bajrang Dal, Shiv Sena and some other
organisations.
412. Following the demolition at Ayodhya on December 6,
1992, the Government of Uttar Pradesh resigned. It was
dismissed by the President and the Legislative Assembly
dissolved by a Proclamation under Article 356 issued on the
same day. The Proclamation does not refer either to the
report of the Governor nor does it say that the President
had received any information otherwise. Be that as it may,
the validity of the said Proclamation not being in issue
before us, we need not express any opinion in that behalf.
413. The demolition of the disputed mosque had serious
repercussions all over the country as also in some
neighbouring countries. A number of temples were reportedly
demolished there. Serious disturbance to law and order
occurred in various parts of the country resulting in
considerable loss of lives and property. By an order dated
December 10, 1992 issued under Section 3(1) of the Unlawful
Activities (Prevention) Act, 1967 (37 of 1967),
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the Government of India banned several alleged communal
organisations including RSS, VHP and Bajrang Dal.
MADHYA PRADESH
414. On December 8, 1992, the Governor of Madhya Pradesh
sent a report to the President setting out the “fast
deteriorating law and order situation in the State in the
wake of widespread acts of violence, arson and looting”. He
observed in his report that “the lack of faith in the
ability of the State Government to stem the tide primarily
because of the political leadership’s overt and covert
support to the associate communal organisations seem to
point out that there is breakdown of the administrative
machinery of the State”. He .Followed it up with another
report on December 10, 1992 wherein he mentioned about the
violence spreading to hitherto peaceful areas. On December
13, 1992, he sent his third report enclosing the photocopy
of a letter received from the Executive Director, Bharat
Heavy Electricals Limited (BHEL), Bhopal dated December 11,
1992. The said letter, said the Governor, indicated the
“abject faiure of the law and order machinery to provide
safety and security to life and property in the areas in and
around BHEL factory”. The letter also spoke of “the
pressure brought on the administration to accommodate the
so-called kar sevaks in BHEL area”. The Governor termed
them as extremely serious developments that deserve a high-
level probe. The third report further stated that “with the
reported statement of the Chief Minister Shri Sunder Lal
Patwa that the decision of banning the RSS and VHP was
unfortunate, the State Government’s credibility to sincerely
implement the Center’s direction in the matter is under a
cloud … there is a question mark as to how BJP leaders
like Shri Patwa who swore by the values and traditions of
the RSS will be able to implement the ban both in letter and
spirit. The VHP’s decision to observe December 13 as ‘Black
Day’ all over the country to protest against the above-
mentioned ban and its decision to observe protest week
against these ‘heinous laws’ from December 14 to 20 are
moves fraught with danger, particularly in the present
context”. The Governor recommended that “considering this
and looked in the background of the RSS, etc., contemplating
on a fresh strategy to chalk out its future plan and the
possibility of the leaders of the banned organisations going
underground taking advantage of the soft reaction of the
Administration have reasons to be convinced that there
should not be any further delay in imposition of President’s
rule according to Article 356 of the Constitution of India”.
HIMACHAL PRADESH
415. The Governor of Himachal Pradesh sent a report on
December 15, 1992 wherein he stated inter alia : “There is
no dispute on the point that the Chief Minister and his
cabinet had instigated the kar sevaks from Himachal Pradesh
to participate in the kar seva on December 6, 1992. Some of
the Ministers expressed their desire even openly, provided
the party high command permitted to do so. Consequently, a
large number of kar sevaks including some BJP MLAs
participated in the kar seva from Himachal
286
Pradesh. A member of the Vidhan Sabha publicly admitted
that he had participated in the demolition of the Babri
Masjid (Indian Express dated December 15, 1992, Chandigarh
Edition). Though Shri Shanta Kumar met me on December 13,
1992 and had informed me that he desired to implement the
ban orders imposed by the Government of India on RSS, VHP
and three other organisations and that he has already issued
directions in this regard but since the Chief Minister
himself is a member of RSS, therefore, he is not in a
position to implement these directions honestly and
effectively. Most of the people of the State also feel
alike. … As a matter of fact, when the Chief Minister
himself and some of the colleagues are members of the banned
RSS, then it is not possible for the administrative
machinery to implement the ban honestly, especially when
some of the Ministers are openly criticising the ban on
these communal organisations.” He, therefore, recommended
imposition of the President’s rule.
