{"id":39798,"date":"1994-03-11T00:00:00","date_gmt":"1994-03-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/s-r-bommai-vs-union-of-india-on-11-march-1994"},"modified":"2015-09-05T11:27:15","modified_gmt":"2015-09-05T05:57:15","slug":"s-r-bommai-vs-union-of-india-on-11-march-1994","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/s-r-bommai-vs-union-of-india-on-11-march-1994","title":{"rendered":"S.R. Bommai vs Union Of India on 11 March, 1994"},"content":{"rendered":"
Supreme Court of India<\/div>\n
S.R. Bommai vs Union Of India on 11 March, 1994<\/div>\n
Equivalent citations: 1994 AIR 1918, \t\t 1994 SCC (3)\t 1<\/div>\n
Author: K Singh<\/div>\n
Bench: Pandian, S.R. (J), Ahmadi, A.M. (J) (J), Verma, J.S. (J) Sawant, P.B., Ramaswamy, K. & Agrawal, S.C. (J), Yogeshwar Dayal Reddy, B.P. (J)<\/div>\n
           PETITIONER:\nS.R. BOMMAI\n\n\tVs.\n\nRESPONDENT:\nUNION OF INDIA\n\nDATE OF JUDGMENT11\/03\/1994\n\nBENCH:\nKULDIP SINGH (J)\nBENCH:\nKULDIP SINGH (J)\nSAWANT, P.B.\nRAMASWAMY, K.\nAGRAWAL, S.C. (J)\nYOGESHWAR DAYAL (J)\nJEEVAN REDDY, B.P. (J)\nPANDIAN, S.R. (J)\nPANDIAN, S.R. (J)\nAHMADI, A.M. (J)\n\nCITATION:\n 1994 AIR 1918\t\t  1994 SCC  (3)\t  1\n JT 1994 (2)   215\t  1994 SCALE  (2)37\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
The Judgments of the Court were delivered by
\nS.   RATNAVEL PANDIAN, J.- I have had the privilege of going
\nthrough\t the erudite and scholarly judgments of\t my  learned
\nbrothers   making  an  exhaustive  and\tin-depth   analysis,
\nevaluating  the constitutional mechanism and  exploring\t the
\nwhole  realm of constitutional imperatives as  envisaged  by
\nthe Founding Fathers of the Indian Constitution on  Central-
\nState\trelations  and\tthrowing  abundant  light   on\t the
\ncontroversial  role of State Governors inviting\t President’s
\nRule and the mode by which the Union Cabinet and  Parliament
\ndischarged   their  responsibility  in\tthis   regard\twith
\nreference  to  Articles 74(2), 163, 355, 356,  357  and\t the
\nother allied constitutional provisions.\n<\/p>\n
2.   1\tfind  myself in agreement with the opinion  of\tP.B.
\nSawant,\t J.  on his conclusions 1, 2 and 4 to 8\t with  which
\nB.P. Jeevan Reddy, J. concurs in his judgment (speaking\t for
\nhimself and on behalf of S.C. Agrawal, J.) but so far as the
\nreasoning and other conclusions are concerned, I agree fully
\nwith the judgment of B.P. Jeevan Reddy, J. Yet I would\tlike
\nto  give my brief opinion on the constitutional question  of
\nsubstantial  importance\t in relation to the  powers  of\t the
\nPresident to issue Proclamations under Article 356(1) of the
\nConstitution.\n<\/p>\n
3.   The  Indian  Constitution is both a  legal\t and  social
\ndocument.  It provides a machinery for the governance of the
\ncountry.   It  also  contains the  ideals  expected  by\t the
\nnation.\t The political machinery created by the Constitution
\nis a means to the achieving of this ideal.\n<\/p>\n
4.   To what extent we have been successful in achieving the
\nconstitutional\tideals\tis a question with a  wide  spectrum
\nwhich  needs  an  elaborate debate.   Harking  back  to\t the
\nquestion   involved  in\t this  case,  the  Framers  of\t the
\nConstitution  met and were engaged for months together\twith
\nthe  formidable\t task of drafting the  Constitution  on\t the
\nsubject\t of Centre State relationship that would  solve\t all
\nthe  problems  pertaining thereto and frame a  system  which
\nwould enure for a long time to come.  During the debates and
\ndeliberations,\tthe issues that seemed to crop up  at  every
\npoint  was the States’ rights vis-a-vis the Central  rights.
\nSome   of  tile\t members  seem\tto  have   expressed   their
\nconflicting opinions and different reasoning and  sentiments
\non  every  issue influenced and inspired  by  the  political
\nideology  to which they were wedded.  The two spinal  issues
\nbefore the Constituent Assembly were (1) what powers were to
\nbe taken away from the States; and (2) how could a  national
\nsupreme Government be formed without completely eviscerating
\nthe  power of the State.  Those favoring the formation of  a
\nstrong Central Government insisted that the said  Government
\nshould\tenjoy supreme power while others supporting  States’
\nrights\texpostulated  that view.  The two sides\t took  turns
\nmaking their representations but finally realising that\t all
\nmight  be lost, they reached a compromise that resolved\t the
\ndeadlock on the key issue and consequently the present\tform
\nof  Government, more federal in structure, came\t into  being
\ninstead of a unitary Government.\n<\/p>\n
66<\/span><\/p>\n
established by the people of India for themselves for  their
\nown  governance\t and not for the  governance  of  individual
\nStates.\t Resultantly, the Constitution acts directly on\t the
\npeople\tby  means of power communicated\t directly  from\t the
\npeople.\n<\/p>\n
6.   In\t regard to the Centre State relationship  there\t are
\nvarious\t reports suggesting certain recommendations for\t the
\nsmooth\t relationship  of  both\t the   Governments   without
\nfrequently   coming   into   conflicts\t thereby    creating
\nconstitutional\t   crisis.     The    reports\t  suggesting
\nrecommendations\t are  that  of\t(1)  Administrative  Reforms
\nCommission  1969;  (2)\tRajmannar Committee  1969;  and\t (3)
\nSarkaria Commission 1987.\n<\/p>\n
7.   When  the\tquestion  with regard to  the  Centre  State
\nrelations  stands  thus, the publication issued by  the\t Lok
\nSabha  Secretariat  giving an analytical tabular  form\twith
\nsignificant   details\tpertaining   to\t  the\t President’s
\nProclamation  made under Article 356(1) of the\tConstitution
\nand under Section 51 of the Government of Union\t Territories
\nAct, 1963 during the last 41 years of the Republic, that  is
\nup  to\t1991,  indicates the frequency of  user\t of  Article
\n356(1).\t  It  appears from the summary table  given  in\t the
\ntabular\t form  (Appendix  IV)  that  on\t 82  occasions\t the
\nPresident’s Rule in States have been imposed by invoking  or
\nresorting  to  Article\t356(1)\tand  on\t 13  occasions\t the
\nPresident’s  Rule  have been imposed  in  Union\t Territories
\nincluding  erstwhile  Union Territories\t which\thave  become
\nStates\t under\tSection\t 51  of\t the  Government  of   Union
\nTerritories  Act, 1963.\t All total up to 95 times, of  which
\non 23 occasions the assemblies were dissolved on the  advice
\nof the Chief Ministers\/or due to their resignations.  It may
\nbe  recalled that on 18 occasions the  assemblies  suspended
\nwere  subsequently revived.  The above statistics  does\t not
\ninclude\t  the  Proclamations  which  are   presently   under
\nchallenge  before  us.\t We  may  hasten  to  add  that\t the
\nProclamations were made on different occasions on the advice
\nof  the\t Council  of Ministers\tof  the\t Central  Government
\nbelonging  to different political complexions.\tSome of\t the
\nStates,\t dissolved  valiantly  fought,\thonorably  bled\t and
\npathetically lost their legal battle.\n<\/p>\n
8.   Since  my learned brothers have elaborately dealt\twith
\nthe  constitutional provisions relating to the issue of\t the
\nProclamation  and  as I am in agreement with  the  reasoning
\ngiven  by B.P. Jeevan Reddy, J., it is not necessary for  me
\nto make further discussion on this matter except saying that
\nI  am of the firm opinion that the power under\tArticle\t 356
\nshould\tbe  used very sparingly and only when  President  is
\nfully  satisfied  that\ta situation  has  arisen  where\t the
\nGovernment  of the State cannot be carried on in  accordance
\nwith  the  provisions of the Constitution.   Otherwise,\t the
\nfrequent  use of this power and its exercise are  likely  to
\ndisturb\t  the  constitutional  balance.\t  Further   if\t the
\nProclamation  is  freely made, then the\t Chief\tMinister  of
\nevery\tState  who  has\t to  discharge\this   constitutional
\nfunctions   will  be  in  perpetual  fear  of  the  axe\t  of
\nProclamation  falling  on him because he will  not  be\tsure
\nwhether\t he will remain in power or not and consequently  he
\nhas to stand up every
\n67<\/span>
\ntime   from  his  seat\twithout\t properly  discharging\t his
\nconstitutional obligations and achieving the desired  target
\nin the interest of the State.\n<\/p>\n
9. All the matters are disposed of accordingly with no order
\nas to costs.\n<\/p>\n
AHMADI,\t J.-I have had the advantage of perusing  the  views
\nexpressed   by\tmy  esteemed  colleagues  P.B.\tSawant,\t  K.
\nRamaswamy and B.P. Jeevan Reddy, JJ. and while I am  largely
\nin   agreement\twith  the  ‘conclusions’  recorded   by\t  K.
\nRamaswamy, J., I would like to briefly indicate the area  of
\nmy agreement.\n<\/p>\n
11.  In a country geographically vast, inhabited by over 850
\nmillion people belonging to different religions, castes\t and
\ncreeds, majority of them living in villages under  different
\nsocial orders and in abject poverty, with a constant tug  of
\nwar between the organised and the unorganised sectors, It is
\nnot  Surprising\t that  problems\t crop  up  time\t and   again
\nrequiring  strong  and\tat times  drastic  State  action  to
\npreserve   the\t unity\tand  integrity\t of   the   country.
\nNotwithstanding- these problems arising from time to time on
\naccount\t of  class  conflicts,\treligious  intolerance\t and
\nsocioeconomic imbalances, the fact remains that India has  a
\nreasonably stable democracy.  The resilience of our Republic
\nto  face these challenges one after another has\t proved\t the
\npeoples’  faith\t in the political philosophy  of  socialism,
\nsecularism  and democracy enshrined in the Preamble  of\t our
\nConstitution.  Yet, the fact remains that the nation has had
\nfrom  time  to\ttime with  increasing  frequency  to  combat
\nupheavals  occasioned on account of militancy, communal\t and
\nclass\tconflicts,  politico-religious\tturmoils,   strikes,
\nbandhs\tand the like occurring in one corner of the  country
\nor the other, at times assuming ugly proportions.  We are  a
\ncrisis-laden  country;\tcrisis situations  created  by\tboth
\nexternal  and  internal forces necessitating  drastic  State
\naction to preserve the security, unity and integrity of\t the
\ncountry.   To  deal  with  such\t extraordinarily   difficult
\nsituations   exercise\tof  emergency  powers\tbecomes\t  an
\nimperative.    Such  emergency\tpowers\texisted\t under\t the
\nGovernment  of India Act, 1935, vide Sections 93 and  45  of
\nthat enactment.\t However, when similar powers were sought to
\nbe conferred on the President of India by the  Constitution,
\nthere,\twas  a strong opposition from many  members  of\t the
\nConstituent  Assembly, vide Constituent Assembly Debates  on
\ndraft  Articles\t 277 and 277-A.\t Dr  Ambedkar  pacified\t the
\nmembers by stating :\n<\/p>\n
\t      “In fact I share the sentiments expressed\t …<\/p>\n
\t      that  the proper thing we ought to  expect  is
\n\t      that  such articles will never be called\tinto
\n\t      operation\t and that they would remain  a\tdead
\n\t      letter.\tIf  at all, they  are  brought\tinto
\n\t      operation,  I  hope  the\tPresident,  who\t  is
\n\t      endowed  with  all  these\t powers,  will\ttake
\n\t      proper precautions before actually  Suspending
\n\t      the  administration of the provinces.  I\thope
\n\t      the first thing he ‘will do would be to  issue
\n\t      a\t mere warning to a province that has  erred,
\n\t      that  things were not happening in the way  in
\n\t      which  they  were intended to  happen  in\t the
\n\t      Constitution.” (Constituent Assembly  Debates,
\n\t      Vol.  IX, p. 177)
\nDr. Ambedkar’s hope that in rarest of rare cases only  there
\nwill  be an occasion to invoke the emergency provisions\t was
\nsoon belied as we were
\n68<\/span>
\ntold  at the Bar that the provisions of Article 356  of\t the
\nConstitution  have  had to be invoked over ninety  times  by
\nnow.   What was, therefore, expected to be a  ‘dead  letter’
\nhas  in fact become an oft-invoked provision.  This  is\t not
\nthe occasion to embark on an enquiry into the  circumstances
\nleading to the utilisation of this emergency power, but\t the
\nfact remains that the President has had to invoke the  power
\nquite frequently.  This may be on account of the degradation
\nin the political environment of the country.  Since I am not
\nprobing\t into the circumstances in which the said power\t had
\nto  be\tinvoked,  I do not express myself  on  the  question
\nwhether\t or  not there existed\tadequate  justification\t for
\nresorting to this emergency power.\n<\/p>\n
12. Although the emergency provisions found in part XVIII of
\nthe Constitution are more or less modeled on the pattern  of
\nsimilar provisions contained in the Government of India Act,
\n1935,  the exercise of that power under the said  provisions
\ncannot be compared with its exercise under the\tConstitution
\nfor  the  obvious reason that they  operated  under  totally
\ndifferent  conditions.\tUnder the Government of\t India\tAct,
\n1935,  the  Governor General and the Governor  exercised  as
\nrepresentatives\t of  the Crown near  absolute  powers,\tonly
\nlimited\t powers\t were given to the elected  Governments\t and
\nthose  too  could  be taken away if it\twas  felt  that\t the
\nGovernment  concerned could not be carried on in  accordance
\ntherewith.    So  also\treference  to  the   British   Joint
\nParliamentary  Report  is inapposite for the  simple  reason
\nthat the situation under the Constitution is not  comparable
\nwith that which formed the basis for the Report.  The  power
\nconferred on the President of India under Article 356 has to
\nbe  exercised  in  a wholly  different\tpolitical  setup  as
\ncompared  to  that obtaining under the Government  of  India
\nAct, 1935.  The constitutional philosophy of a free  country
\nis  totally different from the philosophy of a\tsimilar\t law
\nintroduced  for the governance of a country by its  colonial
\nmasters.  It is, therefore, unnecessary to examine the case-
\nlaw  based  on\tthe exercise of\t similar  powers  under\t the
\nGovernment of India Act, 1935.\n<\/p>\n
Federal Character of the  Constitution\n<\/p>\n
13.  India,  as\t the  Preamble proclaims,  is  a  Sovereign,
\nSocialist,   Secular,  Democratic  Republic.   It   promises
\nliberty\t of thought, expression, belief, faith and  worship,
\nbesides\t equality  of  status  and  opportunity.   What\t  is
\nparamount  is  the unity and integrity of  the\tnation.\t  In
\norder to maintain the unity and integrity of the nation\t our
\nFounding Fathers appear to have leaned in favour of a strong
\nCentre\twhile distributing the powers and functions  between
\nthe Centre and the States.  This becomes obvious from even a
\ncursory\t examination of the provisions of the  Constitution.
\nThere  was considerable argument at the Bar on the  question
\nwhether\t our Constitution could be said to be  ‘Federal’  in
\ncharacter.\n<\/p>\n
14.  In\t order\tto understand whether  our  Constitution  is
\ntruly  federal, it is essential to know the true concept  of
\nfederalism.   Dicey calls it a political contrivance  for  a
\nbody of States which desire Union but not unity.  Federalism
\nis, therefore, a concept which unites separate States into a
\nUnion  without sacrificing their own  fundamental  political
\nintegrity.  Separate States,
\n69<\/span>
\ntherefore, desire to unite so that all the member-States may
\nshare in formulation of the basic policies applicable to all
\nand  participate  in  the execution  of\t decisions  made  in
\npursuance  of  such basic policies.  Thus the essence  of  a
\nfederation is the existence of the Union and the States\t and
\nthe  distribution  of  powers  between\tthem.\t Federalism,
\ntherefore,  essentially implies demarcation of powers  in  a
\nfederal compact.\n<\/p>\n
15.  The oldest federal model in the modem world can be said
\nto be the Constitution of the United States of America.\t The
\nAmerican  Federation can be described as the outcome of\t the
\nprocess\t of  evolution, in that, the separate  States  first
\nformed\t into  a  Confederation\t (1781)\t and  then  into   a
\nFederation  (1789).  Although the States may have their\t own
\nConstitutions,\tthe Federal Constitution is the suprema\t lex
\nand  is made binding on the States.  That is  because  under
\nthe  American Constitution, amendments to  the\tConstitution
\nare required to be ratified by three-fourths of the  States.
\nBesides\t  under\t  that\tConstitution  there  is\t  a   single
\nlegislative  list enumerating the powers of the\t Union\tand,
\ntherefore, automatically the other subjects are left to\t the
\nStates.\t  This\tis  evident from the  Tenth  Amendment.\t  Of
\ncourse,\t the  responsibility to protect the  States  against
\ninvasion  is  of the Federal Government.   The\tStates\tare,
\ntherefore,   prohibited\t from  entering\t into  any   treaty,
\nalliance,  etc., with any foreign power.  The  principle  of
\ndual  sovereignty is carried in the judicial set-up as\twell
\nsince  disputes under federal laws are to be adjudicated  by
\nfederal\t courts,  while\t those under State laws\t are  to  be
\nadjudicated by State courts,  subject of course to an appeal
\nto   the   Supreme   Court  of\tthe   United   States.\t The
\ninterpretation\tof the Constitution is by the United  States
\nSupreme\t  Court.\n<\/p>\n
16.  We\t may  now  read\t some  of  the\tprovisions  of\t our
\nConstitution.  States.”\t Article 2  empowers  Parliament  to
\nadmit into the Union, or establish, new States on such terms
\nand conditions as it thinks fit.  Under Article 3 Parliament
\ncan by law form a new State by separation of territory\tfrom
\nany  State  or\tby uniting two or more States  or  parts  of
\nStates\tor by uniting any territory to a part of any  State;
\nincreasing  the area of any State; diminishing the  area  of
\nany State; altering the boundaries of any State; or altering
\nthe name of any State.\tThe proviso to that article requires
\nthat  the  Bill for the purpose shall not be  introduced  in
\neither\tHouse of Parliament except on the recommendation  of
\nthe  President and unless, where the proposal  contained  in
\nthe Bill affects the area, boundaries or name of any of\t the
\nStates,\t the Bill has been referred by the President to\t the
\nLegislature of that State for expressing its views  thereon.
\nOn  a conjoint reading of these articles, it  becomes  clear
\nthat Parliament has the right to form new States, alter\t the
\nareas of existing States, or the name of any existing State.
\nThus  the  Constitution permits changes in  the\t territorial
\nlimits\t of  the  States  and  does  not   guarantee   their
\nterritorial  integrity.\t Even names can be  changed.   Under
\nArticle\t 2 it is left to Parliament to determine  the  terms
\nand conditions on which it may admit any area into the Union
\nor  establish new States.  In doing so, it has not  to\tseek
\nthe concurrence of the State whose area, boundary or name is
\nlikely to be
\n70<\/span>
\naffected by the proposal.  All that the proviso to Article 3
\nrequires is that in such cases the President shall refer the
\nBill  to the Legislatures of the States concerned likely  to
\nbe affected “to express their views”.  Once the views of the
\nStates are known, it is left to Parliament to decide on\t the
\nproposed  changes.  Parliament can, therefore,\twithout\t the
\nconcurrence  of\t the State or States  concerned\t change\t the
\nboundaries of the State or increase or diminish its area  or
\nchange\tits name.  These provisions show that in the  matter
\nof  constitution of States, Parliament is  paramount.\tThis
\nscheme\t substantially\tdiffers\t from  the  federal   set-up
\nestablished  in the United States of America.  The  American
\nStates were independent sovereign States and the territorial
\nboundaries of those independent States cannot be touched  by
\nthe  Federal Government.  It is these independent  sovereign
\nunits  which  together\tdecided to form\t into  a  federation
\nunlike\tin  India  where the  States  were  not\t independent
\nsovereign  units  but they were formed by Article 1  of\t the
\nConstitution   and   their  areas  and\t boundaries   could,
\ntherefore,   be\t altered,  without  their  concurrence,\t  by
\nParliament.   It is well-known that since independence,\t new
\nStates have been created, boundaries of existing States have
\nbeen altered, States have been renamed and individual States
\nhave been extinguished by parliamentary legislation.\n<\/p>\n
17.  Our Founding Fathers did not deem it wise to shake\t the
\nbasic  structure  of  Government  and  in  distributing\t the
\nlegislative  functions\tthey,  by and  large,  followed\t the
\npattern\t of the Government of India Act, 1935.\tSome of\t the
\nsubjects  of common interest were, however,  transferred  to
\nthe Union List, thereby enlarging the powers of the Union to
\nenable\tspeedy\tand  planned  economic\tdevelopment  of\t the
\nnation.\t  The scheme for the distribution of powers  between
\nthe Union and the States was largely maintained except\tthat
\nsome  of  the subjects of common interest  were\t transferred
\nfrom   the  Provincial\tList  to  the  Union  List   thereby
\nstrengthening  the administrative control of the Union.\t  It
\nis in this context that this Court in State of W.B. v. Union
\nof India’ observed : (SCR p. 397)
\n\t      “The  exercise  of  powers,  legislative\t and
\n\t      executive, in the allotted fields is hedged in
\n\t      by  the  numerous restrictions,  so  that\t the
\n\t      powers of the States are not co-ordinate\twith
\n\t      the  Union  and  are  not\t in  many   respects
\n\t      independent.”\n<\/p>\n
18.  In\t Union of India v. H.S. Dhillon2 (SCC<\/a> p.  789,\tpara
\n15: AIR power was pointed out, in that, under the Government
\nof India Act, 1935, the residuary power was not given either
\nto the Union Legislature or to the provincial  legislatures,
\nbut  under our Constitution, by virtue of Article 248,\tread
\nwith Entry 97 in List 1 of the Vllth Schedule, the residuary
\npower  has  been conferred on the Union.   This\t arrangement
\nsubstantially  differs\tfrom the scheme of  distribution  of
\npowers\tin the United States of America where  the  residual
\npowers are with the States.\n<\/p>\n
1  (1964) 1 SCR 37 1: AIR 1963 SC 1241
\n2 (1971) 2 SCC 779: AIR 1972 SC 1061: (1972) 2 SCR 33
\n71<\/span>\n<\/p>\n
19.  The Preamble of our Constitution shows that the  people
\nof  India had resolved to constitute India into a  Sovereign
\nSecular\t Democratic Republic and promised to secure  to\t all
\nits  citizens Justice, Liberty and Equality and\t to  promote
\namong  them  all  Fraternity assuring  the  dignity  of\t the
\nindividual  and the unity and integrity of the\tNation.\t  In
\nthe people of India, therefore, vests the legal\t sovereignty
\nwhile  the political sovereignty is distributed between\t the
\nUnion  and  the States.\t Article 73  extends  the  executive
\npower  of  the\tUnion  to  matters  with  respect  to  which
\nParliament  has\t power to make laws and to the\texercise  of
\nsuch  rights, authority and jurisdiction as are\t exercisable
\nby  the\t Government  of India by virtue\t of  any  treaty  or
\nagreement.   The executive power which is made\tco-extensive
\nwith  Parliament’s  power to make laws shall  not,  save  as
\nexpressly provided by the Constitution or in any law made by
\nParliament,  extend in any State to matters with respect  to
\nwhich  the Legislature of the State also has power  to\tmake
\nlaws.  Article 162 stipulates that the executive power of  a
\nState  shall  extend to matters with respect  to  which\t the
\nLegislature  of\t the State has power to make  laws  provided
\nthat in any matter with respect to which the Legislature  of
\na  State  and  Parliament  have\t power\tto  make  laws,\t the
\nexecutive  power  of  the State shall  be  subject  to,\t and
\nlimited\t by, the executive power expressly conferred by\t the
\nConstitution or by any law made by Parliament upon the Union
\nor  authorities\t thereof.  It may also be noticed  that\t the
\nexecutive  power of every State must be so exercised as\t not
\nto  impede or prejudice the exercise of the executive  power
\nby the Union.  The executive power of the Union also extends
\nto  giving such directions to a State as may appear  to\t the
\nGovernment  of India to be necessary for those purposes\t and
\nas   to\t  the\tconstruction,  maintenance   of\t  means\t  of
\ncommunication  declared\t to  be\t of  national  or   military
\nimportance and for protection of railways.  The States\thave
\nto  depend largely on financial assistance from\t the  Union.
\nUnder  the  scheme  of Articles 268 to 273,  States  are  in
\nCertain\t cases allowed to collect and retain duties  imposed
\nby  the Union; in other cases taxes levied and collected  by
\nthe Union are assigned to the States and in yet other  cases
\ntaxes  levied  and collected by the Union  are\tshared\twith
\nStates.\t Article 275 also provides for the giving of  grants
\nby  the\t Union to certain States.  There is,  therefore,  no
\ndoubt  that States depend for financial assistance upon\t the
\nUnion  since their power to raise resources is limited.\t  As
\neconomic  planning  is\ta concurrent  subject,\tevery  major
\nproject must receive the sanction of the Central  Government
\nfor its financial assistance since discretionary power under
\nArticle 282 to make grants for public purposes is vested  in
\nthe  Union or a State, notwithstanding that the\t purpose  is
\none in respect to which Parliament or State Legislature\t can
\nmake laws.  It is only after a project is finally sanctioned
\nby  the\t Central Government that the  State  Government\t can
\nexecute\t the  same which demonstrates the control  that\t the
\nUnion  can exercise even in regard to a matter on which\t the
\nState can legislate.  In addition to these controls  Article
\n368 confers powers on Parliament to amend the  Constitution,
\nalbeit\tby  a  specified majority.   The  power\t extends  to
\namending  matters  pertaining to the executive\tas  well  as
\nlegislative powers of the States
\n72<\/span>
\nif  the amendments are ratified by the legislatures  of\t not
\nless  than one-half of the States.  This provision  empowers
\nParliament  to so amend the Constitution as to\tcurtail\t the
\npowers\tof the States.\tA strong Central Government may\t not
\nfind  it difficult to secure the requisite majority as\twell
\nas ratification by one half of the legislatures if one\tgoes
\nby  past  experience.\tThese  limitations  taken   together
\nindicate that the Constitution of India cannot be said to be
\ntruly  federal in character as understood by lawyers in\t the
\nUnited States of America.\n<\/p>\n
20.  In\t State\tof Rajasthan v. Union of India3\t Beg,  C.J.,
\nobserved in (AIR) paragraph 51 as under: (SCC p. 62 1,\tpara\n<\/p>\n
56)
\n\t      “A   conspectus  of  the\tprovisions  of\t our
\n\t      Constitution  will  indicate  that,   whatever
\n\t      appearance   of\ta  federal   structure\t our
\n\t      Constitution  may\t have,\tits  operations\t are
\n\t      certainly,  judged  both by  the\tcontents  of
\n\t      power  which a number of its provisions  carry
\n\t      with  them and the use that has been  made  of
\n\t      them, more unitary than federal.”\n<\/p>\n
Further,  in (AIR) paragraph 52, the learned  Chief  Justice
\nproceeded to add (SCC p. 622, para 57)
\n\t      “In  a sense, therefore, the Indian  Union  is
\n\t      federal.\tBut, the extent of federalism in  it
\n\t      is  largely  watered  down  by  the  needs  of
\n\t      progress\tand development of a  country  which
\n\t      has  to be nationally integrated,\t politically
\n\t      and  economically coordinated,  and  socially,
\n\t      intellectually  and spiritually uplifted.\t  In
\n\t      such a system, the States cannot stand in\t the
\n\t      way of legitimate and comprehensively  planned
\n\t      development  of  the  country  in\t the  manner
\n\t      directed by the Central Government.”\n<\/p>\n
Pointing out that national planning involves disbursement of
\nvast amount of money collected as taxes from citizens spread
\nover  all  the\tStates and placed at  the  disposal  of\t the
\nCentral\t Government  for  the benefit  of  the\tStates,\t the
\nlearned Chief Justice proceeds to observe in (AIR) paragraph
\n56 of the judgment : (SCC p. 623, para 6 1)
\n\t      “If  then our Constitution creates  a  Central
\n\t      Government which is ,amphibian’, in the  sense
\n\t      that  it\tcan move either on  the\t federal  or
\n\t      unitary  plane, according to the needs of\t the
\n\t      situation\t and  circumstances of a  case,\t the
\n\t      question which we are driven back to  consider
\n\t      is whether an assessment of the ‘situation’ in
\n\t      which the Union Government should move  either
\n\t      on  the federal or unitary plane\tare  matters
\n\t      for  the Union Government itself or  for\tthis
\n\t      Court to consider and determine.”\n<\/p>\n
When  the Union Government issued a notification  dated\t May
\n23, 1977 constituting a Commission of Inquiry in exercise of
\nits power under Section 3 of the Commissions of Inquiry Act,
\n1952,  to inquire into certain allegations made against\t the
\nChief  Minister\t of  the  State,  the  State  of   Karnataka
\ninstituted  a  suit under Article 131  of  the\tConstitution
\nchallenging the legality and validity of the notification as
\nunjustifiable  trespass\t upon the domain  of  State  powers.
\nWhile dealing with the issues arising in that suit
\n3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1
\n73<\/span>
\nState  of Karnatakt v. Union of India4-Beg C.J., once  again
\nexamined the relevant provisions of the Constitution and the
\nCommissions  of\t Inquiry Act, 1952, and\t observed  in  (AIR)
\nparagraph 33 as under: (SCC p. 645, para 34)
\n\t      “In our country, there is at the top a Central
\n\t      or   the\tUnion  Government   responsible\t  to
\n\t      Parliament,  and\tthere are, below  it,  State
\n\t      Governments,   responsible   to\tthe    State
\n\t      Legislatures,  each  functioning\twithin\t the
\n\t      sphere  of  its own powers which\tare  divided
\n\t      into  two\t categories, the exclusive  and\t the
\n\t      concurrent.   Within the exclusive  sphere  of
\n\t      the  powers of the State Legislature is  local
\n\t      government.   And,  in all States there  is  a
\n\t      system  of local government in both urban\t and
\n\t      rural    areas,\tfunctioning   under    State
\n\t      enactments.   Thus,  we can speak of  a  three
\n\t      tier  system of Government in our\t country  in
\n\t      which  the  Central or  the  Union  Government
\n\t      comes at the apex…….\n<\/p>\n
It would thus seem that the Indian Constitution has, in\t it,
\nnot  only  features of a pragmatic federalism  which,  while
\ndistributing  legislative powers and indicating the  spheres
\nof governmental powers of State and Central Governments,  is
\noverlaid   by  strongly\t ‘unitary’  features,\tparticularly
\nexhibited by lodging in Parliament the residuary legislative
\npowers, and in the Central Government the executive power of
\nappointing  certain constitutional  functionaries  including
\nHigh Court and Supreme Court Judges and issuing\t appropriate
\ndirections to the State Governments and even displacing\t the
\nState\tLegislatures  and  the\tGovernments   in   emergency
\nsituations, vide Articles 352 to 360 of the Constitution.\n<\/p>\n
21.  It\t  is   common  knowledge  that\tshortly\t  after\t  we
\nconstituted  ourselves into a Republic, the Princely  States
\ngradually  disappeared leading to the unification  of  India
\ninto  a single polity with duality of governmental  agencies
\nfor  effective and efficient administration of\tthe  country
\nunder  central direction and, if I may say so,\tsupervision.
\nThe duality of governmental organs on the Central and  State
\nlevels reflect demarcation of functions in a manner as would
\nensure\tthe sovereignty and integrity of our  country.\t The
\nexperience of partition of the country and its aftermath had
\ntaught\tlessons which were too fresh to be forgotten by\t our
\nConstitution  makers.  It was perhaps for that\treason\tthat
\nour  Founding  Fathers\tthought that  a\t strong\t Centre\t was
\nessential to ward off separatist tendencies and\t consolidate
\nthe unity and integrity of the country.\n<\/p>\n
22.  A\tDivision  Bench\t of  the Madras\t High  Court  in  M.
\nKarunnanidhi  v.  Union\t of India5 while  dealing  with\t the
\ncontention  that the Constitution is a federal one and\tthat
\nthe  States  are  autonomous  having  definite\tpowers\t and
\nindependent rights to govern, and the Central Government has
\nno  right  to  interfere in the\t governance  of\t the  State,
\nobserved as under :\n<\/p>\n
\t      “[T]here\tmay be a federation  of\t independent
\n\t      States, as it is in the case of United  States
\n\t      of America.  As the name itself denotes, it is
\n\t      a\t Union\tof States, either by  treaty  or  by
\n\t      legislation by the concerned
\n\t      4\t    (1977) 4 SCC 608: AIR 1978 SC 68: (1978)
\n\t      2 SCR 1
\n\t      5\t    AIR 1977 Mad 192: (1977) 1 MLJ 182
\n\t      74<\/span>
\n\t      States.  In those cases, the federating  units
\n\t      gave certain powers to the federal  Government
\n\t      and  retained some.  To apply the\t meaning  to
\n\t      the  word ‘federation’ or ‘autonomy’  used  in
\n\t      the  context of the American Constitution,  to
\n\t      our Constitution will be totally misleading.”\n<\/p><\/blockquote>\n
After  tracing the history of the governance of the  country
\nunder the British rule till the framing of our Constitution,
\nthe Court proceeded to add is follows :\n<\/p>\n
\t      “The feature of the Indian Constitution is the
\n\t      establishment  of a Government  for  governing
\n\t      the   entire  country.   In  doing   so,\t the
\n\t      Constitution  prescribes\tthe  powers  of\t the
\n\t      Central Government and the powers of the State
\n\t      Governments and the relations between the two.
\n\t      In  a sense, if the word ‘federation’  can  be
\n\t      used  at\tall, it is a federation\t of  various
\n\t      States   which  were  designated\t under\t the
\n\t      Constitution  for\t the  purpose  of  efficient
\n\t      administration and governance of the  country.
\n\t      The  powers  of  the  Centre  and\t States\t are
\n\t      demarcated  under\t the  Constitution.   It  is
\n\t      futile   to  suggest  that  the\tStates\t are
\n\t      independent,  sovereign  or  autonomous  units
\n\t      which had joined the federation under  certain
\n\t      conditions.   No\tsuch State ever\t existed  or
\n\t      acceded to the Union.”\n<\/p><\/blockquote>\n
23. Under our Constitution the state as such has no inherent
\nsovereign   power  or  autonomous  power  which\t cannot\t  be
\nencroached upon by the Centre.\tThe very fact that under our
\nConstitution,  Article 3, Parliament may by law form  a\t new
\nState  by  separation  of territory from  any  State  or  by
\nuniting two or more States or parts of States or by  uniting
\nany  territory\tto  a part of  any  State,  etc.,  militates
\nagainst the view that the States are sovereign or autonomous
\nbodies having definite independent rights of governance.  In
\nfact,  as pointed out earlier in certain  circumstances\t the
\nCentral\t Government  can issue directions to States  and  in
\nemergency  conditions assume far reaching  powers  affecting
\nthe  States  as well, and the fact that\t the  President\t has
\npowers to take over the administration of States  demolishes
\nthe  theory of an independent or autonomous existence  of  a
\nState.\t  It   must  also  be  realised\t that\tunlike\t the
\nConstitution   of  the\tUnited\tStates\tof   America   which
\nrecognises dual citizenship [Section 1(1), 14th\t Amendment],
\nthe Constitution of India, Article 5, does not recognise the
\nconcept\t  of   dual   citizenship.    Under   the   American
\nConstitution  all persons born or naturalised in the  United
\nStates,\t and  subject  to  the\tjurisdiction  thereof,\t are
\ncitizens of the United States and of the State wherein\tthey
\nreside whereas under Article 5 of the Indian Constitution at
\nits commencement, every person domiciled in the territory of
\nIndia and (a) who was born in the territory of India; or (b)
\neither of whose parents was born in the territory of  India;
\nor (c) who has been ordinarily resident in the territory  of
\nIndia  for  not less than five years  immediately  preceding
\nsuch  commencement shall be a citizen of India.\t  Article  9
\nmakes  it clear that if any person voluntarily acquires\t the
\ncitizenship  of any foreign country, he will cease to  be  a
\ncitizen\t of  India.  These provisions clearly  negative\t the
\nconcept of dual citizenship, a concept expressly  recognised
\nunder the American Constitution.  The concept of citizenship
\nassumes some importance in a federation because in a country
\n75<\/span>
\nwhich recognises dual citizenship, the individual would\t owe
\nallegiance  both  to the Federal Government as well  as\t the
\nState\tGovernment  but\t a  country  recognising  a   single
\ncitizenship  does not face complications arising  from\tdual
\ncitizenship  and  by  necessary\t implication  negatives\t the
\nconcept of State sovereignty.\n<\/p>\n
24.  Thus  the significant absence of the  expressions\tlike
\n‘federal’ or ‘federation’ in the constitutional\t vocabulary,
\nParliament’s  powers  under  Articles  2  and  3  elaborated
\nearlier,   the\textraordinary  powers  conferred   to\tmeet
\nemergency  situations,\tthe residuary  powers  conferred  by
\nArticle\t 248  read  with Entry 97 in List  1  of  the  VlIth
\nSchedule on the Union, the power to amend the  Constitution,
\nthe  power to issue directions to States, the concept  of  a
\nsingle\tcitizenship, the set-up of an integrated  judiciary,
\netc.,  etc.,  have led constitutional experts to  doubt\t the
\nappropriateness\t of the appellation ‘federal’ to the  Indian
\nConstitution.  Said Prof.  K.C. Wheare in his work
\nFederal Government:\n<\/p>\n
\t       “What  makes one doubt that the\tConstitution
\n\t      of  India\t is  strictly  and  fully   federal,
\n\t      however, are the powers of intervention in the
\n\t      affairs\tof   the   States   given   by\t the
\n\t      Constitution  to\tthe Central  Government\t and
\n\t      Parliament.”\n<\/p><\/blockquote>\n
 Thus in the United States, the sovereign States enjoy their
\nown   separate\t existence   which   cannot   be   impaired;
\nindestructible\tStates having constituted an  indestructible
\nUnion.\t In  India, on the contrary, Parliament can  by\t law
\nform a new State, alter the size of an existing State, alter
\nthe  name of an existing State, etc., and even\tcurtail\t the
\npower,\tboth  executive\t and legislative,  by  amending\t the
\nConstitution.\tThat  is why the Constitution  of  India  is
\ndifferently described, more appropriately as ‘quasi-federal’
\nbecause it is a mixture of the federal and unitary elements,
\nleaning- more towards the latter but then what is there in a
\nname,  what is important to bear in mind is the\t thrust\t and
\nimplications  of the various provisions of the\tConstitution
\nbearing\t on the controversy in regard to scope and ambit  of
\nthe  Presidential  power  under\t Article  356  and   related
\nprovisions.\n<\/p>\n
Secularism under the Constitution\n<\/p>\n
25.  India  can\t rightly be described as  the  world’s\tmost
\nheterogeneous  society.\t  It  is  a  country  with  a\trich
\nheritage.   Several  races  have  converged  in\t this\tsub-
\ncontinent.   They  brought  with them  their  own  cultures,
\nlanguages,  religions and customs.  These diversities  threw
\nup their own problems but the early leadership showed wisdom
\nand sagacity in tackling them by preaching the philosophy of
\naccommodation  and  tolerance.\tThis is\t the  message  which
\nsaints\tand  sufis spread in olden days\t and  which  Mahatma
\nGandhi\tand  other  leaders  of\t modem\ttimes  advocated  to
\nmaintain  national unity and integrity.\t The British  policy
\nof divide and rule, aggravated by separate electorates based
\non  religion, had added a new dimension of  mixing  religion
\nwith  politics which had to be countered and which could  be
\ncountered only if the  people realised the need for national
\nunity and integrity.  It was with the weapons of  secularism
\nand non-violence that Mahatma Gandhi fought the
\n76<\/span>
\nbattle for independence against the mighty colonial  rulers.
\nAs early as 1908, Gandhiji wrote in Hind Swaraj:\n<\/p>\n
\t      “India cannot cease to be one nation,  because
\n\t      people  belonging to different religions\tlive
\n\t      in  it.  … In no part of the world  are\t one
\n\t      nationality and one religion synonymous terms;
\n\t      nor has it ever been so in India.”\n<\/p><\/blockquote>\n
Gandhiji was ably assisted by leaders like Pandit Jawaharlal
\nNehru,\tMaulana\t Abul Kalam Azad and others in the  task  of
\nfighting  a  peaceful battle for  securing  independence  by
\nuniting\t the people of India against separatist forces.\t  In
\n1945 Pandit Nehru wrote :\n<\/p>\n
\t      “I am convinced that the future government  of
\n\t      free  India must be secular in the sense\tthat
\n\t      government will not associate itself  directly
\n\t      with any religious faith but will give freedom
\n\t      to  all  religious functions.”  And  this\t was
\n\t      followed up by Gandhiji when in 1946 he  wrote
\n\t      in  Harijan “I swear by my religion.   I\twill
\n\t      die  for\tit.  But it is my  personal  affair.
\n\t      The  State  has nothing to do  with  it.\t The
\n\t      State  will look after your  secular  welfare,
\n\t      health,\tcommunication,\tforeign\t  relations,
\n\t      currency and so on, but not my religion.\tThat
\n\t      is everybody’s personal concern.”\n<\/p><\/blockquote>\n
\t      26.   The\t  great\t  statesman-philosopher\t  Dr
\n\t      Radhakrishnan said
\n\t      “When India is said to be a secular State,  it
\n\t      does  not\t mean that we reject reality  of  an
\n\t      unseen spirit or the relevance of religion  to
\n\t      life or that we exalt irreligion.\t It does not
\n\t      mean that secularism itself becomes a positive
\n\t      religion\tor  that the  State  assumes  divine
\n\t      prerogatives.  Though faith in the Supreme  is
\n\t      the  basic principle of the Indian  tradition,
\n\t      the Indian State will not identify itself with
\n\t      or  be controlled by any particular  religion.
\n\t      We  hold that no one religion should be  given
\n\t      preferential  status, or\tunique\tdistinction,
\n\t      that  no\tone  religion  should  be   accorded
\n\t      special\tprivileges  in\tnational   life\t  or
\n\t      international  relations for that would  be  a
\n\t      violation of the basic principles of democracy
\n\t      and contrary to the best interests of religion
\n\t      and   Government.\t  This\tview  of   religious
\n\t      impartiality,\tof     comprehension\t and
\n\t      forbearance,  has\t a prophetic  role  to\tplay
\n\t      within  the national and\tinternational  life.
\n\t      No group of citizens shall arrogate to  itself
\n\t      rights  and  privileges  which  it  denies  to
\n\t      others.\tNo person should suffer any form  of
\n\t      disability  or discrimination because  of\t his
\n\t      religion but all alike should be free to share
\n\t      to  the  fullest degree in  the  common  life.
\n\t      This  is the basic principle involved  in\t the
\n\t      separation of Church and State.”
\n\t      (emphasis supplied)
\n\t      (Recovery of Faith, New York, Harper  Brothers
\n\t      1955, p. 202)\n<\/p><\/blockquote>\n
27.  Immediately   after  we  attained\t independence,\t the
\nConstituent  Assembly, aware of the danger  of\tcommunalism,
\npassed the following resolution on April 3, 1948
\n\t      “Whereas\tit  is\tessential  for\tthe   proper
\n\t      functioning   of\tdemocracy  and\t growth\t  of
\n\t      national unity and solidarity that communalism
\n\t      should  be eliminated from Indian\t life,\tthis
\n\t      Assembly\tis of the opinion that\tno  communal
\n\t      Organisation  which by its constitution or  by
\n\t      exercise of
\n\t      77<\/span>
\n\t       discretionary  power  vested in\tany  of\t its
\n\t      officers\tand  organs admits to,\tor  excludes
\n\t      from,  its  membership persons on\t grounds  of
\n\t      religion, race and   caste,  or  any  of\tthem
\n\t      should   be   permitted  to  engage   in\t any
\n\t      activities other than those essential for\t the
\n\t      bona  fide  religious,  cultural,\t social\t and
\n\t      educational  needs of the community, and\tthat
\n\t      all  steps,  legislative\tand  administrative,
\n\t      necessary to prevent such activities should be
\n\t      taken.”\n<\/p>\n
28.   Since  it\t was  felt  that  separate  electorates\t for
\nminorities  were  responsible for  communal  and  separatist
\ntendencies, the Advisory  Committee resolved that the system
\nof  reservation for minorities. excluding SC\/ST,  should  be
\ndone  away  with.  Pursuant to the goal of  secularism,\t the
\nConstituent  Assembly adopted clauses 13, 14 and 15  roughly
\ncorresponding to the present Articles 25, 26 and 27.  During
\nthe  debates Prime Minister Jawaharlal Nehru  declared\tthat
\nsecularism   was   an  ideal  to  be   achieved\t  and\tthat
\nestablishment of a Secular State was an act of faith, an act
\nof  faith above all for the majority community because\tthey
\nwill  have to show that they can behave towards others in  a
\nenerous, fair and just way.  When objection was sought to be
\nvoiced\tfrom  certain  quarters,  Pandit  Laxmikantha  Mitra
\nexplained :\n<\/p>\n
\t      ”\t By  Secular State, as I understand,  it  is
\n\t      meant that the State is not going to make\t any
\n\t      discrimination  whatsoever  on the  ground  of
\n\t      religion\t  or  community against\t any  person
\n\t      professing  any particular form  of  religious
\n\t      faith.\tThis  means  in\t essence   that\t  no
\n\t      particular religion in the State will  receive
\n\t      any State patronage whatsoever.  The State  is
\n\t      not going to establish, patronize or endow any
\n\t      particular religion to the exclusion of or  in
\n\t      preference  to others and that no\t citizen  in
\n\t      the State will have any preferential treatment
\n\t      or  will\tbe discriminated against  simply  on
\n\t      tile    ground that he professed a  particular
\n\t      form  of\treligion.  In other  words,  in\t the
\n\t      affairs  of  the State the preferring  of\t any
\n\t      particular  religion  will not be\t taken\tinto
\n\t      consideration  at all.  This I consider to  be
\n\t      the  essence of a Secular State.\tAt the\tsame
\n\t      time  we must be very careful to see  that  in
\n\t      this  land of ours we do not deny\t to  anybody
\n\t      the right not only to profess or practice\t but
\n\t      also propagate any particular religion.”\n<\/p><\/blockquote>\n
This  in  brief was the notion of secularism  and  democracy
\nduring\tthe pre-independence era and immediately  before  we
\ngave  unto  ourselves  the Constitution.  We  may  now\tvery
\nbriefly notice the provisions in the Constitution.\n<\/p>\n
29.  Notwithstanding the fact that the words ‘Socialist’ and
\n‘Secular’ were added in the Preamble of the Constitution  in
\n1976  by the 42nd Amendment, the concept of  Secularism\t was
\nvery  much embedded in our constitutional  philosophy.\t The
\nterm  ‘Secular’\t has advisedly not been\t defined  presumably
\nbecause\t it is a very elastic term not capable of a  precise
\ndefinition  and\t perhaps  best\tleft  undefined.   By\tthis
\namendment what was implicit was made explicit.\tThe Preamble
\nitself\tspoke  of liberty of  thought,\texpression,  belief,
\nfaith and worship.  While granting this liberty the Preamble
\npromised equality of status and opportunity.  It also  spoke
\nof
\n78<\/span>
\npromoting  fraternity, thereby assuring the dignity  of\t the
\nindividual and the unity and integrity of the nation.  While
\ngranting  to  its  citizens liberty  of\t belief,  faith\t and
\nworship, the Constitution abhorred discrimination on grounds
\nof  religion,  etc.,  but permitted  special  treatment\t for
\nScheduled  Castes  and\tTribes, vide  Articles\t15  and\t 16.