RAJASTHAN
416. The report of the Governor of Rajasthan, recommending
imposition of the President’s rule, stated the following
facts : The Government of Rajasthan has played ‘an obvious
role’ in the Ayodhya episode. The BJP has control over RSS,
VHP and Bajrang Dal which are now banned by the Centre. The
said ban is not being implemented at all. Indeed, one of
the Ministers had resigned and along with 22 MLAs and 15,500
BJP workers had participated in the kar seva at Ayodhya on
December 12, 1992. They were given a royal send off and
when they returned, they were given a similar royal welcome
by the influential people in the political set-up running
the Government. The law and order has been very bad for
more than a week, the dominant character being the anti-
minority on whom largely atrocities have been committed.
The administration could not function effectively under the
present political set-up. He expressed the apprehension
that it would be extremely difficult to expect the
administration to function objectively, effectively and in
accordance with the rule of law and that a situation has
arisen in which the Government of the State cannot be
carried on in accordance with the provisions of the
Constitution.
417. On December 15, 1992, the President issued three
Proclamations dismissing all the three Governments in Madhya
Pradesh, Rajasthan and Himachal Pradesh and dissolving their
Legislative Assemblies. The action was purported to be
taken on the basis of the reports of the Governors concerned
as well as on the basis of other information received. The
validity of the Proclamations was challenged immediately by
filing writ petitions in the appropriate High Courts. The
Madhya Pradesh High Court allowed the same which is
challenged by the Union of India in Civil Appeal Nos. 1692,
1692-A to 1692-C of 1993. The writ petitions relating to
Rajasthan and Himachal Pradesh were withdrawn to this Court
and are numbered as Transferred Case No. 9 of 1993 and
Transferred Case No. 8 of 1993 respectively.
287
418. The petitioners challenged the Proclamation as mala
fide, vitiated by extraneous considerations and an instance
of political vendetta. It is submitted that incidents of
disturbance to law and order cannot attract action under
Article 356. In any event, in Himachal Pradesh, there was
not a single instance. All the three Governments were
faithfully implementing all the Central and State laws. The
impugned Proclamations, it is submitted, are the result of
internal differences among the leaders of the Congress Party
and are not supportable in law.
419. It is submitted by the learned counsel for the
petitioners that the imposition of the President’s rule in
the States of Madhya Pradesh, Rajasthan and Himachal Pradesh
was mala fide, based on no satisfaction and was purely a
political act. Mere fact that communal disturbances and/or
instances of arson and looting took place is no ground for
imposing the President’s rule. Indeed, such incidents took
place in several Congress (1)ruled States as well in
particular, in the State of Maharashtra on a much larger
scale and yet no action was taken to displace those
Governments whereas action was taken only against BJP
Governments. It is pointed out that so far as Himachal
Pradesh is concerned, there were no communal disturbances at
all. There was no law and order problem worth the name.
Even the Governor’s report did not speak of any such
incidents. The Governments of Madhya Pradesh, Rajasthan and
Himachal Pradesh, it is argued, cannot be held responsible
for what happened at Ayodhya on December 6, 1992. For that
incident, the Government of Uttar Pradesh had resigned
owning responsibility therefor and it was dismissed. That
is not under challenge. But the Governments of these three
States were in no way connected with the said incident and
could not have been dismissed on account of the said
incident. It is also pointed out that according to the
report of the Governor of Himachal Pradesh, the Chief
Minister met him and indicated clearly that he was desirous
of and was implementing the ban and that some arrests were
also made. In such a situation, there was no reason for the
Governor to believe, or to report, that the Chief Minister
is not sincere or keen to implement the ban on the said
organisations. As a matter of fact, the Tribunal under
Unlawful Activities (Prevention) Act, 1967, has declared the
ban on RSS as illegal and accordingly the ban has since been
revoked. The non-implementation of an illegal ban cannot be
made the basis of action under Article 356. Assuming that
there was such an inaction or refusal, it cannot be made a
ground for dismissing the State Government and for
dissolving the Assembly. The Union Government has also not
disclosed what other material/information they had received
on the basis of which the President had acted, though a
recital to that effect has been made in the Proclamations.