\nArticle 25 next provided, subject to public order,  morality
\nand health, that all persons shall be entitled to freedom of
\nconscience and the right to profess, practice and  propagate
\nreligion.  Article 26 grants to every religious denomination
\nor any section thereof, the right to establish and  maintain
\ninstitutions  for religious purposes and to manage  its\t own
\naffairs in matters of religion.\t These two articles  clearly
\nconfer a right to freedom of religion.\tArticle 27  provides
\nthat  no  person shall be compelled to pay  any\t taxes,\t the
\nproceeds whereof are specifically appropriated in payment of
\nexpenses for the promotion or maintenance of any  particular
\nreligion  or religious denomination.  This is  an  important
\narticle\t which\tprohibits the exercise of  State’s  taxation
\npower\tif  tile  proceeds  thereof  are  intended   to\t  be
\nappropriated  in payment of expenses for the  promotion\t and
\nmaintenance   of  any  particular  religion   or   religious
\ndenomination.\tThat  means that State’s revenue  cannot  be
\nutilised  for the promotion and maintenance of any  religion
\nor  religious  group.  Article 28 relates to  attendance  at
\nreligious  instructions\t or  religious\tworship\t in  certain
\neducational  institutions.   Then come Articles\t 29  and  30
\nwhich refer to the cultural and educational rights.  Article
\n29  inter  alia\t provides that no  citizen  will  be  denied
\nadmission to an educational institution maintained wholly or
\npartly\tfrom State funds on grounds only of  religion,\tetc.
\nArticle 30 permits all minorities, whether based on religion
\nor   language,\tto  establish  and  administer\t educational
\ninstitutions of their choice and further prohibits the State
\nfrom discriminating against such institutions in the  matter
\nof  granting  and.  These fundamental  rights  enshrined  in
\nArticles 15, 16, and 25 to 30 leave no manner of doubt\tthat
\nthey  form part of the basic structure of the  Constitution.
\nBesides,   by  the  42nd  Amendment,  Part   IV-A   entitled
\n‘Fundamental Duties’ was introduced which inter alia casts a
\nduty on every citizen to cherish and follow the noble ideals
\nwhich inspired our national struggle for freedom, to  uphold
\nand  protect the sovereignty, unity and integrity of  India,
\nto  promote  harmony and the spirit  of\t common\t brotherhood
\namongst\t all  the people of  India  transcending  religious,
\nlinguistic  and\t regional or sectional diversities,  and  to
\nvalue  and  preserve  the rich\theritage  of  our  composite
\nculture.   These  provisions which I have  recalled  briefly
\nclearly\t bring\tout  the  dual\tconcept\t of  secularism\t and
\ndemocracy, the principles of accommodation and tolerance  as
\nadvocated  by  Gandhiji and other national leaders.   I\t am,
\ntherefore,  in\tagreement  with the views  expressed  by  my
\nlearned\t colleagues Sawant, Ramaswamy and Reddy,  JJ.,\tthat
\nsecularism  is\ta basic feature of our\tConstitution.\tThey
\nhave elaborately dealt with this aspect of the matter and  I
\ncan do no better than express my concurrence but I have said
\nthese few words merely to complement their views by pointing
\nout how this concept was understood immediately before
\n79<\/span>
\nthe  Constitution and till the 42nd Amendment.\tBy the\t42nd
\nAmendment what was implicit was made explicit. 30.     After
\nthe   demise  of  Gandhiji  national  leaders  like   Pandit
\nNehru,Maulana  Azad, Dr Ambedkar and others tried their best
\nto see that the secular\t character   of\t  the\tnation,\t  as
\nbequeathed  by Gandhiji, was not jeopardised.  Dr  Ambedkar,
\nChairman   of\tthe  Drafting  Committee,   aware   of\t the
\nundercurrents\tcautioned   that  India\t was   not   yet   a
\nconsolidated  and integrated nation but had to\tbecome\tone.
\nThis  anxiety  was  also reflected in his  speeches  in\t the
\nConstituent  Assembly.\t He was,  therefore,  careful  while
\ndrafting the Constitution to ensure that adequate safeguards
\nwere  provided\tin the Constitution to protect\tthe  secular
\ncharacter  of  the country and to keep\tdivisive  forces  in
\ncheck  so  that the interests of religious,  linguistic\t and
\nethnic\tgroups\twere not prejudiced.   He  carefully  weaved
\nGandhiji’s  concept  of secularism and\tdemocracy  into\t the
\nconstitutional fabric.\tThis becomes evident from a  cursory
\nlook  at  the  provisions of the  Constitution\treferred  to
\nearlier.\n<\/p>\n
Judicial Review and Justiciability
\nConstitution, the possibility of different political parties
\nruling\tat  the Centre and in one or more States  cannot  be
\nruled out.  The Constitution clearly permits it.  Therefore,
\nthe mere defeat of the ruling party at the Centre cannot  by
\nitself,\t without  anything more, entitle the  newly  elected
\nparty  which  comes  to power at the Centre  to\t advise\t the
\nPresident  to dissolve the Assemblies of those States  where
\nthe  party  in power is other than the one in power  at\t the
\nCentre.\t  Merely  because  a different\tpolitical  party  is
\nelected\t to  power at the Centre, even if  with\t a  thumping
\nmajority, is no ground to hold that ‘a situation has  arisen
\nin which the Government of the State cannot be carried on in
\naccordance with the provisions of this Constitution’,  which
\nis  the requirement for the exercise of power under  Article
\n356(1)\tof  the Constitution.  To exercise power  under\t the
\nsaid  provision and to dissolve the State Assemblies  solely
\non the ground of a new political party having come to  power
\nat  the\t Centre with a sweeping majority would, to  say\t the
\nleast,\tbetray\tintolerance  on\t the  part  of\tthe  Central
\nGovernment  clearly  basing  the  exercise  of\tpower  under
\nArticle\t 356(1)\t on considerations extraneous  to  the\tsaid
\nprovision and, therefore, legally mala fide.  It is a matter
\nof common knowledge that people vote for different political
\nparties at the Centre and in the States and, therefore, if a
\npolitical party with an ideology different from the ideology
\nof the political party in power in any State comes to  power
\nin the Centre, the Central Government would not be justified
\nin exercising power under Article 356(i) unless it is  shown
\nthat  the  ideology of the political party in power  in\t the
\nState  is  inconsistent with the  constitutional  philosophy
\nand, therefore, it is not possible for that party to run the
\naffairs\t of the State in accordance with the  provisions  of
\nthe Constitution.  It is axiomatic that no State  Government
\ncan  function  on a programme which is\tdestructive  of\t the
\nconstitutional\tphilosophy as such functioning can never  be
\nin accordance with the provisions of the Constitution.\t But
\nwhere a State
\n80<\/span>
\nGovernment is functioning in accordance with the  provisions
\nof the Constitution and its ideology is consistent with\t the
\nconstitutional philosophy, the Central Government would\t not
\nbe  justified in resorting to Article 356(1) to get  rid  of
\nthe State Government ‘solely’ on the ground that a different
\npolitical  party  has  come to power at the  Centre  with  a
\nlandslide victory.  Such exercise of power would be  clearly
\nmala fide.  The decision of this Court in State of Rajasthan
\nv.  Union of’ India3 to the extent it is  inconsistent\twith
\nthe above discussion, does not, in my humble view, lay\tdown
\nthe law correctly.\n<\/p>\n
32.  Since  it\twas not disputed before us  by\tthe  learned
\nAttorney  General  as  well as\tMr  Parasaran,\tthe  learned
\ncounsel\t for the Union of India, that a Proclamation  issued
\nby  the President on the advice of his Council of  Ministers
\nheaded\tby  the\t Prime Minister,  is  amenable\tto  judicial
\nreview, the controversy narrows down to the determination of
\nthe scope and ambit of judicial review i.e. in other  words,
\nto  the area of justiciability.\t The debate at the  Bar\t was
\nlimited\t to this area; the learned Attorney General as\twell
\nas  Mr Parasaran contending for the view that the  law\tlaid
\ndown  in the Rajasthan case3 in this behalf was correct\t and
\ndid  not require reconsideration while the counsel  for\t the
\nState\tGovernments  concerned\twhich  were  superseded\t  by
\nexercise  of power under Article 356(1) contending that\t the
\nsaid decision required reconsideration.\n<\/p>\n
33.  Before I deal with the said issue I may dispose of\t the
\nquestion  whether  the\tprovision of Article  74(2)  of\t the
\nConstitution permits withholding of the reasons and material
\nforming the basis for the ministerial advice tendered to the
\nPresident.  Article 74(1) ordains that the President ,shall’
\nact in accordance with the advice tendered by the Council of
\nMinisters.   The proviso, however, entities him\t to  require
\nthe Council of Ministers to reconsider its advice if he\t has
\nany doubts or reservation but once the Council of  Ministers
\nhas  reconsidered  the\tadvice,\t he is\tobliged\t to  act  in
\naccordance therewith.  Article 74(2) then provides that “the
\nquestion whether any, and if so what, advice was tendered to
\nthe  President\tshall not be inquired into  in\tany  Court”.
\nWhat  this clause bars from being inquired into is  “whether
\nany, and if so what, advice was tendered” and nothing beyond
\nthat.\tThis question has been elaborately discussed  by  my
\nlearned colleagues who have examined in detail its pros\t and
\ncons in their judgments and, therefore, I do not consider it
\nnecessary  to traverse the same path.  It would\t suffice  to
\nsay  that since reasons would form part of the\tadvice,\t the
\nCourt  would be precluded from calling for their  disclosure
\nbut  I agree that Article 74(2) is no bar to the  production
\nof  all\t the material on which the  ministerial\t advice\t was
\nbased.\tOf course the privilege available under the Evidence
\nAct,  Sections\t123  and 124, would  stand  on\ta  different
\nfooting\t and  can  be claimed dehors Article  74(2)  of\t the
\nConstitution.  To the extent the decision in Rajasthan case3
\nconflicts with this view, I respectfully disagree.
\n3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1
\n81<\/span>\n<\/p>\n
34. That takes me to the question of the scope and extent of
\njudicial  review i.e. the area of justiciability insofar  as
\nthe  subjective satisfaction of the President under  Article
\n356(1) of the Constitution is concerned.  Part XVIII,  which
\ndeals  with  emergency provisions provides for\texercise  of
\nemergency  powers under different situations.\tArticle\t 352
\nprovides  that “if the President is satisfied” that a  grave
\nemergency  exists threatening the security of India  or\t any
\npart thereof, whether by war or external aggression or armed
\nrebellion,  the\t President may make a  declaration  to\tthat
\neffect\t specifying  the  area\tof  its\t operation  in\t the
\nProclamation.\tNotwithstanding the use of the language\t “if
\nthe President is satisfied” which suggests that the decision
\nwould\tdepend\ton  the\t subjective  satisfaction   of\t the
\nPresident,  counsel  agreed that such a decision  cannot  be
\nmade the subject-matter of judicial scrutiny for the obvious
\nreason that the existence or otherwise of a grave  emergency
\ndoes not fall within the purview of judicial scrutiny  since
\nthe  Courts  are ill-equipped to undertake such\t a  delicate
\nfunction.   So\talso  under  Article  360  the\texercise  of
\nemergency  power  is dependent on the  satisfaction  of\t the
\nPresident that a situation has arisen whereby the  financial
\nstability  or  credit  of  India  or  any  part\t thereof  is
\nthreatened.  The decision to issue a Proclamation containing
\nsuch   a  declaration  is  also\t based\ton  the\t  subjective
\nsatisfaction  of the President, i.e., Council of  Ministers,
\nbut the court would hardly be in a position to X-ray such  a
\nsubjective  satisfaction for want of expertise in regard  to
\nfiscal matters.\t These provisions, therefore, shed light  on
\nthe extent of judicial review.\n<\/p>\n
35.  The  marginal note of Article 356\tindicates  that\t the
\npower conferred by that provision is exercisable “in case of
\nfailure\t of constitutional machinery in the States”.   While
\nthe  text  of  the  said  article  does\t not  use  the\tsame
\nphraseology,  it  empowers  the\t President,  on\t his   being
\nsatisfied  that,  “a  situation has  arisen”  in  which\t the
\nGovernment of the State ‘cannot’ be carried on in accordance
\nwith  the  provisions  of the  Constitution,  i.e.,  on\t the
\nfailure\t of the constitutional machinery, to take action  in
\nthe manner provided in sub-clauses (a), (b) and (c) and (sic
\nof) clause (1) thereof.\t This action he must take on receipt
\nof  a  report from the Governor of the\tState  concerned  or
\n,otherwise’, if he is satisfied therefrom about the  failure
\nof  the\t constitutional machinery.  Article  356(i)  confers
\nextraordinary  powers  on  the\tPresident,  which  he\tmust
\nexercise sparingly and with great circumspection, only if he
\nis  satisfied from the Govern’s report or otherwise  that  a
\nsituation  has arisen in which the Government of  the  State
\ncannot\tbe carried out in accordance with the provisions  of
\nthe  Constitution.   The expression ‘otherwise’ is  of\tvery
\nwide import and cannot be restricted to material capable  of
\nbeing  tested  on principles relevant  to  admissibility  of
\nevidence  in  courts  of  law.\tIt  would  be  difficult  to
\npredicate the nature of material which may be placed  before
\nthe President or which he may have come across before taking
\naction\tunder Article 356(1).  Besides, since the  President
\nis  not\t expected to record his reasons for  his  subjective
\nsatisfaction, it would be equally difficult for the Court to
\nenter ‘the political thicket’ to ascertain what weighed with
\nthe  President\tfor  the exercise of power  under  the\tsaid
\nprovision.  The test laid
\n82<\/span>
\ndown  by this Court in Barium Chemicals Ltd. v. Company\t Law
\nBoard6\tand<\/a> subsequent decisions for adjudging the  validity
\nof administrative action can have no application for testing
\nthe  satisfaction  of the President under Article  356.\t  It
\nmust  be remembered that the power conferred by Article\t 356
\nis  of\tan  extraordinary nature to be\texercised  in  grave
\nemergencies  and,  therefore,  the exercise  of\t such  power
\ncannot\tbe equated to the power exercised in  administrative
\nlaw  field  and\t cannot, therefore, be tested  by  the\tsame
\nyardstick.  Several imponderables would enter  consideration
\nand govern the ultimate decision, which would be based,\t not
\nonly  on events that have preceded the decision,  but  would
\nalso depend on likely consequences to follow and, therefore,
\nit  would  be wholly incorrect to view the exercise  of\t the
\nPresident’s  satisfaction  on a par  with  the\tsatisfaction
\nrecorded   by\texecutive  officers  in\t the   exercise\t  of
\nadministrative\tcontrol.   The opinion which  the  President
\nwould form on the basis of the Govern’s report or  otherwise
\nwould be based on his political judgment and it is difficult
\nto evolve judicially manageable norms for scrutinising\tsuch
\npolitical decisions.  It, therefore, seems to me that by the
\nvery nature of things which would govern the decision-making
\nunder Article 356, it is difficult to hold that the decision
\nof the President is justiciable.  To do so would be entering
\nthe  political thicket and questioning the political  wisdom
\nwhich the courts of law must avoid.  The temptation to delve
\ninto  the  President’s\tsatisfaction may be  great  but\t the
\ncourts\twould be well advised to resist the  temptation\t for
\nwant  of judicially manageable standards.  Therefore, in  my
\nview,\tthe   court  cannot  interdict\tthe   use   of\t the
\nconstitutional\tpower  conferred  on  the  President   under
\nArticle\t 356  unless  the same is shown\t to  be\t mala  fide.
\nBefore\texercise  of  the  court’s  jurisdiction  sufficient
\ncaution must be administered and unless a strong and  cogent
\nprima  facie  case  is made out, the President\t i.  e.\t the
\nExecutive must not be called upon to answer the charge.\t  In
\nthis  connection I agree with the observation of  Ramaswamy,
\nJ.  I am also in agreement with Verma, J. when he says\tthat
\nno  quia timet action would be permissible in such cases  in
\nview of the limited scope of judicial review in such  cases.
\nI  am,\ttherefore,  in respectful agreement  with  the\tview
\nexpressed  in the Rajasthan case3 as regards the  extent  of
\nreview available in relation to a Proclamation issued  under
\nArticle\t 356 of the Constitution.  In other words it can  be
\nchallenged  on\tthe limited ground that the action  is\tmala
\nfide or ultra vires Article 356 itself.\n<\/p>\n
36.  Applying the above test I am in agreement with the view
\nthat the Proclamations issued and consequential action taken
\nagainst\t the  States of Madhya\tPradesh,  Himachal  Pradesh,
\nRajasthan  and\tKarnataka  are\tnot  justiciable  while\t the
\nProclamation  issued  in connection with  Meghalaya  may  be
\nvulnerable  but\t it is not necessary to issue any  order  or
\ndirection  in  that behalf as the issue is no more  live  in
\nview of the subsequent developments that have taken place in
\nthat State after fresh elections.  I am, therefore, in
\n6 1966 Supp SCR 311: AIR 1967 SC 295: (1966) 36 Comp Cas 639
\n3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1
\n83<\/span>
\nrespectful agreement with the final order proposed by Verma,
\nJ.  and Ramaswamy, J. I may also add that I agree  with\t the
\nview  expressed by all the three learned colleagues  on\t the
\nconcept of secularism.\n<\/p>\n
37.  This   also  indicates  the  areas\t of  agreement\t and
\ndisagreements with the views expressed by Sawant and  Reddy,
\nJJ.\n<\/p>\n
38.  Before concluding, I must express my gratitude for\t the
\nexcellent  assistance  rendered\t by  the  learned   Attorney
\nGeneral\t and  all the learned counsel who appeared  for\t the
\ncontesting parties.\n<\/p>\n
VERMA,\tJ.  (for  himself and  Yogeshwar  Dayal,  J.)-\tThis
\nseparate opinion is occasioned by the fact that in our\tview
\nthe  area  of  justiciability is  even\tnarrower  than\tthat
\nindicated in the elaborate opinions prepared by our  learned
\nbrethren.   The purpose of this separate note is  merely  to
\nindicate the area of such difference.  It is unnecessary  to
\nmention\t the facts and discuss the factors which must  guide
\nthe  exercise  of power under Article 356  which  have\tbeen
\nelaborately discussed in the other opinions.  Indication  of
\nthese factors including the concept of secularism for proper
\nexercise  of  the power does not mean necessarily  that\t the
\nexistence  of  these factors is justiciable.  In  our  view,
\nthese  factors must regulate the issuance of a\tProclamation
\nunder Article 356 to ensure proper exercise of the power but
\nthe  judicial  scrutiny\t thereof is available  only  in\t the
\nlimited\t area indicated hereafter, the remaining area  being
\namenable  to scrutiny and correction only by Parliament\t and
\nthe subsequent electoral verdict.\n<\/p>\n
40.  There is no dispute that the Proclamation issued  under
\nArticle 356 is subject\t to judicial review.  The debate  is
\nconfined essentially to the scope of judicial\t  review  or
\nthe  area of justiciability in that sphere.  It does  appear
\nthat  the  area of justiciability is narrow in view  of\t the
\nnature\tof that power and the wide discretion which  inheres
\nin  its\t exercise.  This indication appears  also  from\t the
\nrequirement  of approval of the Proclamation  by  Parliament
\nwhich is a check provided in the Constitution of scrutiny by
\npolitical  process of the decision taken by  the  Executive.
\nThe  people’s  verdict\tin  the\t election  which  follow  is
\nintended to be the ultimate check.\n<\/p>\n
41.  To determine the justiciable area, we prefer to  recall
\nand  keep in view that which was said in K. Ashok  Reddy  v.
\nGovernment of India7<\/a> thus: (SCC pp. 315-16, paras 21-23)
\n\t      “21.    A\t  useful   passage   from    Craig’s
\n\t      Administrative Law (Second Edn., p. 291) is as
\n\t      under:\n<\/p>\n
\t      ‘The traditional position was that the  courts
\n\t      would  control  the existence  and  extent  of
\n\t      prerogative  power,  but\tnot  the  manner  of
\n\t      exercise thereof. … The traditional position
\n\t      has however now been modified by the  decision
\n\t      in the GCHQ case8.  Their Lordships emphasised
\n\t      that the review ability of discretionary power
\n\t      should  be dependent upon\t the  subject-matter
\n\t      thereof, and not whether its
\n\t      7 (1994) 2 SCC 303: JT (1994) 1 SC 401
\n\t      8\t    Council  (of  Civil\t Service  Unions  v.\n<\/p>\n
\t      Minister for the Civil Service, (1985) AC 374:
\n\t      (1984) 3 All ER 935
\n\t      84<\/span>
\n\t      prerogative  power  would,  because  of  their
\n\t      subject-matter, be less justiciable, with Lord
\n\t      Roskill  compiling the broadest list  of\tsuch
\n\t      forbidden territory. …’\n<\/p>\n
22.  In Council of Civil Service Unions v. Minister for\t the
\nCivil Service8 (GCHQ case), Lord Roskill stated thus: (AC p.
\n418, All ER P. 956)
\n\t      , But I do not think that\t right of  challenge
\n\t      can be unqualified.  It must, I think,  depend
\n\t      upon  the\t subject-matter of  the\t prerogative
\n\t      power which is exercised.\t Many examples\twere
\n\t      given  during  the  argument  of\t prerogative
\n\t      powers  which as at present advised I  do\t not
\n\t      think  could properly be made the\t subject  of
\n\t      judicial\treview.\t Prerogative powers such  as
\n\t      those relating to the making of treaties,\t the
\n\t      defence  of  the\trealm,\tthe  prerogative  of
\n\t      mercy, the grant of honors, the dissolution of
\n\t      Parliament and the appointment of ministers as
\n\t      well  as others are not, I think,\t susceptible
\n\t      to  judicial review because their\t nature\t and
\n\t      subject-matter  is such as not to be  amenable
\n\t      to the judicial process. …’\n<\/p>\n
23.  The same indication of judicial self-restraint in\tsuch
\nmatters\t is  to be found in De Smith’s\tJudicial  Review  of
\nAdministrative Action, thus: (p. 3 2)
\n\t      ”\t Judicial  self-restraint  was\tstill\tmore
\n\t      marked  in cases where attempts were  made  to
\n\t      impugn the exercise of discretionary powers by
\n\t      alleging abuse of the discretion itself rather
\n\t      than  alleging  nonexistence of the  state  of
\n\t      affairs on which the validity of its  exercise
\n\t      was  predicated.\tQuite properly,\t the  courts
\n\t      were  slow  to read implied  limitations\tinto
\n\t      grants  to  wide\tdiscretionary  powers  which
\n\t      might  have  to be exercised on the  basis  of
\n\t      broad considerations of national policy.’ ”\n<\/p>\n
42.  It\t is also useful to refer to Puhlhofer v.  Hillingdon
\nLondon Borough Council9 wherein Lord Brightman with whom the
\nother Law Lords agreed, stated thus: (All ER p. 474)
\n\t      “Where  the  existence or non-existence  of  a
\n\t      fact is left to the judgment and discretion of
\n\t      a\t public body and that fact involves a  broad
\n\t      spectrum\tranging\t from  the  obvious  to\t the
\n\t      debatable\t to the just conceivable, it is\t the
\n\t      duty  of\tthe court to leave the\tdecision  of
\n\t      that   fact  to  the  public  body   to\twhom
\n\t      Parliament  has entrusted the  decision-making
\n\t      power save in a case where it is obvious\tthat
\n\t      the public body, consciously or unconsciously,
\n\t      are acting perversely.”\n<\/p>\n
In  our\t view, this principle is equally applicable  in\t the
\npresent\t case  to  determine the extent\t to  which  alone  a
\nProclamation issued under Article 356 is justiciable.\n<\/p>\n
8    (1985) AC 374: (1984) 3 All ER 935\n9    (1986) AC 484: (1986) 1 All ER 467\n85<\/span>\n<\/pre>\n
43. The question now is of the test applicable to  determine
\nthe  situation\tin  which the power of\tjudicial  review  is
\ncapable\t of exercise or, in other words, the controversy  is
\njusticiable.   The  deeming provision in Article 365  is  an
\nindication  that cases falling within its ambit are  capable
\nof judicial scrutiny by application of objective  standards.
\nThe   facts  which  attract  the  legal\t fiction  that\t the
\nconstitutional machinery has failed are specified and  their
\nexistence  is  capable of objective determination.   It\t is,
\ntherefore,  reasonable to hold that the cases falling  under
\nArticle 365 are justiciable.\n<\/p>\n
44.  The expression ‘or otherwise’ in Article 356  indicates
\nthe wide range of the\t materials  which may be taken\tinto
\naccount for the formation of opinion\tby  the\t  President.
\nObviously,   the   materials  could   consist\tof   several
\nimponderables  including some matter which is  not  strictly
\nlegal evidence, the credibility and authenticity of which is
\nincapable  of  being  tested in law  courts.   The  ultimate
\nopinion\t formed in such cases, would be mostly a  subjective
\npolitical  judgment.   There are  no  judicially  manageable
\nstandards for scrutinising such materials and resolving such
\na  controversy.\t By its very nature such controversy  cannot
\nbe  justiciable.  It would appear that all such\t cases\tare,
\ntherefore, not justiciable.\n<\/p>\n
45.  It would appear that situations wherein the failure  of
\nconstitutional\tmachinery  has to be  inferred\tsubjectively
\nfrom  a variety of facts and circumstances,  including\tsome
\nimponderables\tand  inferences\t leading  to  a\t  subjective
\npolitical  decision,  judicial scrutiny of the same  is\t not
\npermissible  for  want of judicially  manageable  standards.
\nThese  political  decisions  call  for\tjudicial  hands\t off
\nenvisaging   correction\t only  by  a  subsequent   electoral
\nverdict, unless corrected earlier in Parliament.\n<\/p>\n
46.  In other words, only cases which permit application  of
\ntotally\t  objective  standards\tfor  deciding  whether\t the
\nconstitutional\t machinery  has\t failed,  are  amenable\t  to
\njudicial review and the remaining cases wherein there is any
\nsignificant  area  of subjective satisfaction  dependent  on
\nsome imponderables or inferences are not justiciable because
\nthere  are no judicially manageable standards for  resolving
\nthat  controversy;  and\t those cases  are  subject  only  to
\npolitical scrutiny and correction for whatever its value  in
\nthe  existing  political scenario.  This appears to  be\t the
\nconstitutional scheme.\n<\/p>\n
47.  The   test\t  for\tadjudging   the\t  validity   of\t  an
\nadministrative\taction\tand the grounds\t of  its  invalidity
\nindicated in Barium Chemicals Ltd. v. Company Law Board<\/a>& and
\nother cases of that category have no application for testing
\nand  invalidating a Proclamation issued under  Article\t356.
\nThe test applicable has been indicated above and the grounds
\nof  invalidity are those mentioned in State of Rajasthan  v.
\nUnion of India3.\n<\/p>\n
48.  Article 74(2) is no bar to production of the  materials
\non  which the ministerial advice is based, for\tascertaining
\nwhether\t the  case  falls within the  justiciable  area\t and
\nacting on it when the controversy, is found justiciable,
\n6   1966 Supp SCR 311: AIR 1967 SC 295: (1966) 36  Comp\t Cas
\n639<\/span>
\n3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1
\n86<\/span>
\nbut that is subject to the claim of privilege under  Section
\n123 of the Evidence Act, 1872.\tThis is considered at length
\nin  the\t opinion  of Sawant, J. We,  therefore,\t regret\t our
\ninability  to concur with the different view on\t this  point
\ntaken  in State of Rajasthan v. Union of India3 even  though
\nwe   agree   that  the\tdecision  does\t not   require\t any
\nreconsideration on the aspect of area of justiciability\t and
\nthe grounds of invalidity indicated therein.\n<\/p>\n
49.  In the above view, it follows that no quia timet action
\nwould  be permissible in such cases in view of\tthe  limited
\nscope  of judicial review; and electoral verdict  being\t the
\nultimate check, courts can grant substantive relief only  if
\nthe  issue remains live in cases which are justiciable.\t  In
\nKihoto\tHollohan v. Zachillhu10 it was stated thus: (SCC  p.
\n711, para 110)
\n\t      “In  view\t of the limited\t scope\tof  judicial
\n\t      review  that  is available on account  of\t the
\n\t      finality clause in paragraph 6 and also having
\n\t      regard  to the constitutional  intendment\t and
\n\t      the   status   of\t the   repository   of\t the
\n\t      adjudicatory   power  i.e.   Speaker\/Chairman,
\n\t      judicial review cannot be available at a stage
\n\t      prior  to\t the  making of a  decision  by\t the
\n\t      Speaker\/\tChairman  and a\t quia  timet  action
\n\t      would   not   be\t permissible.\t Nor   would
\n\t      interference    be    permissible\t   at\t  an
\n\t      interlocutory stage of the proceedings.”\n<\/p>\n
50.  It is also clear that mere parliamentary approval\tdoes
\nnot  have  the effect of excluding judicial  review  to\t the
\nextent\tpermissible.   In  Sarojini Ramaswami  v.  Union  of
\nIndia11<\/a> it has been stated thus: (SCC pp. 560-61)
\n\t      “72.    We   may,\t however,   add\t  that\t the
\n\t      intervention of the parliamentary part of\t the
\n\t      process, in case a finding of guilty is  made,
\n\t      which  according to Shri Sibal  would  totally
\n\t      exclude\tjudicial  review  thereafter  is   a
\n\t      misapprehension since limited judicial  review
\n\t      even  in that area is not in doubt  after\t the
\n\t      decision of this Court in Keshav Singhl2.\n<\/p>\n
\t      73.   At this stage, a reference to the nature
\n\t      and scope of judicial review as understood  in
\n\t      similar\t situations    is    helpful.\t  In
\n\t      Administrative  Law (Sixth Edition) by  H.W.R.\n<\/p>\n
\t      Wade,    in   the\t  chapter    ‘Constitutional
\n\t      Foundations of the Powers of the Courts’ under
\n\t      the  heading ‘The Sovereignty of\tParliament’,
\n\t      the  effect  of Parliament’s  intervention  is
\n\t      stated thus: (at p. 29)
\n\t      ‘There\tare    many   cases    where\tsome
\n\t      administrative order or regulation is required
\n\t      by  statute to be approved by  resolutions  of
\n\t      the  Houses.   But this procedure\t in  no\t way
\n\t      protects\tthe order or regulation\t from  being
\n\t      condemned by the court, under the doctrine  of
\n\t      ultra   vires,  if  it  is  not  strictly\t  in
\n\t      accordance   with\t  the  Act.    Whether\t the
\n\t      challenge\t is made before or after the  Houses
\n\t      have given their approval is immaterial.’
\n\t       3 (1977) 3 SCC 592 : AIR 1977 SC 1361: (1978)
\n\t      1 SCR 1
\n\t      10  1992 Supp (2) SCC 651
\n\t      11 (1992) 4 SCC 506
\n\t       12     special Reference No.of 1964, (1965)  1<\/span>
\n\t      SCR 413 : AIR 1965 SC 745
\n\t      87<\/span>
\nLater  at  p. 41 1, Wade has said that ‘in  accordance\twith
\nconstitutional\tprinciple, parliamentary approval  does\t not
\naffect the normal operation of judicial review’.  At p.\t 870
\nwhile  discussing  ‘Judicial  Review’,\tWade  indicates\t the
\nposition thus:\n<\/p>\n
\t      ‘As these cases show, judicial review is in no
\n\t      way  inhibited  by  the  fact  that  rules  or
\n\t      regulations  have been laid before  Parliament
\n\t      and approved, despite the ruling of the  House
\n\t      of  Lords\t that the test\tof  unreasonableness
\n\t      should  not  then operate in its\tnormal\tway.
\n\t      The Court of Appeal has emphasised that in the
\n\t      case  of\tsubordinate legislation such  as  an
\n\t      Order  in\t Council approved in draft  by\tboth
\n\t      Houses,  “the  courts would without  doubt  be
\n\t      competent to consider whether or not the order
\n\t      was properly made in the sense of being  intra
\n\t      vires”.’\n<\/p><\/blockquote>\n
\t      74.   The clear indication, therefore, is that
\n\t      mere  parliamentary approval of an  action  or
\n\t      even  a  report by an outside  authority\twhen
\n\t      without such approval, the action or report is
\n\t      ineffective  by  itself,\tdoes  not  have\t the
\n\t      effect  of  excluding judicial review  on\t the
\n\t      permissible grounds.”\n<\/p><\/blockquote>\n
51.  Applying  this  principle, only the Meghalaya  case  is
\njusticiable  and that Proclamation was invalid\twhile  those
\nrelating to Madhya Pradesh, Himachal Pradesh, Rajasthan\t and
\nKarnataka   are\t not  justiciable.   There  is\trightly\t  no
\nchallenge  to  the Proclamation relating to  Uttar  Pradesh.
\nHowever,  in  view  of\tthe  subsequent\t elections  held  in
\nMeghalaya,  that is no longer a live issue  and,  therefore,
\nthere is no occasion to grant any substantial relief even in
\nthat case,\n<\/p>\n
52.  It\t is to this extent our view differs on the  question
\nof  justiciability.  On this view, it is unnecessary for  us
\nto  express any opinion on the remaining matters,  According
\nto us, except to the extent indicated, the decision in State
\nof   Rajasthan\t v.  Union  of\tIndia3\tdoes   not   require
\nreconsideration.\n<\/p>\n
SAWANT,\t J.  (on behalf of Kuldip Singh,  J.  and  himself)-
\nArticle\t  356  has  a  vital  bearing  on   the\t  democratic
\nparliamentary  form  of Government and the autonomy  of\t the
\nStates under the federal constitution that we have  adopted.
\nThe interpretation of the article has, therefore, once again
\nengaged the attention of this Court in the background of the
\nremoval\t of  the  Governments and  the\tdissolution  of\t the
\nLegislative  Assemblies\t in  six States with  which  we\t are
\nconcerned  here,  on different occasions  and  in  different
\nsituations by the exercise of power under the article.\t The
\ncrucial\t question that falls for consideration in all  these
\nmatters\t is whether the President has unfettered  powers  to
\nissue Proclamation under Article 356(1) of the Constitution.
\nThe answer to this question depends upon the answers to\t the
\nfollowing  questions:  (a) Is the Proclamation\tamenable  to
\njudicial  review?  (b)\tIf yes, what is\t the  scope  of\t the
\njudicial review in this respect? and (c) What is the meaning
\nof the expression “a situation has arisen in which the
\n3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1
\n88<\/span>
\nGovernment  of the State cannot be carried on in  accordance
\nwith  the provisions of this Constitution” used\t in  Article
\n356(1)?\n<\/p>\n
\t\t 54.\t Article 356 reads as follows:
\n\t\t “356.\t Provisions  in case of\t failure  of
\n\t      constitutional  machinery in States.-  (1)  If
\n\t      the  President, on receipt of report from\t the
\n\t      Governor of a State or otherwise, is satisfied
\n\t      that  a  situation  has arisen  in  which\t the
\n\t      Government  of the State cannot be carried  on
\n\t      in  accordance  with the\tprovisions  of\tthis
\n\t      Constitution,    the    President\t   may\t  by
\n\t      Proclamation-\n<\/p><\/blockquote>\n
\t      (a)   assume  to\thimself all or\tany  of\t the
\n\t      functions\t of the Government of the State\t and
\n\t      all  or  any  of\tthe  powers  vested  in\t  or
\n\t      exercisable  by  the Governor  or\t anybody  or
\n\t      authority\t  in  the  State  other\t  than\t the
\n\t      Legislature of the State;\n<\/p><\/blockquote>\n
\t      (b)   declare   that   the   powers   of\t the
\n\t      Legislature of the State shall be\t exercisable
\n\t      by or under the authority of Parliament;\n<\/p><\/blockquote>\n
\t      (c)   make  such incidental and  consequential
\n\t      provisions  as appear to the President  to  be
\n\t      necessary\t or desirable for giving  effect  to
\n\t      the  objects  of the  Proclamation,  including
\n\t      provisions for suspending in whole or in\tpart
\n\t      the  operation  of  any  provisions  of\tthis
\n\t      Constitution relating to anybody or  authority
\n\t      in the State :\n<\/p><\/blockquote>\n
Provided  that\tnothing in this clause shall  authorise\t the
\nPresident  to assume to himself any of the powers vested  in
\nor exercisable by a High Court, or to suspend in whole or in
\npart  the  operation of any provision of  this\tConstitution
\nrelating to High Courts.\n<\/p>\n
(2)  Any  such\tProclamation may be revoked or varied  by  a
\nsubsequent Proclamation.\n<\/p>\n
(3)  Every  Proclamation issued under this article shall  be
\nlaid before each House of Parliament and shall, except where
\nit is a Proclamation revoking a previous Proclamation, cease
\nto operate at the expiration of two months unless before the
\nexpiration   of\t that  period  it  has\tbeen   approved\t  by
\nresolutions of both Houses of Parliament
\nProvided  that\tif  any\t such  Proclamation  (not  being   a
\nProclamation revoking a previous Proclamation) is issued  at
\na  time\t when the House of the People is  dissolved  or\t the
\ndissolution  of the House of the People takes  place  during
\nthe period of two months referred to in this clause, and  if
\na  resolution approving the Proclamation has been passed  by
\nthe  Council  of States, but no resolution with\t respect  to
\nsuch Proclamation has been passed by the House of the People
\nbefore the expiration of that period, the Proclamation shall
\ncease  to operate at the expiration of thirty days from\t the
\ndate  on which the House of the People first sits after\t its
\nreconstitution\tunless\tbefore the expiration  of  the\tsaid
\nperiod\t of   thirty  days  a\tresolution   approving\t the
\nProclamation  has  been\t also passed by\t the  House  of\t the
\nPeople.\n<\/p>\n
89<\/span><\/p>\n
(4)  A Proclamation so approved shall, unless revoked, cease
\nto operate on the expiration of a period of six months\tfrom
\nthe date of issue of the Proclamation :\n<\/p>\n
Provided that if and so often as a resolution approving\t the
\ncontinuance  in\t force of such a Proclamation is  passed  by
\nboth  Houses of Parliament, the Proclamation  shall,  unless
\nrevoked,  continue  in\tforce for a further  period  of\t six
\nmonths\tfrom  the date on which under this clause  it  would
\notherwise  have ceased to operate, but no such\tProclamation
\nshall in any case remain in force for more than three  years
\n:\n<\/p>\n
Provided further that if the dissolution of the House of the
\nPeople takes place during any such period of six months\t and
\na  resolution  approving the continuance in  force  of\tsuch
\nProclamation  has been passed by the Council of States,\t but
\nno  resolution with respect to the continuance in  force  of
\nsuch Proclamation has been passed by the House of the People
\nduring\tthe  said period, the Proclamation  shall  cease  to
\noperate\t at the expiration of thirty days from the  date  on
\nwhich  the  House  of  the  People  first  sits\t after\t its
\nreconstitution\tunless\tbefore the expiration  of  the\tsaid
\nperiod of thirty days a resolution approving the continuance
\nin  force  of the Proclamation has been also passed  by\t the
\nHouse of the People :\n<\/p>\n
Provided  also that in the case of the\tProclamation  issued
\nunder clause (1) on the 11th day of May 1987 with respect to
\nthe  State of Punjab, the reference in the first proviso  to
\nthis  clause  to  ‘three  years’ shall\tbe  construed  as  a
\nreference to ‘five years’.\n<\/p>\n
(5)  Notwithstanding  anything\tcontained in clause  (4),  a
\nresolution  with  respect to the continuance in force  of  a
\nProclamation approved under clause (3) for any period beyond
\nthe  expiration of one year from the date of issue  of\tsuch
\nProclamation  shall  not  be  passed  by  either  House\t  of
\nParliament unless-\n<\/p>\n
\t      (a)   a\tProclamation  of  Emergency  is\t  in
\n\t      operation,  in the whole of India or,  as\t the
\n\t      case  may be, in the whole or any part of\t the
\n\t      State,  at  the time of the  passing  of\tsuch
\n\t      resolution, and\n<\/p><\/blockquote>\n
\t      (b)   the\t Election Commission certifies\tthat
\n\t      the  continuance in force of the\tProclamation
\n\t      approved\tunder clause (3) during\t the  period
\n\t      specified\t in such resolution is necessary  on
\n\t      account  of  difficulties in  holding  general
\n\t      elections\t to the Legislative Assembly of\t the
\n\t      State concerned:\n<\/p><\/blockquote>\n
\t      Provided\tthat  nothing in this  clause  shall
\n\t      apply to the Proclamation issued under  clause
\n\t      (1)  on the 11th day of May 1987 with  respect
\n\t      to the State of Punjab.”\n<\/p><\/blockquote>\n
55.  Before we analyse the provisions of Article 356, it  is
\nnecessary  to bear in mind the context in which the  article
\nfinds place in the Constitution.  The article belongs to the
\nfamily\tof Articles 352 to 360 which have been\tincorporated
\nin  Part  XVIII dealing with “Emergency Provisions”  as\t the
\ntitle  of  the said part specifically declares.\t  Among\t the
\npreceding articles, Article
\n90<\/span>
\n352 deals with Proclamation of emergency.  It states that if
\nthe  President\tis satisfied that a grave  emergency  exists
\nwhereby\t the  security\tof  India or  of  any  part  of\t the
\nterritory  thereof is threatened whether by war or  external
\naggression or armed rebellion, he may by Proclamation make a
\ndeclaration to that effect in respect of the whole of  India
\nor of such part of the territory thereof as may be specified
\nin the Proclamation.  Explanation to clause (1) of the\tsaid
\narticle states that Proclamation of emergency declaring that
\nthe  security of India or any part of the territory  thereof
\nis  threatened by war or by external aggression or by  armed
\nrebellion,  may be made before the actual occurrence of\t war
\nor  of any such aggression or rebellion if the President  is
\nsatisfied that there is imminent danger thereof.  Clause (4)
\nof the said article requires that every Proclamation  issued
\nunder  the said article shall be laid before each  House  of
\nParliament  and shall cease to operate at the expiration  of
\none  month, unless before the expiration of that  period  it
\nhas   been  approved  by  resolutions  of  both\t Houses\t  of
\nParliament.  It is not necessary for our purpose to refer to
\nother provisions of the said article.  Article 353 refers to
\nthe effect of the Proclamation of emergency.  It states that
\nwhile  the  Proclamation  of  emergency\t is  in\t  operation,
\nexecutive  power of the Union shall extend to the giving  of
\nthe  directions to any State as to the manner In  which\t the
\nexecutive  power  thereof is to be  exercised.\t It  further
\nstates that during the emergency the power of Parliament  to
\nmake laws with respect to any matter, shall include power to
\nmake   laws  conferring\t powers\t and  imposing\t duties\t  or
\nauthorising  the conferring of powers and the imposition  of
\nduties\tupon  the Union or officers and authorities  of\t the
\nUnion  as respects that matter even if it is not  enumerated
\nin the Union List.  Article 354 gives power to the President
\nto  direct  that Articles 268 and 269 which  relate  to\t the
\ndistribution  of  revenue between the Union and\t the  States
\nshall  cease  to  operate during the  period  of  emergency.
\nArticle 358 gives power during the emergency to suspend\t the
\nprovisions  of\tArticle\t 19 to enable the  State  (i.e.\t the
\nGovernment  and Parliament of India and the  Government\t and
\nthe Legislature of each of the States and all local or other
\nauthorities  within  the  territory of India  or  under\t the
\ncontrol\t of the Government of India) to make any law  or  to
\ntake any executive action which the State would be competent
\nto make or to take but for the provisions contained in\tPart
\nIII of the Constitution while the Proclamation of  emergency
\ndeclaring  that\t the security of India or any  part  of\t the
\nterritory  thereof  is\tthreatened by  way  or\tby  external
\naggression, is in operation.  Such power, it appears, cannot
\nbe  assumed  by\t the State when the  security  of  India  is
\nthreatened  by\tarmed  rebellion  and  the  Proclamation  of
\nemergency  is  issued for that purpose.\t Article  359  gives
\npower to the President to declare that the right to move any
\ncourt for the enforcement of rights conferred by Part III of
\nthe Constitution except those conferred by Articles 20 and 2
\n1,  shall remain suspended when a Proclamation of  emergency
\nis in operation.\n<\/p>\n
56.  Article  355 makes an important provision.\t It casts  a
\nduty  on  the  Union  to  protect  States  against  external
\naggression and internal disturbance, and to ensure that\t the
\nGovernment of every State is carried “in accordance
\n91<\/span>
\nwith  the  provisions of the  Constitution”.   This  article
\ncorresponds  to\t Article 277-A of  the\tDraft  Constitution.
\nExplaining   the  purpose  of  the  said  article   to\t the
\nConstituent Assembly, Dr Ambedkar stated as follows:\n<\/p>\n
\t      “Some people might think that Article 277-A is
\n\t      merely a pious declaration, that it ought\t not
\n\t      to be there.  The Drafting Committee has taken
\n\t      a different view and I would therefore like to
\n\t      explain why it is that the Drafting  Committee
\n\t      feels that Article 277-A ought to be there.  I
\n\t      think  it\t is agreed  that  our  Constitution,
\n\t      notwithstanding the many provisions which\t are
\n\t      contained\t in it whereby the Centre  has\tbeen
\n\t      given   powers  to  override  the\t  Provinces,
\n\t      nonetheless is a Federal Constitution and when
\n\t      we   say\tthat  Constitution  is\t a   Federal
\n\t      Constitution,   it   means  this,\t  that\t the
\n\t      Provinces\t are  as sovereign  in\ttheir  field
\n\t      which  is left to them by the Constitution  as
\n\t      the  Centre is in the field which is  assigned
\n\t      to it.  In other words, barring the provisions
\n\t      which  permit  the  Centre  to  override\t any
\n\t      legislation   that  may  be  passed   by\t the
\n\t      Provinces,   the\tProvinces  have\t a   plenary
\n\t      authority to make any law for the peace, order
\n\t      and  good government of that  Province.\tNow,
\n\t      when once the Constitution makes the provinces
\n\t      sovereign\t and  gives them plenary  powers  to
\n\t      make  any\t law for the peace, order  and\tgood
\n\t      government  of the province, really  speaking,
\n\t      the  intervention of the Centre or  any  other
\n\t      authority must be deemed to be barred, because
\n\t      that  would  be an invasion of  the  sovereign
\n\t      authority\t  of  the  province.   That   is   a
\n\t      fundamental  proposition\twhich, I  think,  we
\n\t      must accept by reason of the fact that we have
\n\t      a Federal Constitution.  That being so, if the
\n\t      Centre  is to interfere in the  administration
\n\t      of  provincial  affairs,\tas  we\tpropose\t  to
\n\t      authorise the Centre by virtue of Articles 278
\n\t      and  278-A,  it  must be\tby  and\t under\tsome
\n\t      obligation which the Constitution imposes upon
\n\t      the  Centre.   The  invasion must\t not  be  an
\n\t      invasion\t which\tis  wanton,  arbitrary\t and
\n\t      unauthorised  by law.  Therefore, in order  to
\n\t      make it quite clear that Articles 278 and 278-
\n\t      A are not to be deemed as a wanton invasion by
\n\t      the Centre upon the authority of the province,
\n\t      we  propose  to introduce Article\t 277-A.\t  As
\n\t      Members  will see, Article 277-A says that  it
\n\t      shall  be\t the duty of the  Union\t to  protect
\n\t      every   unit,   and  also\t to   maintain\t the
\n\t      Constitution.   So far as such  obligation  is
\n\t      concerned, it will be found that it is not our
\n\t      Constitution  alone which is going  to  create
\n\t      this   duty  and\tthis  obligation.    Similar
\n\t      clauses  appear in the American  Constitution.\n<\/p><\/blockquote>\n
\t      They    also   occur   in\t   the\t  Australian
\n\t      Constitution,   where  the  constitution,\t  in
\n\t      express  terms, provides that it shall be\t the
\n\t      duty of the Central Government to protect\t the
\n\t      units  or the States from external  aggression
\n\t      or internal commotion.  All that we propose to
\n\t      do is to add one more clause to the  principle
\n\t      enunciated  in  the  American  and  Australian
\n\t      Constitutions,  namely, that it shall also  be
\n\t      the   duty  of  the  Union  to  maintain\t the
\n\t      Constitution  in the provinces as\t enacted  by
\n\t      this law.\t There is nothing new in this and as
\n\t      I\t said,\tin  view of the\t fact  that  we\t are
\n\t      endowing the provinces with plenary powers and
\n\t      making them sovereign within their own  field,
\n\t      it  is  necessary\t to  provide  that  if\t any
\n\t      invasion of the provincial
\n\t      92<\/span>
\n\t      field is done by the Centre it is in virtue of
\n\t      this  obligation.\t  It  will  be\tan  act\t  in
\n\t      fulfillment of the duty and the obligation and
\n\t      it   cannot   be\ttreated,  so  far   as\t the
\n\t      Constitution   is\t concerned,  as\t a   wanton,
\n\t      arbitrary,  unauthorised\tact.   That  is\t the
\n\t      reason, why we have introduced Article  277A.”
\n\t      (Constituent  Assembly Debates, Vol.   IX,  p.\n<\/p><\/blockquote>\n
\t      133)\n<\/p><\/blockquote>\n
57.  Articles  278  and\t 278-A\tof  the\t Draft\tConstitution
\nreferred to above correspond to present Articles 356 and 357
\nof  the\t Constitution respectively.  Thus it is\t clear\tfrom
\nArticle\t 355 that it is not an independent source  of  power
\nfor   interference  with  the  functioning  of\t the   State
\nGovernment  but\t is in the nature of justification  for\t the
\nmeasures to be adopted under Articles 356 and 357.  What  is
\nhowever,  necessary to remember in this connection  is\tthat
\nwhile  Article\t355 refers to three  situations,  viz.,\t (i)
\nexternal  aggression, (ii ) internal disturbance, and  (iii)
\nnon-carrying  on  of  the  Government  of  the\tStates,\t  in
\naccordance with the provisions of the Constitution,  Article
\n356  refers only to one situation, viz., the third one.\t  As
\nagainst this, Article 352 which provides for Proclamation of
\nemergency  speaks  of only one situation,  viz.,  where\t the
\nsecurity  of India or any part of the territory thereof,  is
\nthreatened  either  by war or external aggression  or  armed
\nrebellion.    The  expression  “internal   disturbance”\t  is
\ncertainly of larger connotation than ”\tarmed rebellion” and
\nincludes  situations  arising out of  “armed  rebellion”  as
\nwell.  In other words, while a Proclamation of emergency can
\nbe  made for internal disturbance only if it is\t created  by
\narmed  rebellion, neither such Proclamation can be made\t for
\ninternal  disturbance  caused by any other situation  nor  a
\nProclamation  can  be issued under Article  356\t unless\t the
\ninternal disturbance gives rise to a situation in which\t the
\nGovernment of tile State cannot be carried on in  accordance
\nwith  the provisions of the Constitution.  A  mere  internal
\ndisturbance  short  of\tarmed  rebellion  cannot  justify  a
\nProclamation  of  emergency  under  Article  352  nor\tsuch
\ndisturbance  can  justify  issuance  of\t Proclamation  under
\nArticle\t 356(1), unless it disables or prevents carrying  on
\nof  the\t Government  of the State  in  accordance  with\t the
\nprovisions  of the Constitution.  Article 360 envisages\t the
\nProclamation of financial emergency by the President when he
\nis  satisfied  that  a\tsituation  has\tarisen\twhereby\t the
\nfinancial stability or credit of the country or of any\tpart
\nof  the territory thereof is threatened.  It  declares\tthat
\nsuch  Proclamation  shall  be  laid  before  each  House  of
\nParliament  and shall cease to operate at the expiration  of
\ntwo months unless it is approved by the resolutions of\tboth
\nHouses\tof  Parliament.\t We have thus  emergency  provisions
\ncontained  in  other  articles\tin  the\t same  part  of\t the
\nConstitution.\n<\/p>\n
58.  The common thread running through all these articles in
\nPart XVIII relating to emergency provisions is that the said
\nprovisions  can be invoked only when there is  an  emergency
\nand the emergency is of the nature described therein and not
\nof  any\t other kind.  The Proclamation\tof  emergency  under
\nArticles  352,\t356  and 360 is\t further  dependent  on\t the
\nsatisfaction  of the President with regard to the  existence
\nof the relevant conditions precedent.  The duty cast on\t the
\nUnion  under Article 355 also arises in the twin  conditions
\nstated therein.\n<\/p>\n
93<\/span><\/p>\n
59. It is in the light of these other provisions relating to
\nthe  emergency\tthat we have to construe the  provisions  of
\nArticle 356.  The crucial expressions in Article 356(i)\t are
\nif  the\t President,  “on  the receipt  of  report  from\t the
\nGovernor  of a State or otherwise” “is satisfied” that\t“the
\nsituation  has arisen in which the Government of  the  State
\ncannot be carried on” “in accordance with the provisions  of
\nthis   Constitution”.\tThe  conditions\t precedent  to\t the
\nissuance  of the Proclamation, therefore, are: (a) that\t the
\nPresident  should  be  satisfied either on the\tbasis  of  a
\nreport from the Governor of the State or otherwise, (b) that
\nin  fact a situation has arisen in which the  Government  of
\nthe  State  cannot  be carried on  in  accordance  with\t the
\nprovisions  of\tthe  Constitution.   In\t other\twords,\t the
\nPresident’s  satisfaction  has\tto  be\tbased  on  objective
\nmaterial.  That material may be available in the report sent
\nto him by the Governor or otherwise or both from the  report
\nand  other  sources.   Further, the  objective\tmaterial  so
\navailable  must\t indicate that the Government of  the  State
\ncannot\tbe carried on in accordance with the  provisions  of
\nthe  Constitution.   Thus  the existence  of  the  objective
\nmaterial showing that the Government of the State cannot  be
\ncarried\t on  in\t accordance  with  the\tprovisions  of\t the
\nConstitution  is a condition precedent before the  President
\nissues\tthe  Proclamation.  Once such material is  shown  to
\nexist,\tthe  satisfaction  of the  President  based  on\t the
\nmaterial  is not open to question.  However, if there is  no
\nsuch  objective\t material  before  the\tPresident,  or\t the
\nmaterial  before  him  cannot reasonably  suggest  that\t the
\nGovernment  of the State cannot be carried on in  accordance
\nwith  the provisions of the Constitution,  the\tProclamation
\nissued is open to challenge.\n<\/p>\n
60.  It\t is  further necessary to note\tthat  the  objective
\nmaterial  before  the  President  must\tindicate  that\t the
\nGovernment of the State “cannot be carried on in  accordance
\nwith the provisions of this Constitution”.  In other  words,
\nthe   provisions  require  that\t the  material\tbefore\t the
\nPresident  must\t be  sufficient to indicate  that  unless  a
\nProclamation  is issued, it is not possible to carry on\t the
\naffairs\t  of  the  State  as  per  the\tprovisions  of\t the
\nConstitution.\tIt  is not every situation  arising  in\t the
\nState  but a situation which shows that\t the  constitutional
\nGovernment  has\t become an impossibility, which\t alone\twill
\nentitle\t the  President to issue  the  Proclamation.   These
\nparameters of the condition precedent to the issuance of the
\nProclamation indicate both the extent of and the limitations
\non,  the  power of the judicial review of  the\tProclamation
\nissued.\t It is not disputed before us that the\tProclamation
\nissued under Article 356(1) is open to judicial review.\t All
\nthat  is  contended  is\t that the scope\t of  the  review  is
\nlimited, According to us, the language of the provisions  of
\nthe article contains sufficient guidelines on both the scope
\nand the limitations, of the judicial review.\n<\/p>\n
61.  Before we examine the scope and the limitations of\t the
\njudicial  review  of the Proclamation issued  under  Article
\n356(1),\t it is necessary to deal with the contention  raised
\nby  Shri  Parasaran appearing for the Union  of\t India.\t  He
\ncontended  that there is difference in the nature and  scope
\nof  the power of judicial review in the\t administrative\t law
\nand   the  constitutional  law.\t  While\t in  the  field\t  of
\nadministrative law, the court’s power extends to legal
\n94<\/span>
\ncontrol of public authorities in exercise of their statutory
\npower and therefore not only to preventing excess and  abuse
\nof power but also to irregular exercise of power, the  scope
\nof judicial review in the constitutional law extends only to
\npreventing actions which are unconstitutional or ultra vires
\nthe  Constitution.   The  areas where  the  judicial  power,
\ntherefore can operate are limited and pertain to the  domain
\nwhere  the  actions  of the  Executive\tor  the\t legislation
\nenacted infringe the scheme of the division of power between
\nthe  executive,\t the legislature and the  judiciary  or\t the
\ndistribution  of powers between the States and\tthe  Centre.
\nWhere, there is a Bill of Rights as under our  Constitution,
\nthe  areas also cover the infringements of  the\t Fundamental
\nRights.\t  The judicial power has no scope in  constitutional
\nlaw  beyond  examining\tthe  said  infringements.   He\talso
\ncontended that likewise, the doctrine of proportionality  or
\nunreasonableness  has no play in constitutional law and\t the
\nexecutive  action  and legislation cannot  be  examined\t and
\ninterfered with on the anvil of the said doctrine.\n<\/p>\n
62.  We\t are afraid that this contention is too broad to  be
\naccepted.  The implication of this contention, among others,
\nis that even if the Constitution provides preconditions\t for
\nexercise  of  power by the constitutional  authorities,\t the
\ncourts\tcannot examine whether the preconditions  have\tbeen
\nsatisfied.   Secondly,\tif  the powers are  entrusted  to  a
\nconstitutional authority for achieving a particular  purpose
\nand if the authority concerned under the guise of  attaining
\nthe said purpose, uses the powers to attain an impermissible
\nobject, such use of power cannot be questioned.\t We have not
\nbeen   pointed\tout  any  authority  in\t support  of   these
\npropositions.\tWe also find that many of the parameters  of
\njudicial review developed in the field of administrative law
\nare not antithetical to the field of constitutional law, and
\nthey  can  equally  apply  to  the  domain  covered  by\t the
\nconstitutional\tlaw.  That is also true of the\tdoctrine  of
\nproportionality.\n<\/p>\n
63.  We\t may now examine the principles of  judicial  review
\nevolved\t in  the field of administrative law.  As  has\tbeen
\nstated\tby  Lord Brightman in Chief Constable of  the  North
\nWales Police v. Evans” “judicial review, as the words imply,
\nis not an appeal from a decision, but a review of the manner
\nin  which the decision was made”.  In other words,  judicial
\nreview\tis  concerned with reviewing not the merits  of\t the
\ndecision  but  the  decision-making  process  itself.\tLord
\nDiplock\t in Council of Civil Service Unions v. Minister\t for
\nthe Civil Service8 (AC at p. 408) has enunciated three heads
\nof  grounds upon which administrative action is\t subject  to
\ncontrol\t by  judicial  review, viz.,  (i)  illegality,\t(ii)
\nirrationality and (iii) procedural impropriety.\t He has also
\nstated\tthere that the three grounds evolved till  then\t did
\nnot  rule out that “further developments on a case  by\tcase
\nbasis may not in course of time add further grounds” and has
\nadded\tthat   “principle  of  proportionality”\t  which\t  is
\nrecognised  in the administrative law by several members  of
\nEuropean  Economic  Community may be a possible\t ground\t for
\njudicial review for
\n13 (1982) 3 AlI ER 141:(1982) 1 WLR 1155
\n8 (1985) AC 374: (1984) 3 All ER 935
\n95<\/span>
\nadoption in the future.\t It may be stated here that we\thave
\nalready\t adopted  the  said  ground  both  statutorily\t and
\njudicially  in our labour and service  jurisprudence.\tLord
\nDiplock\t has  explained\t the three  heads  of  grounds.\t  By
\n“illegality”   he   means  that\t the   decision-maker\tmust
\nunderstand  correctly the law that regulates  its  decision-
\nmaking power and must give effect to it, and whether he\t has
\nor  has not, is a justiciable question.\t By  “irrationality”
\nhe means unreasonableness.  A decision may be so  outrageous
\nor in defiance of logic or of accepted moral standards\tthat
\nno sensible person who had applied his mind to the  question
\nto  be decided, could have arrived at it, and it is for\t the
\njudges\tto  decide  whether a decision\tfalls  in  the\tsaid
\ncategory.   By\t“procedural impropriety” he means  not\tonly
\nfailure\t to  observe the basic rules of natural\t justice  or
\nfailure to act with procedural fairness, but also failure to
\nobserve procedural rules that are expressly laid down in the
\nlegislative instrument by which the tribunal’s\tjurisdiction
\nis  conferred even where such failure does not\tinvolve\t any
\ndenial of natural justice.  Where the decision is one  which
\ndoes not alter rights or obligations enforceable in  private
\nlaw, but only deprives a person of legitimate  expectations,
\n“procedural  impropriety”  will normally  provide  the\tonly
\nground on which the decision is open to judicial review.\n<\/p>\n
64.  It was observed by Donaldson, L.J. in R. v. Crown Court
\nat Carlisle, ex p Marcus-Moore 1 4 that judicial review\t was
\ncapable\t of being extended to meet  changing  circumstances,
\nbut  not  to the extent that it became\tsomething  different
\nfrom review by developing an appellate nature.\tThe  purpose
\nof  the\t remedy\t of judicial review is to  ensure  that\t the
\nindividual is given fair treatment to substitute the opinion
\nof  the\t judiciary or of individual judges for that  of\t the
\nauthority constituted by law to decide the matters in issue.
\nIn R v. Panel on Take-overs and Mergers, ex p Guinness plc15
\n(LR   at  p.  842)  he\treferred  to  the  judicial   review
\njurisdiction   as   being  supervisory\tor   as\t  ‘longstep’
\njurisdiction.\tHe observed that unless that restriction  on
\nthe power of the court is observed, the court will under the
\nguise  of preventing the abuse of power be itself guilty  of
\nusurping power.\t That is so whether or not there is a  right
\nof  appeal against the decision on the merits.\tThe duty  of
\nthe court is to confine itself to the question of  legality.
\nIts  concern  is with whether  a  decision-making  authority
\nexceeded its powers, committed an error of law, committed  a
\nbreach\tof the rules of natural justice, reached a  decision
\nwhich  no reasonable tribunal could have reached  or  abused
\nits powers.\n<\/p>\n
65.  Lord  Roskil  in  Council of Civil\t Service  Unions  v.
\nMinister for the Civil Service8 (AC at p. 414), opined\tthat
\nthe  phrase  “principles  of  natural  justice”\t “be  better
\nreplaced by speaking of a duty to act fairly. … It is\t not
\nfor  the courts to determine whether a particular policy  or
\nparticular decisions taken in fulfillment of that policy are
\nfair.  They are only concerned with the
\n14 (1981) Times 26 (October, DC)
\n15 (1987) QB 815: (1989) 1 All ER 509
\n8 (1985) AC 374: (1984) 3 All ER 935
\n96<\/span>
\nmanner\tin  which those decisions have been  taken  and\t the
\nextent of the duty to act fairly will vary greatly from case
\nto case. … Many features will come into play including the
\nnature\tof  the\t decision  and\tthe  relationship  of  those
\ninvolved on either side before the decision was taken”.\n<\/p>\n
66.  In Puhlhofer v. Hillingdon London Borough Council9 Lord
\nBrightman stated: (AC p. 518: All ER p. 474)
\n\t      “Where  the  existence or non-existence  of  a
\n\t      fact is left to the judgment and discretion of
\n\t      a\t public body and that fact involves a  broad
\n\t      spectrum\tranging\t from  the  obvious  to\t the
\n\t      debatable\t to the just conceivable, it is\t the
\n\t      duty  of\tthe court to leave the\tdecision  of
\n\t      that   fact  to  the  public  body   to\twhom
\n\t      Parliament  has entrusted the  decision-making
\n\t      power save in a case where it is obvious\tthat
\n\t      the public body, consciously or unconsciously,
\n\t      are acting perversely.”\n<\/p>\n
\t      67.  In  Leech V. Dy.  Governor  of  Parkhurst
\n\t      Prisonl6\tLord Oliver stated: (AC p. 583:\t All
\n\t      ER p. 512)
\n\t      “…  the susceptibility of a decision to\t the
\n\t      supervision of the courts must depend, in\t the
\n\t      ultimate\t analysis,   on\t  the\tnature\t and
\n\t      consequences  of the decision and not  on\t the
\n\t      personality or individual circumstances of the
\n\t      person called upon to make the decision.”\n<\/p>\n
68.  While  we are on the point, it will be  instructive  to
\nrefer to a decision of the Supreme Court of Pakistan on\t the
\nsame subject, although the language of the provisions of the
\nrelevant  articles  of\tthe  Pakistan  Constitution  is\t not
\ncouched in the same terms.  In Muhammad Sharif v. Federation
\nof  Pakistan  17 the question was whether the order  of\t the
\nPresident  dissolving the National Assembly on May 29,\t1988
\nwas  in\t accordance with the powers conferred on  him  under
\nArticle\t 58(2)(b) of the Constitution.\tArticle 58(2)(b)  is
\nas follows:\n<\/p>\n
\t      “58. (2) Notwithstanding anything contained in
\n\t      clause  (2) of Article 48, the  President\t may
\n\t      also  dissolve  the National Assembly  in\t his
\n\t      discretion where, in his opinion,.\n<\/p><\/blockquote>\n
\t      (a)\n<\/p><\/blockquote>\n
\t      (b)   a  situation  has arisen  in  which\t the
\n\t      Government of the Federation cannot be carried
\n\t      on  in accordance with the provisions  of\t the
\n\t      Constitution  and an appeal to the  electorate
\n\t      is necessary.”\n<\/p><\/blockquote>\n
\t      The   provisions\tof  Article  48(2)  are\t  as
\n\t      follows:\n<\/p><\/blockquote>\n
\t      “Notwithstanding anything contained in  clause
\n\t      (1), the President shall act in his discretion
\n\t      in  respect of any matter in respect of  which
\n\t      he  is empowered by the Constitution to do  so
\n\t      (and  the\t validity of anything  done  by\t the
\n\t      President\t in  his  discretion  shall  not  be
\n\t      called in question on any ground whatsoever).”
\n\t      9 (1986) AC 484: (1986) 1 All ER 467
\n\t      16 (1988) AC 533: (1988) 1 All ER 485
\n\t      17 PLD (1988) Lah 725
\n\t      97<\/span>
\n\t      The Presidential Order read as follows:
\n\t      “Whereas\tthe objects and purposes  for  which
\n\t      the  National  Assembly was elected  have\t not
\n\t      been fulfilled;\n<\/p><\/blockquote>\n
\t      And  whereas the law and order in the  country
\n\t      have   broken  down  to  an  alarming   extent
\n\t      resulting\t  in  tragic  loss  of\t innumerable
\n\t      valuable lives as well as loss of property;
\n\t      And  whereas  the life, property,\t honour\t and
\n\t      security of the citizens of Pakistan have been
\n\t      rendered totally unsafe and the integrity\t and
\n\t      ideology\tof  Pakistan  have  been   seriously
\n\t      endangered;\n<\/p><\/blockquote>\n
\t      And  whereas public morality has\tdeteriorated
\n\t      to unprecedented level;\n<\/p><\/blockquote>\n
\t      And  whereas  in my opinion  a  situation\t has
\n\t      arisen   in  which  the  Government   of\t the
\n\t      Federation cannot be carried on in  accordance
\n\t      with the provisions of the Constitution and an
\n\t      appeal to the electorate is necessary.
\n\t      Now therefore, 1, General Muhammad Zia-ul-Haq,
\n\t      President\t of  Pakistan  in  exercise  of\t the
\n\t      powers  conferred\t on me by clause  (2)(b)  of
\n\t      Article 58 of the Constitution of the  Islamic
\n\t      Republic\tof  Pakistan  hereby  dissolve\t the
\n\t      National Assembly with immediate effect and in
\n\t      consequence  thereof the Cabinet\talso  stands
\n\t      dissolved forthwith.”\n<\/p><\/blockquote>\n
69.  The  main argument against the order was that an  order
\nunder  the said provision is to be issued not in  subjective
\ndiscretion  or opinion but on objective facts in  the  sense
\nthat  the  circumstances  must\texist to  lead\tone  to\t the
\nconclusion  that  the  relevant situation  had\tarisen.\t  As
\nagainst this, the argument of the Attorney General and other
\ncounsel supporting the Presidential Order was that it is the
\nsubjective  satisfaction of the President and it is  in\t his
\ndiscretion  and opinion to dissolve the\t National  Assembly.
\nIt was also argued on their behalf that in spite of the fact
\nthat Article 58 (2)(b) states that “notwithstanding anything
\ncontained  in clause (2) of Article 48”, the  President\t may
\nalso dissolve the National Assembly in his discretion  under
\nArticle\t 58(2) and when he does exercise his  discretion  to
\ndissolve  the  Assembly,  the  validity\t thereof  cannot  be
\nquestioned  on any ground whatsoever as provided  for  under
\nArticle 48(2).\tDealing with the first argument, the learned
\nChief Justice Salam stated as follows:\n<\/p>\n
\t      “Whether\tit  is ‘subjective’  or\t ‘objective’
\n\t      satisfaction  of\tthe President or it  is\t his
\n\t      ‘discretion’ or ‘opinion’, this much is  quite
\n\t      clear  that the President cannot exercise\t his
\n\t      powers under the Constitution on wish or whim.
\n\t      He has to have facts, circumstances which\t can
\n\t      lead  a  person  of  his\tstatus\tto  form  an
\n\t      intelligent  opinion  requiring  exercise\t  of
\n\t      discretion  of  such a grave nature  that\t the
\n\t      representative of the people who are primarily
\n\t      entrusted with the duty of running the affairs
\n\t      of the State are removed with a stroke of\t the
\n\t      pen.  His action must appear to be called\t for
\n\t      and  justifiable\tunder  the  Constitution  if
\n\t      challenged  in a Court of Law.  No doubt,\t the
\n\t      Courts  will  be\tchary to  interfere  in\t his
\n\t      ‘discretion’  or\tformation of  the  ‘opinion’
\n\t      about the ‘situation’ but if there be no basis
\n\t      or  justification\t for  the  order  under\t the
\n\t      Constitution, the Courts will have to
\n\t      98<\/span>
\n\t      perform  their  duty cast on  them  under\t the
\n\t      Constitution.   While doing so, they will\t not
\n\t      be  entering in the political arena for  which
\n\t      appeal to electorate is provided for.”
\n\t      Dealing with the second argument, the  learned
\n\t      Chief Justice held:\n<\/p><\/blockquote>\n
\t      “If the argument be correct then the provision
\n\t      ‘Notwithstanding anything contained in  clause
\n\t      (2) of Article 48’ would be rendered redundant
\n\t      as if it was no part of the Constitution.\t  It
\n\t      is  obvious and patent that no letter or\tpart
\n\t      of a provision of the Constitution can be said
\n\t      to  be  redundant or  non-existent  under\t any
\n\t      principle\t of construction  of  Constitutions.
\n\t      The  argument  may be correct in\texercise  of
\n\t      other  discretionary powers but it  cannot  be
\n\t      employed with reference to the dissolution  of
\n\t      National\t Assembly.   Blanket   coverage\t  of
\n\t      validity\tand unquestionability of  discretion
\n\t      under  Article 48(2) was given up when it\t was
\n\t      provided\t  under\t   Article    58(2)\tthat
\n\t      ‘Notwithstanding clause (2) of Article 48\t …
\n\t      the  discretion can be exercised in the  given
\n\t      circumstances.  Specific provision will govern
\n\t      the   situation.\t  This\t will\talso   avoid
\n\t      redundancy.   Courts’ power whenever  intended
\n\t      to be excluded is expressly stated;  otherwise
\n\t      it  is  presumed\tto be  there  in  Courts  of
\n\t      record.  … Therefore, it is not quite  right
\n\t      to   contend   that  since  it  was   in\t his
\n\t      ‘discretion’,  on the basis of  his  ‘opinion’
\n\t      the  President  could  dissolve  the  National
\n\t      Assembly.\t  He has to have reasons  which\t are
\n\t      justifiable  in  the eyes of  the\t people\t and
\n\t      supportable by law in a Court of Justice.\t …
\n\t      It is understandable that if the President has
\n\t      any   justifiable\t reason\t to   exercise\t his
\n\t      ‘discretion’  in\this ‘opinion’ but  does\t not
\n\t      wish  to\tdisclose, he may say so and  may  be
\n\t      believed\tor  if called upon  to\texplain\t the
\n\t      reason  he  may take the Court  in  confidence
\n\t      without  disclosing the reason in public,\t may
\n\t      be for reason of security of State.  After all
\n\t      patriotism is not confined to the officeholder
\n\t      for the time being.  He cannot simply say like
\n\t      Caesar  it is my will, opinion or\t discretion.
\n\t      Nor  give reasons which have no nexus  to\t the
\n\t      action,  are bald, vague, general or  such  as
\n\t      can  always be given and have been given\twith
\n\t      disastrous effects. …”\n<\/p><\/blockquote>\n
\t      Dealing with the same arguments, R.S.  Sidhwa,
\n\t      J. stated as follows:\n<\/p><\/blockquote>\n
\t      “I have no doubt that both the Governments are
\n\t      not compelled to disclose all the reasons they
\n\t      may have when dissolving the Assemblies  under
\n\t      Articles\t58(2)(b) and 112(2)(b).\t If they  do
\n\t      not  choose to disclose all the material,\t but
\n\t      only  some, it is their pigeon, for  the\tcase
\n\t      will be decided on a judicial scrutiny of\t the
\n\t      limited  material placed before the Court\t and
\n\t      if  it  happens to be  totally  irrelevant  or
\n\t      extraneous, they must suffer.\n<\/p><\/blockquote>\n
\t      15.   The\t main question that arises  in\tthis
\n\t      case  is when can it be said that a  situation
\n\t      has  arisen  in which the\t Government  of\t the
\n\t      Federation cannot be carried on in  accordance
\n\t      with the provisions of the Constitution.\t The
\n\t      expression  ‘Government of the Federation’  is
\n\t      not  limited to any one  particular  function,
\n\t      such as the executive, the
\n\t      99<\/span>
\n\t      legislative, or the judicial, but includes the
\n\t      whole functioning of the Federation Government
\n\t      in all its ramifications.”\n<\/p><\/blockquote>\n
70.  We may now refer to the decisions of this Court on\t the
\nsubject. In Barium Chemicals Ltd. v. Company Law Board6\t the<\/a>
\nfacts were that an order was issued on behalf of the Company
\nLaw  Board  under  Section  237(b)  of\tthe  Companies\t Act
\nappointing four inspectors to investigate the affairs of the
\nappellant-Company  on the ground that the Board was  of\t the
\nopinion\t that there were circumstances suggesting  that\t the
\nbusiness  of the appellant Company was being conducted\twith
\nintent\tto  defraud  its creditors,  members  or  any  other
\npersons and that the persons concerned in the management  of
\nthe affairs of the Company had in connection therewith, been
\nguilty\tof fraud, misfeasance and other\t misconduct  towards
\nthe  Company  and its members.\t The  appellant-Company\t had
\nfiled a writ petition before the High Court challenging\t the
\nsaid  order  and one of the grounds of\tchallenge  was\tthat
\nthere  was no material on which such order could  have\tbeen
\nmade.  In reply to the petition, the Chairman of the Company
\nLaw  Board  filed an affidavit in which\t it  was  contended,
\ninter  alia, that there was material on the basis  of  which
\nthe  order was issued and that he had himself examined\tthis
\nmaterial and formed the necessary opinion within the meaning
\nof the said Section 237(b) before the issue of the order and
\nthat  it  was  not competent for the Court to  go  into\t the
\nquestion  of  the adequacy or otherwise\t of  such  material.
\nHowever,  in the course of reply to some of the\t allegations
\nin  the\t petition, the affidavit in paragraph  14  had\talso
\nproceeded  to  state  the facts on the basis  of  which\t the
\nopinion\t was formed.  The majority of the judges  held\tthat
\nthe  circumstances  disclosed in paragraph 14  of  the\tsaid
\naffidavit must be regarded as the only material on the basis
\nof  which  the Board formed the opinion before\tordering  an
\ninvestigation  under  Section  237(b)  and  that  the\tsaid
\ncircumstances could not reasonably suggest that the business
\nof the Company was being conducted to defraud the creditors,
\nmembers\t or other persons or that the management was  guilty
\nof  fraud towards the Company and its members.\t They  were,
\ntherefore,  extraneous to the matters mentioned\t in  Section
\n237(b)\tand the impugned order was ultra vires the  section.
\nHidayatullah  J., as he then was, in this connection  stated
\nthat  the power under Section 237(b) is discretionary  power
\nand  the  first requirement for its exercise is\t the  honest
\nformation  of an opinion that an investigation is  necessary
\nand  the  next requirement is that there  are  circumstances
\nsuggesting the inferences set out in the section.  An action
\nnot  based on circumstances suggesting an inference  of\t the
\nenumerated  kind will not be valid.  Although the  formation
\nof  opinion  is subjective, the existence  of  circumstances
\nrelevant  to the inference as the sine qua non\tfor  action,
\nmust be demonstrable.  If their existence is questioned,  it
\nhas to be proved at least prima facie.\tIt is not sufficient
\nto assert that the circumstances exist, and give no clue  to
\nwhat they are, because the circumstances must be such as  to
\nlead  to  conclusions of certain definiteness.\t Shelat,  J.
\ncommenting on the same
\n6   1966 Supp SCR 31 1: AIR 1967 SC 295: (1966) 36 Comp\t Cas
\n639<\/span>
\n100<\/span>
\nissue,\tstated\tthat although the formation  of\t opinion  is
\npurely\tsubjective  process and such an\t opinion  cannot  be
\nchallenged   in\t a  court  on  the  ground   of\t  propriety,
\nreasonableness\tor sufficiency, the authority  concerned  is
\nnevertheless  required\tto arrive at such  an  opinion\tfrom
\ncircumstances suggesting what is set out in sub-clauses (i),\n<\/p>\n
(ii)   or   (iii)  of  Section\t 237(b).    The\t  expression
\n“circumstances\tsuggesting” cannot support the\tconstruction
\nthat  even  the existence of circumstances is  a  matter  of
\nsubjective  opinion.   It is hard to  contemplate  that\t the
\nlegislature  could have left to the subjective process\tboth
\nthe   formation\t of  opinion  and  also\t the  existence\t  of
\ncircumstances on which it is to be founded.  It is also\t not
\nreasonable to say that the clause permitted the authority to
\nsay that it has formed the opinion on circumstances which in
\nits  opinion  exists  and which in its\topinion\t suggest  an
\nintent\tto defraud or a fraudulent or unlawful purpose.\t  If
\nit is shown that the circumstances do not exist or that they
\nare such that it is impossible for anyone to form an opinion
\ntherefrom  suggestive of the matters enumerated\t in  Section
\n237(b),\t the opinion is challengeable on the ground of\tnon-
\napplication  of mind or perversity or on the ground that  it
\nwas formed on collateral grounds and was beyond the scope of
\nthe statute.\n<\/p>\n
71. In M.A. Rasheed v. State of Kerala18 the facts were that
\nthe respondent-State issued a notification under Rule 114(2)
\nof the Defence of India Rules, 1971 imposing a total ban  on
\nthe use of machinery for defibring husks in the Districts of
\nTrivandrum,  Quilon and Alleppey.  The appellants  who\twere
\nowners\tof Small Scale Industrial Units, being\taffected  by
\nthe notification, challenged the same.\tIn that\t connection,
\nthis  Court  observed  that where powers  are  conferred  on
\npublic\tauthorities  to\t exercise the same  when  “they\t are
\nsatisfied”  or when “it appears to them” or when  “in  their
\nopinion” a certain state of affairs existed, or when  powers
\nenable public authorities to take “such action as they think
\nfit”  in  relation to a subjectmatter, the courts  will\t not
\nreadily\t  defer\t to  the  conclusiveness  of  an   executive
\nauthority’s  opinion as to the existence of a matter of\t law
\nor fact upon which the validity of the exercise of the power
\nis  predicated.\t  Administrative decisions  in\texercise  of
\npowers conferred in subjective terms are to be made in\tgood
\nfaith  and  on\trelevant  considerations.   The\t courts\t can
\ninquire\t whether  a reasonable man could have  come  to\t the
\ndecision in question without misdirecting himself or the law
\nor  the\t facts\tin  a material\trespect.   The\tstandard  of
\nreasonableness to which the administrative body is  required
\nto  conform  may range from the court’s opinion of  what  is
\nreasonable to the criterion of what a reasonable body  might
\nhave  decided; and courts will find out\t whether  conditions
\nprecedent  to  the formation of the opinion have  a  factual
\nbasis.\tBut the onus of establishing unreasonableness  rests
\nupon the person challenging the validity of the acts.\n<\/p>\n
72.  In\t State of Rajasthan v. Union of India3 Bhagwati,  J.
\non  behalf of Gupta, J. and himself, while dealing with\t the
\n“satisfaction of the President”\n<\/p>\n
18 (1974) 2 SCC 687: (1975) 2 SCR 93
\n3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1
\n101<\/span>
\nprior  to  the issuance of the\tProclamation  under  Article
\n356(1) stated as follows: (SCR pp. 80-83: SCC pp. 661,\t662-
\n63, paras 149 and 150)
\n\t      “So  long\t as  a question\t arises\t whether  an
\n\t      authority\t under\tthe Constitution  has  acted
\n\t      within the limits of its power or exceeded it,
\n\t      it  can  certainly be decided  by\t the  Court.\n<\/p>\n
\t      Indeed   it   would  be\tits   constitutional
\n\t      obligation  to  do so. … This Court  is\t the
\n\t      ultimate\tinterpreter of the Constitution\t and
\n\t      to this Court is assigned the delicate task of
\n\t      determining  what\t is the power  conferred  on
\n\t      each  branch  of\tGovernment,  whether  it  is
\n\t      limited,\tand if so, what are the\t limits\t and
\n\t      whether any action of that branch transgresses
\n\t      such  limits.  It is for this Court to  uphold
\n\t      the  constitutional values and to enforce\t the
\n\t      constitutional   limitations.   That  is\t the
\n\t      essence of the rule of law.\n<\/p>\n
\t      We must make it clear that the  constitutional
\n\t      jurisdiction of this Court is confined only to
\n\t      saying   whether\tthe  limits  on\t the   power
\n\t      conferred\t  by  the  Constitution\t have\tbeen
\n\t      observed\tor  there is transgression  of\tsuch
\n\t      limits.\tHere the only limit on the power  of
\n\t      the President under Article 356, clause (1) is
\n\t      that the President should be satisfied that  a
\n\t      situation\t has arisen where the Government  of
\n\t      the  State cannot be carried on in  accordance
\n\t      with the provisions of the Constitution.\t The
\n\t      satisfaction of the President is a  subjective
\n\t      one  and cannot be tested by reference to\t any
\n\t      objective\t tests.\t  It  is  deliberately\t and
\n\t      advisedly\t subjective  because the  matter  in
\n\t      respect  to which he is to be satisfied is  of
\n\t      such   a\t nature\t that  its   decision\tmust
\n\t      necessarily be left to the executive branch of
\n\t      Government.   There  may be a  wide  range  of
\n\t      situations which may arise and their political
\n\t      implications  and consequences may have to  be
\n\t      evaluated\t in  order  to\tdecide\twhether\t the
\n\t      situation\t is such that the Government of\t the
\n\t      State cannot be carried on in accordance\twith
\n\t      the provisions of the Constitution.  It is not
\n\t      a\t decision  which can be based  on  what\t the
\n\t      Supreme\tCourt  of  the\tUnited\tStates\t has
\n\t      described\t as  ‘judicially  discoverable\t and
\n\t      manageable standards’.  It would largely be  a
\n\t      political\t judgment  based  on  assessment  of
\n\t      diverse  and  varied  factors,  fast  changing
\n\t      situations,  potential  consequences,   public
\n\t      reaction,\t  motivations\tand   responses\t  of
\n\t      different\t  classes   of\tpeople\t and   their
\n\t      anticipated  future  behaviour and a  host  of
\n\t      other   considerations,\tin  the\t  light\t  of
\n\t      experience  of  public affairs  and  pragmatic
\n\t      management   of  complex\tand  often   curious
\n\t      adjustments  that\t go to make  up\t the  highly
\n\t      sophisticated mechanism of a modem  democratic
\n\t      government.  It cannot, therefore, by its very
\n\t      nature  be a fit subject-matter  for  judicial
\n\t      determination  and  hence it is  left  to\t the
\n\t      subjective   satisfaction\t  of   the   Central
\n\t      Government  which\t is best in  a\tposition  to
\n\t      decide   it.    The  court   cannot   in\t the
\n\t      circumstances,   go  into\t the   question\t  of
\n\t      correctness  or  adequacy\t of  the  facts\t and
\n\t      circumstances on which the satisfaction of the
\n\t      Central Government is based. … But one thing
\n\t      is  certain that if the satisfaction  is\tmala
\n\t      fide  or\tis based on  wholly  extraneous\t and
\n\t      irrelevant  grounds,  the\t court\twould\thave
\n\t      jurisdiction to examine it, because in that
\n\t      102<\/span>
\n\t      case  there  would be no satisfaction  of\t the
\n\t      President in regard to the matter on which  he
\n\t      is required to be satisfied.  The satisfaction
\n\t      of  the President is a condition precedent  to
\n\t      the  exercise  of\t power\tunder  Article\t356,
\n\t      clause  (1) and if it can be shown that  there
\n\t      is  no satisfaction of the President  at\tall,
\n\t      the   exercise   of   the\t  power\t  would\t  be
\n\t      constitutionally\tinvalid.  …  It  must\t  of
\n\t      course be conceded that in most cases it would
\n\t      be difficult, if not impossible, to  challenge
\n\t      the  exercise  of\t power\tunder  Article\t356,
\n\t      clause  (1)  even\t on  this  limited   ground,
\n\t      because  the facts and circumstances on  which
\n\t      the satisfaction is based would not be  known,
\n\t      but where it is possible, the existence of the
\n\t      satisfaction  can always be challenged on\t the
\n\t      ground that it is mala fide or based on wholly
\n\t      extraneous and irrelevant grounds. … This is
\n\t      the narrow minimal area in which the  exercise
\n\t      of  power\t under Article 356,  clause  (1)  is
\n\t      subject to judicial review and apart from\t it,
\n\t      cannot  rest with the court to  challenge\t the
\n\t      satisfaction   of\t the  President\t  that\t the
\n\t      situation contemplated in that clause exists.”\n<\/p>\n
73.  In Kehar Singh v. Union of India19 it is held that\t the
\nPresident power under Article 72 of the Constitution dealing
\nwith  the grant of pardons, reprieves, respites,  remissions
\nof punishments or suspensions, remissions or commutations of
\nsentences  of  any  person convicted of\t any  offence  falls
\nsquarely  within the judicial domain and can be examined  by
\nthe court by way of judicial review.  However, the order  of
\nthe President cannot be subjected to judicial review on\t its
\nmerits except within the strict limitations defined in\tMaru
\nRain v. Union of India2O.  Those limitations are whether the
\npower  is exercised on considerations or actions  which\t are
\nwholly irrelevant, irrational, discriminatory or mala  fide.
\nOnly in these rare cases the court will examine the exercise
\nof the said power.\n<\/p>\n
74.  From  these authorities, one of the  conclusions  which
\nmay  safely  be drawn is that the exercise of power  by\t the
\nPresident  under  Article 356(1) to  issue  Proclamation  is
\nsubject\t to  the judicial review at least to the  extent  of
\nexamining  whether the conditions precedent to the  issuance
\nof  the\t Proclamation  have been  satisfied  or\t not.\tThis
\nexamination  will  necessarily involve the  scrutiny  as  to
\nwhether\t there existed material for the satisfaction of\t the
\nPresident   that  a  situation\thad  arisen  in\t which\t the
\nGovernment  of\tthe  State  could  not\tbe  carried  on\t  in
\naccordance   with  the\tprovisions  of\t the   Constitution.
\nNeedless  to  emphasise\t that it is  not  any  material\t but
\nmaterial  which\t would\tlead  to  the  conclusion  that\t the
\nGovernment  of the State cannot be carried on in  accordance
\nwith  the provisions of the Constitution which\tis  relevant
\nfor  the purpose.  It has further to be remembered that\t the
\narticle\t requires that the President “has to  be  satisfied”
\nthat  the  situation  in question  has\tarisen.\t  Hence\t the
\nmaterial  in  question\thas to be such\tas  would  induce  a
\nreasonable  man to come to the conclusion in question.\t The
\nexpression used
\n19 (1989) 1 SCC 204: 1989 SCC (Cri) 86: 1988 Supp 3 SCR 1102
\n20 (1981) 1 SCC 107: 1981 SCC (Cri) 112: (1981) 1 SCR 1196
\n103<\/span>
\nin the article is “if the President … is satisfied”.\t The
\nword “satisfied” has been defined in Shorter Oxford  English
\nDictionary (3rd Edn. at p. 1792) :\n<\/p>\n
\t      “4.  To  furnish\twith  sufficient  proof\t  or
\n\t      information,   to\t set  free  from  doubt\t  or
\n\t      uncertainty,   to\t convince;  5.\t To   answer
\n\t      sufficiently  (an\t objection,  question);\t  to
\n\t      fulfill  or comply with (a request); to  solve
\n\t      (a  doubt,  difficulty);\t6.  To\tanswer\t the
\n\t      requirements   of\t  (a   state   of    things,
\n\t      hypothesis,    etc.);    to    accord\twith
\n\t      (conditions).”\n<\/p><\/blockquote>\n
Hence, it is not the personal whim, wish, view or opinion or
\nthe  ipse dixit of the President dehors the material  but  a
\nlegitimate  inference drawn from the material placed  before
\nhim which is relevant for the purpose.\tIn other words,\t the
\nPresident  has to be convinced of or has to have  sufficient
\nproof  of information with regard to or has to be free\tfrom
\ndoubt  or uncertainty about the state of  things  indicating
\nthat  the  situation  in  question  has\t arisen.   Although,
\ntherefore,  the\t sufficiency or otherwise  of  the  material
\ncannot be questioned, the legitimacy of inference drawn from
\nsuch material is certainly open to judicial review.\n<\/p>\n
75.  It\t has also to be remembered in this  connection\tthat
\nthe power exercised by the President under Article 356(1) is
\non  the\t advice of the Council of Ministers  tendered  under
\nArticle 74(1) of the Constitution.  The Council of Ministers
\nunder  our  system would always belong to one or  the  other
\npolitical party.  In view of the pluralist democracy and the
\nfederal\t  structure   that  we\thave  accepted\t under\t our
\nConstitution,  the  party or parties in power  (in  case  of
\ncoalition  Government) at the Centre and in the\t States\t may
\nnot  be\t the  same.  Hence there is a need  to\tconfine\t the
\nexercise  of  power  under Article 356(1)  strictly  to\t the
\nsituation  mentioned therein which is a condition  precedent
\nto  the\t said  exercise.  That is why  the  Framers  of\t the
\nConstitution have taken pains to specify the situation which
\nalone  would  enable the exercise of the  said\tpower.\t The
\nsituation  is no less than one in which “the  Government  of
\nthe  State  cannot  be carried on  in  accordance  with\t the
\nprovisions of this Constitution”.  A situation short of\t the
\nsame does not empower the issuance of the Proclamation.\t The
\nword “cannot” emphatically connotes a situation of  impasse.
\nIn  Shorter  Oxford Dictionary, 3rd Edn., at page  255,\t the
\nword  “can”  is\t defined as “to be able; to  have  power  or
\ncapacity”.  The word “cannot”, therefore, would mean “not to
\nbe  able”  or  “not  to have the  power\t or  capacity”.\t  In
\nStroud’s Judicial Dictionary, 5th Edn., the word “cannot” is
\ndefined\t to  include a legal inability as well\tas  physical
\nimpossibility.\tHence situations which can be remedied or do
\nnot  create an impasse, or do not disable or interfere\twith
\nthe  governance of the State according to the  Constitution,
\nwould  not merit the issuance of the Proclamation under\t the
\narticle.\n<\/p>\n
76.  It\t  has  also  to\t be  remembered\t that  a   situation
\ncontemplated  under the article is one where the  Government
\nof  the State cannot be carried on “in accordance  with\t the
\nprovisions  of\tthis Constitution”.  The  expression  indeed
\nenvisages  varied situations.  Article 365 which is in\tPart
\nXIX  entitled  “Miscellaneous”, has  contemplated  one\tsuch
\nsituation.  It states that:\n<\/p>\n
104<\/span><\/p>\n
\t      “Where any State has failed to comply with  or
\n\t      to give effect to any directions given in\t the
\n\t      exercise\tof the executive power of the  Union
\n\t      under   any   of\tthe   provisions   of\tthis
\n\t      Constitution,  it\t shall\tbe  lawful  for\t the
\n\t      President to hold that a situation has  arisen
\n\t      in which the Government of the State cannot be
\n\t      carried  on in accordance with the  provisions
\n\t      of this Constitution.”\n<\/p><\/blockquote>\n
77.  The  failure  to comply with or to give effect  to\t the
\ndirections given by the Union under any of the provisions of
\nthe  Constitution,  is\tof course, not\tthe  only  situation
\ncontemplated  by  the expression “Government  of  the  State
\ncannot\tbe carried on in accordance with the  provisions  of
\nthis Constitution”.  Article 365 is more in the nature of  a
\ndeeming provision.  However, the situations other than those
\nmentioned  in Article 365 must be such where the  governance
\nof the State is not possible to be carried on in  accordance
\nwith   the   provisions\t of  the  Constitution.\t   In\tthis
\nconnection,  we may refer to what Dr Ambedkar had to say  on
\nthe subject in the Constituent Assembly:\n<\/p>\n
\t      “Now  I come to the remarks made by my  Friend
\n\t      Pandit Kunzru.  The first point, if I remember
\n\t      correctly,  which was raised by him  was\tthat
\n\t      the power to take over the administration when
\n\t      the  constitutional machinery fails is  a\t new
\n\t      thing,  which  is\t not  to  be  found  in\t any
\n\t      constitution.  I beg to differ from him and  I
\n\t      would  like  to  draw  his  attention  to\t the
\n\t      article\t contained    in    the\t    American
\n\t      Constitution,  where  the duty of\t the  United
\n\t      States  is  definitely  expressed\t to  be\t  to
\n\t      maintain\t the   Republican   form   of\t the
\n\t      Constitution.    When   we   say\t that\t the
\n\t      Constitution must be maintained in  accordance
\n\t      with   the   provisions  contained   in\tthis
\n\t      Constitution  we\tpractically  mean  what\t the
\n\t      American\tConstitution means, namely that\t the
\n\t      form  of the constitution prescribed  in\tthis
\n\t      Constitution  must be maintained.\t  Therefore,
\n\t      so  far as that point is concerned we  do\t not
\n\t      think that the Drafting Committee has made any
\n\t      departure\t from  an  established\t principle.”