The action taken by the President cannot be justified by
producing the material gathered later. The respondents must
disclose the information that was before the President when
he issued the impugned Proclamations. The White Paper now
placed before the Court was not in existence on December 15,
1992. The manifestos issued by the BJP from time to time
cannot constitute the information referred to in the
288
Proclamations not, in any event, legally relevant material.
The counter filed by the Union of India in Madhya Pradesh
High Court in M.P. No. 237 of 1993 (Sunderlal Patwa v. Union
of India62) does not refer to or disclose the other
information received by the President. Even in the counters
filed in writ petitions questioning the Proclamations
relating to Himachal Pradesh and Rajasthan, no such material
is disclosed. It was the duty of the Union Government to
have disclosed to the Court the material/information upon
which the requisite satisfaction was formed, more so because
the Proclamations themselves do not refer to any such
material. Since they have failed to do so, an adverse
inference should be drawn against them. Article 74(2), it
is argued, does not and cannot relieve the Union of India of
this obligation. The power and remedy of judicial review,
it is argued, cannot be rendered ineffective with reference
to Article 74(2).
420. A counter-affidavit was filed by the Union of India in
the writ petition filed in the Madhya Pradesh High Court
questioning the Proclamation with respect to that State.
Apart from the legal contentions, the following facts are
stated therein :
421. The reports of the Governor disclosed that the State
Government had miserably failed to protect the citizens and
property of the State against internal disturbance. On the
basis of the said reports, the President formed the
requisite satisfaction.
422. The circumstances in the State of M.P. were different
from several other States where too serious disturbance to
law and order took place. There is no comparison between
both situations. “Besides Bhopal, overall situation in the
State of M.P. was such that there were sufficient and cogent
reasons to be satisfied that the Government in the State
could not be carried on in accordance with the provisions of
the Constitution. It is denied that there was no law and
order situation in the State”. The Governor’s reports are
based upon relevant material and are made bona fide and
after due verification.
423. The allegations made against Shri Arjun Singh, Minister
for Human Resource Development are baseless. The decision
was a collective decision of the Council of Ministers. No
comparison with regard to the State of affairs in the State
of Madhya Pradesh can be made with those of other States.
The Governor of Madhya Pradesh having reported that the
constitutional machinery in the State had broken down, the
Proclamation of President’s rule is justified and
constitutional.
424. In the counter-affidavit filed in the writ petition
(Transferred Case No. 8 of 1993) relating to Himachal-
Pradesh, the very same objections as are put forward in the
counter-affidavit filed in the Madhya Pradesh case have been
reiterated. In the para-wise replies, it is stated that the
events of December 6, 1992 were not the handiwork of few
persons but that “the public attitude and statements of
various groups and political parties including BJP led to
the destruction of the structure in question and caused
great damage to the very secular fabric of the country and
created communal
62 M.P. No. 237 of 1993
289
discord and disharmony all over the country including
Himachal Pradesh”. It is stated that the repercussions of
the event cannot be judged by comparing the number of
persons killed in different States. It is asserted that the
Council of Ministers and the President “had a wealth of
material available to them in the present case which are
relevant to the satisfaction formed under Article 356. They
were also aware of the serious damage to communal amity and
harmony which has been caused in the State of Madhya Pradesh
among others. They were extremely concerned with
repercussions which events at Ayodhya might still have in
the States and the ways and means to bring back normalcy not
only in the law and order situation but also communal amity
and harmony which had so badly damaged as a result of the
activities, attitude and stand of inter alia the party in
power in the State”. It is also stated that, according to
the definite information available to the Government of
India, members of the RSS were not only present on the spot
at Ayodhya but actually participated in the demolition and
that they were responsible for promotion of communal
disharmony. It is for this reason that it was banned. It
is also asserted that the action was taken by the President
not only on the basis of the report of the Governor but also
on the basis of other information received by him.
425. In the counter-affidavit filed in the writ petition
relating to Rajasthan (Transferred Case No. 9 of 1993) it is
stated that after the demolition of December 6, 1992,
violence started in various parts of the country leading to
loss of life and property. It is asserted that it is not
possible to assess the law and order situation in different
States only on the basis of casualty figures. The situation
in each State has to be assessed differently. The averment
of the petitioner that the State Government implemented the
ban on RSS properly is denied. There is no requirement that
the report of the Governor should be addressed to the
President. It can also be addressed to the Prime Minister.