\n\t      (Constituent  Assembly Debates, Vol.  IX,\t pp.
\n\t      175-76)\n<\/p><\/blockquote>\n
78.  As pointed out earlier, more or less similar expression
\noccurs\tin Article 58(2)(b) of the  Pakistani  Constitution.
\nThe  expression\t there\tis  that  the  “Government  of\t the
\nFederation   cannot  be\t carried  on  in   accordance\twith
\nprovisions  of\tthe  Constitution  and\tan  appeal  to\t the
\nelectorate   is\t necessary”.   Commenting  upon\t  the\tsaid
\nexpression, Shafiur Rahman, J. in Khaja Ahmad Tariq Rahim v.
\nFederation of Pakistan2l (PLD at p. 664) observed:\n<\/p>\n
\t      “It is an extreme power to be exercised  where
\n\t      there  is actual or imminent breakdown of\t the
\n\t      constitutional  machinery,  as   distinguished
\n\t      from   a\tfailure\t to  observe  a\t  particular
\n\t      provision\t of the Constitution.  There may  be
\n\t      occasions for the exercise of this power where
\n\t      there  takes  place extensive,  continued\t and
\n\t      pervasive\t failure  to  observe  not  one\t but
\n\t      numerous,\t provisions  of\t the   Constitution,
\n\t      creating\tthe impression that the\t country  is
\n\t      governed\tnot so much by the Constitution\t but
\n\t      by the methods extra-Constitutional.”
\n\t      21 PLD (1992) SC 646, 664
\n\t      105<\/span>\n<\/p><\/blockquote>\n
\t      79. Sidhwa, J. in the same case observed that:
\n\t      “to  hold that because a particular  provision
\n\t      of the Constitution was not complied with, the
\n\t      National\tAssembly  could be  dissolved  under
\n\t      Article  58(2)(b)\t of the\t Constitution  would
\n\t      amount  to an abuse of power.  Unless  such  a
\n\t      violation\t independently was so grave  that  a
\n\t      court  could come to no other  conclusion\t but
\n\t      that it alone directly led to the breakdown of
\n\t      the  functional working of the Government,  it
\n\t      would not constitute a valid ground.”\n<\/p><\/blockquote>\n
80.  The  expression and its implication have also been\t the
\nsubject\t of  elaborate\tdiscussion  in\tthe  Report  of\t the
\nSarkaria  Commission on Centre State relations.\t It will  be
\nadvantageous  to  refer\t to the relevant part  of  the\tsaid
\ndiscussion, which is quite illuminating:\n<\/p>\n
\t      “6.3.23  In Article 356, the  expression\t‘the
\n\t      Government  of the State cannot be carried  on
\n\t      in  accordance  with  the\t provisions  of\t the
\n\t      Constitution’,  is couched in wide terms.\t  It
\n\t      is,  therefore,  necessary to  understand\t its
\n\t      true  import  and ambit.\t In  the  day-to-day
\n\t      administration  of  the  State,  its   various
\n\t      functionaries   in  the  discharge  of   their
\n\t      multifarious  responsibilities take  decisions
\n\t      or  actions which may not, in some  particular
\n\t      or  the other, be strictly in accord with\t all
\n\t      the  provisions of the  Constitution.   Should
\n\t      every   such   breach  or\t infraction   of   a
\n\t      constitutional provision, irrespective of\t its
\n\t      significance,  extent and effect, be taken  to
\n\t      constitute  a ‘failure of\t the  constitutional
\n\t      machinery’ within the contemplation of Article\n<\/p><\/blockquote>\n
\t      356.   In\t our  opinion,\tthe  answer  to\t the
\n\t      question\tmust  be in the negative.   We\thave
\n\t      already noted that by virtue of Article 355 it
\n\t      is  the duty of the Union to ensure  that\t the
\n\t      Government  of  every State is carried  on  in
\n\t      accordance   with\t  the  provisions   of\t the
\n\t      Constitution.  Article 356, on the other hand,
\n\t      provides\tthe  remedy when there has  been  an
\n\t      actual   breakdown   of\tthe   constitutional
\n\t      machinery\t of the State.\tAny abuse or  misuse
\n\t      of  this drastic power damages the  fabric  of
\n\t      the  Constitution, whereas the object of\tthis
\n\t      article  is  to  enable  the  Union  to\ttake
\n\t      remedial\taction consequent upon breakdown  of
\n\t      the   constitutional   machinery,\t  so\tthat
\n\t      governance of the State in accordance with the
\n\t      provisions  of the Constitution, is  restored.<\/p><\/blockquote>\n
\t      A wide literal construction of Article 356(1),
\n\t      will reduce the constitutional distribution of
\n\t      the powers between the Union and the States to
\n\t      a\t licence  dependent on the pleasure  of\t the
\n\t      Union  Executive.\t Further it will enable\t the
\n\t      Union  Executive\tto cut at the  root  of\t the
\n\t      democratic parliamentary form of Government in
\n\t      the State.  It must, therefore, be rejected in
\n\t      favour  of a construction which will  preserve
\n\t      that form of Government.\tHence, the  exercise
\n\t      of the power under Article 356 must be limited
\n\t      to rectifying a ‘failure of the constitutional
\n\t      machinery in the State’.\tThe marginal heading
\n\t\t\t    of\t Article  356  also  points  to\t the   sam
\ne
\n\t      construction.\n<\/p>\n
\t      6.3.24\t Another point for consideration is,
\n\t      whether  ‘external  aggression’  or  ‘internal
\n\t      disturbance’ is to be read as an indispensable
\n\t      element  of  the situation of failure  of\t the
\n\t      constitutional  machinery\t in  a\tState,\t the
\n\t      existence\t of which is a prerequisite for\t the
\n\t      exercise of the
\n\t      106<\/span>
\n\t      power under Article 356.\tWe are clear in\t our
\n\t      mind  that the answer to this question  should
\n\t      be   in  the  negative.\tOn  the\t one   hand,
\n\t      ‘external\t    aggression’\t    or\t   ‘internal
\n\t      disturbance’  may\t not  necessarily  create  a
\n\t      situation where Government of the State cannot
\n\t      be   carried   on\t in  accordance\t  with\t the
\n\t      Constitution.  On the other, a failure of\t the
\n\t      constitutional  machinery\t in  the  State\t may
\n\t      occur,  without  there being  a  situation  of
\n\t      ‘external\t    aggression’\t    or\t   ‘internal
\n\t      disturbance’.\n<\/p>\n
\t      6.4.01\t A    failure\tof    constitutional
\n\t      machinery\t may  occur  in a  number  of  ways.\n<\/p>\n
\t      Factors  which contribute to such a  situation
\n\t      are   diverse   and  imponderable.    It\t is,
\n\t      therefore,  difficult  to give  an  exhaustive
\n\t      catalog  of  all situations which\t would\tfall
\n\t      within   the   sweep  of\tthe   phrase,\t‘the
\n\t      Government  of the State cannot be carried  on
\n\t      in  accordance  with the\tprovisions  of\tthis
\n\t      Constitution’.   Even  so, some  instances  of
\n\t      what  does  and  what does  not  constitute  a
\n\t      constitutional\t failure     within\t the
\n\t      contemplation of this article, may be  grouped
\n\t      and discussed under the following heads:\n<\/p>\n
\t      (a)   Political crises.\n<\/p>\n
\t      (b)   Internal subversion.\n<\/p>\n
\t      (c)   Physical breakdown.\n<\/p>\n
\t      (d)   Non-compliance    with    constitutional
\n\t      directions of the Union Executive.\n<\/p>\n
\t      It is not claimed that this categorisation  is
\n\t      comprehensive  or\t perfect. There\t can  be  no
\n\t      watertight   compartmentalisation,   as\tmany
\n\t      situations of constitutional failure will have
\n\t      elements of more than one type.\tNonetheless,
\n\t      it  will help determine whether or not,  in  a
\n\t      given  situation it will be proper  to  invoke
\n\t      this last-resort power under Article 356.”\n<\/p>\n
81.  The  Report  then\tgoes  on  to  discuss  the   various
\noccasions   on\t which\tthe   political\t  crisis,   internal
\nsubversion,   physical\tbreakdown  and\tnoncompliance\twith
\nconstitutional directions of the Union Executive may or\t can
\nbe said to, occur.  It is not necessary here to refer to the
\nsaid elaborate discussion.  Suffice it to say that we are in
\nbroad  agreement with the above interpretation given in\t the
\nReport,\t of  the  expression “the Government  of  the  State
\ncannot\tbe carried on in accordance with the  provisions  of
\nthis Constitution”, and are of the view that except in\tsuch
\nand  similar other circumstances, the provisions of  Article
\n356 cannot be pressed into service.\n<\/p>\n
82.  It\t will  be convenient at this stage itself,  also  to
\nillustrate the situations which may not amount to failure of
\nthe  constitutional  machinery\tin the\tState  inviting\t the
\nPresidential power under Article 356(1) and where the use of
\nthe  said  power  will be improper.  The  examples  of\tsuch
\nsituations are given in the Report in paragraph 6.5.01. They
\nare:\n<\/p>\n
\t      “(i)  A  situation of maladministration  in  a
\n\t      State   where  a\tduly  constituted   Ministry
\n\t      enjoying majority support in the Assembly,  is
\n\t      in office.  Imposition of President’s rule  in
\n\t      such a situation will be
\n\t      107<\/span>
\n\t      extraneous to the purpose for which the  power
\n\t      under Article 356 has been conferred.  It\t was
\n\t      made  indubitably clear by  the  Constitution-
\n\t      framers  that  this power is not meant  to  be
\n\t      exercised\t for  the purpose of  securing\tgood
\n\t      Government.\n<\/p><\/blockquote>\n
\t      (ii)  Where a Ministry resigns or is dismissed
\n\t      on losing its majority support in the Assembly
\n\t      and  the\tGovernor recommends,  imposition  of
\n\t      President’s   rule   without   exploring\t the
\n\t      possibility   of\tinstalling  an\t alternative
\n\t      Government  enjoying such support or  ordering
\n\t      fresh elections.\n<\/p><\/blockquote>\n
\t       (iii)Where,  despite  the advice\t of  a\tduly
\n\t      constituted   Ministry  which  has  not\tbeen
\n\t      defeated\ton  the\t floor\tof  the\t House,\t the
\n\t      Governor declines to dissolve the Assembly and
\n\t      without giving the Ministry an opportunity  to
\n\t      demonstrate  its majority support through\t the
\n\t      ‘floor test’, recommends its supersession\t and
\n\t      imposition  of President’s rule merely on\t his
\n\t      subjective  assessment  that the\tMinistry  no
\n\t      longer   commands\t  the  confidence   of\t the
\n\t      Assembly.\n<\/p><\/blockquote>\n
\t      (iv)  Where  Article  356\t is  sought  to\t  be
\n\t      invoked  for superseding the duly\t constituted
\n\t      Ministry and dissolving the State\t Legislative
\n\t      Assembly\ton  the\t sole ground  that,  in\t the
\n\t      General\tElections   to\t the   Lok    Sabha,
\n\t      the ruling party in the State, has suffered  a
\n\t      massive defeat.\n<\/p><\/blockquote>\n
\t      (v)   Where   in\ta  situation  of   ‘internal
\n\t      disturbance’,  not amounting to or verging  on
\n\t      abdication  of its governmental powers by\t the
\n\t      State  Government,  all possible\tmeasures  to
\n\t      contain  the  situation by the  Union  in\t the
\n\t      discharge of its duty, under Article 355, have
\n\t      not been exhausted.\n<\/p><\/blockquote>\n
\t      (vi)  The\t use of the power under Article\t 356
\n\t      will  be\timproper if,  in  the  illustrations
\n\t      given  in\t the  preceding\t paragraphs  6.4.10,
\n\t      6.4.11  and  6.4.12, the\tPresident  gives  no
\n\t      prior  warning  or opportunity  to  the  State
\n\t      Government to correct itself.  Such a  warning
\n\t      can be dispensed with only in cases of extreme
\n\t      urgency where failure on the part of the Union
\n\t      to  take immediate action, under Article\t356,
\n\t      will lead to disastrous consequences.\n<\/p><\/blockquote>\n
\t      (vii) Where  in response to the prior  warning
\n\t      or   notice  or  to  an  informal\t or   formal
\n\t      direction\t under Articles 256, 257, etc.,\t the
\n\t      State Government either applies the corrective
\n\t      and  thus\t complies  with\t the  direction,  or
\n\t      satisfies the Union Executive that the warning
\n\t      or direction was based on incorrect facts,  it
\n\t      shall not be proper for the President to\thold
\n\t      that  ‘a\tsituation has arisen  in  which\t the
\n\t      Government  of the State cannot be carried  on
\n\t      in  accordance  with the\tprovisions  of\tthis
\n\t      Constitution’.   Hence, in such  a  situation,
\n\t      also, Article 356 cannot be properly invoked.\n<\/p><\/blockquote>\n
\t      (viii)\t The  use of this power to sort\t out
\n\t      internal\tdifferences or intra-party  problems
\n\t      of  the\truling\tparty would   not be
\n\t      constitutionally correct.\n<\/p><\/blockquote>\n
\t      (ix)  This   power  cannot   be\tlegitimately
\n\t      exercised\t on  the sole  ground  of  stringent
\n\t      financial exigencies of the State.\n<\/p><\/blockquote>\n
\t      108<\/span><\/p>\n
\t      (x)   This power cannot be invoked, merely  on
\n\t      the ground that there are serious\t allegations
\n\t      of corruption against the Ministry.\n<\/p><\/blockquote>\n
\t      (xi)  The\t exercise  of  this  power,  for   a
\n\t      purpose  extraneous or irrelevant to  the\t one
\n\t      for  which  it  has  been\t conferred  by\t the
\n\t      Constitution, would be vitiated by legal\tmala
\n\t      fides.”\n<\/p><\/blockquote>\n
We  have no hesitation in concurring broadly with the  above
\nillustrative  occasions\t where the exercise of\tpower  under
\nArticle 356(1) would be improper and uncalled for.\n<\/p>\n
83.  It\t was contended on behalf of the Union of India\tthat
\nsince the Proclamation under Article 356(1) would be  issued
\nby  the President on the advice of the Council of  Ministers
\ngiven  under  Article 74(1) of the  Constitution  and  since
\nclause\t(2)  of\t the  said article  bars  enquiry  into\t the
\nquestion whether any, and if so, what advice was tendered by
\nMinisters  to the President, judicial review of the  reasons
\nwhich  led to the issuance of tile Proclamation also  stands
\nbarred.\t This contention is fallacious for reasons more than
\none.  In the first instance, it is based on a  misconception
\nof  the\t purpose  of Article 74(2).   As  has  been  rightly
\npointed\t out by Shri Shanti Bhushan, the object\t of  Article
\n74(2) was not to exclude any material or documents from\t the
\nscrutiny  of the courts but to provide that an order  issued
\nby  or in the name of the President could not be  questioned
\non  the\t ground that it was either contrary  to\t the  advice
\ntendered  by the Ministers or was issued  without  obtaining
\nany advice from the Ministers.\tIts object was only to\tmake
\nthe  question whether the President had followed the  advice
\nof the Ministers or acted contrary thereto, non-justiciable.
\nWhat  advice, if any, was tendered by the Ministers  to\t the
\nPresident was thus to be beyond the scrutiny of the court.\n<\/p>\n
84.  A\tgood  deal  of\tlight on the  said  purpose  of\t the
\nprovision  is thrown by its history.   Identical  provisions
\nwere contained in Sections 10(4) and 51(4) of the Government
\nof  India  Act, 1935.  However, in the Government  of  India
\nAct,  1915,  as amended by the Act of 1919 it  was  provided
\nunder Section 52(3) as follows:\n<\/p>\n
\t      “In relation to the transferred subjects,\t the
\n\t      Governor shall be guided by the advice of\t his
\n\t      Ministers, unless he sees sufficient cause  to
\n\t      dissent  from their opinion, in which case  he
\n\t      may require action to be taken otherwise\tthan
\n\t      in accordance with that advice:”\n<\/p><\/blockquote>\n
85.  The relations of the Governor General and the  Governor
\nwith  the Ministers were not regulated by the Act  but\twere
\nleft to be governed by an Instrument of Instructions  issued
\nby the Crown.  It was considered undesirable to define these
\nrelations  in  the  Act or to impose an\t obligation  on\t the
\nGovernor  General or Governor to be guided by the advice  of
\ntheir  Ministers,  since  such\ta  course  might  convert  a
\nconstitutional convention into a rule of law and thus  bring
\nit  within  the\t cognisance  of the  court.   Prior  to\t the
\nConstitution   (42nd   Amendment)  Act,\t 1976,\t under\t the
\nconstitutional convention, the President was bound to act in
\naccordance with the advice of
\n109<\/span>
\nthe  Council  of Ministers (Re: Shamsher Singh v.  State  of
\nPunjab22.)  By\tthe  42nd Amendment,  it  was  expressly  so
\nprovided in Article 74(1).  The object of Article 74(2)\t was
\nthus  not  to  exclude any material  or\t document  from\t the
\nscrutiny of the courts.\t This is not to say that the rule of
\nexclusion  laid down in Section 123 of the  Indian  Evidence
\nAct is given a go-by.  However, it only emphasises that\t the
\nsaid rule can be invoked in appropriate cases.\n<\/p>\n
86.  What  is further, although Article 74(2) bars  judicial
\nreview\tso  far\t as the advice given  by  the  Ministers  is
\nconcerned,  it does not bar scrutiny of the material on\t the
\nbasis  of  which the advice is given.  The  courts  are\t not
\ninterested  in either the advice given by the  Ministers  to
\nthe  President or the reasons for such advice.\t The  courts
\nare,  however, justified in probing as to whether there\t was
\nany material on the basis of which the advice was given, and
\nwhether\t it was relevant for such advice and  the  President
\ncould have acted on it.\t Hence when the courts undertake  an
\nenquiry into the existence of such material, the prohibition
\ncontained  in Article 74(2) does not negate their  right  to
\nknow about the factual existence of any such material.\tThis
\nis  not\t to say that the Union Government cannot  raise\t the
\nplea of privilege under Section 123 of the Evidence Act.  As
\nand  when such privilege against disclosure is claimed,\t the
\ncourts will examine such claim within the parameters of\t the
\nsaid  section  on its merits.  In this\tconnection,  we\t may
\nquote  Justice Mathew, who in the case of State of U. P.  v.
\nRaj  Narain23 observed as follows: (SCR p. 360: SCC p.\t454,
\npara 74)
\n\t      “To  justify  a  privilege,  secrecy  must  be
\n\t      indispensable  to induce freedom\tof  official
\n\t      communication or efficiency in the transaction
\n\t      of official business and it must be further  a
\n\t      secrecy  which  has  remained  or\t would\thave
\n\t      remained\tinviolable  but for  the  compulsory
\n\t      disclosure.   In\thow  many  transactions\t  of
\n\t      official\tbusiness is there ordinarily such  a
\n\t      secrecy?\t If  there  arises  at\tany  time  a
\n\t      genuine  instance of such otherwise  inviolate
\n\t      secrecy,\tlet the necessity of maintaining  it
\n\t      be determined on its merits.”\n<\/p>\n
87.  Since  further  the Proclamation issued  under  Article
\n356(1) is required by clause (3) of that article to be\tlaid
\nbefore each House of Parliament and ceases to operate on the
\nexpiration  of\ttwo months unless it has  been\tapproved  by
\nresolutions  by\t both the Houses of  Parliament\t before\t the
\nexpiration  of that period, it is evident that the  question
\nas to whether a Proclamation should or should not have\tbeen
\nmade, has to be discussed on the floor of each House and the
\ntwo Houses would be entitled to go into the material on\t the
\nbasis  of  which the Council of Ministers had  tendered\t the
\nadvice\tto the President for issuance of  the  Proclamation.
\nHence  the  secrecy claimed in respect of  the\tmaterial  in
\nquestion  cannot  remain inviolable, and the  plea  of\tnon-
\ndisclosure of the material can hardly be pressed.  When\t the
\nProclamation is challenged by making out a prima facie\tcase
\nwith  regard to its invalidity, the burden would be  on\t the
\nUnion Government to satisfy that
\n22 (1974) 2 SCC 831: 1974 SCC (L&S) 550: (1975) 1 SCR 814
\n23 (1975) 4 SCC 428: (1975) 3 SCR 333
\n110<\/span>
\nthere exists material which showed that the Government could
\nnot  be carried on in accordance with the provisions of\t the
\nConstitution.\tSince  such material  would  be\t exclusively
\nwithin the knowledge of the Union Government, in view of the
\nprovisions of Section 106 of the Evidence Act, the burden of
\nproving\t  the  existence  of such material would be  on\t the
\nUnion Government.\n<\/p>\n
88.  A\tfurther\t question  which has  been  raised  in\tthis
\nconnection is whether\t the  validity of  the\tProclamation
\nissued\tunder  Article\t356(1) can be under  clause  (3)  of
\nArticle\t 356.\tThere  is no reason to\tmake  a\t distinction
\nbetween\t the  Proclamation  so approved\t and  a\t legislation
\nenacted\t by Parliament.\t If the Proclamation is invalid,  it
\ndoes not stand validated merely because it is approved of by
\nParliament.  The grounds for challenging the validity of the
\nProclamation  may  be different from those  challenging\t the
\nvalidity of a legislation.  However, that does not make\t any
\ndifference  to the vulnerability of the Proclamation on\t the
\nlimited\t grounds  available.  As has been  stated  by  Prof.
\nH.W.R. Wade in Administrative Law, 6th Edn.:\n<\/p>\n
\t      “There\tare    many   cases    where\tsome
\n\t      administrative order or regulation is required
\n\t      by  statute to be approved by  resolutions  of
\n\t      the  Houses.   But this procedure\t in  no\t way
\n\t      protects\tthe order or regulation\t from  being
\n\t      condemned by the court, under the doctrine  of
\n\t      ultra   vires,  if  it  is  not  strictly\t  in
\n\t      accordance   with\t  the  Act.    Whether\t the
\n\t      challenge\t is made before or after the  Houses
\n\t      have  given their approval is immaterial.\t (p.\n<\/p>\n
\t      29)
\n\t      parliamentary  approval  does not\t affect\t the
\n\t      normal operation of judicial review. (p. 411)
\n\t      As these cases show, judicial review is in  no
\n\t      way  inhibited  by  the  fact  that  rules  or
\n\t      regulations  have been laid before  Parliament
\n\t      and approved, despite the ‘ruling of the House
\n\t      of  Lords\t that the test\tof  unreasonableness
\n\t      should  not  then operate in its\tnormal\tway.\n<\/p>\n
\t      The Court of Appeal has emphasised that in the
\n\t      case  of\tsubordinate legislation such  as  an
\n\t      Order  in\t Council approved in draft  by\tboth
\n\t      Houses,  ‘the  courts would without  doubt  be
\n\t      competent to consider whether or not the Order
\n\t      was properly made in the sense of being  intra
\n\t      vires’.” (p. 870)\n<\/p>\n
89. In this connection a reference may also be made to R  v.
\nH.M. Treasury ex p Smedley24 from which decision the learned
\nauthor has extracted the aforesaid observations.\n<\/p>\n
90.  We\t may also point out that the deletion of clause\t (5)
\nof  Article  356, as it stood prior to its deletion  by\t the
\nConstitution  ‘\t 44th Amendment) Act in 1978,  has  made  no
\nchange\tin the legal position that the satisfaction  of\t the
\nPresident  under  clause  (1) of  Article  356,\t was  always
\njudicially reviewable.\tThe clause read as follows:
\n24 (1985) QB 657: (1985) 2 WLR 576 (CA)
\n111<\/span>
\n\t      “5.    Notwithstanding   anything\t  in\tthis
\n\t      Constitution,   the   satisfaction   of\t the
\n\t      President\t mentioned in clause (1),  shall  be
\n\t      final   and  conclusive  and  shall   not\t  be
\n\t      questioned in any court on any ground.”\n<\/p>\n
91.  On\t the  other  hand, the deletion of  the\t clause\t has
\nreinforced   the   earlier  legal   position,\tviz.,\tthat
\nnotwithstanding\t the  existence\t of  the  clause  (5),\t the
\nsatisfaction   of  the\tPresident  under  clause   (1)\t was
\njudicially reviewable and the judicial review was not barred
\non  account  of\t the  presence\tof  the\t clause.   In\tthis
\nconnection,  we may usefully refer to the decision  of\tthis
\nCourt in State of Rajasthan v. Union of India3 where it\t was
\nunanimously held that in spite of the said finality  clause,
\nthe Presidential Proclamation was subject to judicial review
\non various grounds.  It was observed there as
\nfollows:  (SCR pp. 72, 82: SCC pp. 653, 663, paras 143, 150)
\n\t      “This is indeed a very drastic power which, if
\n\t      misused\t or   abused,\tcan   destroy\t the
\n\t      constitutional  equilibrium between the  Union
\n\t      and the States and its potential for harm\t was
\n\t      recognised even by the Constitution-makers.
\n\t       Of course by reason of clause (5) of  Article
\n\t      356,  the\t satisfaction of  the  President  is
\n\t      final and conclusive and cannot be assailed on
\n\t      any  ground,  but this  immunity\tfrom  attack
\n\t      cannot  apply where the challenge is not\tthat
\n\t      the  satisfaction is improper or\tunjustified,
\n\t      but that there is no satisfaction at all.\t  In
\n\t      such a case it is not the satisfaction arrived
\n\t      at  by the President which is challenged,\t but
\n\t      the existence of the satisfaction itself.”\n<\/p>\n
92.  It\t was accordingly held that in view of  the  finality
\nclause, the narrow area in which the exercise of power under
\nArticle\t 356  was subject to judicial  review  included\t the
\ngrounds\t where the satisfaction is perverse or mala fide  or
\nbased  on wholly extraneous and irrelevant grounds and\twas,
\ntherefore, no satisfaction at all.\n<\/p>\n
93.  In\t A.K.  Roy v. Union of India25 (SCC p. 297:  SCR  p.\n<\/p>\n
297)  the  Court  has observed that  “clause  (5)  has\tbeen
\ndeleted\t  by   the  44th  Amendment  and,   therefore,\t any
\nobservations  made  in the State of Rajasthan case3  on\t the
\nbasis  of that clause cannot any longer hold  good”.   These
\nobservations  imply that after the deletion of\tclause\t(5),
\nthe judicial review of the Proclamation issued under Article
\n356(1)\thas  become  wider than indicated in  the  State  Of
\nRajasthan case3.\n<\/p>\n
94.  In\t Kihoto\t Hollohan  v.  Zachillhu10  the\t Court\t has
\nobserved that: (SCC p.\t 708, para 101)
\n\t      “An ouster clause confines judicial review  in
\n\t      respect\tof  actions  falling   outside\t the
\n\t      jurisdiction  of\tthe  authority\ttaking\tsuch
\n\t      action but precludes challenge to such  action
\n\t      on  the  ground of an error committed  in\t the
\n\t      exercise\t of  jurisdiction  vested   in\t the
\n\t      authority\t because  such an action  cannot  be
\n\t      said to be an action without jurisdiction.”
\n\t      3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1
\n\t      SCR 1
\n\t      25  (1982)  1  SCC 271: 1982  SCC\t (Cri)\t152:\n<\/p>\n
\t      (1982) 2 SCR 272
\n\t      10 1992 Supp (2) SCC 651
\n\t      112<\/span>\n<\/p>\n
95.  Again  in Union of India v. Jyoti Prakash Mitter26\t and
\nUnion  of  India<\/a> clause restricting the\t scope\tof  judicial
\nreview,\t  the\tjudicial  review  would\t  be   confined\t  to
\njurisdictional\tefforts\t only, viz.,  infirmities  based  on
\nviolation  of  constitutional  mandates,  mala\tfides,\tnon-
\ncompliance  with  rule of natural justice  and\tperversity”.
\nThese\tobservations  are  of  course,\tin  the\t  field\t  of
\nadministrative\tlaw  and hence a reference to  the  rule  of
\nnatural justice has to be viewed in that light.\n<\/p>\n
96.  It\t will  be  an  inexcusable  error  to  examine\t the
\nprovisions  of Article 356 from a pure legalistic angle\t and
\ninterpret   their   meaning  only   through   jurisdictional
\ntechnicalities.\t The Constitution is essentially a political
\ndocument   and\tprovisions  such  as  Article  356  have   a
\npotentiality   to   unsettle   and   subvert   the    entire
\nconstitutional scheme.\tThe exercise of powers vested  under
\nsuch  provisions  needs, therefore, to be  circumscribed  to
\nmaintain  the  fundamental constitutional balance  lest\t the
\nConstitution is defaced and destroyed.\tThis can be achieved
\neven without bending much less breaking the normal rules  of
\ninterpretation, if the interpretation is alive to the  other
\nequally\t important  provisions of the Constitution  and\t its
\nbearing on them.  Democracy and federalism are the essential
\nfeatures  of  our  Constitution and are part  of  its  basic
\nstructure.  Any interpretation that we may place on  Article
\n356  must, therefore help to preserve and not subvert  their
\nfabric.\t  The power vested de jure in the President  but  de
\nfacto in the Council of Ministers under Article 356 has\t all
\nthe latent capacity to emasculate the two basic features  of
\nthe Constitution and hence it is necessary to scrutinise the
\nmaterial  on the basis of which the advice is given and\t the
\nPresident   forms   his\t satisfaction\tmore   closely\t and
\ncircumspectly.\t This  can  be\tdone  by  the  courts  while
\nconfining  themselves to the acknowledged parameters of\t the
\njudicial  review  as  discussed\t above,\t viz.,\t illegality,
\nirrationality and mala fides.  Such scrutiny of the material
\nwill   also  be\t within\t the  judicially  discoverable\t and
\nmanageable standards.\n<\/p>\n
97.  We\t may in this connection, refer to the principles  of
\nfederalism   and  democracy  which  are\t embedded   in\t our
\nConstitution.\tArticle\t 1 of the Constitution\tstates\tthat
\nIndia  shall  be  a Union of States.  Thus  the\t States\t are
\nconstitutionally  recognised units and not  mere  convenient
\nadministrative\tdivisions.   Both the Union and\t the  States
\nhave  sprung from the provisions of the\t Constitution.\t The
\nlearned\t  author,   H.M.   Seervai,   in   his\t  commentary
\nConstitutional\tLaw of India (p. 166, 3rd Edn. _  5.36)\t has
\nsummed\tup  the\t federal  nature  of  our  Constitution\t  by
\nobserving  that\t the federal principle is  dominant  in\t our
\nConstitution  and the principle of federalism has  not\tbeen
\nwatered down for the following reasons:t
\n\t      “(a)  It is no objection to  our\tConstitution
\n\t      being   federal  that  the  States  were\t not
\n\t      independent States before they became parts of
\n\t      a\t Federation.  A federal\t situation  existed,
\n\t      first, when the British Parliament
\n\t      26    (1971) 1 SCC 396: (1971) 3 SCR 483
\n\t      27    (1985)  3 SCC 398: 1985 SCC\t (L&S)\t672:<\/p>\n
\n\t      1985 Supp 2 SCR 131\n\t      +\t    Ed.: See in 4th Edn. at p. 301 s 5.34\n\t      113<\/span>\n<\/pre>\n
\t      adopted  a federal solution in the  G.I.\tAct,
\n\t      1935,  and  secondly,  when  the\t Constituent
\n\t      Assembly\tadopted\t a federal solution  in\t our
\n\t      Constitution;\n<\/p>\n
\t      (b) Parliament’s power to alter the boundaries
\n\t      of States without their consent is a breach of
\n\t      the  federal principle, but in fact it is\t not
\n\t\t\t    Parliament which has, on its own, altered  the
\n\t      boundaries of States, By\textra-constitutional
\n\t      agitation,  the States have forced  Parliament
\n\t      to   alter  the  boundaries  of  States.\t  In
\n\t      practice, therefore, the federal principle has
\n\t      not been violated;\n<\/p>\n
\t      (c)   The allocation of the residuary power of
\n\t      legislation    to\t  Parliament\t(i.e.\t the
\n\t      Federation) is irrelevant for determining\t the
\n\t      federal  nature of a Constitution.   The\tU.S.
\n\t      and the Australian Constitutions do not confer
\n\t      the  residuary power on the Federation but  on
\n\t      the   States,  yet  those\t Constitutions\t are
\n\t      indisputably federal;\n<\/p>\n
\t      (d)   External sovereignty is not relevant  to
\n\t      the federal nature of a Constitution, for such
\n\t      sovereignty  must belong to the country  as  a
\n\t      whole.\tBut   the   division   of   internal
\n\t      sovereignty  by a distribution of\t legislative
\n\t      powers is an essential feature of\t federalism,
\n\t      and  our Constitution possesses that  feature.
\n\t      With   limited  exceptions,   the\t  Australian
\n\t      Constitution  confers overlapping\t legislative
\n\t      powers  on  the States and  the  Commonwealth,
\n\t      whereas\tList   11,  Schedule  VII   of\t our
\n\t      Constitution   confers  exclusive\t powers\t  of
\n\t      legislation  on the States,  thus\t emphasising
\n\t      the federal nature of our Constitution;\n<\/p>\n
\t      (e)   The\t enactment  in Article\t352  of\t the
\n\t      emergency\t power arising from war or  external
\n\t      aggression  which\t threatens the\tsecurity  of
\n\t      India  merely recognises de jure what  happens
\n\t      de  facto in great federal countries like\t the
\n\t      U.S., Canada and Australia in times of war, or
\n\t      imminent threat of war, because in war,  these
\n\t      federal  countries  act as  though  they\twere
\n\t      unitary.\tThe presence in our Constitution  of
\n\t      exclusive legislative powers conferred on\t the
\n\t      States  makes  it reasonable to  provide\tthat
\n\t      during   the  emergency  created\tby  war\t  or
\n\t      external\taggression,  the Union\tshould\thave
\n\t      power  to\t legislate  on\ttopics\t exclusively
\n\t      assigned\t to   the   States   and   to\ttake
\n\t      corresponding executive action.  The Emergency
\n\t      Provisions,  therefore,  do  not\tdilute\t the
\n\t      principle of Federalism, although the abuse of
\n\t      those  provisions by continuing the  emergency
\n\t      when  the occasion which caused it had  ceased
\n\t      to  exist does detract from the  principle  of
\n\t      Federal Government.  The amendments introduced
\n\t      in Article 352 by the 44th Amendment have,  to
\n\t      a considerable extent, reduced the chances  of
\n\t      such abuse.  And by deleting the clauses which
\n\t      made  the declaration and the  continuance  of
\n\t      emergency\t by  the President  conclusive,\t the
\n\t      44th  Amendment has provided  opportunity\t for
\n\t      judicial\treview which, it is  submitted,\t the
\n\t      courts  should not lightly decline when  as  a
\n\t      matter of common knowledge, the emergency\t has
\n\t      ceased   to  exist.   This  deletion  of\t the
\n\t      conclusive  satisfaction of the President\t has
\n\t      been  prompted  not only by the abuse  of\t the
\n\t      Proclamation  of emergency arising out of\t war
\n\t\t\t    or external aggression, but, even more, by\tth
\ne
\n\t      wholly  unjustified Proclamation of  emergency
\n\t      issued   in  1975\t to  protect  the   personal
\n\t      position of the Prime Minister;\n<\/p>\n
\t      114<\/span><\/p>\n
\t      (f)   The\t power\tto  proclaim  an   emergency
\n\t      originally   on\tthe   ground   of   internal
\n\t      disturbance,  but\t now only on the  ground  of
\n\t      armed  rebellion,\t does not detract  from\t the
\n\t      principle of federalism because such a  power,
\n\t      as we have seen exists in indisputably federal
\n\t      constitutions.   Deb  Sadhan Roy v.  State  of
\n\t      W.B.28 has established that internal  violence
\n\t      would ordinarily interfere with the powers  of
\n\t      the federal Government to enforce its own laws
\n\t      and   to\ttake  necessary\t executive   action.\n<\/p>\n
\t      Consequently,  such  interference can  be\t put
\n\t      down  with  the  total  force  of\t the  United
\n\t      States,  and  the\t same  position\t obtains  in
\n\t      Australia;\n<\/p>\n
\t      (g)   The provisions of Article 355 imposing a
\n\t      duty  on the Union to protect a State  against
\n\t      external aggression and internal disorder\t are
\n\t      not  inconsistent with the federal  principle.
\n\t      The  war\tpower belongs to the  Union  in\t all
\n\t      Federal Governments, and therefore the defence
\n\t      of  a  State against  external  aggression  is
\n\t      essential\t in any Federal Government.   As  to
\n\t      internal disturbance, the position reached  in
\n\t      Deb  case28  shows  that\tthe  absence  of  an
\n\t      application  by the State does not  materially
\n\t      affect\tthe   federal\t principle.\tSuch
\n\t      application  has\tlost its importance  in\t the
\n\t      United States and in Australia;\n<\/p>\n
\t      (h)   Since  it  is  of  the  essence  of\t the
\n\t      federal principle that both federal and  State
\n\t      laws  operate on the same individual, it\tmust
\n\t      follow  that  in case of conflict of  a  valid
\n\t      federal law and a valid State law, the federal
\n\t      law  must\t prevail  and  our  Constitution  so
\n\t      provides\tin  Article 254, with  an  exception
\n\t      noted  earlier  which  does  not\taffect\t the
\n\t      present discussion;\n<\/p>\n
\t      (i)   It\tfollows from what is stated  in\t (g)
\n\t      above,  that federal laws must be\t implemented
\n\t      in  the States and that the federal  executive
\n\t      must have power to take appropriate  executive
\n\t      action  under  federal  ‘laws  in\t the  State,
\n\t      including\t the  enforcement  of  those   laws.\n<\/p>\n
\t      Whether  this  is done by setting up  in\teach
\n\t      State  a\tparallel federal  machinery  of\t law
\n\t      enforcement,  or by using the  existing  State
\n\t      machinery,  is a matter governed by  practical
\n\t      expediency  which does not affect the  federal
\n\t      principle.   In the United States, a  defiance
\n\t      of  Federal law can be, and, as we have  seen,
\n\t      has  been put down by the use of Armed  Forces
\n\t      of  the U.S. and the National Militia  of\t the
\n\t      States.\tThis  is not inconsistent  with\t the
\n\t      federal  principle in the United States.\t Our
\n\t      Constitution   has  adopted  the\t method\t  of
\n\t      empowering   the\tUnion  Government  to\tgive
\n\t      directions to the States to give effect to the
\n\t      Union  law and to prevent obstruction  in\t the
\n\t      working  of  the\tUnion law.   Such  a  power,
\n\t      though different in form, is in substance\t the
\n\t      same as the power of the Federal Government in
\n\t      the U.S. to enforce its laws, if necessary  by
\n\t      force.\tTherefore,   the   power   to\tgive
\n\t      directions  to the State Governments does\t not
\n\t      violate the federal principle;<\/p>\n
\t      (j)   Article  356  (read\t with  Article\t355)
\n\t      which    provides\t  for\tthe    failure\t  of
\n\t      constitutional machinery was based of  Article
\n\t      4,  Section  4 of the  U.S.  Constitution\t and
\n\t      Article 356, like Article 4, Section 4, is not
\n\t      inconsistent  with the federal principle.\t  As
\n\t      stated earlier, these provisions were meant to
\n\t      be  the  last resort, but\t have  been  gravely
\n\t      abused and can therefore be
\n\t      28  (1972) 1 SCC 308: 1972 SCC (Cri)  45:\t AIR
\n\t      1972 SC 1924
\n\t      115<\/span>
\n\t      said to affect the working of the Constitution
\n\t      as  a  Federal  Government.   But\t the  recent
\n\t      amendment\t  of   Article\t356  by\t  the\t44th
\n\t      Amendment,  and  the  submission\tto  be\tmade
\n\t      hereafter\t that the doctrine of the  political
\n\t      question\tdoes not apply in India,  show\tthat
\n\t      the courts can now take a more active part  in
\n\t      preventing a mala fide or improper exercise of
\n\t      the  power  to  impose  a\t President’s   rule,
\n\t      unfettered  by  the American doctrine  of\t the
\n\t      political question;\n<\/p>\n
\t      (k)   The\t view that unimportant matters\twere
\n\t      assigned to the States cannot be sustained  in
\n\t      face  of the very important subjects  assigned
\n\t      to the States in List 11, and the same applies
\n\t      to taxing powers of the States, which are made
\n\t      mutually exclusive of the taxing powers of the
\n\t      Union  so\t that  ordinarily  the\tStates\thave
\n\t      independent  source of revenue of\t their\town.
\n\t      The  legislative entries relating to taxes  in
\n\t      List  11\tshow  that the\tsources\t of  revenue
\n\t      available\t to the States are  substantial\t and
\n\t      would  increasingly become  more\tsubstantial.
\n\t      In addition to the exclusive taxing powers  of
\n\t      the States, the States become entitled  either
\n\t      to appropriate taxes collected by the Union or
\n\t      to  a  share  in the taxes  collected  by\t the
\n\t      Union.”\n<\/p>\n
98.  In\t this  connection,  we may also\t refer\tto  what  Dr
\nAmbedkar  had  to  say while answering\tthe  debate  in\t the
\nConstituent  Assembly  in the context of the  very  Articles
\n355,  356 and 357.  The relevant portion of his\t speech\t has
\nalready been reproduced above.\tHe has emphasised there that
\nnotwithstanding\t the fact that there are many provisions  in
\nthe Constitution whereunder the Centre has been given powers
\nto  override  the  States, our\tConstitution  is  a  federal
\nConstitution.  It means that the States are sovereign in the
\nfield which is left to them.  They have a plenary  authority
\nto make any law for the peace, order and good Government  of
\nthe State.\n<\/p>\n
99.  The above discussion thus shows that the States have an
\nindependent  constitutional  existence\tand  they  have\t  as
\nimportant   a  role  to\t play  in  the\tpolitical,   social,
\neducational  and cultural life of the people as\t the  Union.
\nThey  are neither satellites nor agents of the Centre.\t The
\nfact   that   during   emergency  and\tin   certain   other
\neventualities their powers are overridden or invaded by\t the
\nCentre is not destructive of the essential federal nature of
\nour   Constitution.    The  invasion  of   power   in\tsuch
\ncircumstances  is not a normal feature of the  Constitution.
\nThey  are  exceptions  and  have  to  be  resorted  to\tonly
\noccasionally   to  meet\t the  exigencies  of   the   special
\nsituations.  The exceptions are not a rule.\n<\/p>\n
100.\t  For\tour  purpose,  further\tit  is\treally\t not
\nnecessary  to determine whether, in spite of the  provisions
\nof  the Constitution referred to above, our Constitution  is
\nfederal, quasi-federal or unitary in nature.  It is not\t the
\ntheoretical   label  given  to\tthe  Constitution  but\t the
\npractical implications of the provisions of the Constitution
\nwhich  are of importance to decide the question that  arises
\nin  the\t present  context, viz., whether  the  powers  under
\nArticle 356(1) can be exercised by the President arbitrarily
\nand  unmindful of its consequences to the governance in\t the
\nState  concerned.   So\tlong  as the  States  are  not\tmere
\nadministrative units but in their own right constitutional
\n116<\/span>
\npotentates  with  the same paraphernalia as the\t Union,\t and
\nwith  independent Legislature and the Executive\t constituted
\nby  the\t same  process as the Union, whatever  the  bias  in
\nfavour\tof  the\t Centre, it cannot  be\targued\tthat  merely
\nbecause\t (and  assuming it is correct) the  Constitution  is
\nlabeled unitary or quasi-federal or a mixture of federal and
\nunitary\t structure, the President has unrestricted power  of
\nissuing\t  Proclamation\t under\tArticle\t 356(1).    If\t the
\nPresidential powers under the said provision are subject  to
\njudicial  review  within the limits discussed  above,  those
\nlimitations   will  have  to  be  applied   strictly   while
\nscrutinising the concerned material.\n<\/p>\n
101. It must further not be forgotten that in a representive
\ndemocracy in a populous country like ours when\tLegislatures
\nof the States are dissolved pursuant to the power used under
\nArticle\t 356(1)\t of the Constitution and the  elections\t are
\nproposed to be held, it involves for the public exchequer an
\nenormous expenditure and consequently taxes the public.\t The
\nmachinery  and the resources of the State are diverted\tfrom
\nother  useful  work.  The expenses of  contesting  elections
\nwhich  even otherwise are heavy and unaffordable for  common
\nman  are  multiplied.  Frequent\t elections  consequent\tupon
\nunjustified  use  of Article 356(1) has thus  a\t potentially
\ndangerous  consequence\tof  negating  the  very\t  democratic
\nprinciple  by  making  the  election-contest  the  exclusive
\npreserve  of  the affluent.  What is further,  the  frequent
\ndissolution  of the legislature, has the tendency to  create
\ndisenchantment\tin the people with the process\tof  election
\nand  thus with the democratic way of life  itself.   History
\nwarns  us that the frustration with democracy has  often  in
\nthe past, led to an invitation\tto fascism and\tdictatorship
\nof one form or the other.\n<\/p>\n
102. The Presidential power under Article 356(1) has also to
\nbe viewed from yet  another  and  equally  important  angle.
\nDecentralisation    of\t power\t is   not   only    valuable
\nadministrative\t  device   to\tensure\t closer\t   scrutiny,
\naccountability and efficiency, but is also an essential part
\nof  democracy.\t It is for this purpose that Article  40  in
\nPart  IV  of  our Constitution dealing\twith  the  Directive
\nPrinciples  of State Policy enjoins upon the State  to\ttake
\nsteps  to  organise village panchayats and endow  them\twith
\nsuch  powers and authorities as may be necessary  to  enable
\nthem   to  function  as\t units\tof  self  governance.\t The
\nparticipation of the people in the governance is a sine\t qua
\nnon  of\t democracy.   The democratic way of  life  began  by
\ndirect participation of the people in the day to day affairs
\nof  the\t society.   With the growth of\tpopulation  and\t the
\nexpansion  of  the  territorial\t boundaries  of\t the  State,
\nrepresentative\tdemocracy  replaced  direct  democracy\t and
\npeople\tgradually surrendered more and more of their  rights
\nof   direct   participation,   to   their   representatives.
\nNotwithstanding\t the surrender of the requisite\t powers,  in
\nmatters which are retained, the powers are jealously guarded
\nand  rightly  so.  If it is true to say that  in  democracy,
\npeople are sovereign and all power belongs primarily to\t the
\npeople,\t the retention of such power by the people  and\t the
\nanxiety\t to  exercise them is legitimate.  The\tnormal\trule
\nbeing the self-govemance, according to the wishes  expressed
\nby  the\t people, the occasions to interfere with  the  self-
\ngovemance should both be rare and demonstrably compelling.\n<\/p>\n
117<\/span><\/p>\n
103.  In  this connection, a very  significant\tand  special
\nfeature\t of our society has to be constantly kept  in  mind.
\nOur  society  is, among other things,  multilingual,  multi-
\nethnic and multi-cultural.  Prior to independence, political
\npromises  were\tmade  that  the States\twill  be  formed  on
\nlinguistic basis and the ethnic and cultural identities will
\nnot  only be protected but promoted.  It is in keeping\twith
\nthe  said promises, that the States eventually have come  to
\nbe  organised  broadly on linguistic,  ethnic  and  cultural
\nbasis.\tThe people in every State desire to fulfil their own
\naspirations  through self-govemance within the framework  of
\nthe   Constitution.   Hence  interference  with\t the   self-
\ngovernance  also amounts to the betrayal of the\t people\t and
\nunwarranted  interference.  The betrayal of  the  democratic
\naspirations  of the people is a negation of  the  democratic
\nprinciple which runs through our Constitution.\n<\/p>\n
104.  What  is further and this is an equally  if  not\tmore
\nimportant aspect of our Constitutional law we have adopted a
\npluralist  democracy.\tIt implies, among  other  things,  a
\nmulti-party system.  Whatever the nature of federalism,\t the
\nfact remains that as stated above, as per the provisions  of
\nthe Constitution, every State is constituent political\tunit
\nand  has  to  have an exclusive\t Executive  and\t Legislature
\nelected\t and  constituted by the same process as  the  Union
\nGovernment.   Under  our  political  and  electoral  system,
\npolitical  parties  may operate at the\tState  and  national
\nlevel  or  exclusively\tat the State level.   There  may  be
\ndifferent  political parties in different States and at\t the
\nnational  level.   Consequently, situations  may  arise,  as
\nindeed\tthey  have, when the political parties in  power  in
\nvarious\t States and at the Centre may be different.  It\t may
\nalso happen as has happened till date that through political
\nbargaining,  adjustment\t and understanding,  a\tState  level
\nparty  may  agree to elect candidates of  a  national  level
\nparty  to  Parliament  and  vice  versa.   This\t mosaic\t  of
\nvariegated pattern of political life is potentially inherent
\nin  a pluralist multi-party democracy like ours.  Hence\t the
\ntemptation of the political party or parties in power (in  a
\ncoalition Government) to destabilise or sack the  Government
\nin the State not run by the same political party or  parties
\nis  not\t rare and in fact the experience of the\t working  of
\nArticle\t 356(1)\t since the inception  of  the  Constitution,
\nshows  that the State Governments have been sacked  and\t the
\nLegislative    Assemblies    dissolved\t  on\t irrelevant,
\nobjectionable  and unsound grounds.  So far the power  under
\nthe provision has been used on more than 90 occasions and in
\nalmost\tall  cases  against  Governments  run  by  political
\nparties\t in  opposition.   If the fabric  of  pluralism\t and
\npluralist  democracy  and  the unity and  integrity  of\t the
\ncountry are to be preserved, judiciary in the  circumstances
\nis the only institution which can act as the saviour of\t the
\nsystem and of the nation.\n<\/p>\n
105. It\t is  for these reasons that we are unable  to  agree
\nwith the view that if the ruling party in the States suffers
\nan  overwhelming  defeat in the elections to the  Lok  Sabha
\nhowever\t complete the defeat may be it will be a ground\t for
\nthe  issue of the Proclamation under Article 356(1).  We  do
\nnot  read the decision in State of Rajasthan case3  to\thave
\ntaken such a view.\n<\/p>\n
3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1
\n118<\/span>
\nThis is particularly so since it is observed in the judgment
\nthat: (SCR pp. 84-85:\t SCC pp. 664-65, para 153)
\n\t      “Now,  we\t have no doubt at  all\tthat  merely
\n\t      because  the ruling party in a  State  suffers
\n\t      defeat  in the elections to the Lok  Sabha  or
\n\t      for  the\tmatter\tof that,  in  the  panchayat
\n\t      elections, that by itself can be no ground for
\n\t      saying that the Government of the State cannot
\n\t      be   carried   on\t in  accordance\t  with\t the
\n\t      provisions  of the Constitution.\tThe  Federal
\n\t      structure\t  under\t our  Constitution   clearly
\n\t      postulates  that\tthere may be  one  party  in
\n\t      power in the State and another at the  Centre.
\n\t      It is also not an unusual phenomenon that\t the
\n\t      same  electorate\tmay  elect  a  majority\t  of
\n\t      members  of  one\tparty  to  the\t Legislative
\n\t      Assembly,\t while at the same time\t electing  a
\n\t      majority\tof members of another party  to\t the
\n\t      Lok   Sabha.    Moreover,\t  the\t Legislative
\n\t      Assembly,\t once elected, is to continue for  a
\n\t      specific term and mere defeat at the elections
\n\t      to  the Lok Sabha prior to the  expiration  of
\n\t      the  term\t without anything more would  be  no
\n\t      ground for its dissolution.  The defeat  would
\n\t      not necessarily in all cases indicate that the
\n\t      electorate is no longer supporting the  ruling
\n\t      party  because  the issues may  be  different.
\n\t      But  even if it were indicative of a  definite
\n\t      shift  in the opinion of the electorate,\tthat
\n\t      by itself would be no ground for\tdissolution,
\n\t      because  the  Constitution  contemplates\tthat
\n\t      ordinarily the will of the electorate shall be
\n\t      expressed\t at  the  end of  the  term  of\t the
\n\t      Legislative  Assembly  and  a  change  in\t the
\n\t      electorate’s  will  in between  would  not  be
\n\t      relevant … the defeat of the ruling party in
\n\t      a\t State at the Lok Sabha elections cannot  by
\n\t      itself,  without\tanything more,\tsupport\t the
\n\t      inference\t that  the Government of  the  State
\n\t      cannot  be carried on in accordance  with\t the
\n\t      provisions  of the Constitution.\tTo  dissolve
\n\t      the Legislative Assembly solely on such ground
\n\t      would be an indirect exercise of the right  of
\n\t      recall  of  all the members by  the  President
\n\t      without  there  being  any  provision  in\t the
\n\t      Constitution   for   recall   even   by\t the
\n\t      electorate.”\n<\/p>\n
There  is  no doubt that certain observations  in  the\tsaid
\ndecision  create  an impression to the\tcontrary.   We\thave
\nalready endorsed earlier the recommendation in the Report of
\nthe Sarkaria Commission that the concerned ground cannot  be
\navailable  for invoking power under Article 356(1).  It\t has
\nno  relevance to the conditions precedent for  invoking\t the
\nsaid  power,  viz.,  the  breakdown  of\t the  constitutional
\nmachinery in the State.\n<\/p>\n
106. Thus  the\tfederal\t principle,  social  pluralism\t and
\npluralist  democracy which form the basic structure  of\t our
\nConstitution   demand  that  the  judicial  review  of\t the
\nProclamation  issued  under Article 356(1) is  not  only  an
\nimperative  necessity  but  is\ta  stringent  duty  and\t the
\nexercise  of  power  under the said  provision\tis  confined
\nstrictly for the purpose and to the circumstances  mentioned
\ntherein\t and  for  none else.  It  also\t requires  that\t the
\nmaterial  on  the basis of which the power is  exercised  is
\nscrutinised circumspectly.  In this connection, we may refer
\nto what Dr Ambedkar had to say in reply to the apprehensions
\nexpressed  by the other Hon’ble Members of  the\t Constituent
\nAssembly, in this context which also bring out the  concerns
\nweighing on the mind of the Hon’ble Members:\n<\/p>\n
119<\/span><\/p>\n
\t      “In  regard  to the general debate  which\t has
\n\t      taken  place  in which it has  been  suggested
\n\t      that these articles are liable to be abused, I
\n\t      may  say\tthat I do not altogether  deny\tthat
\n\t      there is a possibility of these articles being
\n\t      abused  or  employed for\tpolitical  purposes.<\/p><\/blockquote>\n
\t      But  that objection applies to every  part  of
\n\t      the  Constitution\t which gives  power  to\t the
\n\t      Centre  to override the Provinces.  In fact  I
\n\t      share   the   sentiments\t expressed   by\t  my
\n\t      honorable\t Friend Mr Gupte yesterday that\t the
\n\t      proper  thing we ought to expect is that\tsuch
\n\t      articles\twill never be called into  operation
\n\t      and that they would remain a dead letter.\t  If
\n\t      at all they are brought into operation, I hope
\n\t\t\t    the\t President,  who  is  endowed  with   thes
\ne
\n\t      powers,  will take proper\t precautions  before
\n\t      actually suspending the administration of\t the
\n\t      provinces.  I hope the first thing he will  do
\n\t      would be to issue a mere warning to a province
\n\t      that has erred, that things were not happening
\n\t      in  the  way in which they  were\tintended  to
\n\t      happen  in the Constitution.  If that  warning
\n\t      fails, the second thing for him to do will  be
\n\t      to  order an election allowing the  people  of
\n\t      the province to settle matters by\t themselves.
\n\t      It  is only when these two remedies fail\tthat
\n\t      he would resort to this article: It is only in
\n\t      those  circumstances he would resort  to\tthis
\n\t      article.\t I  do not think we could  then\t say
\n\t      that  these articles were imported in vain  or
\n\t      that   the  President  had  acted\t  wantonly.”\n<\/p>\n
\t      (Constituent  Assembly Debates, Vol.   IX,  p.\n<\/p>\n
\t      177)\n<\/p>\n
107. The extract from the Report of the Sarkaria  Commission
\nwhich  has been reproduced in paragraph 82 above  will\tshow
\nthat these hopes of Dr Ambedkar and other Hon’ble Members of
\nthe Constituent Assembly have not come true.\n<\/p>\n
108. The  further equally important question that arises  in
\nthis  context  is  whether  the\t President  when  he  issues
\nProclamation  under  Article 356(1), would be  justified  in
\nremoving   the\tGovernment  in\tpower  or   dissolving\t the
\nLegislative  Assembly and thus in exercising all the  powers
\nmentioned  in sub-clauses (a), (b) and (c) of clause (1)  of
\nArticle\t 356  whatever the nature of the  situation  or\t the
\ndegree\tof the failure of the constitutional  machinery.   A
\nstrong contention was raised that situations of the  failure
\nof the constitutional machinery may be varied in nature\t and
\nextent,\t and  hence  measures to remedy\t the  situation\t may
\ndiffer\t both\tin  kind  and  degree.\t It   would   be   a
\ndisproportionate  and unreasonable exercise of power if\t the
\nremoval\t of  Government or dissolution of  the\tAssembly  is
\nordered\t when what the situation required, was for  example,
\nonly   assumption  of  some  functions\tor  powers  of\t the
\nGovernment  of the State or of anybody or authority  in\t the
\nState  under Article 356(1)(a).\t The excessive use of  power
\nalso  amounts to illegal, irrational and mala fide  exercise
\nof  power.   Hence,  it\t is  urged  that  the  doctrine\t  of
\nproportionality\t is relevant in this context and has  to  be
\napplied in such circumstances.\tTo appreciate the discussion
\non the point, it is necessary to realise that the removal of
\nGovernment  and the dissolution of Assembly are effected  by
\nthe President, if he exercises powers of the Governor  under
\nArticles 164(1) and 174(2)(b) respectively under  sub-clause\n<\/p>\n
(a) of Article 356(1), though that is neither necessary\t nor
\nobligatory while issuing the Proclamation.  In other  words,
\nthe removal of the Ministry or the dissolution
\n120<\/span>
\nof the Legislative Assembly is not an automatic\t consequence
\nof  the issuance of the Proclamation.  The exercise  of\t the
\npowers under sub-clauses (a), (b) and (c) of Article  356(1)
\nmay  also co-exist with a mere suspension of  the  political
\nexecutive and the Legislature of the State.  Sub-clause\t (c)
\nof  Article 356(1) makes it clear.  It speaks of  incidental
\nand  consequential provisions to give effect to the  objects
\nof the Proclamation including suspension in whole or part of
\nthe operation of any provision of the Constitution  relating
\nto  anybody or authority in the State.\tIt has to  be  noted
\nthat  unlike  sub-clause  (a),\tit  does  not  exclude\t the
\nLegislature  of\t the State.  Sub-clause (b) only  speaks  of
\nexercise of the powers of the Legislature of the State by or
\nunder  the  authority of Parliament.  What is  further,\t the
\nassumption  of only some of the functions of the  Government
\nand the powers of the Governor or of anybody or authority in
\nthe State other than the Legislature of the State under sub-
\nclause\t(a), is also conceivable with the retention  of\t the
\nother functions and powers with the Government of the  State
\nand the Governor or anybody or authority in the State.\t The
\nlanguage of sub-clause (a) is very clear on the subject.  It
\nmust be remembered in this connection that where there is  a
\nbicameral   legislature,   the\tupper\thouse,\t i.e.,\t the
\nLegislative  Council  cannot be dissolved.  Yet\t under\tsub-
\nclause\t(b) of Article 356(1) its powers are exercisable  by
\nor  under the authority of Parliament.\tThe word used  there
\nis    “Legislature”   and   not\t  “Legislative\t  Assembly”.
\nLegislature  includes  both the lower house  and  the  upper
\nhouse,\ti.e., the Legislative Assembly and  the\t Legislative
\nCouncil.   It has also to be noted that when the  powers  of
\nthe Legislature of the State are declared to be\t exercisable
\nby  or\tunder  the authority  of  Parliament  under  Article
\n356(1)(b), it is competent for Parliament under Article 357,
\nto confer on the President the power of such legislature  to
\nmake  laws  and to authorise the President to  delegate\t the
\npowers so conferred, to any other authority to be  specified
\nby  him.   The\tauthority  so chosen may  be  the  Union  or
\nofficers and authorities thereof.  Legally, therefore, it is
\npermissible  under Article 356(1), firstly, only to  suspend
\nthe political executive or anybody or authority in the State
\nand  also the Legislature of the State and not to remove  or
\ndissolve  them.\t  Secondly, it is also permissible  for\t the
\nPresident  to  assume  only some of  the  functions  of\t the
\npolitical executive or of anybody or authority of the  State
\nother  than  the Legislature while  neither  suspending\t nor
\nremoving  them.\t The fact that some of these exercises\thave
\nnot  been resorted to in practice so far, does not  militate
\nagainst\t the  legal position which emerges  from  the  clear
\nlanguage  of  Article 356(1).  In this\tconnection,  we\t may
\nrefer  to what Dr Ambedkar had to say on the subject in\t the
\nConstituent Assembly.  The relevant extract from his  speech
\nis reproduced in paragraph 106 above.  Hence it is  possible
\nfor  the President to use only some of the requisite  powers
\nvested in him under Article 356(1) to meet the situation  in
\nquestion.   He does not have to use all the powers  to\tmeet
\nall  the  situations  whatever the kind and  degree  of\t the
\nfailure\t of the constitutional machinery in the\t State.\t  To
\nthat  extent,  the  contention is  indeed  valid.   However,
\nwhether in a particular situation the extent of powers\tused
\nis  proper and justifiable is a question which would  remain
\ndebatable and beyond judicially discoverable and manageable
\n121<\/span>
\nstandards  unless the exercise of the excessive power is  so
\npalpably  irrational  or  mala fide as\tto  invite  judicial
\nintervention.\t In   fact,  once  the\t issuance   of\t the
\nProclamation  is  held valid, the scrutiny of the  kind\t and
\ndegree\tof  power used under the Proclamation,\tfalls  in  a
\nnarrower compass.  There is every risk and fear of the court
\nundertaking  upon  itself the task of evaluating  with\tfine
\nscales and through its own lenses the comparative merits  of
\none  rather  than the other measure.  The  court  will\tthus
\ntravel\tunwittingly  into the political\t arena\tand  subject
\nitself\tmore  readily  to the charges  of  encroaching\tupon
\npolicy-making.\t The  “political thicket”  objection  sticks
\nmore easily in such circumstances.  Although, therefore,  on
\nthe language of Article 356(1), it is legal to hold that the
\nPresident may exercise only some of the powers given to him,
\nin  practice  it may not always be easy to  demonstrate\t the
\nexcessive use of the power.\n<\/p>\n
109. An\t allied question which arises in this connection  is
\nwhether,  notwithstanding  the\tfact that  a  situation\t has
\narisen\twhere  there is a breakdown  of\t the  constitutional
\nmachinery in the State, it is always necessary to resort  to
\nthe power of issuing Proclamation under Article 356(1).\t The
\ncontention  is that since under Article 355, it is the\tduty
\nof the Union to ensure that the Government of every State is
\ncarried\t on  in\t accordance  with  the\tprovisions  of\t the
\nConstitution   and  since  further  the\t issuance   of\t the
\nProclamation  under Article 356(1) is admittedly  a  drastic
\nstep,  there is a corresponding obligation on the  President
\nto  resort to other measures before the step is taken  under
\nArticle 356(1).\t This is all the more necessary\t considering
\nthe principles of federal and democratic polity embedded  in
\nour Constitution.  In this connection, we may refer again to
\nwhat Dr Ambedkar himself had to say on the subject.  We have
\nquoted the relevant extract from his speech in paragraph  77
\nabove.\t He  has  expressed the hope there  that  resort  to
\nArticle\t 356(1) would be only as a last measure\t and  before
\nthe  article is brought into operation, the President  would
\ntake  proper precaution.  He hoped that the first thing\t the
\nPresident would do would be to issue a mere warning.  If the
\nwarning\t failed, he would order an election and it  is\tonly
\nwhen the said two remedies fail that he would resort to\t the
\narticle.  We must admit that we are unable to appreciate the
\nsecond\t measure  to  which  Dr\t Ambedkar  referred   as   a
\npreliminary to the resort to Article 356(1).  We should have
\nthought that the elections to the Legislative Assembly are a
\nlast  resort and if they are held, there is nothing  further
\nto  be\tdone by exercising power under Article\t356(1).\t  We
\nmay, therefore, ignore the said suggestion made by him.\t But
\nwe respectively endorse the first measure viz. of warning to
\nwhich the President should resort before rushing to exercise
\nthe power under Article 356(1).\t In addition to warning, the
\nPresident will always have the power to issue the  necessary
\ndirectives.   We are of the view that except  in  situations
\nwhere  urgent  steps  are imperative  and  exercise  of\t the
\ndrastic\t power\tunder the article cannot  brook\t delay,\t the
\nPresident  should  use\tall other measures  to\trestore\t the
\nconstitutional\t machinery  in\tthe  State.   The   Sarkaria
\nCommission  has also made recommendations in that behalf  in
\nparagraphs  6.8.01  to\t6.8.04 of its  Report.\t It  is\t not
\nnecessary   to\tquote  them  here.   We\t endorse  the\tsaid
\nrecommendations.\n<\/p>\n
122<\/span><\/p>\n
110. The next important question to be considered is of\t the
\nnature and effect of the action to be taken by the President
\npursuant  to the Proclamation issued by him.   The  question
\nhas  to\t be  considered with reference\tto  three  different
\nsituations.  Since clause (3) of Article 356 requires  every
\nProclamation  issued  under clause (1) thereof, to  be\tlaid
\nbefore\teach  House of Parliament and also  states  that  it
\nshall  cease  to  operate at the expiration  of\t two  months
\nunless\tbefore\tthe expiration of that period  it  has\tbeen
\napproved  by resolutions of both Houses of  Parliament,\t the
\nquestion  which emerges is what is the legal consequence  of
\nthe actions taken by the President, (a) if the\tProclamation
\nis valid, yet, it is approved by both Houses of\t Parliament;\n<\/p>\n
(b)  if\t the  Proclamation is invalid and  not\tapproved  by
\neither\tor  both  Houses  of  Parliament;  and\t(c)  if\t the
\nProclamation  is  valid but not approved by either  or\tboth
\nHouses\tof  Parliament.\t The other question that  arises  in
\nthis connection is, whether the legal consequences differ in
\nthese  three classes of cases, depending upon the nature  of
\nthe action taken by the President.\n<\/p>\n
111.\t  The Proclamation falling under classes (a) and (b)
\nwill  not  make any difference to the legal  status  of\t the
\nactions taken by the President under them.  The actions will
\nundoubtedly  be\t illegal.  However, the\t court\tby  suitably
\nmoulding   the\t relief,  and  Parliament  and\t the   State
\nLegislature  by legislation, may validate those acts of\t the
\nPresident  which are capable of being validated.  As far  as
\nParliament  is\tconcerned, such acts will  not\tinclude\t the
\nremoval\t of the Council of Ministers and the dissolution  of
\nthe Legislative Assembly since there is no provision in\t the
\nConstitution  which  gives such power to  Parliament.\tThat
\npower  is given exclusively to the Governor  under  Articles
\n164(1) and 174(2)(b) respectively.  It is this power,  among
\nothers,\t which\tthe President is entitled  to  assume  under
\nArticle\t  356(1)(a).\tParliament  can\t only\tapprove\t  or
\ndisapprove  of the removal of the Council of  Ministers\t and
\nthe dissolution of the Legislative Assembly under clause (3)
\nof  that article, if such action is taken by the  President.
\nThe question then arises is whether the Council of Ministers
\nand  the Legislative Assembly can be restored by  the  Court
\nwhen  it  declares the Proclamation invalid.   There  is  no
\nreason\twhy  the Council of Ministers  and  the\t Legislative
\nAssembly  should not stand restored as a consequence of\t the
\ninvalidation of the Proclamation, the same being the  normal
\nlegal  effect of the invalid action.  In the context of\t the
\nconstitutional\tprovisions  which we have discussed  and  in
\nview  of  the  power of the judicial review  vested  in\t the
\ncourt, such a consequence is also a necessary constitutional
\nfall out.  Unless such result is read, the power of judicial
\nreview\tvested\tin the judiciary is  rendered  nugatory\t and
\nmeaningless.   To  hold\t otherwise  is\talso  tantamount  to
\nholding that the Proclamation issued under Article 356(1) is
\nbeyond the scope of judicial review.  For when the  validity
\nof  the\t Proclamation  is  challenged,\tthe  court  will  be
\npowerless  to give relief and would always be met  with\t the
\nfait accompli.\tArticle 356 would then have to be read as an
\nexception  to  judicial review.\t Such an  interpretation  is
\nneither\t possible  nor\tpermissible.   Hence  the  necessary
\nconsequence of the invalidation of the Proclamation would be
\nthe  restoration of the Ministry as well as the\t Legislative
\nAssembly in the State.\tIn this connection, we may refer  to
\nthe decision of the Supreme Court of Pakistan in
\n123<\/span>
\nMian Muhammad Nawaz Sharif v. President of Pakistan29.\t The
\nCourt  there held that the impugned order of dissolution  of
\nNational  Assembly and the dismissal of the Federal  Cabinet
\nwere  without lawful authority and, therefore, of  no  legal
\neffect.\t As a consequence of the said declaration, the Court
\ndeclared that the National Assembly, Prime Minister and\t the
\nCabinet\t  stood\t restored  and\tentitled  to   function\t  as
\nimmediately before the impugned order was passed.  The Court
\nfurther\t declared  that\t all steps  taken  pursuant  to\t the
\nimpugned  order\t including  the\t appointment  of   caretaker
\nCabinet\t and caretaker Prime Minister were also of no  legal
\neffect.\t  The Court, however, added that all orders  passed,
\nacts  done  and\t measures taken in  the\t meanwhile,  by\t the
\ncaretaker  Government which had been done, taken  and  given
\neffect\tto in accordance with the terms of the\tConstitution
\nand  were required to be done or taken for the ordinary\t and
\norderly\t running of the State, shall be deemed to have\tbeen
\nvalidly and legally done.\n<\/p>\n
112.  As  regards  the\tthird  class  of  cases\t where\t the
\nProclamation is held valid but is not approved by either  or
\nboth Houses of Parliament, the consequence of the same would
\nbe   the   same\t as  where  the\t Proclamation\tis   revoked
\nsubsequently or is not laid before each House of  Parliament
\nbefore\tthe expiration of two months or where it is  revoked
\nafter its approval by Parliament or ceases to operate on the
\nexpiration  of a period of six months from the date  of\t its
\nissue, or of the further permissible period under clause (4)
\nof  Article  356.   It does not, however,  appear  from\t the
\nprovisions  of\tArticle 356 or any other  provision  of\t the
\nConstitution, that mere nonapproval of a valid\tProclamation
\nby Parliament or its revocation or cessation, will have\t the
\neffect\teither of restoring the Council of Ministers or\t the
\nLegislative Assembly.  The inevitable consequence in such  a
\nsituation is fresh elections and the constitution of the new
\nLegislative Assembly and the Ministry in the State.  The law
\nmade  in  exercise of the power of the\tLegislature  of\t the
\nState by Parliament or the President or any other  authority
\nduring the period the valid Proclamation subsists before  it
\nis  revoked  or\t disapproved,  or  before  it  expires,\t  is
\nprotected by clause (2) of Article 357.\n<\/p>\n
113. It is therefore, necessary to interpret clauses (1) and
\n(3)  of\t Article 356 harmoniously since\t the  provisions  of
\nclause\t(3) are obviously meant to be a check by  Parliament
\n(which also consist of members from the States concerned) on
\nthe  powers  of the President under clause (1).\t  The  check
\nwould  become  meaningless and rendered ineffective  if\t the
\nPresident  takes irreversible actions while  exercising\t his
\npowers\tunder sub-clauses (a), (b) and (c) of clause (1)  of
\nthe  said  article.   The dissolution  of  the\tAssembly  by
\nexercising   the  powers  of  the  Governor  under   Article
\n174(2)(b)  will be one such irreversible action.  Hence,  it
\nwill  have to be held that in no case, the  President  shall
\nexercise  the Govern’s power of dissolving  the\t Legislative
\nAssembly  till at least both the Houses of  Parliament\thave
\napproved of the Proclamation issued by him under clause\t (1)
\nof the said article.  The dissolution of the assembly  prior
\nto  the\t approval of the Proclamation  by  Parliament  under
\nclause (3) of the said article will be per se invalid.\tThe
\n29 PLD (1993)SC473
\n124<\/span>
\nPresident  may,\t however, have the power of  suspending\t the
\nLegislature  under sub-clause (c) of clause (1) of the\tsaid
\narticle.\n<\/p>\n
114. Our conclusion therefore firstly is that the  President
\nhas  no\t power to dissolve the Legislative Assembly  of\t the
\nState by using his power under sub-clause (a) of clause\t (1)
\nof Article 356 till the Proclamation is approved by both the
\nHouses\tof Parliament under clause (3) of the said  article.
\nHe  may have power only to suspend the Legislative  Assembly
\nunder  sub-clause  (c) of clause (1) of\t the  said  article.
\nSecondly, the court may invalidate the Proclamation  whether
\nit  is\tapproved  by  Parliament  or  not.   The   necessary
\nconsequence of the invalidation of the Proclamation could be
\nto  restore the status quo ante and, therefore,\t to  restore
\nthe  Council  of Ministers and the Legislative\tAssembly  as
\nthey stood on the date of the issuance of the  Proclamation.
\nThe  actions  taken  including\tthe  laws  made\t during\t the
\ninterregnum may or may not be validated either by the  court
\nor  by\tParliament  or by the State  Legislature.   It\tmay,
\nhowever, be made clear that it is for the court to mould the
\nrelief to meet the requirements of the situation.  It is not
\nbound in all cases to grant the relief of restoration of the
\nLegislative  Assembly  and the Ministry.   The\tquestion  of
\nrelief\tto be granted in a particular case pertains  to\t the
\ndiscretionary jurisdiction of the court.\n<\/p>\n
115. The  further important question that arises is  whether
\nthe  court will be justified in granting interim relief\t and
\nwhat would be the nature of such relief and at what stage it
\nmay  be granted.  The grant of interim relief  would  depend
\nupon  various  circumstances including\tthe  expeditiousness
\nwith  which  the court is moved, the prima facie  case\twith
\nregard\tto the invalidity of the Proclamation made out,\t the
\nsteps  which  are contemplated to be taken pursuant  to\t the
\nProclamation,\tetc.   However,\t if  other  conditions\t are
\nsatisfied,  it will defeat the very purpose of the  judicial
\nreview if the requisite interim relief is denied.  The least
\nrelief\tthat  can  be granted in such  circumstances  is  an
\ninjunction  restraining the holding of fresh  elections\t for
\nconstituting  the  new Legislative Assembly.   There  is  no
\nreason why such a relief should be denied if a precaution is
\ntaken  to  hear the challenge as expeditiously\tas  possible
\ntaking\tinto  consideration the public\tinterests  involved.
\nThe possibility of a delay in the disposal of the  challenge
\ncannot be a ground for frustrating the constitutional  right
\nand  defeating\tthe  constitutional  provisions.   It\thas,
\nhowever, to be made clear that the interlocutory relief that
\nmay  be\t granted  on  such  challenge  is  to  prevent\t the
\nfrustration  of\t the constitutional remedy.  It\t is  not  to
\nprevent\t the  constitutional authority from  exercising\t its
\npowers\tand  discharging its functions.\t Hence it  would  be
\nwholly impermissible either to interdict the issuance of the
\nProclamation  or its operation till a final verdict  on\t its
\nvalidity  is  pronounced.  Hence the normal  rules  of\tquia
\ntimet action have no relevance in matters pertaining to\t the
\nchallenge  to the Proclamation.\t To conclude, the  court  in
\nappropriate  cases will not only be justified in  preventing
\nholding of fresh elections but would be duty-bound to do  so
\nby  granting suitable interim relief to make  effective\t the
\nconstitutional remedy of judicial review and to prevent\t the
\nemasculation of the Constitution.\n<\/p>\n
125<\/span><\/p>\n
116.  In  the light of our conclusions with  regard  to\t the
\nscope  of the power of the President to\t issue\tProclamation
\nunder  Article 356(1), of the parameters of judicial  review
\nand  of the quia timet action, we may now examine the  facts
\nin  the individual cases before us.  It has, however, to  be
\nmade  clear  at\t the outset that the  facts  are  not  being
\ndiscussed  with a view to give relief prayed for,  since  in
\nall  cases fresh elections have been held,  new\t Legislative
\nAssemblies  have been elected and new Ministries  have\tbeen
\ninstalled.  Nor do the petitioners\/appellants seek any\tsuch
\nrelief.\t  The facts are being discussed to find out  whether
\nthe  action of the President was justified in the  light  of
\nour conclusions above.\tThe finding may serve as a  guidance
\nfor future.  For the sake of convenience, we propose to deal
\nwith  the  cases of the States of Karnataka,  Meghalaya\t and
\nNagaland  separately  from those of the States\tof  Himachal
\nPradesh, Madhya Pradesh and Rajasthan.\n<\/p>\n
KARNATAKA
\nC.A. No. 3645 of 1989\n<\/p>\n
117.  Taking first the challange to the Proclamation  issued
\nby the President on April 21, 1989 dismissing the Government
\nof   Karnataka\tand  dissolving\t the  State  Assembly,\t the
\nProclamation does not contain any reasons and merely recites
\nthat  the President is satisfied on a consideration  of\t the
\nreport\tof  the Governor and other information\treceived  by
\nhim,  that the Government of the State cannot be carried  on
\nin accordance with the provisions of the Constitution.\t The
\nfacts were that the Janata Party being the majority party in
\nthe  State  Legislature\t had  formed  Government  under\t the
\nleadership of Shri S.R. Bommai on August 30, 1988  following
\nthe  resignation  on  August 1, 1988 of\t the  earlier  Chief
\nMinister, Shri Hegde who headed the Ministry from March 1985
\ntill  his resignation.\tIn September 1988, the Janata  Party
\nand  Lok Dal (B) merged into a new party called Janata\tDal.
\nThe Ministry was expanded on April 15, 1989 with addition of
\n13 members.  Within two days thereafter, i.e., on April\t 17,
\n1989,  one  Shri K.R. Molakery, a legislator of\t Janata\t Dal
\ndefected  from\tthe  party and presented  a  letter  to\t the
\nGovernor  withdrawing his support to the Ministry.   On\t the
\nnext day, he presented to the Governor 19 letters  allegedly
\nsigned\tby  17 Janata Dal legislators, one  independent\t but
\nassociate  legislator  and one legislator belonging  to\t the
\nBhartiya  Janata  Party which was supporting  the  Ministry,
\nwithdrawing  their support to the Ministry.  On\t receipt  of
\nthese  letters,\t the  Governor is said to  have\t called\t the
\nSecretary   of\tthe  Legislature  Department  and  got\t the
\nauthenticity of the signatures on the said letters verified.
\nOn  April  19,\t1989,  the Governor sent  a  report  to\t the
\nPresident stating therein that there were dissensions in the
\nJanata Party which had led to the resignation of Shri  Hegde
\nand even after the formation of the new party, viz.,  Janata
\nDal,  there were dissensions and defections.  In support  of
\nhis case, he referred to the 19 letters received by him.  He
\nfurther stated that in view of the withdrawal of the support
\nby the said legislators, the Chief Minister, Shri Bommai did
\nnot  command a majority in the Assembly and, hence,  it\t was
\ninappropriate  under  the Constitution, to  have  the  State
\nadministered  by  an  Executive\t consisting  of\t Council  of
\nMinisters which did
\n126<\/span>
\nnot  command the majority in the House.\t He also added\tthat
\nno  other  political  party was in a position  to  form\t the
\nGovernment.   He,  therefore, recommended to  the  President
\nthat  he should exercise power under Article 356(1).  It  is
\nnot disputed that the Governor did not ascertain the view of
\nShri  Bommai either after the receipt of the 19\t letters  or
\nbefore making his report to the President.  On the next day,
\ni.e.,  April 20, 1989, 7 out of the 19 legislators  who\t had
\nallegedly  written  the said letters to\t the  Governor\tsent
\nletters\t to  him  complaining  that  their  signatures\twere
\nobtained  on  the earlier letters by  misrepresentation\t and
\naffirmed  their support to the Ministry.  The State  Cabinet
\nmet  on the same day and decided to convene the\t Session  of
\nthe  Assembly within a week, i.e., on April 27,\t 1989.\t The
\nChief  Minister\t and his Law Minister met the  Governor\t the
\nsame  day and informed him about the decision to summon\t the
\nAssembly  Session.  It is also averred in the petition\tthat
\nthey  had pointed out to the Governor the recommendation  of
\nthe  Sarkaria Commission that the strength of  the  Ministry
\nshould\tbe  tested  on the floor of the\t House.\t  The  Chief
\nMinister also offered to prove his majority on the floor  of
\nthe House even by preponing the Assembly Session, if needed.
\nTo  the\t same  effect,\the  sent  a  telex  message  to\t the
\nPresident.   The Governor, however, sent yet another  report
\nto  the President on the same day, i. e. April 20, 1989,  in
\nparticular,  referring to the letters of 7 members  pledging
\ntheir support to the Ministry and withdrawing their  earlier
\nletters.  He, however, opined in the report that the letters
\nfrom  the 7 legislators were obtained by the Chief  Minister
\nby  pressurising them and added that horsetrading was  going
\non  and\t atmosphere was getting vitiated.  In  the  end,  he
\nreiterated his opinion that the Chief Minister had lost\t the
\nconfidence  of\tthe majority in the House and  repeated\t his
\nearlier\t request for action under Article 356(1).   On\tthat
\nvery day, the President issued the Proclamation in  question
\nwith   the   recitals  already\treferred  to   above.\t The
\nProclamation  was,  thereafter\tapproved  by  Parliament  as
\nrequired  by  Article 356(3).  Shri Bommai  and\t some  other
\nmembers of the Council of Ministers challenged the  validity
\nof  the\t Proclamation before the Karnataka High Court  by  a
\nwrit petition on various grounds.  The petition was resisted
\nby the Union of India, among others.  A three-Judge Bench of
\nthe  High Court dismissed the petition holding, among  other
\nthings, that the facts stated in the Governor’s report could
\nnot  be\t held  to  be irrelevant  and  that  the  Governor’s
\nsatisfaction  that no other party was in a position to\tform
\nthe  Government had to be accepted since his  personal\tbona
\nfides  were  not questioned and his satisfaction  was  based
\nupon  reasonable assessment of all the relevant facts.\t The
\ncourt  also  held that recourse to  floor-test\twas  neither
\ncompulsory  nor\t obligatory and was not\t a  prerequisite  to
\nsending the report to the President.  It was also held\tthat
\nthe Govern’s report could not be challenged on the ground of
\nlegal mala fides since the Proclamation had to be issued  on
\nthe  satisfaction  of the Union Council of  Ministers.\t The
\nCourt further relied upon the test laid down in the State of
\nRajasthan  case3 and held that on the basis of the  material
\ndisclosed,  the\t satisfaction arrived at  by  the  President
\ncould not be faulted.\n<\/p>\n
3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1
\n127<\/span>\n<\/p>\n
118. In\t view of the conclusions that we have  reached\twith
\nregard to the parameters of the judicial review, it is clear
\nthat  the High Court had committed an error in ignoring\t the
\nmost  relevant fact that in view of the conflicting  letters
\nof  the\t 7 legislators, it was improper on the part  of\t the
\nGovernor  to have arrogated to himself the task of  holding,
\nfirstly,  that the earlier 19 letters were genuine and\twere
\nwritten\t by  the  said legislators of their  free  will\t and
\nvolition.   He\thad  not even cared to\tinterview  the\tsaid
\nlegislators,  but  had merely got the  authenticity  of\t the
\nsignatures  verified through the  Legislatures\tSecretariat.
\nSecondly,  he  also took upon himself the task\tof  deciding
\nthat  the  7  out  of the 19  legislators  had\twritten\t the
\nsubsequent letters on account of the pressure from the Chief
\nMinister  and not out of their free will.  Again he had\t not
\ncared  even to interview the said legislators.\tThirdly,  it
\nis  not\t known from where the Governor got  the\t information
\nthat   there   was  horse-trading  going  on   between\t the
\nlegislators.  Even assuming that it was so, the correct\t and
\nthe proper course for him to adopt was to await the test  on
\nthe  floor  of the House which test the Chief  Minister\t had
\nwillingly  undertaken  to  go through on any  day  that\t the
\nGovernor chose.\t In fact, the State Cabinet had itself taken
\nan  initiative\tto convene the meeting of  the\tAssembly  on
\nApril 27, 1989, i.e., only a week ahead of the date on which
\nthe  Governor  chose to send his report\t to  the  President.
\nLastly,\t what is important to note in connection  with\tthis
\nepisode\t is  that the Governor at no time  asked  the  Chief
\nMinister even to produce the legislators before him who were
\nsupporting the Chief Minister, if the Governor thought\tthat
\nthe  situation posed such grave threat to the governance  of
\nthe  State that he could not await the result of the  floor-
\ntest  in the House.  We are of the view that this is a\tcase
\nwhere  all cannons of propriety were thrown to the wind\t and
\nthe  undue  haste  made\t by the\t Governor  in  inviting\t the
\nPresident  to  issue the Proclamation under  Article  356(1)
\nclearly\t smacked of mala fides.\t The Proclamation issued  by
\nthe  President\ton  the\t basis of the  said  report  of\t the
\nGovernor  and in the circumstances so obtaining,  therefore,
\nequally\t suffered  from\t mala  fides.\tA  duly\t constituted
\nMinistry  was dismissed on the basis of material  which\t was
\nneither tested nor allowed to be tested and was no more than
\nthe ipse dixit of the Governor.\t The action of the  Governor
\nwas  more  objectionable  since\t as  a\thigh  constitutional
\nfunctionary, he was expected to conduct himself more firmly,
\ncautiously and circumspectly.  Instead, it appears that\t the
\nGovernor was in a hurry to dismiss the Ministry and dissolve
\nthe  Assembly.\t The Proclamation having been based  on\t the
\nsaid  report  and so-called other information which  is\t not
\ndisclosed, was therefore liable to be struck down.\n<\/p>\n
119. In\t this connection, it is necessary to stress that  in
\nall  cases where the support to the Ministry is\t claimed  to
\nhave  been withdrawn by some legislators, the proper  course
\nfor testing the strength of the Ministry is holding the test
\non   the   floor   of  the  House.   That   alone   is\t the
\nconstitutionally  ordained  forum  for\tseeking\t openly\t and
\nobjectively  the  claims and counterclaims in  that  behalf.
\nThe  assessment\t of the strength of the Ministry  is  not  a
\nmatter\tof  private  opinion of any individual,\t be  he\t the
\nGovernor   or  the  President.\t It  is\t capable  of   being
\ndemonstrated and ascertained publicly in the
\n128<\/span>
\nHouse.\tHence when such demonstration is possible, it is not
\nopen  to  bypass it and instead depend upon  the  subjective
\nsatisfaction of the Governor or the President.\tSuch private
\nassessment is an anathema to the democratic principle, apart
\nfrom  being  open  to serious objections  of  personal\tmala
\nfides.\t It  is possible that on some  rare  occasions,\t the
\nfloor-test  may be impossible, although it is  difficult  to
\nenvisage  such situation.  Even assuming that  there  arises
\none,  it  should  be  obligatory on  the  Governor  in\tsuch
\ncircumstances,\tto  state in writing, the  reasons  for\t not
\nholding\t the  floor-test.  The High  Court  was,  therefore,
\nwrong in holding that the floor-test was neither  compulsory
\nnor obligatory or that it was not a prerequisite to  sending
\nthe  report  to\t the  President\t recommending  action  under
\nArticle\t 356(1).   Since  we have already  referred  to\t the
\nrecommendations\t  of   the  Sarkaria  Commission   in\tthis
\nconnection, it is not necessary to repeat them here.\n<\/p>\n
120. The  High\tCourt was further wrong in taking  the\tview
\nthat  the  facts  stated in the\t Govern’s  report  were\t not
\nirrelevant  when  the Governor without\tascertaining  either
\nfrom  the  Chief Minister or from the 7 MLAs  whether  their
\nretraction  was\t genuine  or  not,  proceeded  to  give\t his
\nunverified   opinion  in  the  matter.\t What  was   further
\nforgotten  by  the  High Court was that\t assuming  that\t the
\nsupport was withdrawn to the Ministry by the 19 MLAS, it was
\nincumbent  upon the Governor to ascertain whether any  other
\nMinistry  could\t be formed.  The question of  personal\tbona
\nfides  of the Governor is irrelevant in such matters.\tWhat
\nis  to be ascertained is whether the Governor had  proceeded
\nlegally\t and  explored\tall  possibilities  of\tensuring   a
\nconstitutional Government in the State before reporting that
\nthe constitutional machinery had broken down.  Even if\tthis
\nmeant  installing  the Government belonging  to\t a  minority
\nparty, the Governor was duty-bound to opt for it so long  as
\nthe  Government\t could enjoy the confidence  of\t the  House.
\nThat is also the recommendation of the five-member Committee
\nof the Governors appointed by the President pursuant to\t the
\ndecision  taken at the Conference of Governors held  in\t New
\nDelhi  in  November  1970, and of  the\tSarkaria  Commission
\nquoted above.  It is also obvious that beyond the report  of
\nthe  Governor,\tthere  was  no\tother  material\t before\t the
\nPresident  before  he issued the  Proclamation.\t  Since\t the
\n“facts” stated by the Governor in his report, as pointed out
\nabove  contained  his  own opinion  based  on  unascertained
\nmaterial, in the circumstances, they could hardly be said to
\nform an objective material on which the President could have
\nacted.\tThe Proclamation issued was, therefore, invalid.\n<\/p>\n
121. We may on this subject refer to the unanimous Report of
\nthe five member Committee of Governors which recommended  as
\nfollows:\n<\/p>\n
\t      “…  the test of confidence in  the  ministry
\n\t      should  normally\tbe  left to a  vote  in\t the
\n\t      Assembly\t… where the Governor is  satisfied
\n\t      by   whatever  process  or  means,  that\t the
\n\t      ministry no longer enjoys majority support, he
\n\t      should  ask  the Chief Minister  to  face\t the
\n\t      Assembly\tand  prove his majority\t within\t the
\n\t      shortest possible time.  If the Chief Minister
\n\t      shirks  this primary responsibility and  fails
\n\t      to comply, the Governor would be in duty bound
\n\t      to  initiate  steps  to  form  an\t alternative
\n\t      ministry.\t A Chief
\n\t      129<\/span>
\n\t       Minister’s  refusal to test his\tstrength  on
\n\t      the   floor  of  the  Assembly  can  well\t  be
\n\t      interpreted  as  prima facie proof of  his  no
\n\t      longer   enjoying\t  the  confidence   of\t the
\n\t\t\t    legislature.  If then, an alternative  ministr
\ny
\n\t      can be formed, which, in the Governor’s  view,
\n\t      is able to command a majority in the Assembly,
\n\t      he  must\tdismiss the ministry  in  power\t and
\n\t      instal the alternative ministry in office.  On
\n\t      the  other  hand,\t if  no\t such  ministry\t  is
\n\t      possible,\t the Governor will be left  with  no
\n\t      alternative  but\tto  make  a  report  to\t the
\n\t      President under Article 356.\n<\/p><\/blockquote>\n
\t      As  a  general proposition, it may  be  stated
\n\t      that,  as far as possible, the verdict  as  to
\n\t      majority\tsupport claimed by a Chief  Minister
\n\t      and his Council of Ministers should be left to
\n\t      the  legislature,\t and that it is\t only  if  a
\n\t      responsible  Government cannot  be  maintained
\n\t      without\t doing\t  violence    to     correct
\n\t      constitutional  practice\tthat  the   Governor
\n\t      should   resort\tto  Article   356   of\t the
\n\t      Constitution.\n<\/p><\/blockquote>\n
\t      What is important to remember is that recourse
\n\t      to Article 356 should be the last resort for a
\n\t      Governor to seek.\n<\/p><\/blockquote>\n
\t      the   guiding  principle\tbeing,\tas   already
\n\t      stated,  that the constitutional machinery  in
\n\t      the  state  should,  as far  as  possible,
\n\t      be maintained.”<\/p><\/blockquote>\n
\n\t\t\t\tMEGHALAYA\n\t      T.    C. Nos. 5 and 7 of 1992\n<\/pre>\n
122. In this case the challenge is to the Proclamation dated
\nOctober 11, 1991 issued under Article 356(1).  The facts are
\nthat  the  writ petitioner G.S. Massar belonged to  a  front
\nknown  as Meghalaya United Parliamentary Party (MUPP)  which
\nhad a majority in the Legislative Assembly and had formed in
\nMarch  1990, a Government under the leadership of Shri\tB.B.\n<\/p><\/blockquote>\n
Lyngdoh.   On July 25, 1991, one Kyndiah Arthree who was  at
\nthe relevant time, the Speaker of the House, was elected  as
\nthe leader of the opposition group known as United Meghalaya
\nParliamentary  Forum  (UMPF).  The majority  in\t this  group
\nbelonged  to  the  Congress Party.  On\this  election,\tShri
\nArthree\t claimed support of majority of the members  in\t the
\nAssembly  and requested the Governor to invite him  to\tform
\nthe  Government.   Thereupon, the Governor  asked  the\tthen
\nChief  Minister\t Shri Lyngdoh to prove his majority  on\t the
\nfloor  of the House.  Accordingly, a special session of\t the
\nAssembly  was  convened on August 7, 1991 and  a  motion  of
\nconfidence  in the Ministry was moved.\t Thirty\t legislators
\nsupported  the\tmotion and 27 voted  against  it.   However,
\ninstead\t of  announcing\t the result of\tthe  voting  on\t the
\nmotion,\t the  Speaker  declared\t that  he  had\treceived   a
\ncomplaint against 5 independent MLAs of the ruling coalition
\nfront  alleging that they were disqualified  as\t legislators
\nunder  the  anti-defection  law and since  they\t had  become
\ndisentitled to vote, he was suspending their right to  vote.