Besides the report of the Governor, other information was
also available on which the President had formed his
satisfaction. The correctness, adequacy or sufficiency of
the material contained in the Governor’s report is not
justiciable and cannot be gone into by the court. The
allegations of mala fide, capricious and arbitrary exercise
of power are denied. No irrelevant material was taken into
consideration by the President and hence, it is averred, the
satisfaction of the President is not judicially reviewable.
426. The learned counsel for Union of India and other
counsel supporting the impugned Proclamations put their case
thus : the main plank and the primary programme of BJP was
the construction of a Ram temple at the very site where the
Babri Masjid stood. The party openly proclaimed that they
will remove relocate, as they called it the Babri Masjid
structure since according to them the Babri Masjid was
superimposed on an existing Ram temple by Emperor Babur.
The party came to power in all the four States on the said
plank and since then had been working towards the said goal.
It is the one single goal of all the leaders of BJP, their
Ministers, Legislators and all cadres. For this purpose,
they have been repeatedly
290
gathering kar sevaks from all corners at Ayodhya from time
to time. In the days immediately preceding December 6,
1992, their leaders have been inciting and exhorting their
followers to demolish the Babri Masjid and to build a temple
there. The Ministers in Madhya Pradesh, Himachal Pradesh
and Rajasthan took active part in organising and despatching
kar sevaks to Ayodhya. When the kar sevaks returned from
Ayodhya after demolishing the Masjid, they were welcomed as
heroes by those very persons. Many of the Ministers and
Chief Ministers were members of RSS and were protesting
against the ban on it. They could not, therefore, be
trusted to enforce the ban, notwithstanding the
protestations to the contrary by some of them.
427. The manifesto issued by the BJP on the eve of May/June
1991 midterm poll states that the BJP “seeks the restoration
of Ram Janmabhoomi in Ayodhya only by way of a symbolic
righting of historic wrongs, so that the old unhappy chapter
of acrimony could be ended, and a Grand National
Reconciliation effected”. At another place under the head
“Sri Ram Mandir at Janmasthan”, the following statement
occurs : “BJP firmly believes that construction of Ram
Mandir at Janmasthan is a symbol of the vindication of our
cultural heritage and national self-respect. For BJP it is
purely a national issue and it will not allow any vested
interests to give it a sectarian and communal colour.
Hence, the party is committed to build Sri Ram Mandir at
Janmasthan by relocating superimposed Babri structure with
due respect.” Standing by themselves, it is true, the above
statements may not mean that the programme envisaged
unlawful or forcible demolition of the disputed structure.
The said statements are also capable of being understood as
meaning that the party proposed to vindicate their stand in
courts that the disputed structure was in fact the Ram
Janmasthan which was forcibly converted into a mosque by
Emperor Babur and that only thereafter they will relocate
the said structure and build Ram temple at that site. But,
says the counsel, if we read the above statements in the
light of the speeches and acts of the leaders of the BJP,
referred to in the White Paper issued by the Government of
India, there would hardly be any room for such beneficial
interpretation. The “White Paper on Ayodhya” issued by the
Government of India in February 1993, establishes the
complicity of the Bhartiya Janata Party as such in the
demolition of the disputed structure and its aftermath.
428. According to the statement of the Union Home Minister
made in Rajya Sabha on December 21, 1992, the counsel
pointed out, “all these kar sevaks, when they returned, were
received by the Chief Ministers and Ministers”.
429. The counsel for the respondents argued further that
what happened on December 6, 1992 did not happen in a day.
It was the culmination of a sustained campaign carried on by
the BJP and other allied organisations over the last few
years. They had been actively campaigning for the
construction of Ram Temple at the disputed site. They had
been speaking of relocating the disputed structure which
only meant that they wanted the disputed structure removed
and a Ram temple constructed in that very place. The
several speeches of the leaders of BJP and other allied
parties, referred to in
291
the White Paper, do clearly establish the said fact.
Indeed, in the manifesto issued by the BJP in connection
with the 1993 General Elections, there is not a word of
regret as to what happened on December 6, 1992. On the
contrary, the following statement occurs under the heading
“Ayodhya”
“Ayodhya
In their actions and utterances, the forces of
pseudo-secularism convey the unmistakable
impression of a deep repugnance for all things
Hindu. Indeed, in their minds ‘Hindu’ has
come to be associated with ‘communal’. The
controversy over the Ram Janmabhoomi temple in
Ayodhya is a powerful illustration of this
phenomenon. For them ‘Sahmat’ is secular and
‘Saffron’ communal. Although the facts of the
dispute are well-known, certain features merit
repetition. First, it was always apparent
that a vast majority of Hindus were totally
committed to the construction of a grand
temple for Lord Rama at the site where puja
has been performed uninterruptedly since 1948
and where besides, no namaz has been offered
since 1936. The structure built by the Moghul
Emperor Babur was viewed by the Hindus as a
symbol of national humiliation.
Second, the election of 1991 in Uttar Pradesh
centred on the Ayodhya dispute. It was a
virtual referendum on Ram Janmabhoomi and the
BJP with its promise to facilitate the
construction of the Ram Temple won the
election. However, this mandate did not
prevent the Congress and other pseudo-secular
parties from wilfully obstructing the
initiatives of the Uttar Pradesh Government.
Everything, from administrative subterfuge to
judicial delay, was used by the opponents of
the temple to prevent the BJP Government from
fulfilling its promise to the electorate.
On December 6, 1992 kar sevaks from all over
India assembled in Ayodhya to begin the
reconstruction of the Rama Temple at the site
adjoining the garbha griha. Matters took an
unexpected turn when, angered by the
obstructive tactics of the Narasimha Rao
Government, inordinate judicial delays and
pseudo-secularist taunts, the kar sevaks took
matters into their own hands, demolished the
disputed structure and constructed a makeshift
temple for Lord Rama at the garbha griha.
Owning responsibility for its inability to
prevent the demolition, the BJP Government
headed by Shri Kalyan Singh submitted its
resignation. A disoriented Central Government
was not content with the imposition of
President’s rule in Uttar Pradesh. In
violation of democratic norms, the Centre
dismissed the BJP Governments in Rajasthan,
Madhya Pradesh and Himachal Pradesh. Further,
it banned the Rashtriya Swayamsevak Sangh,
Vishwa Hindu Parishad and Bajrang Dal.
Worst of all, in collusion with other rootless
forces the Government unleashed a vicious
propaganda offensive aimed at belittling the
Hindus. The kar sevaks were denigrated as
fascists, lumpens and vandals, and December 6,
was described as a ‘national shame’.
Recently, the CBI has
292
filed charge-sheets against leaders of the BJP
and the Vishwa Hindu Parishad with the purpose
of projecting them as criminals.
This relentless onslaught of the pseudo-
secular forces against the people of India had
very serious consequences. For a start, it
created a wide emotional gulf between the
rulers and the people. Ayodhya was a popular
indictment of the spurious politics of double-
standards. Far from recognising it as such,
the Congress and other anti-BJP parties used
it as a pretext for furthering the cause of
unprincipled minorityism.
It is this minorityism that prevents the
Congress, Janata Dal, Samajvadi Party and the
Communist Parties from coming out with an
unambiguous declaration of intent on Ayodhya.
Thus BJP is the only party which is
categorical in its assurance to facilitate the
construction of the Rama Temple at the site of
the erstwhile Babri structure. That is what
the people desire.”
430. The counsel further pointed out the significance of the
total inaction on the part of the top leaders of the BJP
present near the disputed structure at Ayodhya on December
6, 1992. They took no steps whatsoever to stop the
demolition. The kar sevaks had gathered there at their
instance. They had appealed to the kar sevaks to gather
there from all comers of the country. Some of these leaders
had been speaking of demolition of the disputed structure to
enable the construction of Ram Temple at that very place.