\nOn this announcement, uproar ensued in the House and it\t had
\nto  be\tadjourned.  On August 11, 1991, the  Speaker  issued
\nshow-cause notices to the alleged
\n130<\/span>
\ndefectors,  the 5 independent MLAs on a complaint  filed  by
\none  of the legislators Shri Shylla.  The 5 MLAs replied  to
\nthe  notice denying that they had joined any of the  parties
\nand contended that they had continued to be independent.  On
\nreceipt\t of  the  replies, the Speaker passed  an  order  on
\nAugust 17, 1991, disqualifying the 5 MLAs on the ground that
\n4  of  them were Ministers in the then Ministry and  one  of
\nthem  was  the Deputy Government  Chief\t Whip.\t Thereafter,
\nagain  on  the Governor’s advice, the  Chief  Minister\tShri
\nLyngdoh summoned the session of the Assembly on September 9,
\n1991 for passing a vote of confidence in the Ministry.\t The
\nSpeaker however, refused to send the notices of the  session
\nto   the  5  independent  MLAs\tdisqualified  by   him\t and
\nsimultaneously\tmade  arrangements to prohibit\ttheir  entry
\ninto  the  Assembly.   On September 6,\t1991,  the  5  MLAS,
\napproached  this  Court.  This Court  issued  interim  order
\nstaying\t the operation of the Speaker’s orders dated  August
\n7, 1991 and August 17, 1991 in respect of four of them.\t  It
\nappears\t that  one  of the members did not  apply  for\tsuch
\norder.\tThe Speaker, thereafter, issued a Press statement in
\nwhich he declared that he did not accept any interference by
\nany court With his order of August 17, 1991.  The  Governor,
\ntherefore, prorogued the Assembly indefinitely by his  order
\ndated September 8, 1991.  The Assembly was again convened at
\nthe  instance  of the Governor on October 8, 1991.   In\t the
\nmeanwhile,  the\t 4  independent MLAs who  had  obtained\t the
\ninterim\t orders\t moved\ta contempt petition  in\t this  Court
\nagainst the Speaker who had not only made the declaration in
\nthe Press statement defying the interim order of this  Court
\nbut  also taken steps to prevent the independent  MLAs\tfrom
\nentering  the House.  On October 8, 1991, this Court  passed
\nanother\t order directing that all authorities of  the  State
\nshould ensure the compliance of the Court’s interim order of
\nSeptember  6, 1991.  Pursuant to this direction, 4 of the  5
\nindependent  MLAs received invitation to attend the  session
\nof  the\t Assembly convened on October 8, 1991.\tIn  all,  56
\nMLAs including the 4 independent MLAs attended the  session.
\nAfter  the motion of confidence in the Ministry was  put  to
\nvote, the Speaker declared that 26 voted for the motion\t and
\n26  against it and excluded the votes of the  4\t independent
\nMLAS.  Thereafter, declaring that there was a tie in voting,
\nhe  cast his own vote against the motion and  declared\tthat
\nthe  motion  had failed and adjourned the  House  sine\tdie.
\nHowever,  30 MLAs, viz., 26 plus 4 independent MLAs who\t had
\nvoted  for  the motion, continued to stay in the  House\t and
\nelected\t the Speaker from amongst themselves to conduct\t the
\nbusiness.   The\t new  Speaker declared that  the  motion  of
\nconfidence  in the Ministry had been carried since  30\tMLAs
\nhad  voted  in\tfavour\tof  the\t Government.   They  further
\nproceeded to pass a motion of no-confidence in the  Speaker.
\nThe 30 MLAs thereafter sent a letter to the Governor stating
\ntherein\t that they had voted in favour of the  Ministry\t and
\nhad  also passed a motion of no-confidence in  the  Speaker.
\nHowever, on October 9, 1991, the Governor wrote a letter  to
\nthe Chief Minister asking him to resign in view of what\t had
\ntranspired   in\t  the\tSession\t  on   October\t 8,    1991.
\nUnfortunately,\t the  Governor\tin  the\t said  letter\talso
\nproceeded to observe that the non-cognisance
\n131<\/span>
\nby the Speaker of the Supreme Court’s orders relating to the
\n4 independent MLAs was a matter between the Speaker and\t the
\nCourt.\t The  Chief Minister moved this\t Court,\t thereafter,
\nagainst\t the  letter  of the Governor,\tand  this  Court  on
\nOctober\t 9, 1991, among other things, asked the Governor  to
\ntake  into consideration the orders of this Court and  votes
\ncast by the 4 independent MLAs before taking any decision on
\nthe  question whether the Government had lost the motion  of
\nconfidence.  In spite of this, the President on October\t 11,
\n1991   issued  Proclamation  under  Article   356(1).\t The
\nProclamation stated that the President was satisfied on\t the
\nbasis of the report from the Governor and other\t information
\nreceived  by him that the situation had arisen in which\t the
\nGovernment  of\tthe  State  could  not\tbe  carried  on\t  in
\naccordance  with  the provisions of the\t Constitution.\t The
\nGovernment  was\t dismissed and the Assembly  was  dissolved.
\nThis  Court by an order of October 12, 1991, set  aside\t the
\norder  dated August 17, 1991 of the then Speaker.   However,
\nthereafter,  both the Houses of Parliament met and  approved
\nthe Proclamation issued by the President.\n<\/p>\n
123.\t  The  unflattering  episode shows  in\tunmistakable
\nterms  the  Governor’s unnecessary anxiety  to\tdismiss\t the
\nMinistry and dissolve the Assembly and also his failure as a
\nconstitutional\tfunctionary  to realise\t the  binding  legal
\nconsequences of and give effect to the orders of this Court.
\nWhat is worse, the Union Council of Ministers also chose  to
\ngive  advice to the President to issue the  Proclamation  on
\nthe  material in question.  It is not necessary\t to  comment
\nupon  the validity of the Proclamation any further save\t and
\nexcept\tto observe that prima facie the material before\t the
\nPresident  was not only irrational but motivated by  factual
\nand  legal  mala fides.\t The  Proclamation  was,  therefore,
\ninvalid.\n<\/p>\n
\t\t\t  NAGALAND
\nC.A. Nos. 193-94 of 1989\n<\/p>\n
124. The Presidential Proclamation dated August 7, 1988\t was
\nissued under Article 356(1) imposing President’s rule in the
\nState  of Nagaland.  At the relevant time, in  the  Nagaland
\nAssembly  consisting of 60 members, 34 belonged to  Congress
\n1,  18\tto Naga National Democratic Party, one\tbelonged  to
\nNaga  Peoples Party and 7 were independent.  Shri Sema,\t the
\nleader\tof the ruling party was the Chief  Minister  heading
\nthe  State Government.\tOn July 28, 1988, 13 out of  the  34
\nMLAs of the ruling Congress I Party informed the Speaker  of
\nthe  Assembly  that they had formed a  party  separate\tfrom
\nCongress  I ruling party and requested him for allotment  of
\nseparate  seats for them in the House.\tThe session  was  to
\ncommence  on August 28, 1988.  By his decision of  July\t 30,
\n1988,  the Speaker held that there was a split in the  party
\nwithin\t the   meaning\tof  the\t Tenth\t Schedule   of\t the
\nConstitution.  On July 31, 1988, Shri Vamuzo, one of the  13
\ndefecting MLAs who had formed a separate party, informed the
\nGovernor that he commanded the support of 35 out of the then
\n59 members in the Assembly and was in a position to form the
\nGovernment.   On  October 1988, the Chief Secretary  of\t the
\nState wrote to Shri Vamuzo that cording to his\tinformation,
\nShri Vamuzo had wrongfully confined the
\n132<\/span>
\nMLAs  who had formed the new party.  Shri Vamuzo denied\t the
\nsaid allegation and asked the Chief Secretary to verify\t the
\ntruth  from  the members themselves.  On  verification,\t the
\nmembers\t told  the  Chief Secretary that none  of  them\t was
\nconfined, as alleged.  On August 6, 1988, the Governor\tsent
\na report to the President of India about the formation of  a
\nnew party by the 13 MLAS.  He also stated that the said MLAs
\nwere allured by money.\tHe further stated that the said MLAs
\nwere  kept  in forcible confinement by Shri Vamuzo  and\t one
\nother  person,\tand that the story of split  in\t the  ruling
\nparty was not true.  He added that the Speaker was hasty  in
\naccording recognition to the new group of the 13 members and
\ncommented that horse-trading was going on in the State.\t  He
\nmade  a special reference to the insurgency in Nagaland\t and
\nalso  stated that some of the members of the  Assembly\twere
\nhaving\tcontacts  with\tthe insurgents.\t  He  expressed\t the
\napprehension that if the affairs were allowed to continue as
\nthey  were, it would affect the stability of the State.\t  In
\nthe meanwhile, the Chief Minister submitted his\t resignation
\nto  the\t Governor  and recommended  the\t imposition  of\t the
\nPresident’s  rule.   The President  thereafter,\t issued\t the
\nimpugned  Proclamation\tand  dismissed\tthe  Government\t and
\ndissolved the Assembly.\t Shri Vamuzo, the leader of the\t new
\ngroup  challenged  the validity of the Proclamation  in\t the
\nGauhati\t High Court.  The petition was heard by\t a  Division
\nBench  comprising  the Chief Justice and  Hansaria,  J.\t The
\nBench differed on the effect and operation of Article  74(2)
\nand  hence the matter was referred to the third Judge.\t But
\nbefore\tthe third learned Judge could hear the\tmatter,\t the
\nUnion  of India moved this Court for grant of special  leave
\nwhich was granted and the proceedings in the High Court were
\nstayed.\t  It may be stated here that the Division Bench\t was
\nagreed\tthat  the  validity of\tthe  Proclamation  could  be
\nexamined  by the court and it was not immune  from  judicial
\nreview.\t  We  have  already discussed  the  implications  of
\nArticle 74(2) earlier and have pointed out that although the
\nadvice\tgiven by the Council of Ministers is free  from\t the
\ngaze  of the court, the material on the basis of  which\t the
\nadvice\tis given cannot be kept away from it and is open  to
\njudicial scrutiny.  On the facts of this case also we are of
\nthe  view that the Governor should have allowed Shri  Vamuzo
\nto  test his strength on the floor of the House.   This\t was
\nparticularly  so because the Chief Minister, Shri  Sema\t had
\nalready submitted his resignation to the Governor.  This  is
\nnotwithstanding the fact that the Governor in his report had
\nstated\tthat during the preceding 25 years, no less than  11
\nGovernments   had   been  formed  and\taccording   to\t his
\ninformation,  the  Congress  I\tMLAs  were  allured  by\t the
\nmonetary  benefits and that amounted to incredible  lack  of
\npolitical  morality and complete disregard of the wishes  of
\nthe electorate.\t It has to be emphasised here that  although
\nthe Tenth Schedule was added to the Constitution to  prevent
\npolitical bargaining and defections, it did not prohibit the
\nformation of another political party if it was backed by  no
\nless  than 1\/3rd members of the existing legislature  party.
\nSince  no opportunity was given to Shri Vamuzo to prove\t his
\nstrength on the floor of the House as claimed by him and  to
\nform\tthe   Ministry,\t  the\tProclamation   issued\t was
\nunconstitutional.\n<\/p>\n
133<\/span><\/p>\n
125. We may now deal with the cases of the States of  Madhya
\nPradesh, Rajasthan and Himachal Pradesh.  The elections were
\nheld  to  the Legislative Assemblies in these  States  along
\nwith  the  elections to the Legislative\t Assembly  of  Uttar
\nPradesh, in February 1990.  The Bhartiya Janata Party  (BJP)
\nsecured\t majority in the Assemblies of all the\tfour  States
\nand formed Governments there.\n<\/p>\n
126. Following\tappeals of some organisations including\t the
\nBJP,  thousands of kar sevaks from Uttar Pradesh as well  as
\nfrom  other States including Madhya Pradesh,  Rajasthan\t and
\nHimachal  Pradesh  gathered near the Ram  Janam\t Bhumi-Babri
\nMasjid structure on December 6, 1992 and eventually some  of
\nthem  demolished  the  disputed\t structure.   Following\t the
\ndemolition,  on\t the same day the Uttar\t Pradesh  Government
\nresigned.  Thereafter, on the same day the President  issued
\nProclamation   under  Article  356(1)  and   dissolved\t the
\nLegislative Assembly of the State.  The said Proclamation is
\nnot  challenged.   Hence  we  are  not\tconcerned  in  these
\nproceedings with its validity.\n<\/p>\n
127. As\t a result of the demolition of the  structure  which
\nwas  admittedly a mosque standing at the site for about\t 400
\nyears, there were violent reactions in this country as\twell
\nas  in\tthe neighbouring countries where some  temples\twere
\ndestroyed.   This in turn created further reactions in\tthis
\ncountry\t resulting  in\tviolence  and  destruction  of\t the
\nproperty.   The Union Government tried to cope up  with\t the
\nsituation by taking several steps including a ban on several
\norganisations  including Rashtriya Swayamsevak Sangh  (RSS),
\nVishva Hindu Parishad (VHP) and Bajrang Dal which had  along
\nwith  BJP  given  a call for kar  sevaks  to  march  towards
\nAyodhya\t on December 6, 1992.  The ban order was  issued  on
\nDecember 10, 1992 under the Unlawful Activities (Prevention)
\nAct,  1967.  The dismissal of the State Governments and\t the
\nState  Legislative Assemblies in Madhya\t Pradesh,  Rajasthan
\nand Himachal Pradesh were admittedly a consequence of  these
\ndevelopments   and   were  effected  by\t the   issuance\t  of
\nProclamations  under  Article 356(1), all  on  December\t 15,
\n1992.\n<\/p>\n
\t\t       MADHYA PRADESH
\nCA.  Nos. 1692, 1692-A to 1692-C of 1993 and CA.  Nos. 4627-
\n30 of 1993\n<\/p>\n
128. The  Proclamation\twas a consequence of  three  reports
\nsent by the Governor\t to the President.  The first was of
\nDecember 8, 1992.  It referred to the fast   deteriorating
\nlaw  and order situation in the wake of widespread  acts  of
\nthe  State Government to stem the tide primarily because  of
\nthe political leadership’s “overt and covert support to\t the
\nassociate communal organisations” which seemed to point\t out
\nthat  there was a breakdown of the administrative  machinery
\nof the State.  This report was followed by second report  on
\nDecember  10, 1992 which referred to the spread of  violence
\nto  the other till then peaceful areas.\t Yet another  report
\nwas sent by him on December 13, 1992 along with a copy of  a
\nletter\tdated  December 11, 1992 received by  him  from\t the
\nExecutive Director, Bharat Heavy Electricals Ltd.,
\n134<\/span>
\nBhopal\t(BHEL).\t  This\tletter had  referred  to  the  total
\nfailure of the law and order machinery to provide safety and
\nsecurity of life and property in the areas in and around the
\nBHEL factory and the pressure brought on the  administration
\nof  the\t factory to accommodate the kar sevaks in  the\tBHEL
\narea.\tThe Governor also referred to the statement  of\t the
\nChief  Minister\t of Madhya Pradesh, Shri  Sunder  Lal  Patwa
\ndescribing  the ban of RSS and VHP as unfortunate.  In\tview
\nof  the\t statement  of\tthe  Chief  Minister,  the  Governor
\nexpressed  his\tdoubt  about the credibility  of  the  State
\nGovernment to implement sincerely the Centre’s direction  to
\nban  the  said organisations, particularly because  the\t BJP
\nleaders including the Chief Minister, Shri Patwa had  always
\nsworn  by  the values and traditions of the  RSS.   In\tthis
\ncontext,  he  also referred to the decision of\tthe  VHP  to
\nobserve 13th December as blackday to protest against the ban
\nand  to observe protest week against the “heinous law”\tfrom
\nDecember 14 to 20, 1992.  He expressed his anxiety that\t all
\nthese  moves were fraught with danger in the context of\t the
\nsituation   obtaining\tthen.\tThe   Governor,\t  therefore,
\nrecommended  that  considering the said facts and  the\tfact
\nthat the RSS was contemplating a fresh strategy to chalk out
\nits future plan, and also the possibility of the leaders  of
\nthe  banned  organisations going  underground,\tparticularly
\nwith  the  connivance  of  the\tState  Administration,\t the
\nsituation  demanded immediate issuance of the  Proclamation.
\nHence the Proclamation.\n<\/p>\n
HIMACHAL PRADESH
\nT.   C. No. 8 of 1993\n<\/p>\n
129. The Proclamation issued by the President succeeded\t the
\nreport of the Governor of Himachal Pradesh which was sent to
\nhim  on December 15, 1992.  In his report the  Governor\t had
\nstated, among other things, that the Chief Minister and\t his
\nCabinet\t had instigated kar sevaks from Himachal Pradesh  to
\nparticipate in the kar seva on December 6, 1992 at  Ayodhya.
\nNot only that, but some of the Ministers had expressed their
\ndesire\tpublicly  to participate in kar seva  if  the  party
\nhigh-command permitted them to do so.  As a result, a number
\nof  kar sevaks including some BJP MLAs participated  in\t the
\nkar  seva at Ayodhya.  A member of the Legislative  Assembly
\nbelonging  to the ruling BJP had also openly stated that  he
\nhad participated in the demolition of the Babri Masjid.\t The
\nGovernor  then added that Chief Minister, Shri Shanta  Kumar
\nhad  met him on December 13, 1992, i.e., two days before  he
\nsent the letter to the President, and had informed him “that
\nhe  desired  to\t implement the ban  orders  imposed  by\t the
\nGovernment   of\t  India\t on  RSS,  VHP\t and   three   other
\norganisations  and that he had already issued directions  in
\nthat behalf’.  The Governor, however, opined that since\t the
\nChief Minister himself was a member of RSS, he was not in  a
\nposition   to\timplement  the\t directions   honestly\t and
\neffectively  and that most of the people in the\t State\tfelt
\nthe  same  way.\t He also stated that some of  the  Ministers
\nwere publicly criticising the ban on the said three communal
\norganisations  and when the Chief Ministers and some of\t his
\ncolleagues  in the Ministry were members of the RSS, it\t was
\nnot possible for the administrative machinery to
\n135<\/span>
\nimplement  the ban honestly and effectively.  It is  on\t the
\nbasis  of this report that the Proclamation in question\t was
\nissued.\n<\/p>\n
RAJASTHAN
\nT.   C. No. 9 of 1993\n<\/p>\n
130.  The President Proclamation was pursuant to the  report
\nof  the Governor sent to the Prime Minister that  Government
\nof Rajasthan had played “an obvious role” in the episode  at
\nAyodhya; that the BJP had control over RSS, VHP and  Bajrang
\nDal which were the banned organisations, and the ban was not
\nbeing implemented at all.  One of the Ministers had resigned
\nand  along  with  him, 22 MLAs and  15500  BJP\tworkers\t had
\nparticipated in the kar seva at Ayodhya.  They were given  a
\nroyal send-off on their departure from the State and a royal
\nwelcome\t on  their return by the influential people  in\t the
\npolitical party running the Government, i.e., BJP.  For more
\nthan  a week, the law and order situation  had\tdeteriorated
\nand  the  dominant feature of the breakdown of the  law\t and
\norder situation was the anti-minority acts.  He opined\tthat
\nit  was\t not  possible for the\tAdministration\tto  function
\neffectively, objectively and in accordance with the rule  of
\nlaw  in the then political set-up and hence a situation\t had
\narisen\tin  which the Government of the State could  not  be
\ncarried\t on  in\t accordance  with  the\tprovisions  of\t the
\nConstitution.\n<\/p>\n
131. The validity of the three Proclamations was  challenged
\nby writ petitions in the respective State High Courts.\t The
\nwrit  petition challenging the Proclamations in\t respect  of
\nMadhya\tPradesh Government and the Legislative Assembly\t was
\nallowed\t by  the  High Court+ and  the\tappeal\tagainst\t the
\ndecision of the High Court is preferred in this Court by the
\nUnion of India.\t By its order dated April 16, 1993, the writ
\npetitions  challenging the Proclamations in respect  of\t the
\nGovernments and the Legislative Assemblies of Rajasthan\t and
\nHimachal  Pradesh which were pending in the respective\tHigh
\nCourts, stood transferred to this Court.\n<\/p>\n
132. It is contended that the imposition of the\t President’s
\nrule in the States of Madhya Pradesh, Rajasthan and Himachal
\nPradesh\t was  mala fide, based on no  satisfaction  and\t was
\npurely\t a   political\tact.   Mere   fact   that   communal
\ndisturbances  and\/or  instances of arson  and  looting\ttook
\nplace  is  no  ground for  imposing  the  President’s  rule.
\nIndeed,\t such incidents took place in several Congress\t(I)-
\nruled  States  as well, as in particular, in  the  State  of
\nMaharashtra  on\t a much larger scale and yet no\t action\t was
\ntaken to displace those Government whereas action was  taken
\nonly against BJP Governments.  It is pointed out that so far
\nas  Himachal  Pradesh is concerned, here  were\tno  communal
\ndisturbances  at  all.\tThere was no law and  order  problem
\nworth the name.\t Even the Governor’s report did not speak of
\nany  such  incidents.  The Governments\tof  Madhya  Pradesh,
\nRajasthan and Himachal Pradesh, it is argued, cannot be held
\nresponsible  for  what happened at Ayodhya  on\tDecember  6,
\n1992.\tFor that incident, the Government of  Uttar  Pradesh
\nhad  resigned  owning  responsibility  therefor.   It\talso
\npointed out that according to the report of the Governor  of
\nHimachal
\nEd.: Sunderlal Patwa v. Union of India, 1993 Jab LJ 387 (FB)
\n136<\/span>
\nPradesh, the Chief Minister met him and indicated I  clearly
\nthat  he was desirous of and was implementing the  ban,\t and
\nthat  some  arrests were also made.  In\t such  a  situation,
\nthere  was  no\treason for the Governor to  believe,  or  to
\nreport,\t that the Chief Minister is not sincere or  keen  to
\nimplement the ban on the said organisations.  As a matter of
\nfact,  the Tribunal under Unlawful  Activities\t(Prevention)
\nAct,  1967,  has  declared the ban on  RSS  as\tillegal\t and
\naccordingly  the  ban  has since  been\trevoked.   The\tnon-
\nimplementation of an illegal ban cannot be made the basis of
\naction\tunder  Article 356.  Assuming that  there  was\tsuch
\ninaction  or  refusal,\tit  cannot  be\tmade  a\t ground\t for
\ndismissing  the\t State\tGovernment and\tfor  dissolving\t the
\nAssembly.   The White Paper now placed before the Court\t was
\nnot  in\t existence  on December 15,  1992.   The  manifestos
\nissued\tby the BJP from time to time cannot  constitute\t the
\ninformation  referred  to in the Proclamations not,  in\t any
\nevent, legally relevant material.\n<\/p>\n
133.  In  the  counter to the writ petition  in\t the  Madhya
\nPradesh\t high  Court, the case of the Union of\tIndia  inter
\nalia,\twas  that  the\tProclamation  was  issued   on\t the
\nsatisfaction of the President that the Government of  Madhya
\nPradesh\t cannot\t be  carried  on  in  Accordance  with\t the
\nprovisions of the Constitution.\t The reports of the Governor
\ndisclosed that the State Government had miserably failed  to
\nprotect\t the  citizens\tand property of\t the  State  against
\ninternal disturbance.  On the basis of the said reports, the
\nPresident   formed   the   requisite   satisfaction.\t The
\nProclamation  under  clause (1) has been  approved  by\tboth
\nHouses\tof Parliament.\tIn such a situation the court  ought
\nnot to entertain the writ petition to scrutinise the  wisdom
\nor  otherwise  of the Presidential Proclamation\t or  of\t the
\napproval of Parliament.\n<\/p>\n
134. It was further contended that the circumstances in\t the
\nState of M.P. were different from several other States where
\ntoo serious disturbance to law and order took place.   There
\nis no comparison between both situations.  “Besides  Bhopal,
\nover-all situation in the State of M.P. was such that  there
\nwere sufficient and cogent reasons to be satisfied that\t the
\nGovernment  in\tthe  State  could  not\tbe  carried  on\t  in
\naccordance  with the provisions of the Constitution.  It  is
\ndenied\tthat  there was no law and order  situation  in\t the
\nState.”\t The  Governor’s  reports are  based  upon  relevant
\nmaterial and are made bona fide, and after due verification.\n<\/p>\n
135. In the counter-affidavit filed in the writ petition (TC
\nNo.  8 of 1993) relating to Himachal Pradesh, it  is  stated
\nthat  the events of December 6, 1992 were not the  handiwork
\nof  few persons.  It is “the public attitude and  statements
\nof various groups and political parties including BJP  which
\nled  to\t the destruction of the structure  in  question\t and
\ncaused\tgreat  damage  to the very  secular  fabric  of\t the
\ncountry and created communal discord and disharmony all over
\nthe  country including Himachal Pradesh.” It is stated\tthat
\nthe repercussions of the event cannot be judged by comparing
\nthe  number  of persons killed in different States.   It  is
\nasserted  that\tthe Council of Ministers and  the  President
\n“had  a wealth of material available to them in the  present
\ncase  which  are relevant to the satisfaction  formed  under
\nArticle 356.\n<\/p>\n
137<\/span><\/p>\n
They were also aware of the serious damage to communal amity
\nand  harmony  which has been caused in the State  of  Madhya
\nPradesh,  among others.\t They were extremely concerned\twith
\nrepercussions  which events at Ayodhya might still  have  in
\nthe  States” and “the ways and means to bring back  normalcy
\nnot  only in the law and order situation but  also  communal
\namity  and  harmony  which had been so badly  damaged  as  a
\nresult\tof the activities, attitude and stand of inter\talia
\nthe  party in power in the State”.  It is also stated  that,
\naccording  to  the  definite information  available  to\t the
\nGovernment  of\tIndia,\tmembers of the\tRSS  were  not\tonly
\npresent on the spot at Ayodhya but actually participated  in
\nthe  demolition and they were responsible for  promotion  of
\ncommunal  disharmony.  It is also asserted that\t the  action
\nwas  taken  by the President not only on the  basis  of\t the
\nreport\tof  the\t Governor but also on  the  basis  of  other
\ninformation received by him.\n<\/p>\n
136.  In  the counter-affidavit field in the  writ  petition
\nrelating to Rajasthan (TC No. 9 of 1993), it is stated\tthat
\nafter  the demolition on December 6, 1992, violence  started
\nin various parts of the country leading to loss of life\t and
\nproperty.  It is asserted that it is not possible to  assess
\nthe law and order situation in different States only on\t the
\nbasis of casualty figures.  The situation in each State\t has
\nto be assessed differently.  The averment of the  petitioner
\nthat  the  State  Government  implemented  the\tban  on\t RSS
\nproperly is denied.  There is no requirement that the report
\nof  the Governor should be addressed to the  President.\t  It
\ncan  also be addressed to the Prime Minister.\tBesides\t the
\nreport of the Governor, other information was also available
\non  which  the President had formed his\t satisfaction.\t The
\nallegations of mala fide, capricious and arbitrary  exercise
\nof power are denied.  The Presidential Proclamation need not
\ncontain\t reasons  for  the  action,  it\t is  submitted.\t  No
\nirrelevant  material  was taken into  consideration  by\t the
\nPresident.\n<\/p>\n
137. The  learned  counsel  for Union  of  India  and  other
\ncounsel\t supporting the impugned Proclamations\targued\tthat
\nthe  main  plank and the primary programme of  BJP  was\t the
\nconstruction  of  a Ram Temple at the very  site  where\t the
\nBabri  Masjid  stood.  The party openly proclaimed  that  it
\nwill  remove  relocate,\t as it called it  the  Babri  Masjid
\nstructure  since  according  to\t it  the  Babri\t Masjid\t was
\nsuperimposed  on  an existing Ram Temple by  Emperor  Babar.
\nThe  party came to power in all the four States on the\tsaid
\nplank and since then had been working towards the said goal.
\nIt has been the single goal of all the leaders of BJP, their
\nMinisters,  legislators and all cadres.\t For  this  purpose,
\nthey  had  been repeatedly collecting kar  sevaks  from\t all
\ncomers\t at  Ayodhya  from  time  to  time.   In  the\tdays
\nimmediately  preceding December 6, 1992, their\tleaders\t had
\nbeen inciting and exhorting their followers to demolish\t the
\nBabri Masjid and to build a temple there.  The Ministers  in
\nMadhya\tPradesh,  Himachal Pradesh and Rajasthan  had  taken
\nactive part in organising and sending kar sevaks to Ayodhya.
\nWhen the kar sevaks returned from Ayodhya after\t demolishing
\nthe  Masjid,  they  were welcomed as heroes  by\t those\tvery
\npersons.   Many\t of the Ministers and Chief  Ministers\twere
\nmembers of RSS and were protesting against the ban on it.\n<\/p>\n
138<\/span><\/p>\n
They  could not, therefore, be trusted to enforce  the\tban,
\nnotwithstanding the protestations to the contrary by some of
\nthem.  The counsel relied for the purpose upon the following
\nfacts to support their contentions :\n<\/p>\n
138. In May\/June 1991, mid-term poll was held to Lok  Sabha.
\nThe manifesto issued by the BJP on the eve of May\/June\t1991
\nmid-term poll states that the BJP “seeks the restoration  of
\nRam  Janambhoomi  in  Ayodhya  only by\tway  of\t a  symbolic
\nrighting of historic wrongs, so that the old unhappy chapter
\nof   acrimony\tcould  be  ended,  and\ta   Grand   National
\nReconciliation\teffected”.  At another place under the\thead
\n“Sri  Ram  Mandir at Janmasthan”,  the\tfollowing  statement
\noccurs\t:  “BJP\t firmly believes that  construction  of\t Ram
\nMandir\tat Janmasthan is a symbol of the vindication of\t our
\ncultural heritage and national self-respect.  For BJP it  is
\npurely\ta  national issue and it will not allow\t any  vested
\ninterests  to  give  it a  sectarian  and  communal  colour.
\nHence,\tthe  party is committed to build Sri Ram  Mandir  at
\nJanmasthan  by relocating superimposed Babri structure\twith
\ndue  respect.” By themselves, the above statements  may\t not
\nmean  that  the\t programme envisaged  unlawful\tor  forcible
\ndemolition  of the disputed structure.\tThe said  statements
\nare  also  capable of being understood as meaning  that\t the
\nparty  proposed to vindicate their stand  by  constitutional
\nmeans  that  the  disputed structure was  in  fact  the\t Ram
\nJanmasthan  which  was forcibly converted into a  mosque  by
\nEmperor\t Babar and that only thereafter they would  relocate
\nthe  said structure and build Sri Ram Temple at\t that  site.
\nHowever, the above statements when read in the light of\t the
\nspeeches  and acts of the leaders of the BJP, give room\t for
\nanother interpretation as well.\t Those facts are brought out
\nin the “White Paper on Ayodhya” issued by the Government  of
\nIndia in February 1993.\t They are as follows :\n<\/p>\n
\t      “A movement to construct the Sri Ram Temple at
\n\t      the site of the disputed structure by removing
\n\t      or  relocating it gathered strength in  recent
\n\t      years.\tA  determined  bid  to\t storm\t the
\n\t      structure in October\/November 1990 resulted in
\n\t      some damage to the structure and loss of lives
\n\t      as  a  result of police firing.\tThe  Central
\n\t      Government   was\tnegotiating   with   various
\n\t      parties  and  organisations  for\ta   peaceful
\n\t      settlement  of  the  issue.   However,  a\t new
\n\t      dimension\t was  added  to\t the  campaign\t for
\n\t      construction of the temple with the  formation
\n\t      of  the  Government in Uttar Pradesh  in\tJune
\n\t      1991.    The   Government\t  declared    itself
\n\t      committed\t to the construction of the   temple
\n\t      and took certain steps like the acquisition of
\n\t      land   adjoining\t the   disputed\t  structure,
\n\t      demolition   of  certain\t other\t structures,
\n\t      including\t temples  standing on  the  acquired
\n\t      land,  and digging and levelling of a part  of
\n\t      the  acquired  land.  The\t disputed  structure
\n\t      itself  was left out of  the  acquisition.-The
\n\t      plan  of the proposed temple released  by\t the
\n\t      VHP   envisaged\tlocation  of   the   sanctum
\n\t      sanctorum\t of the temple at the very  site  of
\n\t      the disputed structure.  The Union  Government
\n\t      was   concerned  about  the  safety   of\t the
\n\t      structure.  But at the meeting of the National
\n\t      Integration Council held on November 2,  1991,
\n\t      the  Chief  Minister of  Uttar  Pradesh,\tShri
\n\t      Kalyan   Singh,  undertook  to   protect\t the
\n\t\t\t    structure and assured everybody there that\tit
\n\t      is the
\n\t      139<\/span>
\n\t      responsibility  of  the  State  Government  to
\n\t      protect the disputed structure and that no one
\n\t      would  be\t allowed  to  go  there.   He\talso
\n\t      undertook\t that  all the orders of  the  court
\n\t      will be faithfully implemented.  In July 1992,
\n\t      a\t large number of kar sevaks gathered on\t the
\n\t      acquired\tland  and  proposed  to\t start\t the
\n\t      construction.   The situation was averted\t and
\n\t      kar seva was called off on July 26, 1992.\t The
\n\t      BJP decided to re-enact the Rath Yatra by Shri
\n\t      L.K. Advani and Shri M.M. Joshi on the pattern
\n\t      of  1990\tRath  Yatra with  the  objective  of
\n\t      mobilising  people  and  kar  sevaks  for\t the
\n\t      construction  of Sri Ram Temple.\tShri  Advani
\n\t      said  that  they\thave now  plunged  into\t the
\n\t      temple movement in full strength.\t The leaders
\n\t      of  the BJP were acting in concert  with\tVHP,
\n\t      RSS and allied organisations.  The Rath Yatras
\n\t      started  on  December 1,\t1992.\tShri  Advani
\n\t      started  from  Varanasi and  Shri\t Joshi\tfrom
\n\t      Mathura.\t The starting points had  their\t own
\n\t      sinister\tsignificance for the future  demands
\n\t      and programmes for restoration of the  temples
\n\t      at  both\tthese  places.\t Both  the   leaders
\n\t      travelled through eastern and western parts of
\n\t      Uttar  Pradesh  and reached  Ayodhya.   During
\n\t      their   Yatra,   both   these   leaders\tgave
\n\t      provocative speeches and mobilised kar  sevaks
\n\t      and  asked their workers and people  to  reach
\n\t      Ayodhya in large numbers to perform kar  seva.
\n\t      Shri L.K. Advani, during the Rath Yatra,\tkept
\n\t      constantly appealing to the kar sevaks to take
\n\t      the  plunge and not bother about the  survival
\n\t      of the Kalyan Singh Government.  He also\tkept
\n\t      saying  that  kar seva in\t Ayodhya  would\t not
\n\t      remain  restricted to ‘bhajan or\tkirtan’\t but
\n\t      would  involve physical labour.\tShri  Joshi,
\n\t      during the Rath Yatra, maintained that the BJP
\n\t      Government in U.P. would not use force against
\n\t      the kar sevaks in Ayodhya and that the  nature
\n\t      of kar seva would be decided by  Sants\/Mahants
\n\t      and  the\tRJBBM issue was a  religious  matter
\n\t      which can be solved only by the  Dharmacharyas
\n\t      but  not by the Supreme Court.  He  threatened
\n\t      of serious consequences if the BJP  Government
\n\t      in  U.P. was dismissed.  On December 1,  1992,
\n\t      Shri  Joshi  appealed  to\t the  gathering\t (at
\n\t      Mathura)\tto  assemble  at  Ayodhya  in  large
\n\t      numbers for kar seva and demolish the socalled
\n\t      Babri Masjid.  Smt Vijayaraje Scindia, another
\n\t      leader of the BJP stated at Patna on  November
\n\t      23, 1992 that the Babri Masjid will have to be
\n\t      demolished, Shri V.H. Dalmiya, a leader of VHP
\n\t      declared on November 9, 1992 at Delhi that the
\n\t      RJB  Temple would be constructed in  the\tsame
\n\t      way  it  was demolished by Babar.\t  He  stated
\n\t      that   kar   sevaks  were\t  pressurising\t the
\n\t      leadership  that they should be called not  to
\n\t      construct\t the RJB Temple but to demolish\t the
\n\t      masjid.  As early as December 1, 1992,  25,000
\n\t      kar  sevaks had reached Ayodhya.\tBy  December
\n\t      5,    their   number   crossed   two    lakhs.
\n\t      Arrangements were made for their accommodation
\n\t      in tents, schools and colleges and even in the
\n\t      open  near the disputed structure.  The  local
\n\t      Administration  stepped  up  its\tefforts\t  to
\n\t      increase\tcivic  amenities  in  view  of\t the
\n\t      arrival of kar sevaks in such large numbers.
\n\t      The Central Government had posted paramilitary
\n\t      forces at Ayodhya to meet any eventuality\t and
\n\t      to be ready for any assistance that the local
\n\t      140<\/span>
\n\t      Administration  or the BJP Goverment  may\t ask
\n\t      for . Instead of utilising the services of the
\n\t      said  forces,  the  Chief\t Minister  of  Uttar
\n\t      Pradesh  had  been protesting to\tthe  Central
\n\t      Government  about\t the  camping  of  the\tsaid
\n\t      forces  at  Ayodhya.   In\t his  letter   dated
\n\t      December\t1,  1992  addressed  to\t the   Prime
\n\t      Minister,\t Shri  Kalyan  Singh  recorded\t his
\n\t      protest  about the continued presence  of\t the
\n\t      said   forces   at  Ayodhya,  termed   it\t  as
\n\t      unauthorised  and illegal on the\tground\tthat
\n\t      they were stationed there without the  consent
\n\t      and   against   the  wishes   of\t the   State
\n\t      Government.\n<\/p><\/blockquote>\n
\t      On  December 6, 1992, while the crowd  of\t kar
\n\t      sevaks  was being addressed by leaders of\t the
\n\t      BJP,  VHP,  etc.,\t roughly 150  persons  in  a
\n\t      sudden  move broke through the cordon  on\t the
\n\t      terrace, regrouped and started pelting  stones
\n\t      at the police personnel.\tA large crowd  broke
\n\t      into the disputed structure.  The mob  swelled
\n\t      enormously  within  a short time\tand  started
\n\t      demolishing  the structure.  The local  police
\n\t      stood  by as mute spectators since  they\twere
\n\t      under orders of the Chief Minister not to\t use
\n\t      force  against  the kar sevaks.\tThe  central
\n\t      forces  were equally helpless since they\twere
\n\t      not   allowed  to\t intervene  by\t the   local
\n\t      Magistrate on the spot.”\n<\/p><\/blockquote>\n
139. It was also emphasised that according to the  statement
\nof  the Union Home Minister made in Rajya Sabha on  December
\n21,  1992, “all these kar sevaks, when they  returned,\twere
\nreceived by the Chief Ministers and Ministers”.\n<\/p>\n
140. Relying  on  these facts and events, it  was  contended
\nthat  what happened on December 6, 1992 did not happen in  a
\nday.  It was the culmination of a sustained campaign carried
\non  by the BJP and other allied organisations over the\tlast
\nfew  years.  It was then pointed out that in  the  manifesto
\nissued\tby  the\t BJP in connection  with  the  1993  General
\nElections, there is not a word of regret about what happened
\non  December  6,  1992.\t  On  the  contrary,  the  following
\nstatement occurs there under the heading “Ayodhya” :\n<\/p>\n
\t\t\t\t Ayodhya
\n\t      In their actions and utterances, the forces of
\n\t      pseudo-secularism\t  convey  the\tunmistakable
\n\t      impression of a deep repugnance for all things
\n\t      Hindu.   Indeed,\tin their minds\t‘Hindu’\t has
\n\t      come  to be associated with  ‘communal’.\t The
\n\t      controversy over the Ram Janambhoomi temple in
\n\t      Ayodhya  is  a powerful illustration  of\tthis
\n\t      phenomenon.  For them ‘Sahmat’ is secular\t and
\n\t      ‘Saffron’ communal.  Although the facts of the
\n\t      dispute are well known, certain features merit
\n\t      repetition.   First,  it was  always  apparent
\n\t      that  a vast majority of Hindus  were  totally
\n\t      committed\t to  the  construction\tof  a  grand
\n\t      temple  for Lord Rama at the site\t where\tpuja
\n\t      has been performed uninterruptedly since\t1948
\n\t      and  where besides, no namaz has been  offered
\n\t      since 1936.  The structure built by the Moghul
\n\t      Emperor  Babar was viewed by the Hindus  as  a
\n\t      symbol of national humiliation.\n<\/p><\/blockquote>\n
\t      141<\/span><\/p>\n
\t      Second  the election of 1991 in Uttar  Pradesh
\n\t      centered\ton  the Ayodhya dispute.  It  was  a
\n\t      virtual referendum on Ram Janmabhoomi and\t the
\n\t      BJP   with  its  promise\tto  facilitate\t the
\n\t      construction   of\t the  Ram  Temple  won\t the
\n\t      election.\t  However,  this  mandate  did\t not
\n\t      prevent the Congress and other  pseudo-secular
\n\t      parties\tfrom   wilfully\t  obstructing\t the
\n\t      initiatives  of the Uttar Pradesh\t Government.
\n\t      Everything, from administrative subterfuge  to
\n\t      judicial\tdelay, was used by the opponents  of
\n\t      the temple to prevent the BJP Government\tfrom
\n\t      fulfilling its promise to the electorate.
\n\t      On  December 6, 1992 kar sevaks from all\tover
\n\t      India  assembled\tin  Ayodhya  to\t begin\t the
\n\t      reconstruction of the Rama Temple at the\tsite
\n\t      adjoining\t the garbha griha.  Matters took  an
\n\t      unexpected   turn\t  when,\t  angered   by\t the
\n\t      obstructive  tactics  of\tthe  Narasimha\t Rao
\n\t      Government,  inordinate  judicial\t delays\t and
\n\t      pseudo-secularist taunts, the kar sevaks\ttook
\n\t      matters  into their own hands, demolished\t the
\n\t      disputed structure and constructed a makeshift
\n\t      temple for Lord Rama at the garbha griha.
\n\t      Owning  responsibility  for its  inability  to
\n\t      prevent  the  demolition, the  BJP  Government
\n\t      headed  by  Shri Kalyan  Singh  submitted\t its
\n\t      resignation.  A disoriented Central Government
\n\t      was   not\t content  with\tthe  imposition\t  of
\n\t      President’s   rule  in  Uttar   Pradesh.\t  In
\n\t      violation\t of  democratic\t norms,\t the  Centre
\n\t      dismissed\t the BJP Governments  in  Rajasthan,
\n\t      Madhya Pradesh and Himachal Pradesh.  Further,
\n\t      it  banned  the  Rashtriya  Swaymsevak  Sangh,
\n\t      Vishwa Hindu Parishad and Bajrang Dal.
\n\t      Worst of all, in collusion with other rootless
\n\t      forces  the  Government  unleashed  a  vicious
\n\t      propaganda  offensive aimed at belittling\t the
\n\t      Hindus.\tThe  kar sevaks were  denigrated  as
\n\t      fascists, lumpens and vandals, and December 6,
\n\t      was   described\tas   a\t ‘national   shame’.
\n\t      Recently,\t the  CBI  has\tfiled  charge-sheets
\n\t      against  leaders\tof the BJP  and\t the  Vishwa
\n\t      Hindu Parishad with the purpose of  projecting
\n\t      them as criminals.\n<\/p><\/blockquote>\n
\t      This  relentless\tonslaught  of  the   pseudo-
\n\t      secular forces against the people of India had
\n\t      very  serious consequences.  For a  start,  it
\n\t      created  a  wide emotional  gulf\tbetween\t the
\n\t      rulers and the people.  Ayodhya was a  popular
\n\t      indictment of the spurious politics of double-
\n\t      standards.   Far from recognising it as  such,
\n\t      the  Congress and other anti-BJP parties\tused
\n\t      it  as a pretext for furthering the  cause  of
\n\t      unprincipled minorityism.\n<\/p><\/blockquote>\n
\t      It  is  this  minorityism\t that  prevents\t the
\n\t      Congress, Janata Dal, Samajvadi Party and\t the
\n\t      Communist\t Parties  from coming  out  with  an
\n\t      unambiguous declaration of intent on  Ayodhya.
\n\t      This   BJP   is  the  only  party\t  which\t  is
\n\t      categorical in its assurance to facilitate the
\n\t      construction of the Rama Temple at the site of
\n\t      the  erstwhile Babri structure.  This is\twhat
\n\t      the people desire.”\n<\/p><\/blockquote>\n
141. The  further submission was that the demolition of\t the
\ndisputed   structure  was  the\toutcome\t of  the   speeches,
\nprogramme  and the several campaigns including\tRath  Yatras
\nundertaken  by\tthe  leaders  of the  BJP.   It\t is  neither
\npossible  nor  realistic to dissociate\tthe  Governments  of
\nMadhya Pradesh, Rajasthan and Himachal Pradesh from the acts
\nand deeds of their
\n142<\/span>
\nparty.\tIt is one party with one programme.  It is stated in
\nthe  report of the Himachal Pradesh Governor that the  Chief
\nMinister himself was a member of the RSS.  In the report  of
\nthe  Governor of Madhya Pradesh also, it is stated that\t the
\nChief  Minister and other Ministers swore by the values\t and
\ntraditions of the RSS.\tThe reports also indicate that these
\nGovernments   actively\t participated  in   organising\t and
\ndespatching the kar sevaks to Ayodhya and welcomed them\t and
\npraised\t when they came back after doing the deed.  Thus,  a
\ncommon thread runs through ail the four BJP Governments\t and
\nbinds  them  together.\tThe manifestos of the party  on\t the
\nbasis of which these Governments came to power coupled\twith
\ntheir speeches and actions clearly demonstrate a  commonness
\nand  unity  of\taction\tbetween\t the  party  and  the\tfour
\nGovernments.   The  very manifestos and their  programme  of
\naction\twere such as to hurt the religious feelings  of\t the
\nMuslim community.  The demolition of the disputed  structure
\nwas  no ordinary event.\t The disputed structure\t had  become
\nthe  focal  point  and the bone of  contention\tbetween\t two
\nreligious  communities.\t The process which resulted  in\t the
\ndemolition and the manner in which it was perpetrated, dealt
\na  serious  blow to the communal harmony and  peace  in\t the
\ncountry.   It  had adverse  international  repercussions  as
\nwell.  A number of Hindu temples were demolished in Pakistan
\nand Bangladesh in reprisal of the demolition at Ayodhya.  It
\nwas  difficult in this situation for the minorities  in\t the
\nfour States to have any faith in tile neutrality of the four
\nGovernments.   It  was absolutely necessary  to\t recreate  a
\nfeeling of security among them.\t They required to be assured
\nof  the\t safety and security of their person  and  property.