Even assuming that the assault on the disputed structure was
a sudden move on the part of some kar sevaks, it is not as
if the demolition took place in a couple of minutes. It
must have certainly taken a few hours. If the BJP leaders
present there really wanted to prevent it, they should have
appealed to the people and ought to have taken other
effective steps to prevent the kar sevaks from demolishing
the structure. There is no allegation anywhere in the writ
petition or other material placed before the court that they
ever did so. If one reads the aforesaid statements in the
manifestos of 1991 and 1993 in the light of the above facts,
it would be clear, says the counsel, that the demolition of
the disputed structure was the outcome of the speeches,
programme and the several campaigns including Rath Yatras
undertaken by the leaders of the BJP. It is neither
possible nor realistic to dissociate the Governments of
Madhya Pradesh, Rajasthan and Himachal Pradesh from the acts
and deeds of their party. It is one party with one
programme. Kar sevaks were sent by and welcomed back by the
Ministers and legislators (belonging to BJP) of these three
States as well. Thereby they expressed and demonstrated
their approval of the deed done by the kar sevaks. It is
stated in the report of the Himachal Pradesh Governor that
the Chief Minister himself was a member of the RSS. In the
report of the Governor of Madhya Pradesh also, it is stated
that the Chief Minister and other Ministers swore by the
values and traditions of the RSS. The reports also indicate
that these Governments actively participated in organising
and despatching the kar sevaks to Ayodhya and welcomed them
and praised when they came back after doing the deed. Thus,
a common thread runs through all the four BJP Governments
and binds them together, say the counsel. All these four
Governments had
293
launched upon a course of action in tandem with top BJP
leaders, which led to the demolition. Their actions and
deeds were contrary to the provisions of the Constitution.
The manifestos of the party on the basis of which these
Governments came to power coupled with their speeches and
actions clearly demonstrate a commonness, an inseparable
unity of action between the party and these four
Governments. The very manifestos and their programme of
action were such as to hurt the religious feelings of the
Muslim community. They negated the secular concept, a basic
feature of our Constitution. The demolition of the disputed
structure was no ordinary event. The disputed structure had
become the focal point, the bone of contention between two
religious communities. The process which resulted in the
demolition and the manner of in which it was perpetrated,
dealt a serious blow to the communal harmony and peace in
the country. It had adverse international repercussions as
well. A number of Hindu temples were demolished in Pakistan
and Bangladesh in reprisal of the demolition at Ayodhya. It
was difficult in this situation to ask the minorities in the
four States to have any faith in the neutrality of these
four administrations. It was absolutely necessary, say the
counsel, to recreate the feeling of security among the
Muslims. They required to be assured of the safety and
security of their person and property. It was not possible
with the BJP Governments in power. They had to go.
431.The learned counsel for the respondents submitted
further that the RSS was banned on December 10, 1992. The
Chief Ministers of Himachal Pradesh and Madhya Pradesh were
said to be the members of the RSS and adhering to its
tenets. In such circumstances, the respective Governors
were of the opinion that the said Chief Ministers cannot be
expected to, or relied upon to, implement the ban sincerely.
It cannot be said to be an unreasonable or unfounded
opinion. It was also necessary to create a sense of
confidence in the people in general and in the minorities,
in particular, that the Governments would be acting promptly
and sternly to prevent communal incidents. Following
December 6 incident, there were reports of destruction of a
large number of temples in the adjoining countries. These
reports, it was apprehended, may add fuel to the fire. The
situation was deteriorating. What happened on December 6
was no ordinary event. It had touched the psyche of the
minority community. The entire nation was put in turmoil.
Allowing a party which had consciously and actively brought
about such a situation to continue in office in these three
States would not have helped in restoring the faith of
people in general and of the minorities in particular in the
resolve of the Central Government to abide by and implement
the constitutional values of equality, peace and public
order. It is no answer to say that disturbance took place
on a much larger scale in certain States ruled by Congress
(1) Party (in particular in Maharashtra) and that no action
was taken against those Governments. Stating the
proposition in such simplistic terms is neither acceptable
nor realistic. One should look at the totality of the
picture, say the counsel, and not to the isolated incidents
which took place either before or after the demolition. It
is not even a question of punishing the Governments for what
happened on December 6, 1992. The real question
294
was who created this turmoil in the life of the nation and
who put the nation’s soul in torment. The immediate need
was the restoration of the faith of the people in the
impartiality of the administration, in the secular
credentials of the nation and to ensure not only that the
ban on the alleged communal organisations is effectively
implemented but also to ensure that the administration acts
promptly and impartially in maintaining the law and order.
The Central Government, submitted the counsel, acted with
this perception and it cannot be said either that the said
action was outside the purview of Article 356 or that it was
mala fide or that there was no material on which the
President could be reasonably satisfied that the dismissal
of these State Governments was indeed called for, submitted
the learned counsel for Union of India and other
respondents.
432. With a view to demonstrate his submission that judicial
approach and judicial processes are not appropriate to judge
the various situations calling for action under Article 356,
Shri Parasaran gave the following scenario : The Union
Council of Ministers was apprehensive of the safety of the
disputed structure once the BJP came to power in Uttar
Pradesh. It was repeatedly reminding the State Government
in that behalf. All the time, the State Government and its
Chief Minister were assuring the Union of India, the
National Integration Council and even the Supreme Court,
through statements, affidavits and representations that the
State Government was committed to the safety of the disputed
structure and that it would ensure that no harm comes to it.
The Central Government was sceptical of these assurances.
But suppose it had taken action under Article 356, dismissed
the Government of Uttar Pradesh some time prior to December
6, 1992 on the ground that it did not have any faith in
those assurances, the court could well have found fault with
the action. The court would have said that there was no
basis for their apprehension when the State Government
itself represented by the Chief Minister and other high
officials was repeatedly assuring everyone including the
Supreme Court that they will protect the structure. There
was no reason not to believe them and that the action taken
under Article 356 is, therefore, unjustified, being based
upon mere suspicion. But, in the event, the Central
Government did not take action and the disputed structure
was demolished with enormous consequences and repercussions.
This only shows, says Shri Parasaran, that these matters
cannot be weighed in golden scales and that judicial
approach and assumptions are ill-suited to such situations.
433. Having given our earnest consideration to the matter,
we are of the opinion that the situation which arose in
these States consequent upon the demolition of the disputed
structure is one which cannot be assessed properly by the
court. Shri Parasaran is right in his submission that what
happened on December 6, 1992 was no ordinary event, that it
was the outcome of a sustained campaign carried out over a
number of years throughout the country and that it was the
result of the speeches, acts and deeds of several leaders of
BJP and other organisations. The event had serious
repercussions not only within the country but outside as
well. It put
295
in doubt the very secular credentials of this nation and
its Government and those credentials had to be redeemed.
The situation had many dimensions, social, religious,
political and international. Rarely do such occasions arise
in the life of a nation. The situation was an extraordinary
one; its repercussions could not be foretold at that time.
Nobody could say with definiteness what would happen and
where? The situation was not only unpredictable, it was a
fast-evolving one. The communal situation was tense. It
could explode anywhere at any time. On the material placed
before us, including the reports of the Governors, we cannot
say that the President had no relevant material before him
on the basis of which he could form the satisfaction that
the BJP Governments of Madhya Pradesh, Rajasthan and
Himachal Pradesh cannot dissociate themselves from the
action and its consequences and that these Governments,
controlled by one and the same party, whose leading lights
were actively campaigning for the demolition of the disputed
structure, cannot be dissociated from the acts and deeds of
the leaders of BJP. In the then prevailing situation, the
Union of India thought it necessary to ban certain
organisations including RSS and here were Governments which
were headed by persons who “swore by the values and
traditions of the RSS” and were giving “overt and covert
support to the associate communal Organisation” (vide report
of the Governor of Madhya Pradesh). The Governor of
Himachal Pradesh reported that “the Chief Minister himself
is a member of RSS”. The Governor of Rajasthan reported
that the ban on RSS and other organisations was not being
implemented because of the intimate connection between the
members of the Government and those organisations ++. The
three Governors also spoke of the part played by the members
of the Government in sending and welcoming back the kar
sevaks. They also expressed the opinion that these
Governments cannot be expected, in the circumstances, to
function objectively and impartially in dealing with the
emerging law and order situation, which had all the ominous
makings of a communal conflagration. If the President was
satisfied that the faith of these BJP Governments in the
concept of secularism was suspect in view of the acts and
conduct of the party controlling these Governments and that
in the volatile situation that developed pursuant to the
demolition, the Government of these States cannot be carried
on in accordance with the provisions of the Constitution, we
are not able to say that there was no relevant material upon
which he could be so satisfied. The several facts stated in
the counter-affidavits and the material placed before us by
the Union of India cannot be said to be irrelevant or
extraneous to the purpose for which the power under Article
356 is to be exercised. As pointed out by us supra (under
the heading ‘Judicial Review’) we cannot question the
correctness of the material produced and that even if part
of it is not relevant to the action, we cannot interfere so
long as there is some relevant material to sustain the
action. If the President was satisfied that the
Governments, which have already acted contrary to one of the
basic features of the
++ The fact that the ban was held to be unsustainable later
on by the appropriate Tribunal is not relevant while judging
the situation obtaining in the days following the
demolition.