\nThis was not possible with the BJP Governments in power.\n<\/p>\n
142.  It  was  also stressed that  the\tChief  Ministers  of
\nHimachal Pradesh and Madhya Pradesh were the members of\t the
\nbanned RSS.  In such circumstances, the respective Governors
\nwere rightly of the view that the said Chief Ministers could
\nnot  be\t expected to, or relied upon to\t implement  the\t ban
\nsincerely.   Hence it could not be said to be  an  unfounded
\nopinion.   Allowing  a\tparty  which  had  consciously\t and
\nactively  brought  about  such a situation  to\tcontinue  in
\noffice\tin  these  circumstances would not  have  helped  in
\nrestoring  the\tfaith  of  people  in  general\tand  of\t the
\nminorities  in\tparticular.   It is no answer  to  say\tthat
\ndisturbance  took  place on a much larger scale\t in  certain
\nStates ruled by Congress (1) parties and that no action\t was
\ntaken against those Governments.\n<\/p>\n
143. In\t reply\tto these contentions, the  counsel  for\t the
\npetitioners  submitted that if the reasoning of the  counsel
\nfor the Union of India was accepted, it would mean that\t BJP
\ncannot form Government in any State and the party has to  be
\nbanned\tand  that the acceptance of such  submissions  would
\ncreate a serious political situation.  They also pointed out
\nthat  the majority judgment of the two judges of the  Madhya
\nPradesh High Court+ had quashed the Proclamation taking\t the
\nview that it was not possible to accept that failure on\t the
\npart  of  the  State  Government  to  save  the\t lives\t and
\nproperties  of\tcitizens in a few cities in the State  as  a
\nresult of sudden
\n+   Ed.: Sunderlal Pa a v. Union of India, 1993 Jab  LJ\t 387
\n(FB)
\n143<\/span>
\noutbreak   of\tviolence  could\t reasonably  lead   to\t the
\nsatisfaction of the President that the Government was unable
\nto  function  in  accordance  with  the\t Constitution\tand,
\ntherefore,  the consequent dissolution of the  Assembly\t was
\nalso bad in law.\n<\/p>\n
144. The gist of the contentions of the petitioners was that
\nmere  disturbance  in  some  parts  of\tMadhya\tPradesh\t and
\nRajasthan  involving the loss of some lives and\t destruction
\nof  some  property did not amount to a\tsituation  where  it
\ncould be said that the Governments of those States could not
\nbe  carried  on\t in accordance with the\t provisions  of\t the
\nConstitution.\tFurther,  the fact that\t the  Ministries  of
\nthese  States  belonged to BJP whose one  of  the  political
\nplanks in the election manifesto was the construction of Sri
\nRam  Temple  at\t the site of the mosque\t by  relocating\t the
\nmosque somewhere else, did not amount to an act to give rise
\nto  the apprehension that the Ministries of that party\twere
\ninfidel\t to  the objective of secularism  enshrined  in\t the
\nConstitution.\tSo  also, the pursuit of  the  programme  of
\nconstructing  the  temple  on  the site\t of  the  mosque  by
\nrelocating   the  latter  elsewhere,  by  speeches  and\t  by
\nexhorting the kar sevaks to assemble at Ayodhya on  December
\n6,  1992 and by giving them a warm send-off for the  purpose
\ndid  not amount to a deviation from the creed of  secularism
\nnor did the welcome to the kar sevaks in the State after the
\ndestruction of the mosque or the inaction of the leaders  of
\nthe  BJP  present at the site in preventing the\t kar  sevaks
\nfrom  destroying  the mosque or want of\t the  expression  of
\nregret\ton  their  part over such destruction  amount  to  a
\nbreach\tof  the goal of secularism.  A mere  continuance  in
\noffice\tof  the\t Ministries which were formed  on  the\tsaid
\npolitical  plank in the aftermath of the destruction of\t the
\nmosque by itself could not further have led to the  feelings
\nof  insecurity\tin the minds of the Muslims when  the  State
\nGovernments  of\t Rajasthan and Madhya Pradesh could  not  be
\nsaid to be remiss in taking all necessary actions to prevent
\nriots  and  violence  and  when there  was  no\tincident  of
\nviolence  or  destruction in Himachal Pradesh.\t As  against
\nthis, the sum and substance of the contentions on behalf  of
\nthe  Union of India and others supporting the  Proclamations
\nin  these  States  was\tthat  the  Ministries  heading\t the
\nAdministration\tin  these  States could not  be\t trusted  to
\nadhere to secularism when they had admittedly come to  power
\non the political plank of constructing Sri Ram Mandir on the
\nsite of the mosque by relocating the mosque elsewhere  which
\nmeant  by destroying it and then reconstructing it at  other
\nplace.\tThis was particularly so, when by its actual deed on
\nDecember  6, 1992, the party in question  demonstrated\twhat
\nthey meant by their said political manifesto.  It was facile
\nthereafter  to contend that the party only wanted to  follow
\nthe constitutional means to pursue the goal of\tconstructing
\nthe Ram Temple on the said site.  The destruction of  mosque
\nwas  a\tconcrete  proof\t of the creed  which  the  party  in
\nquestion  wanted  to  pursue.  In  such\t circumstances,\t the
\nMinistries formed by the said party could not be trusted  to
\nfollow\tthe  objective of secularism which was part  of\t the
\nbasic structure of the Constitution and also the soul of the
\nConstitution.\n<\/p>\n
145. These  contentions inevitably invite us to discuss\t the
\nconcept of secularism as accepted by our Constitution.\t Our
\nConstitution does not
\n144<\/span>
\nprohibit  the practice of any religion either  privately  or
\npublicly.   Through  the Preamble of the  Constitution,\t the
\npeople of this country have solemnly resolved to  constitute
\nthis  country, among others, into a secular republic and  to
\nsecure to all its citizens (i) JUSTICE, social, economic and
\npolitical;  (ii)  LIBERTY of  thought,\texpression,  belief,
\nfaith\tand  worship;  (iii)  EQUALITY\tof  status  and\t  of
\nopportunity;  and (iv) to promote among them all  FRATERNITY
\nassuring  the  dignity of the individual and the  unity\t and
\nintegrity  of  the Nation.  Article 25 of  the\tConstitution
\nguarantees to all persons equally the freedom of  conscience
\nand  the  right to freely profess,  practise  and  propagate
\nreligion  subject to public order, morality and\t health\t and
\nsubject\t to  the other Fundamental Rights  and\tthe  State’s
\npower  to  make\t any  law  regulating  or  restricting\t any
\neconomic,  financial,  political or other  secular  activity
\nwhich may be associated with religious practice.  Article 26
\nguarantees  every  religious  denomination  or\tany  section
\nthereof the right (a) to establish and maintain institutions
\nfor religious and charitable purposes, (b) to manage its own
\naffairs\t in  matters  of religion, (c) to  own\tand  acquire
\nmovable\t and immovable property and (d) to  administer\tsuch
\nproperty  in  accordance with law.   Article  29  guarantees
\nevery  section of the citizens its distinct  culture,  among
\nothers.\t  Article 30 provides that all minorities  based  on
\nreligion  shall have the right to establish  and  administer
\neducational institutions of their choice.  It prohibits\t the
\nState  from making any discrimination in granting aid to  an
\neducational  institution  managed by a\treligious  minority.
\nUnder  Articles\t 14, 15 and 16, the  Constitution  prohibits
\ndiscrimination\tagainst\t any citizen on the  ground  of\t his
\nreligion  and guarantees equal protection of law  and  equal
\nopportunity  of public employment.  Article 44 enjoins\tupon
\nthe  State to endeavour to secure to its citizens a  uniform
\ncivil  code.  Article 51-A casts a duty on every citizen  of
\nIndia,\tamong others, (a) to abide by the  Constitution\t and
\nrespect its ideals and institutions, (b) to promote  harmony
\nand  the spirit of common brotherhood, among all the  people
\nof   India,  transcending,  among  others,   religious\t and
\nsectional  diversities, (c) to value and preserve  the\trich
\nheritage of our composite culture, (d) to develop scientific
\ntemper,\t humanism and the spirit of inquiry and reform;\t and\n<\/p>\n
(e) to safeguard public property and to abjure violence.\n<\/p>\n
146. These   provisions\t  by   implication   prohibit\t the
\nestablishment  of a theocratic State and prevent  the  State
\neither\tidentifying itself with or favouring any  particular
\nreligion  or religious sect or denomination.  The  State  is
\nenjoined  to  accord equal treatment to\t all  religions\t and
\nreligious sects and denominations.\n<\/p>\n
147. As\t has  been explained by Shri  M.C.  Setalvad  (Patel
\nMemorial Lectures– 1965 on Secularism)-\n<\/p>\n
\t      “Secularism often denotes the way of life\t and
\n\t      conduct guided by materialistic considerations
\n\t      devoid   of  religion.   The  basis  of\tthis
\n\t      ideology\tis  that material  means  alone\t can
\n\t      advance  mankind\tand that  religious  beliefs
\n\t      retard the growth of the human beings … this
\n\t      ideology is of
\n\t       145<\/span>
\n\t\t recent\t growth and it is obvious that it  is
\n\t      quite  different from the concept\t of  secular
\n\t      State  in\t the  West  which  took\t root\tmany
\n\t      centuries ago. …\n<\/p><\/blockquote>\n
\t      A\t different view in relation to\treligion  is
\n\t      the  basis of ‘secularism’ understood  in\t the
\n\t      sense  of\t what  may  be\tcalled\ta   ‘secular
\n\t      attitude’ towards life.  Society generally  or
\n\t      the    individual\t  constituting\t  it\ttend
\n\t      progressively  to\t isolate religion  from\t the
\n\t      more  significant areas of common life.\tMany
\n\t      of  us, Hindus and Muslims and others, are  in
\n\t      our  way of life, and outlook on most  matters
\n\t      largely governed by ideas and practices  which
\n\t      are  connected  with  or\tare  rooted  in\t our
\n\t      religion.\t The secular attitude would wean  us
\n\t      away  from  this\tapproach  so  that  in\t our
\n\t      relations\t  with\tour  fellow  beings  or\t  in
\n\t      dealings\twith  other social groups,  we\thave
\n\t      less   and  less\tregard\tfor   religion\t and
\n\t      religious\t practices  and base our  lives\t and
\n\t      actions\tmore  on   worldly   considerations,
\n\t      restricting religion and its influence to what
\n\t      has been called its ‘proper’ sphere, i.e., the
\n\t      advancement  of the spiritual life  and  well-
\n\t      being  of the individual.\t Secularism of\tthis
\n\t      character\t is  said  to be  essential  to\t our
\n\t      progress\tas  human  beings and  as  a  nation
\n\t      because  it  will enable us to shake  off\t the
\n\t      narrow and restrictive outlook arising out  of
\n\t      casteism,\t communalism  and other\t like  ideas
\n\t      which come in the way of our development.
\n\t      ‘secularism’ of the kinds we have adverted  to
\n\t      above.  …  No doubt, the  two  concepts\t are
\n\t      interdependent   in  the\tsense  that  it\t  is
\n\t      difficult to conceive of a society or a  group
\n\t      of  individuals  being  induced  to  adopt   a
\n\t      secular  philosophy  or  a  secular   attitude
\n\t      without the aid of a secular State.
\n\t      A\t secular  State\t is  not  easy\tto   define.
\n\t      According to the liberal democratic  tradition
\n\t      of the West, the secular State is not  hostile
\n\t      to  religion  but\t holds\titself\tneutral\t  in
\n\t      matters of religion…….\n<\/p><\/blockquote>\n
\t      Thereafter, referring to the Indian concept of
\n\t      secularism,  the\tlearned\t jurist\t stated\t  as
\n\t      follows :\n<\/p><\/blockquote>\n
\t      “… the secularist way of life was repeatedly
\n\t      preached\tby  leaders  of\t movement  so\tthat
\n\t      religious matters came to be regarded entirely
\n\t      as   relating   to  the  conscience   of\t the
\n\t      individuals…….\n<\/p><\/blockquote>\n
\t      “The  coming of the partition  emphasised\t the
\n\t      great\t importance\t of\t secularism.
\n\t      Notwithstanding the partition, a large  Muslim
\n\t      minority\t consisting  of\t a  tenth   of\t the
\n\t      population  continued  to be the\tcitizens  of
\n\t      independent India.  There are other  important
\n\t      minority\t groups\t  of   citizens.    In\t the
\n\t      circumstances,  a\t secular  Constitution\t for
\n\t      independent  India under which  all  religions
\n\t      could  enjoy  equal freedom and  all  citizens
\n\t      equal right and which could weld together into
\n\t      one    nation,   the    different\t   religious
\n\t      communities, become inevitable.”\n<\/p><\/blockquote>\n
Thereafter, the learned jurist has gone on to point out that
\nour  Constitution  undoubtedly lacks a\tcomplete  separation
\nbetween the church and the State as in the United States and
\nat  the same time we have no established church as in  Great
\nBritain\t or  some  other countries.   In  our  country,\t all
\nreligions are placed on the basis of equality and it  would,
\ntherefore, seem that it is erroneous to
\n146<\/span>
\ndescribe  our  country\tas a secular State.   He  quoted  Dr
\nRadhakrishnan  who said that “the religious impartiality  of
\nthe  Indian State is not to be confused with  secularism  or
\natheism”.   He also pointed out that the proceedings of\t the
\nConstituent  Assembly  show  that  “two\t attempts  made\t  to
\nintroduce  the\tword  ‘secular’\t in  the  Constitution\t had
\nfailed.\t …”  At  the same time,  he  asserted\t that…….
\nnevertheless, it could not be said that the Indian State did
\nnot  possess  some important characteristics  of  a  Secular
\nState”\tand  has pointed out some of the provisions  of\t the
\nConstitution  to  which\t we have already  made\ta  reference
\nabove.\tHe has then stated that the ideal of a Secular State
\nin the sense of a State which treats all religions alike and
\ndisplays benevolence towards them is in a way more suited to
\nthe  Indian  environment and climate than that\tof  a  truly
\nSecular\t State\tby  which he meant  a  State  which  creates
\ncomplete separation between religion and the State.  Justice
\nChinnappa Reddy, delivering his Ambedkar Memorial Lecture on
\n‘Indian Constitution and Secularism’ has observed that :\n<\/p>\n
\t      “Indian\tconstitutional\tsecularism  is\t not
\n\t      supportive of religion at all but has  adopted
\n\t      what  may\t be termed  as\tpermissive  attitude
\n\t      towards religion out of respect for individual
\n\t      conscience  and  dignity.\t There,\t even  while
\n\t      recognising the right to profess and  practise
\n\t      religion,\t etc., it has excluded\tall  secular
\n\t      activities  from the purview of  religion\t and
\n\t      also  of\tpractices  which  are  repugnant  to
\n\t      public  order,  morality and  health  and\t are
\n\t      abhorrent\t to  human rights  and\tdignity,  as
\n\t      embodied\tin  the\t other\tfundamental   rights
\n\t      guaranteed by the Constitution.”\n<\/p><\/blockquote>\n
148. One  thing\t which prominently emerges  from  the  above
\ndiscussion  on\tsecularism under our  Constitution  is\tthat
\nwhatever  the attitude of the State towards  the  religions,
\nreligious sects and denominations, religion cannot be  mixed
\nwith  any  secular  activity of the  State.   In  fact,\t the
\nencroachment of religion into secular activities is strictly
\nprohibited.   This  is evident from the\t provisions  of\t the
\nConstitution  to  which we have made reference\tabove.\t The
\nState’s tolerance of religion or religions does not make  it
\neither\ta religious or a theocratic State.  When  the  State
\nallows citizens to practise and profess their religions,  it
\ndoes  not  either  explicitly or implicitly  allow  them  to
\nintroduce religion into non-religious and secular activities
\nof the State.  The freedom and tolerance of religion is only
\nto the extent of permitting pursuit of spiritual life  which
\nis different from the secular life.  The latter falls in the
\nexclusive domain of the affairs of the State.  This is\talso
\nclear\tfrom   sub-section  (3)\t of  Section  123   of\t the
\nRepresentation\tof the People Act, 1951 which  prohibits  an
\nappeal\tby a candidate or his agent or by any  other  person
\nwith  the consent of the candidate or his election agent  to
\nvote or refrain from voting for any person on the ground  of
\nhis religion, race, caste, community or language or the\t use
\nof or appeal to religious symbols.  Subsection (3-A) of\t the
\nsame  section prohibits the promotion or attempt to  promote
\nfeelings  of enmity and hatred between different classes  of
\nthe  citizens  of India on the grounds\tof  religion,  race,
\ncaste, community or language by a candidate or his agent  or
\nany  other person with the consent of the candidate  or\t his
\nelection agent for the furtherance of the prospects of the
\n147<\/span>
\nelection  of that candidate or for  prejudicially  affecting
\nthe  election of any candidate.\t A breach of the  provisions
\nof  the\t said sub-sections (3) and (3-A) are  deemed  to  be
\ncorrupt practices within the meaning of the said section.\n<\/p>\n
149.  Mr. Ram Jethmalani contented that what was  prohibited
\nby Section 123(3) was not an appeal to religion as such\t but
\nan  appeal to religion of the candidate and seeking vote  in
\nthe name of the said religion.\tAccording to him, it did not
\nprohibit  the candidate from seeking vote in the name  of  a
\nreligion  to  which  the candidate  did\t not  belong.\tWith
\nrespect,  we are unable to accept this contention.   Reading
\nsub-sections  (3) and (3-A) of Section 123 together,  it  is
\nclear that appealing to any religion or seeking votes in the
\nname  of any religion is prohibited by the  two\t provisions.
\nTo  read otherwise is to subvert the intent and\t purpose  of
\nthe  said  provisions.\t What is  more,\t assuming  that\t the
\ninterpretation placed by the learned counsel is correct,  it
\ncannot\tcontrol the content of secularism which is  accepted
\nby and is implicit in our Constitution.\n<\/p>\n
150. In\t view  of the content of secularism adopted  by\t our
\nConstitution  as  discussed above, the question\t that  poses
\nitself for our consideration in these matters is whether the
\nthree  Governments  when they had to their credit  the\tacts
\ndiscussed above, could be trusted to carry on the governance
\nof  the\t State\tin accordance with  the\t provisions  of\t the
\nConstitution  and the President’s satisfaction based on\t the
\nsaid acts could be challenged in law.  To recapitulate,\t the
\nacts  were (i) the BJP manifesto on the basis of  which\t the
\nelections were contested and pursuant to which elections the
\n3 Ministries came to power stated as follows :\n<\/p>\n
\t      “BJP firmly believes that construction of\t Sri
\n\t      Ram  Mandir at Janmasthan is a symbol  of\t the
\n\t      vindication  of  our  cultural  heritage\t and
\n\t      national self-respect.  For BJP it is purely a
\n\t      national\tissue  and it (sic)  not  allow\t any
\n\t      vested  interest\tto give it a  sectarian\t and
\n\t      communal\tcolour. Hence party is committed  to
\n\t      build   Sri  Ram\tMandir\tat   Janmasthan\t  by
\n\t      relocating  superimposed Babri structure\twith
\n\t      due respect.”\n<\/p><\/blockquote>\n
\t\t\t\t      (emphasis supplied)\n<\/p><\/blockquote>\n
(ii)  Leaders  of  the BJP had\tconsistently  made  speeches
\nthereafter  to\tthe  same effect. (iii) Some  of  the  Chief
\nMinisters  and Ministers belonged to RSS which was a  banned
\nOrganisation at the relevant time. (iv) The Ministers in  he
\nMinistries  concerned  exhorted people to join kar  seva  in
\nAyodhya\t on  December  6, 1992.\t One MLA  belonging  to\t the
\nruling BJP in Himachal Pradesh made a public statement\tthat
\nhe  had\t actually  participated in  the\t estruction  of\t the
\nmosque.\t (v) Ministers had given public send-off to the\t kar
\nsevaks and had also welcomed them on their return after\t the
\ndestruction  of\t he mosque. (vi) The implementation  of\t the
\npolicy\tpursuant to the ban of the SS was to be executed  by
\nthe  Ministers\twho  were  themselves  members\tof  he\tsaid
\nOrganisation.  (vii)  At least in two States,  viz.,  Madhya
\nPradesh\t and  Rajasthan there were  atrocities\tagainst\t the
\nMuslims and loss of lives and destruction of property.\n<\/p><\/blockquote>\n
151. As\t  stated  above,  religious  tolerance\t and   equal
\ntreatment  of all religious groups and protection  of  their
\nlife and property and of the places of
\n148<\/span>
\ntheir worship are an essential part of secularism  enshrined
\nin  our\t Constitution.\tWe have accepted the said  goal\t not
\nonly  because it is our historical legacy and a need of\t our
\nnational  unity\t and  integrity\t but  also  as\ta  creed  of
\nuniversal  brotherhood\tand humanism.  It  is  our  cardinal
\nfaith.\t Any profession and action which go counter  to\t the
\naforesaid  creed are a prima facie proof of the\t conduct  in
\ndefiance   of  the  provisions\tof  our\t Constitution.\t  If
\ntherefore,   the  President  had  acted\t on  the   aforesaid
\n“credentials”  of the Ministries in these States  which\t had
\nunforeseen  and imponderable cascading consequences, it\t can
\nhardly\tbe argued that there was no material before  him  to
\ncome  to  the conclusion that the Governments in  the  three
\nStates\tcould  not  be carried on  in  accordance  with\t the
\nprovisions  of the Constitution.  The consequences  of\tsuch
\nprofessions  and  acts\twhich  are  evidently  against\t the
\nprovisions  of the Constitution cannot be measured  only  by
\nwhat happens in praesenti.  A reasonable prognosis of events
\nto  come  and of their multifarious effects  to\t follow\t can
\nalways be made on the basis of the events occurring, and  if
\nsuch  prognosis\t had  led  to the  conclusion  that  in\t the
\ncircumstances,\tthe Governments of the States could  not  be
\ncarried\t on  in\t accordance  with  the\tprovisions  of\t the
\nConstitution,  the  inference could hardly be  faulted.\t  We
\nare,  therefore, of the view that the President\t had  enough
\nmaterial  in the form of the aforesaid professions and\tacts
\nof  the responsible section in the political set-up  of\t the
\nthree\tStates\tincluding  the\tMinistries,  to\t  form\t his
\nsatisfaction that the Governments of the three States  could
\nnot  be carried on in accordance with the provisions of\t the
\nConstitution.\tHence the Proclamations issued could not  be
\nsaid to be invalid.\n<\/p>\n
152. The  appeals filed against the judgment of\t the  Madhya
\nPradesh\t High Court have, therefore, to be allowed  and\t the
\ntransfer  cases\t challenging the Proclamation,\thave  to  be
\ndismissed.\n<\/p>\n
Summary of conclusions:\n<\/p>\n
\t      153.  Our\t  conclusions,\ttherefore,  may\t  be
\n\t      summarised as under\n<\/p><\/blockquote>\n
\t      1.    The validity of the Proclamation  issued
\n\t      by  the  President  under\t Article  356(1)  is
\n\t      judicially   reviewable  to  the\t extent\t  of
\n\t      examining\t whether it was issued on the  basis
\n\t      of any material at all or whether the material
\n\t      was  relevant or whether the Proclamation\t was
\n\t      issued in the mala fide exercise of the power.
\n\t      When  a  prima facie case is made out  in\t the
\n\t      challenge\t to the Proclamation, the burden  is
\n\t      on  the  Union Government to  prove  that\t the
\n\t      relevant\tmaterial  did in  fact\texist,\tsuch
\n\t      material\tmay  be\t either the  report  of\t the
\n\t      Governor or other than the report.\n<\/p><\/blockquote>\n
\t      11.   Article  74(2) is not a bar against\t the
\n\t      scrutiny of the material on the basis of which
\n\t      the President had arrived at his satisfaction.\n<\/p><\/blockquote>\n
\t      111.  When  the President issues\tProclamation
\n\t      under  Article 356(1), he may exercise all  or
\n\t      any  of the powers under sub-clauses (a),\t (b)
\n\t      and  (c)\tthereof.  It is for  him  to  decide
\n\t      which of the said powers he will exercise,
\n\t      + Ed.: Sunderlal Parwa v. Union of India, 1993
\n\t      Jab LJ 387 (FB)
\n\t      149<\/span>
\n\t      and  at what stage, taking into  consideration
\n\t      the exigencies of the situation.
\n\t      IV.   Since the provisions contained in clause
\n\t      (3) of Article 356 are intended to be a  check
\n\t      on  the powers of the President  under  clause
\n\t      (1)  thereof, it will not be  permissible\t for
\n\t      the  President to exercise powers\t under\tsub-
\n\t      clauses (a), (b) and (c) of the latter clause,
\n\t      to  take\tirreversible actions till  at  least
\n\t      both the Houses of Parliament have approved of
\n\t      the Proclamation.\t It is for this reason\tthat
\n\t      the   President  will  not  be  justified\t  in
\n\t      dissolving  the Legislative Assembly by  using
\n\t      the  powers  of  the  Governor  under  Article
\n\t      174(2)(b) read with Article 356(1)(a) till  at
\n\t      least both the Houses of Parliament approve of
\n\t      the Proclamation.\n<\/p><\/blockquote>\n
\t      V.    If\tthe  Proclamation  issued  is\theld
\n\t      invalid, then notwithstanding the fact that it
\n\t      is  approved by both Houses of Parliament,  it
\n\t      will  be\topen  to the court  to\trestore\t the
\n\t      status  quo  ante\t to  the  issuance  of\t the
\n\t      Proclamation   and   hence  to   restore\t the
\n\t      Legislative Assembly and the Ministry.
\n\t      VI.   In\tappropriate  cases, the\t court\twill
\n\t      have  power  by  an  interim  injunction,\t  to
\n\t      restrain the holding of fresh elections to the
\n\t      Legislative   Assembly   pending\t the   final
\n\t      disposal\tof the challenge to the validity  of
\n\t      the  Proclamation to avoid the  fait  accompli
\n\t      and  the\tremedy\tof  judicial  review   being
\n\t      rendered\tfruitless.  However, the court\twill
\n\t      not interdict the issuance of the Proclamation
\n\t      or  the exercise of any other power under\t the
\n\t      Proclamation.\n<\/p><\/blockquote>\n
\t      VII.  While restoring the status quo ante,  it
\n\t      will be open for the court to mould the relief
\n\t      suitably and declare as valid actions taken by
\n\t      the President till that date.  It will also be
\n\t      open for Parliament and the Legislature of the
\n\t      State  to\t validate the said  actions  of\t the
\n\t      President.\n<\/p><\/blockquote>\n
\t      VIII.\t Secularism  is a part of the  basic
\n\t      structure of the Constitution. The acts  of  a
\n\t      State  Government\t which\tare  calculated\t  to
\n\t      subvert or sabotage  secularism  as  enshrined
\n\t      in our Constitution, can lawfully be deemed to
\n\t      give   rise  to  a  situation  in\t which\t the
\n\t      Government  of the State cannot be carried  on
\n\t      in  accordance  with  the\t provisions  of\t the
\n\t      Constitution.<\/p><\/blockquote>\n
\t      IX.   The\t Proclamations dated April 21,\t1989
\n\t      and  October 11, 1991 and the action taken  by
\n\t      the  President  in  removing  the\t  respective
\n\t      Ministries  and the Legislative Assemblies  of
\n\t      the  State  of  Karnataka\t and  the  State  of
\n\t      Meghalaya challenged in Civil Appeal No.\t3645
\n\t      of  1989 and Transfer Case Nos. 5 & 7 of\t1992
\n\t      respectively   are   unconstitutional.\t The
\n\t      Proclamation  dated August 7, 1988 in  respect
\n\t\t\t    of\t  State\t  of   Nagaland\t  is   also    hel
\nd
\n\t\t\t    unconstitutional.  However, in view of the fac
\nt
\n\t      that  fresh elections have since\ttaken  place
\n\t      and   the\t new  Legislative   Assemblies\t and
\n\t      Ministries  have been constituted in  all\t the
\n\t      three States, no relief is granted  consequent
\n\t      upon  the above declarations.  However, it  is
\n\t      declared\tthat  all actions which\t might\thave
\n\t      been taken during the period the\tProclamation
\n\t      operated,\t are  valid.  The Civil\t Appeal\t No.
\n\t      3645 of 1989
\n\t      150<\/span>
\n\t      and  Transfer  Case Nos. 5 and 7 of  1992\t are
\n\t      allowed accordingly with no order as to costs.
\n\t      Civil Appeal Nos. 193-94 of 1989 are  disposed
\n\t      of by allowing the writ petitions filed in the
\n\t      Gauhati  High  Court accordingly\tbut  without
\n\t      costs.\n<\/p>\n
\t      X.    The\t Proclamations\tdated  December\t 15,
\n\t      1992  and the actions taken by  the  President
\n\t      removing\tthe  Ministries and  dissolving\t the
\n\t      Legislative Assemblies in the States of Madhya
\n\t      Pradesh,\t Rajasthan  and\t  Himachal   Pradesh
\n\t      pursuant\tto  the said Proclamations  are\t not
\n\t      unconstitutional.\t  Civil\t Appeal\t Nos.  1692,
\n\t      1692-A-1692-C, 4627-30 of 1993 are accordingly
\n\t      allowed and Transfer Case Nos. 8 and 9 of 1993
\n\t      are dismissed with no order as to costs.\n<\/p>\n
K.   RAMASWAMY, J.- The appeals and transferred cases  raise
\nquestions of far-reaching,consequences in the working of the
\nfederal structure under the Constitution of India.   Whether
\nthe  President of India can keep fiddling like Emperor\tNero
\nwhile Rome was burning or like Hamlet, Prince of Denmark  of
\nShakespeare keep the pendulum oscillating between “to be  or
\nnot  to\t be”  for the issuance\tof  the\t Proclamation  under
\nArticle\t 356  of  the  Constitution  dismissing\t the   State
\nGovernment  and\t dissolving the State  Legislatures  and  to
\nbring the administration of the State under his rule.  If he
\nso  acts, the scope and width of the exercise of  the  power
\nand  parameters\t of  judicial  review,\tby  this  Court,  as
\nsentinel on the qui vive, under Article 32 or Article 136 or
\nHigh  Court under Article 226 to consider the  satisfaction,
\nreached by the President under Article 356; when the actions
\nof  one State Government found seismic vibrations  in  other
\nStates\tgoverned  by  the  same\t political  party,  (in\t the
\nlanguage  of S\/Shri Parasaran and P.P. Rao,  learned  Senior
\nCounsel, ‘common thread rule’) are also liable to be brought
\nunder the President Rule need to be critically examined arid
\ndecided\t  for\tsuccessful   working   of   the\t  democratic
\ninstitutions set up by the suprema lex.\t Though the need  to
\ndecide\tthese questions practically became academic  due  to
\nconducting  elections  to the State Assemblies and  the\t new
\nLegislative  Assemblies\t were constituted in the  States  of
\nU.P.,  Rajasthan, Madhya Pradesh and Himachal  Pradesh,\t all
\nthe counsel requested us to decide the questions  regardless
\nof the relief to be granted in this case.  As stated earlier
\nsince  the  decision  on these\tquestions  is  of  paramount
\nimportance  for successful working of the  Constitution,  we
\nacceded to their prayer.\n<\/p>\n
155. In S.R. Bommai’s appeal the facts are that on March  5,
\n1985  elections\t held  to the  Karnataka  State\t Legislative
\nAssembly  and the Janata Dal won 139 seats out of 225  seats
\nand  the Congress Party was the next largest party  securing
\n66  seats.   Shri R.K. Hegde was elected as  the  leader  of
\nJanata\tDal  and  became the Chief  Minister.\tDue  to\t his
\nresignation  on\t August\t 12, 1988,  Shri  S.R.\tBommai,\t was
\nelected\t as  leader  of\t the  party  and  became  the  Chief
\nMinister.  As on February 1, 1989 the strength of Janata Dal
\nwas  111  and the Congress was 65 and Janata Party  was\t 27,
\napart  from  others.  On April 15, 1989\t his  expanding\t the
\nMinistry  caused dissatisfaction to some of  the  aspirants.
\nOne Kalyan Molakery and others defected from Janata Dal\t and
\nhe  wrote letters on April 17 and 18, 1989 to  the  Governor
\nenclosing the
\n151<\/span>
\nletters\t of 19 others expressing want of confidence in\tShri
\nBommai.\t On April 19, 1989 the Governor of Karnataka sent  a
\nreport\tto  the President.  On April 20, 1989, 7 out  of  19
\nMLAs  that supported Kalyan Molakery, wrote to the  Governor
\nthat their signatures were obtained by misrepresentation and
\nreaffirmed  their support to Shri Bommai.  On the  same\t day
\nthe cabinet also decided to convene the assembly session  on
\nApril 27, 1989 at 3.30 p.m. to obtain vote of confidence and
\nShri  Bommai  met the Governor and requested him,  to  allow
\nfloor-test to prove his majority and he was prepared even to
\nadvance\t the  date  of the session.  In\t this  scenario\t the
\nGovernor  sent\this  second  report  to\t the  President\t and
\nexercising the power under Article 356 the President  issued
\nProclamation, dismissed Bommai Government and dissolved\t the
\nAssembly on April 21, 1989 and assumed the administration of
\nthe  State of Karnataka.  When a writ petition was filed  on
\nApril 26, 1989, a special Bench of three Judges of the\tHigh
\nCourt of Karnataka dismissed the writ petition (reported  in
\nS.R.  Bommai  v.  Union of India30).  Thus<\/a>  this  appeal  by
\nspecial leave.\n<\/p>\n
156. In\t the elections held in February 1990,  the  Bhartiya
\nJanata\tParty, for short BJP, emerged as majority  party  in
\nthe Legislative Assemblies of Uttar Pradesh, Madhya Pradesh,
\nRajasthan and Himachal Pradesh and formed the Governments in
\nthe respective States.\tOne of the programmes of the BJP was
\nto  construct a temple for Lord Sri Rama at  his  birthplace
\nAyodhya.   That was made an issue in its manifesto  for\t the
\nelections  to  the legislative assemblies.  On\tDecember  6,
\n1992  Ram  Janmabhoomi-Babri Masjid structure  (there  is  a
\ndispute\t that after destroying Lord Sri Rama  temple  Babur,
\nthe Moghul invader, built Babri Masjid at the birthplace  of
\nLord Sri Rama.\tIt is an acutely disputed question as to its
\ncorrectness.) However Ram Janmabhoomi-Babri Masjid structure
\nwas  demolished by the kar sevaks gathered at Ayodhya, as  a
\nresult of sustained momentum generated by BJP, Vishwa  Hindu
\nParishad  for  short VHP, Rashtriya Swayamsevak\t Sangh,\t for
\nshort RSS, Bajrang Dal for short BD, Shiv Sena for short  SS
\nand other organisations.  Preceding thereto when the dispute
\nwas brought to this Court, the Government of India was\tmade
\nto act on behalf of the Supreme Court and from time to\ttime
\ndirections were issued to the State Government which gave an
\nassurance  of full protection to Sri  Ram  Janmabhoomi-Babri
\nMasjid\tstructure.  On its demolition though the  Government
\nof  Uttar  Pradesh  resigned,  the  President  of  India  by
\nProclamation  issued under Article 356 dissolved  the  State
\nLegislature on December 6, 1992.  The disastrous fall out of
\nthe  demolition was in the nature of loss of precious  lives
\nof innocents, and property throughout the country and in the
\nneighbouring countries.\t The President, therefore, exercised
\nthe  power  under Article 356 and by  the  Proclamations  of
\nDecember  15,  1992,  dismissed the  State  Governments\t and
\ndissolved  the Legislative Assemblies of  Rajasthan,  Madhya
\nPradesh\t and Himachal Pradesh and assumed administration  of
\nthe respective States.\n<\/p>\n
30 AIR 1990 Kant 5: ILR 1989 Kant 2425 (FB)
\n152<\/span>\n<\/p>\n
157. Shri J. Sorabjee, the learned Senior Counsel  appearing
\nfor Shri Bommai contended that power of the President  under
\nArticle 356 is not unfettered nor unlimited; its exercise is
\ndependent upon the existence of an objective fact, namely  a
\nsituation  has arisen in which the Government of  the  State
\ncannot\tbe carried on in accordance with the  provisions  of
\nthe Constitution.  This condition precedent is sine qua\t non
\nto  the exercise of power and issuance of  the\tProclamation
\nunder  Article\t356.  The Proclamation must  set  forth\t the
\ngrounds and reasons for reaching the satisfaction  supported
\nwith  the  materials or the gist of the\t events\t in  support
\nthereof.   The\tgrounds\t and reasons should  be\t cogent\t and
\ncredible  and must bear proximate nexus to the\texercise  of
\nthe   power  under  Article  356.   The\t breakdown  of\t the
\nconstitutional\tmachinery is generally capable of  objective
\ndetermination.\t The  power  under  Article  356  cannot  be
\nexercised  on  the basis of the report of  the\tGovernor  or
\notherwise  of  an  inefficient\tor  malfunctioning  of\t the
\nGovernment  or\tmere  violation of some\t provisions  of\t the
\nConstitution.\t It  could  be\texercised  only\t  when\t the
\nGovernment  misuses its power contrary to the  basic  scheme
\nand  purpose  of the Constitution or for  its  inability  to
\ndischarge its basic constitutional duties and functions\t due
\nto  political or economic crises which have led to  complete
\nparalysing of the State Administration.\n<\/p>\n
158. The  federal character of the Constitution\t carries  by
\nits  implication an obligation to exercise the\tpower  under
\nArticle\t 356  only when there is a total  breakdown  of\t the
\nadministration\tof the State.  In interpreting\tArticle\t 356
\nthe   court  should  keep  in  view  the   legislative\t and
\nconstitutional\thistory\t of Article  356  and  corresponding
\nprovisions  of Government of India Act, 1935.  The  exercise
\nof the power under Article 356 impinges upon federalism\t and
\nvisits with great political consequences.  Therefore,  court
\nshould\texercise the power of judicial review and  interdict
\nand  restrict  wide scope of power under Article  356.\t The
\nscope  of  judicial review would be on the same\t or  similar
\ngrounds\t on  which  the executive action  of  the  State  is
\nchallengeable  under  constitutional or\t administrative\t law
\nprinciples  evolved  by this Court,  namely,  non-compliance
\nwith  the  requirements of natural  justice,  irrational  or
\narbitrary, perverse, irrelevant to the purpose or extraneous
\ngrounds\t weighed with the President, misdirection in law  or
\nmala fide or colourable exercise of power, on all or some of
\nthe  principles.   The petitioner has to satisfy  the  Court
\nonly  prima facie that the Proclamation is vitiated  by\t any
\none  or some of the above grounds and burden then shifts  on
\nthe  Council  of  Ministers  to satisfy\t the  Court  of\t the
\nlegality  and  validity\t of  the  Presidential\tProclamation
\nissued under Article 356.  The prohibition of Article  74(2)
\nhas  to\t be understood and interpreted in  that\t background.
\nThe legal immunity under Article 74(2) must be distinguished
\nfrom  the actions done by the President in discharge of\t his
\nadministrative\tfunctions under Article 356.  The  Executive
\ncannot\tseek shelter under “or other information”  mentioned
\nin  Article 356(1) as an embargo under Article 361 to  state
\nreasons\t or  as a shield to disclose all  the  materials  in
\ntheir  custody\tpreventing the court  to  exercise  judicial
\nreview.\t  Only\tthe  actual advice or  part  of\t the  advice
\ntendered by the
\n153<\/span>
\nMinister  or Council of Ministers alone would be beyond\t the
\nken  and  scrutiny of judicial review.\t The  administrative
\ndecision  taken\t by  the Council of  Ministers\tis  entirely
\ndifferent from the advice tendered to the President, and the
\nlatter cannot be equated with the grounds or the reasons for
\nPresidential  Proclamation.  The former are not part of\t the
\nadvice\t tendered  to  the  President  by  the\tCouncil\t  of
\nMinisters.\n<\/p>\n
159.  Shri  Shanti  Bhushan  learned  Senior  Counsel  while
\nadopting  the above contentions argued that the exercise  of
\nthe  power under Article 356 must be regarded  as  arbitrary
\nwhen  there was no constitutional breakdown.  Every  act  of
\nthe State Government cannot be regarded as violation of\t the
\nprovisions of the Constitution or constitutional  breakdown.
\nThe  power  under Article 356 must be  exercised  only\twhen
\nthere  was actual breakdown of the constitutional  machinery
\nand  not  mere\topinion in that behalf\tof  the\t Council  of
\nMinisters.   The  Government, to justify  its  action,\tmust
\nplace all relevant materials before the court and only\twhen
\ncourt is satisfied that the cases relate to actual breakdown
\nof   the   constitutional  machinery  in  the\tState,\t the
\nProclamation  may be upheld.  The burden of proof is  always
\non  the Government to establish the validity or legality  of
\nthe  Proclamation  issued  under  Article  356.\t  Shri\t Ram
\nJethmalani tracing historical evidence from the debates that
\ntook  place  on\t the  floor  of\t the  Constituent  Assembly,
\ncontended that the keywords for construction are “cannot  be
\ncarried\t on” and “failure of machinery”.  The provisions  of
\nArticle\t 356 would be strictly construed so as\tto  preserve
\nthe  federal character of the Constitution.  The State is  a
\nsovereign  and\tautonomous  entity  in\tits  own  field\t and
\nintervention  by the Centre would be permissible  only\twhen
\nthere  is no other way for the Centre to perform its  duties
\nunder  Article\t356.  It cannot be invoked for the  sake  of
\ngood governance of the State or to prevent misgovernance  of
\nthe  State.  The words “cannot be carried on” are not to  be
\nconfused with, and are vitally different from the words\t “is
\nnot being carried on”.\tThe significance of the keyword gets
\naccentuation from the marginal note of the article  “failure
\nof the constitutional machinery” and the legislative history
\nof  Sections 45 and 93 of the Government of India Act,\t1935
\nmust be kept in view for proper construction of Article 356.
\nAccording  to  the  learned counsel, Article  356  gives  an
\nindication  that extreme step of Proclamation under  Article
\n356   could   be  invoked  sparingly  only  when   all\t the
\nalternatives are exhausted.  Secularism part of the preamble
\nis  not\t a  part  of the  Constitution\tand  religion  is  a
\nfundamental  right  to\tevery  citizen\twho  composes  of  a
\npolitical  party.   The\t election  law\tprohibits   election
\nprospects  on  religious grounds if  the  other\t candidate’s
\nreligion  is  attacked.\t  It  cannot  be  tested  on   vague
\nsecularism  nor\t be  buttressed\t into  religious  right\t  in
\nparticular  to\ta  political party.  There  is\tno  pleading
\nfounded\t by  factual base in these cases that BJP  had\tused
\nHindutva as a ground, or criticised lslamic faith.  It\tused
\nin its manifesto the need for construction of Sri Ram Temple
\nat  his\t birthplace by demolishing Babri  Masjid  with\tmost
\nrespectful and dignified language.  Even otherwise  Sections
\n29-A  and 123(3-A) of R.P. Act are ultra vires\tArticle\t 25.
\nThe  consistent view of this Court that corrupt practice  on
\ngrounds of religion is
\n154<\/span>
\nonly  of the other candidate and not of the petitioner\tmuch
\nmore  so to a political party.\tShri K.\t Parasaran,  learned
\nSenior\tCounsel\t for the Union and Shri\t P.P.  Rao,  learned
\ncounsel\t for  the  State  of  Madhya  Pradesh  refuted\t the
\ncontentions.\n<\/p>\n
160. The crux of the question is the width of the presidents
\npower  under Article 356.  It finds its birth from a  family
\nof  Emergency Provisions in Part XVIII of the  Constitution.
\nArticle\t 355  imposes duty on the Union\t to  protect  States
\nagainst external aggression and internal disturbance and  to
\nensure\tthat the Government of every State is carried on  in
\naccordance  with the provisions of the Constitution.   As  a
\ncorollary  when\t the Government of the State  is  not  being
\ncarried\t on  in\t accordance  with  the\tprovisions  of\t the
\nConstitution,  a constitutional duty and  responsibility  is
\nput on the Union to set it right.  The foundational  factual
\nmatrix is the report of the Governor or other information in
\npossession  of\tthe  Union received  otherwise\tto  reach  a
\nsatisfaction   that   a\t situation  has\t  arisen   for\t the
\nintervention by the Union of India.  Then comes the exercise
\nof  the\t power under Article 356 by the President.   On\t the
\nreceipt\t of  a\treport\tfrom the  Governor  of\ta  State  or
\notherwise  if the President (the Council of  Ministers\twith
\nPrime  Minister as its head) is satisfied that\ta  situation
\nhas  arisen  in which the Government of a  State  cannot  be
\ncarried\t on  in\t accordance  with  the\tprovisions  of\t the
\nConstitution, the President may by Proclamation: (a)  assume
\nto himself all or any of the functions of the Government  of
\na State and all or any of the powers vested in or  exercised
\nby the Governor or any body or authority in the State  other
\nthan  the  Legislature of the State; (b)  declare  that\t the
\npowers of the Legislature of the State shall be\t exercisable
\nby  or\tunder  the authority of Parliament;  (c)  make\tsuch
\nincidental  or\tconsequential provisions as  appear  to\t the
\nPresident to be necessary or desirable for giving effect  to
\nthe  objects  of the Proclamation including  provisions\t for
\nsuspending  in\twhole  or  in  part  the  operation  of\t any
\nprovisions  of\tthe  Constitution relating to  any  body  or
\nauthority  in  the State.  By operation of  the\t proviso  to
\nclause (1) of Article 356, the President shall not assume to
\nhimself any of the powers vested in or exercisable by a High
\nCourt or to suspend in whole or in part the operation of any
\nprovisions of the Constitution relating to High Courts.\n<\/p>\n
161. Clause  (2)  of Article 356  controls  the\t President’s
\nexercise  of  power, if the Proclamation is not\t revoked  or
\nvaried\tby  a subsequent Proclamation, in other\t words,\t the
\nPresident,  through the Council of Ministers has been  given
\nfull  play  to\treconsider the question and  may  revoke  it
\nbefore Parliament’s approval is sought.\t It shall remain  in
\noperation  for\ta period of two months unless it  is  either
\nrevoked\t by another Proclamation or approved by\t Parliament.