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Constitution, viz., secularism, cannot be trusted to do so
in future, it is not possible to say that in the situation
then obtaining, he was not justified in believing so. This
is precisely the type of situation, which the court cannot
judge for lack of judicially manageable standards. The
court would be well advised to leave such complex issues to
the President and the Union Council of Ministers to deal
with. It was a situation full of many imponderables,
nuances, implications and intricacies. There were too many
ifs and buts which are not susceptible of judicial scrutiny.
It is not correct to depict the said Proclamations as the
outcome of political vendetta by the political party in
power at the Centre against the other political party in
power in some States. Probably in such matters, the
ultimate arbiter is the people. The appeal should be to the
people and to people alone. The challenge to the
Proclamation relating to these three States is, therefore,
liable to fail.
434. We may summarise our conclusions now:
(1) 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.
(2) 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 pre-condition.
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.
(3) 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.
(4) 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.
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(5)(a) 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 reactivated. 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/Legislative
Assembly or other competent authority.
(b) However, 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.
(6) Article 74(2) 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 official concerned 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.
(7) The Proclamation under Article 356(1) is
not immune from judicial review. The Supreme
Court or the High Court can strike down the
Proclamation if it is found to be mala fide 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. Its enquiry is limited to see
whether the material was relevant to the
action. Even if part of
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the material is irrelevant, the court cannot
interfere so long as there is some material
which is relevant to the action taken.
(8) If the court strikes down the
Proclamation, it has the power to restore the
dismissed Government to office and revive and
reactivate the Legislative Assembly wherever
it may have been dissolved or kept under
suspension. In such a 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.
(9) The Constitution of India has created a
federation but with a bias in favour of the
Centre. Within the sphere allotted to the
States, they are supreme.
(10) Secularism is one of the basic features
of the Constitution. 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. No
political party can simultaneously be a
religious party. Politics and religion cannot
be mixed. Any State Government which pursues
unsecular policies or unsecular course of
action acts contrary to the constitutional
mandate and renders itself amenable to action
under Article 356.
(11) The Proclamation dated April 21, 1989 in
respect of Karnataka (Civil Appeal No. 3645 of
1989) and the Proclamation dated October 11,
1991 in respect of Meghalaya (Transferred Case
Nos. 5 and 7 of 1992) are unconstitutional).
But for the fact that fresh elections have
since taken place in both the States and new
Legislative Assemblies and Governments have
come into existence we would have formally
struck down the Proclamations and directed the
revival and restoration of the respective
Governments and Legislative Assemblies. The
Civil Appeal No. 3645 of 1989 and Transferred
Cases Nos. 5 and 7 of 1992 are allowed
accordingly. Civil Appeal Nos. 193 and 194 of
1989 relating to Nagaland are disposed of in
terms of the opinion expressed by us on the
meaning and purport of Article 74(2) of the
Constitution.
(12) The Proclamations dated January 15, 1993
in respect of Madhya Pradesh, Rajasthan and
Himachal Pradesh concerned in Civil Appeal
Nos. 1692,1692-A to 1692-C of 1993, 4627-4630
of 1993, Transferred Case (C) No. 9 of 1993
and Transferred Case No. 8 of 1993
respectively are not unconstitutional. The
Civil Appeals are allowed and the judgment of
the High Court of Madhya Pradesh in
299
M.P. (C) No. 237 of 1993 is set aside. The
transferred cases are dismissed.
435. In the light of the reasons given and conclusions
recorded hereinabove, we find ourselves in agreement with
the conclusions 1, 2 and 4 to 7 in the judgment of our
learned Brother Sawant, J. delivered on behalf of himself
and Kuldip Singh, J. We are also in broad agreement with
conclusion 8 in the said judgment.
436. No orders on interlocutory applications.
437. There shall be no order as to costs in these matters.
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