\nClause\t(3)  guarantees built-in check and  control  on\t the
\nexercise   of\tthe  power.   It   postulates\tthat   every
\nProclamation  issued under clause (1) shall be\tlaid  before
\neach  House  of Parliament and shall, except where it  is  a
\nProclamation  revoking\ta previous  Proclamation,  cease  to
\noperate\t at the expiration of two months unless\t before\t the
\nexpiration  of\tthat  period  it  has  been  approved  by  a
\nresolution  of both Houses of Parliament.  In  other  words,
\nthe duration of the operation of the Proclamation issued  by
\nthe President was
\n155<\/span>
\nlimited\t only  for a period of two months from the  date  of
\nissue of such Proclamation.\n<\/p>\n
162.  Unless it is revoked or disapproved by  Parliament  in
\nthe   meanwhile,   it  casts  an  obligation  to   lay\t the
\nProclamation  on the floor of both Houses of  Parliament  in
\naccordance  with the provisions of the Constitution and\t the
\nbusiness  rules.  This clearly meant that it was to  operate
\nup  to\tthe time of two months and when it was in  force  it
\ncarries with it its necessary implication that all acts done
\nor  actions taken under the Proclamation during\t the  period
\nare legal and valid.\n<\/p>\n
163. Under  the proviso to clause (3) of Article 356 if\t any
\nsuch  Proclamation  not\t being\ta  Proclamation\t revoking  a
\nprevious  Proclamation\tis issued at a time  when  House  of
\nPeople\tis  dissolved  or the dissolution of  the  House  of
\nPeople takes place during the period of two months  referred
\nto  in\tthe  clause  and  if  a\t resolution  approving\t the
\nProclamation has been passed by the Council of States but no
\nresolution with respect to such Proclamation has been passed
\nby the House of People before the expiry of that period, the
\nProclamation shall cease to operate at the expiration of  30
\ndays  from the date on which the House of People first\tsits
\nafter its reconstitution unless before the expiration of the
\nsaid   period  of  30  days  a\tresolution   approving\t the
\nProclamation has been also passed by the House of People.\n<\/p>\n
164. By\t  operation   of  clause  (4)  of  Article   356   a
\nProclamation so approved under proviso to clause (3)  shall,
\nunless\trevoked,  cease to operate on the  expiration  of  a
\nperiod of six months from the date of issue of\tProclamation
\nprovided that if and so often as a resolution approving\t the
\ncontinuance in force of such Proclamation is passed by\tboth
\nHouses of Parliament, the Proclamation shall unless  revoked
\ncontinue  in force for a further period of six\tmonths\tfrom
\nthe date on which it would otherwise have ceased to  operate
\nand  no such Proclamation shall in any case remain in  force
\nfor  more  than one year with second approval.\t The  second
\nproviso\t adumbrates that if the resolution of the  House  of
\nPeople takes place during any such period of six months\t and
\na  resolution  approving the continuance in  force  of\tsuch
\nProclamation has been passed by the Council of States but no
\nresolution with respect to the continuance in force of\tsuch
\nProclamation  has been passed by the House of People  during
\nthe said date the Proclamation shall cease to operate at the
\nexpiration  of 30 days from the date on which the  House  of
\nPeople first sits after the reconstitution unless before the
\nexpiration  of\tthe  said period of  30\t days  a  resolution
\napproving the continuance in force of the Proclamation\thave
\nalso been passed by the House of People.  The third  proviso
\nis  not\t material  for\tthe purpose  of\t this  case.   Hence
\nomitted.    Under   clause  (5)\t for  continuance   of\t the
\nProclamation beyond one year and not more than three  years,
\ntwo conditions are necessary i.e. (i) existence of emergency
\nissued\tunder Article 352 in the whole of India or whole  or
\npart of the State at the time of passing the resolution\t and\n<\/p>\n
(ii)  the  Certificate of the Election Commissioner  of\t his
\ninability  to hold elections to the Assembly of that  State.
\nArticle\t  357\tprovides  the  consequential   exercise\t  of
\nlegislative power by
\n156<\/span>
\nParliament  or\tdelegation  thereof  to\t the  President\t  to
\nexercise them under Article 123, etc.
\nFEDERALISM AND ITS EFFECT By ACTS DONE UNDER ARTICLE 356\n<\/p>\n
165.  The  polyglot  Indian  society  of  wide\tgeographical
\ndimensions  habiting  by social milieu,\t ethnic\t variety  or
\ncultural  diversity, linguistic\t multiplicity,\thierarchical
\ncaste structure among Hindus, religious pluralism,  majority
\nof  rural population and minority urban habitus, the  social
\nand  cultural diversity of the people furnish  a  manuscript
\nhistorical  material  for and the Founding  Fathers  of\t the
\nConstitution  to  lay  federal structure  as  foundation  to
\nintegrate  India  as a united  Bharat.\t Federalism  implies
\nmutuality  and common purpose for the aforesaid\t process  of
\nchange\twith  continuity between the Centre and\t the  States
\nwhich are the structural units operating on balancing  wheel
\nof concurrence and promises to resolve problems and  promote
\nsocial, economic and cultural advancement of its people\t and
\nto  create  fraternity\tamong the people.  Article  1  is  a
\nrecognition of the history that Union of India’s territorial
\nlimits\tare unalterable and the States are creatures of\t the
\nConstitution   and   they   are\t  territorially\t   alterable
\nconstituents  with single citizenship of all the  people  by
\nbirth  or  residence  with no  right  to  cessation.   Under
\nArticles  2 and 4 the significant feature is that while\t the
\nterritorial   integrity\t of  India  is\tfully  ensured\t and
\nmaintained,   there   is  a  significant  absence   of\t the
\nterritorial  integrity\tof  the\t constituent  States   under
\nArticle\t 3.  Parliament\t may  by law form  a  new  State  by
\nseparation of territory from any State or by uniting two  or
\nmore States or part of States or uniting any territory to  a
\npart of any State or by increasing the area of any State  or
\ndiminishing the area of any State, or alter the boundary  of
\nany State.\n<\/p>\n
166. In\t Berubari Union and Exchange of\t Enclaves  Reference
\nunder  Article 143(1) of the Constitution of India, in\tre3l
\nGajendragadkar, J. speaking for eight-judge Bench held\tthat
\n: (SCR p. 285)
\n\t      “Unlike  other  federations,  the\t  Federation
\n\t      embodied in the said Act was not the result of
\n\t      a\t  pact\t or  union  between   separate\t and
\n\t      independent  communities\tof States  who\tcame
\n\t      together\tfor  certain  common  purposes\t and
\n\t      surrendered a part of their sovereignty.\t The
\n\t      constituent  units  of  the  federation\twere
\n\t      deliberately  created  and it  is\t significant
\n\t      that   they,   unlike  the  units\t  of   other
\n\t      federations, had no organic roots in the past.
\n\t      Hence, in the Indian Constitution, by contrast
\n\t      with other Federal Constitutions, the emphasis
\n\t      on   the\tpreservation  of   the\t territorial
\n\t      integrity of the constituent States is absent.
\n\t      The  makers of the Constitution were aware  of
\n\t      the  peculiar conditions under which, and\t the
\n\t      reasons  for  which,  the\t States\t (originally
\n\t      Provinces)  were formed and  their  boundaries
\n\t      were defined, and so they deliberately adopted
\n\t      the  provisions  in Article 3 with a  view  to
\n\t      meet the possibility of the redistribution  of
\n\t      the said territories after the integration  of
\n\t      the  Indian States.  In fact it is  well-known
\n\t      that as a result of the States  Reorganisation
\n\t      Act, 1956 (Act XXXVII of 1956), in the place
\n\t      31 (1960) 3 SCR 250 : AIR 1960 SC 845
\n\t      157<\/span>
\n\t      of  the original 27 States and one Area  which
\n\t      were mentioned in Part D in the First Schedule
\n\t      to  the  Constitution, there are now  only  14
\n\t      States and 6 other Areas which constitute\t the
\n\t      Union   Territory\t mentioned  in\t the   First
\n\t      Schedule.\t  The  changes\tthus  made   clearly
\n\t      illustrate  the  working of the  peculiar\t and
\n\t      striking feature of the Indian Constitution.”
\n\t      The  same was reiterated in State of  W.B.  v.\n<\/p>\n
\t      Union  of\t India’ and State  of  Karnataka  v.\n<\/p>\n
\t      Union of India32.\n<\/p>\n
\t      167.  Union  and\tStates Relations  under\t the
\n\t      Constitution (Tagore Law Lectures)  by\tM.C.
\n\t      Setalvad at p. IO stated that
\n\t       …  one notable departure from the  accepted
\n\t      ideas  underlying a federation when the  power
\n\t      in  the  Central\tGovernment  to\tredraw\t the
\n\t      boundaries of States or even to destroy them.”\n<\/p>\n
168. The  Constitution decentralises the governance  of\t the
\nStates\t by   a\t four  tier  administration   i.e.   Central
\nGovernment,    State\tGovernment,    Union\tTerritories,
\nMunicipalities\tand  Panchayats.  See the  Constitution\t for
\nMunicipalities\tand  Panchayats : Part IX  (Panchayats)\t and
\nPart   IX-A   (Municipalities)\t introduced   through\t the
\nConstitution   73rd  Amendment\tAct,  making  the   peoples’
\nparticipation  in  the democratic  process  from  grass-root
\nlevel a reality.  Participation of the people in  governance
\nof the State is sine qua non of functional democracy.  Their
\nsurrender  of  rights  to  be governed\tis  to\thave  direct
\nencounter    in\t  electoral   process\tto   choose    their
\nrepresentatives for resolution of common problems and social
\nwelfare.    Needless  interference  in\tself-governance\t  is
\nbetrayal of their faith to fulfil self-governance and  their
\ndemocratic  aspirations.   The\tconstitutional\tculture\t and
\npolitical  morality  based on healthy  conventions  are\t the
\nfruitful  soil\tto nurture and for sustained growth  of\t the
\nfederal\t institutions set down by the Constitution.  In\t the
\ncontext\t of the Indian Constitution federalism is not  based
\non  any\t agreement  between  federating\t units\tbut  one  of
\nintegrated whole as pleaded with vision by Dr B.R.  Ambedkar
\non  the\t floor\tof  the Constituent  Assembly  at  the\tvery
\ninception of the deliberations and the Constituent  Assembly
\nunanimously  approved the resolution of\t federal  structure.
\nHe  poignantly projected the pitfalls flowing from the\tword
\n“federation”.\n<\/p>\n
169. The  federal State is a political convenience  intended
\nto  reconcile  national unity and integrity and\t power\twith
\nmaintenance  of\t the  State’s right.  The  end\taim  of\t the
\nessential character of the Indian federalism is to place the
\nnation\tas a whole under control of a  national\t Government,
\nwhile  the  States are allowed to exercise  their  sovereign
\npower within their legislative and coextensive executive and
\nadministrative sphere.\tThe common interest is shared by the
\nCentre and the local interests are controlled by the States.
\nThe  distribution  of the legislative  and  executive  power
\nwithin\tlimits and coordinate authority of different  organs
\nare  delineated in the organic law of the land,\t namely\t the
\nConstitution itself.  The essence of federalism,  therefore,
\nis  distribution  of  the  power  of  the  State  among\t its
\ncoordinate bodies.  Each is
\n1 (1964) 1 SCR 37 1: AIR 1963 SC 1241
\n32 (1977) 4 SCC 608
\n158<\/span>
\norganised and controlled by the Constitution.  The  division
\nof power between the Union and the States is made in such  a
\nway   that   whatever  has  been  the\tpower\tdistributed,
\nlegislative  and executive, be exercised by  the  respective
\nunits making each a sovereign in its sphere and the rule  of
\nlaw requires that there should be a responsible\t Government.
\nThus  the  State  is a federal status.\tThe  State  qua\t the
\nCentre\thas  quasi-federal unit.  In the language  of  Prof.
\nK.C. Wheare in his Federal Government, 1963 Edn. at page  12
\nto ascertain the federal character, the important point\t is,
\n“whether  the powers of the Government are  divided  between
\ncoordinate  independent authorities or not”, and at page  33
\nhe   stated   that  “the  systems   of\t Government   embody
\npredominantly  on  division  of powers\tbetween\t Centre\t and
\nregional  authority  each  of which in\tits  own  sphere  is
\ncoordinating with the other independent as of them,    and
\nif so is that Government federal?”\n<\/p>\n
170. Salmond in his Jurisprudence, 9th Edn. brought out\t the
\ndistinction between unitary  type of Government and  federal
\nform  of Government. According to him a unitary or a  simple
\nState  is one which is not made up of territorial  divisions
\nwhich are States themselves.  A composite State on the other
\nhand  is  one  which  is itself an  aggregate  or  group  of
\nconstituent States.  Such composite States can be called  as
\nimperial, federal or confederate.  The Constitution of India
\nitself\tprovided the amendments to territorial\tlimits\tfrom
\nwhich\twe  discern  that  the\tfederal\t structure  is\t not
\nobliterated  but regrouped with distribution of\t legislative
\npowers and their scope as well as the coextensive  executive
\nand  administrative  powers  of the Union  and\tthe  States.
\nArticles  245 to 255 of the Constitution deal with  relative
\npower  of  the\tUnion and the State  Legislature  read\twith
\nSchedule  VII of the Constitution and the entries in List  1
\npreserved exclusively to Parliament to make law and List  II
\nconfines  solely  to  the State\t Legislature  and  List\t III
\nConcurrent  List in which both Parliament as well the  State
\nLegislature have concurrent jurisdiction to make law in\t the
\noccupied  field,  with\tpredominance  to  the  law  made  by
\nParliament, by operation of proviso to clause (2) of Article\n<\/p>\n
254.   Article\t248,  gives  residuary\tlegislative   powers
\nexclusively  to Parliament to make any law with\t respect  to
\nany  matters  not enumerated in the Concurrent List  or\t the
\nState  List  including\tmaking any law imposing\t a  tax\t not
\nmentioned in either of those lists.  The relative importance
\nof  entries  in the respective lists to the  VIIth  Schedule
\nassigned  to Parliament or a State Legislature\tare  neither
\nrelevant nor decisive though contended by Shri K. Parasaran.
\nIndian federalism is in contradistinction to the  federalism
\nprevalent in USA, Australia and Canada.\n<\/p>\n
171. In\t regard\t to  distribution of  executive\t powers\t the
\nConstitution  itself made demarcation between the Union\t and
\nthe States.  Article 73(1) read with proviso and Article 162
\nread with proviso bring out this demarcation.  The executive
\npower of the Union and the State are coextensive with  their
\nlegislative powers.  However, during the period of emergency
\nArticles  352  and 250 envisaged  certain  contingencies  in
\nwhich  the executive power of the State concerned  would  be
\ndivested and taken over by the Union of India
\n159<\/span>
\nwhich  would  last up to a period of 6\tmonths,\t after\tthat
\nemergency in that area is so lifted or ceased.\n<\/p>\n
172. The administrative relations are regulated by  Articles
\n256  and 258 A for effective working of the Union  Executive
\nwithout\t in any way impeding or impairing the exclusive\t and
\npermissible jurisdiction of the State within the  territory.
\nArticles  268 and 269 enjoin the Union to  render  financial
\nassistance  to the States.  The Constitution also  made\t the
\nUnion  to  depend  on the States to enforce  the  Union\t law
\nwithin States concerned.  The composition of Rajya Sabha  as
\nlaid  down by Article 80 makes the Legislature of the  State
\nto  play  its  part  including the  one\t for  ratifying\t the
\nconstitutional amendments made by Article 368.\tThe election
\nof the President through the elected representatives of\t the
\nState  Legislatures under Article 54 makes the\tlegislatures
\nof  federal units an electoral college.\t The legislature  of
\nthe State has exclusive power to make laws for such State or
\nany  part  thereto  with  respect  to  any  of\tthe  matters
\nenumerated in List II of the VIIth Schedule by operation  of
\nArticle 246(3) of the Constitution.\n<\/p>\n
173. The  Union\t of India by operation of Articles  340\t and
\n245,  subject  to the provisions of  the  Constitution,\t has
\npower  to  make\t laws  for the whole  or  any  part  of\t the
\nterritory  of India and the said law does not  eclipse,\t nor
\nbecome invalid on the ground of extraterritorial  operation.
\nIn the national interest it has power to make law in respect
\nof  entries mentioned in List II, State List, in  the  penal
\nfield, as indicated in Article 249.  With the consent of the
\nState,\tit  has power to make law under\t Article  252.\t The
\nUnion  Judiciary, the Supreme Court of India, has  power  to
\ninterpret  the Constitution and decide the disputes  between
\nUnion and the States and the States inter se.  The law\tlaid
\ndown  by  the  Supreme Court is the law of  the\t land  under
\nArticle\t 14  1.\t The  High Court  has  judicial\t power\tover
\nterritorial  jurisdiction  over\t the  area  over  which\t  it
\nexercises  power  including control  over  lower  judiciary.
\nArticle\t  261  provides\t full  faith  and  credit   to\t the
\nproceedings  or public acts or judicial proceedings  of\t the
\nUnion and of the States throughout the territory of India as
\nits  fulcrum.  Indian Judiciary is unitary in structure\t and
\noperation.  Articles 339, 344, 346, 347, 353, 358, 360,\t 365
\nand 371-C(2) give power to the Union to issue directions  to
\nthe  States.   Under Article 339(2) the Union has  power  to
\nissue directions relating to tribal welfare and the State is
\nenjoined to implement the same.\t In an emergency arising out
\nof war or aggression or armed rebellion, contemplated  under
\nArticle\t  352\tor   emergency\tdue  to\t  failure   of\t the
\nconstitutional machinery in a State envisaged under  Article
\n356,  or emergency in the event of threat to  the  financial
\nstability  or  credit of India, Article 360  gives  dominant
\npower  to  the\tUnion.\tDuring the  operation  of  emergency
\nArticle 19 of the Constitution would become inoperative\t and
\nthe  Centre assumes the legislative power of a\tState  unit.
\nExistence  of  All  India Services  under  Article  312\t and
\nestablishment of inter-State councils under Article 263\t and
\nexistence  of  financial  relations  in\t Part  XII  of\t the
\nConstitution  also indicates the scheme of  distribution  of
\nthe  revenue and the primacy to the Union to play its  role.
\nEstablishment  of Finance Commission for recommendations  to
\nthe President under Article 280 for the distribution
\n160<\/span>
\nof  revenue between the Union and the States and  allocation
\nof  the\t respective  shares of such  inter-State  trade\t and
\ncommerce  envisaged  in Part XIII of  the  Constitution\t and
\nprimacy to the law made therein bring out, though,  strongly
\nin  favour  of\tunitary\t character,  but  suggestively\t for
\nbalancing  operational federal character between  the  Union
\nand the States make the Constitution a quasi-federal.\n<\/p>\n
174.  As earlier stated the organic federalism\tdesigned  by
\nthe  founding Fathers is to suit the parliamentary  form  of
\nGovernment to suit the Indian conditions with the  objective
\nof promoting mutuality and common purpose rendering  social,
\neconomic  and  political  justice, equality  of\t status\t and
\nopportunity;   dignity\tof  person  to\tall   its   citizens
\ntranscending  regional, religious, sectional  or  linguistic
\nbarriers as complimentary units in working the\tConstitution
\nwithout\t confrontation.\t  Institutional mechanism  aimed  to
\navoid  friction\t to promote harmony, to\t set  constitutional
\nculture\t on firm foothold for successful functioning of\t the
\ndemocratic  institutions, to bring about matching  political
\nculture\t adjustment  and distribution of the  roles  in\t the
\noperational mechanism are necessary for national integration
\nand  transformation  of stagnant social order  into  vibrant
\negalitarian   social  order  with  change   and\t  continuity
\neconomically, socially and culturally.\tIn the State of W.B.
\nv. Union of India’, this Court laid emphasis that the  basis
\nof  distribution of powers between Union and the  States  is
\nthat  only those powers and authorities which are  concerned
\nwith  the  regulation of local problems are  vested  in\t the
\nState  and those which tend to maintain the economic  nature
\nand  commerce, unity of the nation are left with the  Union.
\nIn Shamsher Singh v. Union of India 22 this Court held\tthat
\nparliamentary\tsystem\tof  quasi-federalism  was   accepted
\nrejecting the substance of Presidential style of  Executive.
\nDr Ambedkar stated on the floor of the Constituent  Assembly
\nthat  the Constitution is, “both unitary as well as  federal
\naccording to the requirement of time and circumstances”.  He
\nalso  further stated that the Centre would work\t for  common
\ngood  and  for general interest of the country\tas  a  whole
\nwhile  the States work for local interest.  He also  refuted
\nthe  plea  for exclusive autonomy of the States.   It  would
\nthus  appear that the overwhelming opinion of  the  Founding
\nFathers and the law of the land is to preserve the unity and
\nterritorial integrity of the nation and entrusted the common
\nwheel  (sic  weal)  to\tthe  Union  insulating\tfrom  future
\ndivisive forces or local zealots with disintegrating  India.
\nIt  neither  leaned  heavily in favour of  wider  powers  in
\nfavour\tof  the\t Union while  maintaining  to  preserve\t the
\nfederal\t character of the States which are an integral\tpart
\nof  the\t Union.\t The Constitution being\t permanent  and\t not
\nself-destructive, the Union of India is indestructible.\t The
\ndemocratic form of Government should nurture and work within
\nthe constitutional parameters provided by the system of\t law
\nand balancing wheel has been entrusted in the hands of the
\n1 (1964) 1 SCR 37 1: AIR 1963 SC 1241
\n22 (1974) 2 SCC 831: 1974 SCC (L&S) 550: (1975) 1 SCR 814
\n161<\/span>
\nUnion  Judiciary  to  harmonise\t the  conflicts\t and   adopt
\nconstitutional\t construction\tto  subserve   the   purpose
\nenvisioned by the Constitution.\n<\/p>\n
\t\t    ROLE OF THE GOVERNOR\n<\/p>\n
175. The  key  actor in the Centre-State  relations  is\t the
\nGovernor,  a  bridge between the Union and the\tState.\t The
\nFounding Fathers deliberately avoided election to the office
\nof  the\t Governor,  as is in vogue in USA  to  insulate\t the
\noffice\tfrom linguistic chauvinism.  The President has\tbeen
\nempowered  to  appoint him as executive head  of  the  State
\nunder  Article\t155 in Part VI, Chapter 11.   The  executive
\npower  of  the\tState is vested in him by  Article  154\t and
\nexercised  by him with the aid and advice of the Council  of
\nMinisters,  the Chief Minister as its head.   Under  Article
\n159 the Governor shall discharge his functions in accordance
\nwith  the oath “to protect and defend the  Constitution\t and
\nthe  law”.   The  office  of  the  Governor,  therefore,  is
\nintended   to  ensure  protection  and\tsustenance  of\t the
\nconstitutional process of the working of the Constitution by
\nthe elected executive and gives him an umpire’s role.\tWhen
\na  Gandhian  economist member of  the  Constituent  Assembly
\nwrote a letter to Gandhiji of his plea for abolition of\t the
\nOffice\tof  the\t Governor, Gandhiji wrote  to  him  for\t its
\nretention, thus:\n<\/p>\n
\t      “The Governor had been given a very useful and
\n\t      necessary place in the scheme of the team.  He
\n\t      would   be  an  arbiter  when  there   was   a
\n\t      constitutional  deadlock in the State  and  he
\n\t      would  be\t able  to play\tan  impartial  role.
\n\t      There   would  be\t  administrative   mechanism
\n\t      through which the constitutional crises  would
\n\t      be resolved in the State.”\n<\/p><\/blockquote>\n
The  Governor  thus should play an important role.   In\t his
\ndual  undivided\t capacity as a head of the State  he  should
\nimpartially assist the President.  As a constitutional\thead
\nof the State Government in times of constitutional crisis he
\nshould\tbring about sobriety.  The link is apparent when  we
\nfind  that Article 356 would be put into operation  normally
\nbased  on Governor’s report.  He should truthfully and\twith
\nhigh  degree of constitutional responsibility, in  terms  of
\noath,  inform the President that a situation has  arisen  in
\nwhich  the constitutional machinery in the State has  failed
\nand  the  Government  of  State\t cannot\t be  carried  on  in
\naccordance  with  the provisions of the\t Constitution,\twith
\nnecessary detailed factual foundation.\tThe report  normally
\nis   the  foundation  to  reach\t the  satisfaction  by\t the
\nPresident.   So\t it must furnish material with\tclarity\t for
\nlater fruitful discussion by Parliament. When challenged  in
\na   constitutional   court  it\tgives\tinsight\t  into\t the
\nsatisfaction  reached  by  the\tPresident.   The   Governor,
\ntherefore,  owes constitutional duty and  responsibility  in
\nsending\t the  report with necessary fectual details  and  it
\ndoes  require  the  approval of the  Council  of  Ministers;
\nequally not with their aid and advice.\n<\/p>\n
\t\t  DEMOCRACY AND SECULARISM\n<\/p>\n
176. Democracy stands for freedom of conscience and  belief,
\ntolerance and mutual respect.  India being a plural  society
\nwith  multi-religious  faiths, diverse\tcreeds,\t castes\t and
\ncultures, secularism is the bastion to build
\n162<\/span>
\nfraternity   and  amity\t with  dignity\tof  person  as\t its
\nconstitutional policy.\tIt allows diverse faiths to flourish
\nand make it a norm for tolerance and mutual respect  between
\nvarious\t sections of the people and to integrate  them\twith
\ndignity\t and fulfilment of cravings for self-realisation  of
\nreligious belief with larger national loyalty and  progress.
\nRule  of  law has been chosen as an  instrument\t for  social
\nadjustment  in the event of clash of interests.\t In  a\tfree
\nsociety,  law  interacts  between  competing  claims  in   a
\ncontinuing  process to establish order with stability.\t Law
\nshould not only reflect social and religious resilience\t but
\nhas  also to provide a lead by holding forth the  norms\t for
\ncontinuity   for   its\torderly\t march\ttowards\t  an   ideal
\negalitarian  social order envisioned in the preamble of\t the
\nConstitution.\tThe  culture  of  the  law,  in\t the  Indian
\nDemocratic Republic should be on secular lines.\t A  balance,
\ntherefore, has to be struck to ensure an atmosphere of\tfull
\nfaith  and  confidence.\t Charles Broadlaugh  in\t seventeenth
\ncentury\t for the first time used secularism as\tantagonistic
\nto religious dogma as ethical and moral binding force.\tThis
\nWestern\t thought,  in  course  of  time\t gained\t  humanistic
\nacceptance.    The   word  secularism  defined\t in   Oxford
\nDictionary  means that “morality should be based  solely  in
\nregard to the well-being of the mankind in the present\tlife
\nto the exclusion of all considerations drawn from the belief
\nin  God\t or a future study”.   In  Encyclopaedia  Britannica
\nsecularism is defined as “branch of totalitarian ethics,  it
\nis for the physical, moral and social improvement of mankind
\nwhich  neither\taffirms\t nor  denies  theistic\tproblems  of
\nreligion”.   Prof.   Goethinysem of  the  Berlin  University
\nwriting\t on  secularism in the Encyclopaedia of\t the  Social
\nSciences (1939 Edn.) defined it as “the attempt to establish
\nautonomous  sphere  of\tknowledge  purged  of  supernatural,
\nfideistic   presuppositions”.\tHe  described  it,  in\t its
\nphilosophical  aspect, “as a revolt against theological\t and
\neventually  against metaphysical absolutes and\tuniversals”.
\nHe  pointed out that “the same trend may be charted  out  in
\nthe attitudes towards social and political institutions”, so
\nthat  men in general broke away from their  dependence\tupon
\nthe Church which was regarded as the guardian of an  eternal
\nwelfare which included that in this world as well as that in
\nthe next, and, therefore, was considered entitled to primacy
\nor   supremacy\tover  transient\t secular  authorities.\t  He
\nindicated  how this movement expanded in the second half  of
\nthe  eighteenth\t century, into a  secularised  universalism,
\ndescribed  as  “Enlightenment”, which conceived\t of  man  on
\nearth as the source of all really significant and verifiable
\nknowledge and light.  It was increasingly realised that\t man
\ndepended  for  his  welfare  in\t this  world  upon  his\t own
\nscientific  knowledge and wisdom and their applications\t and
\nupon a socioeconomic system of which, willy-nilly, he  found
\nhimself a part.\t He had, therefore, argued that the man\t has
\nto  take the responsibility for and bear the consequence  of
\nhis  own follies and inequities and not look upon them as  a
\npart of some inscrutable design of external powers or beings
\ncontrolling  his  destiny.  G.L. Holyoake, an  associate  of
\nCharles\t Broadlaugh in his Principles of Secularism in\t1859
\nadvocated   for\t secularism  which  received  approval\t and
\nacceptance  by celebrated political philosopher\t J.S.  Mill.
\nJeremy Bentham’s The ‘Theory of Legislation
\n163<\/span>
\nformulated  in the eighteenth century stands on\t moral-based
\npolitics  and  defined law from the point of view  of  human
\nwelfare\t sought\t through  democratic  liberal  channels\t and
\nintended  to attain “the greatest happiness of the  greatest
\nnumber”,  a maxim dear to democratic  utilitarian  political
\nphilosophers.\n<\/p>\n
177. Secularism became the means and consciously pursued for
\nfull  practical\t necessities of human life to  liberate\t the
\nhuman  spirit  from bondage, ignorance,\t superstition  which
\nhave  held  back  humanity.  The  goal\tof  every  civilised
\ndemocratic society is the maximisation of human welfare\t and
\nhappiness   which   would  be  best  served   by   a   happy
\nOrganisation.\n<\/p>\n
178. Freedom  of faith and religion is an integral  part  of
\nsocial structure.  Such freedom is not a bounty of the State
\nbut  constitutes the very foundation on which the  State  is
\nerected.  Human liberty sometimes means to satisfy the human
\nneeds in one’s own way.\t Freedom of religion is imparted  in
\nevery  free  society  because it is a part  of\tthe  general
\nstructure  of  the liberty in such a  society  and  secondly
\nbecause\t restrictions  imposed by one religion would  be  an
\nobstacle  for  others.\tIn the past religious  beliefs\thave
\nbecome\t battlegrounds\t for  power  and  root\t cause\t for
\nsuppression  of\t liberty.   Religion has  often\t provided  a
\npretext to have control over vast majority of the members of
\nthe  society.\tDemocratic  society realises  folly  of\t the
\nvigour of religious practices in society.  Strong  religious
\nconsciousness  not only narrows the vision but hampers\trule
\nof   law.   The\t Founding  Fathers  of\t the   Constitution,
\ntherefore,  gave unto themselves “we people of\tIndia”,\t the
\nFundamental Rights and Directive Principles of State  Policy
\nto establish an egalitarian social order for all sections of
\nthe  society in the supreme law of the land itself.   Though
\nthe  concept  of “secularism” was  not\texpressly  engrafted
\nwhile  making  the Constitution, its  sweep,  operation\t and
\nvisibility   are  apparent  from  fundamental\trights\t and
\ndirective  principles and their related provisions.  It\t was
\nmade  explicit by amending the preamble of the\tConstitution
\n42nd  Amendment\t Act.  The concept of  secularism  of  which
\nreligious  freedom is the foremost appears to visualise\t not
\nonly of the subject of God but also an understanding between
\nman and man.  Secularism in the Constitution is not anti-God
\nand it is sometimes believed to be a stay in a free society.
\nMatters which are purely religious are left personal to\t the
\nindividual and the secular part is taken charge by the State
\non  grounds of public interest, order and  general  welfare.
\nThe  State  guarantee  individual  and\tcorporate  religious
\nfreedom and dealt with an individual as citizen irrespective
\nof  his faith and religious belief and does not promote\t any
\nparticular  religion nor prefers one against  another.\t The
\nconcept\t of the secular State is, therefore,  essential\t for
\nsuccessful  working  of the democratic form  of\t Government.
\nThere can be no democracy if anti-secular forces are allowed
\nto  work  dividing followers of\t different  religious  faith
\nflying\tat  each other’s throats.   The\t secular  Government
\nshould\tnegate the attempt and bring order in  the  society.
\nReligion  in the positive sense, is an active instrument  to
\nallow the citizen full development of his person, not merely
\nin  the\t physical and material but in the  non-material\t and
\nnon-secular life.\n<\/p>\n
164<\/span><\/p>\n
179.   Prof.   Goethinysem  in\this  article   referred\t  to
\nhereinbefore outlined the process of secularism of life\t and
\nthoughts by which religious sectarianism comes into  contact
\nin  daily  social  and\teconomic  spheres  of  life  and  he
\nsummarises  with  “the ideal of human and  social  happiness
\nthrough\t secularisation of life all the groups of people  in
\nthe   country  striving\t by  most  enlightened\tmethods\t  to
\nestablish  the maximum of social justice and welfare in\t the
\nworld”.\t  According  to\t Pt.   Jawaharlal  Nehru   democracy
\nnecessarily  implies rigorous self-discipline without  which
\ndemocracy cannot succeed.  Swami Vivekananda explaining\t the
\nVedantic  ideas\t of  God and  religion\tin  comparison\twith
\nwestern\t thoughts  stated  that the  religious\tattitude  is
\nalways\tto seek the dignity inside his ownself as a  natural
\ncharacteristic\tof Hindu religion and religious attitude  is
\nalways\tpresented  by  making the  subject  close  his\teyes
\nlooking\t inward.   Dr Thouless in his  Introduction  to\t the
\nPsychology of Religion after analysing diverse elements\t and
\ndefinitions   of  religion  defined  religion  as  “a\tfelt
\npractical relationship with what is believed in a superhuman
\nbeing or beings”.  The process of secularisation of life and
\nthought\t  consistently\t increasing   the   withdrawal\t and
\nseparation of religion properly so-called from other spheres
\nof  life and thought which are governed by independent\tfrom
\nabove  rules and standards.  According to Sir James  Freezer
\nin his Golden Bough religion consists largely of not only of
\nmethodological\tand rituals dominated by all aspects of\t his
\nlife, social, economic, political, legal, cultural,  ethical
\nor  moral,  but\t also  technological.\tThe  interaction  of
\nreligion  and  secular factors in ultimate  analysis  is  to
\nexpose the abuses of religion and of belief in God by purely
\npartisan,  narrow  or  for  selfish  purpose  to  serve\t the
\neconomic  or  political interests of a particular  class  or
\ngroup  or  a  country.\tThe progress  of  human\t history  is
\nreplete\t with  full  misuse of\treligious  notions  in\tthat
\nbehalf.\t   But\t the  scientific   and\t analytical   spirit
\ncharacterises  secularism as saviour of the people from\t the
\ndangers\t of supposed fusion of religion with  political\t and
\neconomic activities and inspire the people.  The secularism,
\ntherefore,  represents\tfaiths born out of the\texercise  of
\nrational faculties.  It enables people to see the imperative
\nrequirements for human progress in all aspects and  cultural
\nand social advancement and indeed for human survival itself.
\nIt  also not only improves the material conditions of  human
\nlife,  but also liberates the human spirit from\t bondage  of
\nignorance,  superstition, irrationality,  injustice,  fraud,
\nhypocrisy  and\toppressive exploitations.  In  other  words,
\nthough\tthe  whole  course of  human  history  discloses  an
\nincreasing liberation of mankind, accomplished thought,\t all
\nis  covered by the term secularism.  Trevor Ling’s  writings
\non Buddhism spoke of it as a secular religion, which teaches
\neight-fold  path  of  his mastery and  virtuous\t conduct  of
\nceaseless,  self-critical endeavour for right belief,  right
\naspiration,  right  speech, right conduct,  right  modes  of
\nlivelihood,   right  efforts,  right-mindedness\t and   right
\nscripture.    Buddhism\t rationalises\tthe   religion\t and
\ncivilisation to liberate individual from blindfold adherence
\nto  religious belief to rationalisation, in the language  of
\nTrevor\tLing  “flat alluvial expansion of  secularism”.\t  Dr
\nAmbedkar believed that Buddhism is the religion best  suited
\nto the Indian
\n165<\/span>
\nsoil.\tMahatma Gandhi, Father of the Nation, spoke for\t the
\nneed of religion thus:\n<\/p>\n
\t      ,,The  need  of  the mankind  is\tnot  one  of
\n\t      religion, but mutual respect and tolerance  of
\n\t      the devotees of different religions.  We\twant
\n\t      to  reach\t not  a data  level,  but  unity  in
\n\t      diversity.  The soul of all religions is\tone,
\n\t      but  it is encased in the multitude of  forms.
\n\t      The  latter  will persist to the\tend  of\t the
\n\t      time.”\n<\/p><\/blockquote>\n
180. Dr S. Radhakrishnan, the philosopher, former  President
\nof  India,  in\this  Discovery\tof  Faith  stated  that\t the
\nreligious  impartiality\t of the Indian State is\t not  to  be
\nconfused  with\tthe secularism or  atheism.   Secularism  as
\ndefined\t here is in accordance with the\t enormous  religious
\ntraditions of India.  It is for living in harmony with\teach
\nother.\t This  fellowship  is  based  on  the  principle  of
\ndiversity  in  unity  which  alone  has\t all  qualities\t  of
\ncreativeness.\tIn  his foreword to Dr\tAbid  Hussain’s\t The
\nNational Culture of India, Dr S. Radhakrishnan remarked that
\nsecularism  does  not mean licence or a thrust\tof  material
\ncomfort.   It  lays thrust on universality  of\tthe  supreme
\nfellow\twhich  may be attained by variety of  ways.   Indian
\nconcept\t of  secularism\t means\t“the  equal  status  to\t all
\nreligions”.   He said that “no one religion should be  given
\npreferential  status or unique distinction and that  no\t one
\nreligion  should be accorded special privileges in  national
\nlife”.\t That  would  be violative of  basic  principles  of
\ndemocracy.   No group of citizens can so arrogate to  itself
\nthe  right  and\t privilege which it denies  to\tothers.\t  No
\nperson shall suffer any form of disability or discrimination
\nbecause\t of his religion, but also alike should be  free  to
\nshare to the fullest degree in the common life.\t This is the
\nbasic  principle  in separation of religion and\t the  State.
\nGranville   Austin   in\t his  The  Indian   Constitution   :
\nCornerstone of a Nation stated that the Constitution  makers
\nintended to secure secular and socialist goals envisaged  in
\nthe preamble of the Constitution.  In Ziyauddin\t Burhanuddin
\nBukhari v. Brijmohan Ramdass Mehra<\/a> 33 this Court held that :
\n(SCR p. 297: SCC p. 32, para 44)
\n\t      “The   Secular   State   rising\tabove\t all
\n\t      differences  of religion, attempts  to  secure
\n\t      the  good of all its citizens irrespective  of
\n\t      their religious beliefs and practices.  It  is
\n\t      neutral or impartial in extending its benefits
\n\t      to   citizens  of\t all  castes   and   creeds.\n<\/p>\n
\t      Maitland had pointed out that such a state has
\n\t      to   ensure,  through  its  laws,\t  that\t the
\n\t      existence or exercise of a political or  civil
\n\t      right  or the right or capacity to occupy\t any
\n\t      office or position under it or to perform\t any
\n\t      public duty connected with it does not  depend
\n\t      upon   the  profession  or  practice  of\t any
\n\t      particular religion.”\n<\/p>\n
\t      It was further pointed out : (SCR p. 297:\t SCC
\n\t      p. 32, para 45)
\n\t      “Our   Constitution   and\t the   laws   framed
\n\t      thereunder  leave\t citizens free to  work\t out
\n\t      happy  and  harmonious  relationships  between
\n\t      their   religions\t and  the  quite   separable
\n\t      secular fields of law and politics.  But, they
\n\t      do  not  permit an unjustifiable\tinvasion  of
\n\t      what belongs to one sphere by what  appertains
\n\t      really  to  another.   It\t is  for  courts  to
\n\t      determine, in a case
\n\t      33 (1976) 2 SCC 17: 1975 Supp SCR 281
\n\t      166<\/span>
\n\t      of dispute, whether any sphere was or was\t not
\n\t      properly\tinterfered with, in accordance\twith
\n\t      the Constitution, even by a purported law.”
\nThereby\t this  Court did not accept the wall  of  separation
\nbetween\t law  and the religion with a  wider  camouflage  to
\nimpress\t control  of  what  may\t be  described\texploitative
\nparading  under\t the  garb  of\treligion.   Throughout\tages
\nendless\t stream\t of humans of diverse creeds,  cultures\t and
\nraces have come to India from outside regions and climes and
\ncontributed to the rich cultural diversity.  Hindu  religion
\ndeveloped   resilience\tto  accommodate\t and   imbibe\twith
\ntolerance the cultural richness with religious\tassimilation
\nand became a land of religious tolerance.\n<\/p>\n
181. Swami Vivekanada stated that right of religious  system
\nand ideals is the same morality; one thing is only preached:
\nMyself, say “Om”; another one says “Johova”, another “Allah-
\nho-Mohammad”,  another cries “Jesus”.\tGandhiji  recognised
\nthat  all  religions  are imperfect  and  because  they\t are
\nimperfect  they\t require perfecting themselves\trather\tthan
\nconducting individually.  He stated:\n<\/p>\n
\t      “The   separate  religions  Hinduism,   Islam,
\n\t      Christianity,  Buddhism are  different  rights
\n\t      converging on the same point even as the\ttree
\n\t      has  the\tsingle trunk but many  branches\t and
\n\t      leaves so there is one perfect religion but it
\n\t      becomes  many as it passes through  the  human
\n\t      medium.\tThe Allah of Muslims is the same  as
\n\t      the God of Christians and Ishwara of Hindus.”\n<\/p><\/blockquote>\n
182. Making   of   a  nation   State   involves\t  increasing
\nsecularisation of society and culture.\tSecularism  operates
\nas a bridge to cross over from tradition to modernity.\t The
\nIndian State opted this path for universal tolerance due  to
\nits  historical and cultural background and  multi-religious
\nfaiths.\t Secularism in the Indian context bears positive and
\naffirmative  emphasis.\tReligions with secular\tcraving\t for
\nspiritual  tolerance have flourished more and  survived\t for
\nlonger period in the human history than those who claimed to
\nlive  in  a  non-existent  world  of  their  own.   Positive
\nsecularism,   therefore,  separates  the   religious   faith
\npersonal to man and limited to material, temporal aspects of
\nhuman  life.   Positive\t secularism believes  in  the  basic
\nvalues\tof  freedom, equality and fellowship.  It  does\t not
\nbelieve\t in  hark  back either\tinto  country’s\t history  or
\nseeking shelter in its spiritual or cultural identity dehors
\nthe  man’s need for his full development.  It  moves  mainly
\naround\tthe  State and its institution\tand,  therefore,  is
\npolitical  in  nature.\tAt the same time religion  does\t not
\ninclude\t other socioeconomic or cultural  social  structure.
\nThe  State  is enjoined to counteract the  evils  of  social
\nforces, maintaining internal peace and to defend the  nation
\nfrom   external\t  aggression.\tWelfare\t State\t under\t the
\nConstitution is enjoined to provide means for well-being  of
\nits  citizens; essential services and amenities to  all\t its
\npeople.\t  Morality under positive secularism is a  pervasive
\nforce  in favour of human freedom or secular living.   Prof.
\nHolyoake,  as  stated earlier, who is the father  of  modern
\nsecularism  stated that “morality should be based on  regard
\nfor well-being of the mankind in
\n167<\/span>
\nthe  person,  to the exclusion of all  considerations  drawn
\nfrom the belief in God or a future State”.  Morality to\t him
\nwas a system of human duty commencing from man and not\tfrom
\nGod  as\t in  the case of  religion.   He  distinguished\t his
\nsecularism  from  Christianity, the living interest  of\t the
\nworld\tthat  is  prospects  of\t another   life.    Positive
\nsecularism  gives birth to biological and social  nature  of
\nthe man as a source of morality.  True religion must develop
\ninto  a\t dynamic  force for integration\t without  which\t the
\ncontinued  existence  of  human\t race  itself  would  become
\nuncertain   and\t unreal.   Secularism  teaches\t spirit\t  of
\ntolerance, catholicity of outlook, respect for each  other’s
\nfaith and willingness to abide by rules of  self-discipline.
\nThis has to be for both as an individual and as a member  of
\nthe  group.   Religion and secularism operate  at  different
\nplanes.\t Religion is a matter of personal belief and mode of
\nworship\t and  prayer,  personal\t to  the  individual   while
\nsecularism  operates,  as stated earlier,  on  the  temporal
\naspect\tof  the State activity in dealing  with\t the  people
\nprofessing  different religious faiths.\t The more devoted  a
\nperson\tin his religious belief, the greater should  be\t his
\nsense  of heart, spirit of tolerance, adherence\t of  secular
\npath.  Secularism, therefore, is not antithesis of religious
\ndevoutness.   Swami Vivekananda, and Mahatma Gandhi,  though
\ngreatest Hindus, their teachings and examples of lives\tgive
\nus  the message of the blend of religion and the  secularism
\nfor  the good of all the men.  True religion does not  teach
\nto  hate  those\t professing other faiths.   Bigotry  is\t not
\nreligion,  nor can narrow-minded favouritism be taken to  be
\nan index of one’s loyalty to his religion.  Secularism\tdoes
\nnot   contemplate  closing  each  other’s  voices   to\t the
\nsufferings   of\t the  people  of  other\t community  nor\t  it
\npostulates  keeping  mum when his or  other  community\tmake
\nlegitimate demands.  If any group of people are subjected to
\nhardship or sufferings, secularism always requires that\t one
\nshould\tnever remain insensitive and aloof to  the  feelings
\nand sufferings of the victims.\tAt moments of testing  times
\npeople rose above religion and protected the victims.\tThis
\ncultural  heritage  in\tIndia  shaped  that  people  of\t all
\nreligious  faiths, living in different parts of the  country
\nare to tolerate each other’s religious faith or beliefs\t and
\neach religion made its contribution to enrich the  composite
\nIndian culture as a happy blend or synthesis.  Our religious
\ntolerance received reflections in our constitutional creed.\n<\/p>\n
183. The preamble of the Constitution inter alia assures  to
\nevery citizen liberty of thought, expression, belief,  faith
\nand  worship.  Article 5 guarantees by birth citizenship  to
\nevery  Indian.\tNo one bargained to be born in a  particular
\nreligion,  caste  or region.  Birth is a biological  act  of
\nparents.   Article 14 guarantees equality before the law  or
\nequal  protection  of laws.  Discrimination  on\t grounds  of
\nreligion was prohibited by Article 15.\tArticle 16  mandates
\nequal  opportunity  to all citizens in matters\trelating  to
\nemployment  or appointment to any office or post  under\t the
\nState and prohibits discrimination on grounds only of  inter
\nalia  religion.\t Article 25 while reassuring to all  persons
\nfreedom\t of  conscience\t and the right\tto  freely  profess,
\npractice and propagate his religion, it does not affect\t the
\noperation  of any existing law or preventing the State\tfrom
\nmaking any law regulating
\n168<\/span>
\nor  restricting\t any social, financial, political  or  other
\nsecular activity which may be associated with the  religious
\npractice.   It is subject to providing a social welfare\t and
\nreform or throwing open all Hindu religious institutions  of
\npublic character to all classes of citizens and sections  of
\nHindus.\t  Article  26 equally guarantees freedom  to  manage
\nreligious affairs, equally subject to public order, morality
\nand health.  Article 27 reinforces the secular character  of
\nIndian\tdemocracy  enjoining the State from  compelling\t any
\nperson or making him liable to pay any tax, the proceeds  of
\nwhich  are specifically prohibited to be  appropriated\tfrom
\nthe  consolidated fund for the promotion or  maintaining  of
\nany  particular religion or religious  denomination.   Taxes
\ngoing  into consolidated funds should be used generally\t for
\nthe  purpose of ensuring the secular purposes of which\tonly
\nsome  are  mentioned in Articles 25 and 26  like  regulating
\nsocial\twelfare,  etc.\t Article  28(1)\t maintains  that  no
\nreligious  instruction shall be imparted in any\t educational
\ninstitutions  wholly  maintained out of the State  funds  or
\nreceiving  aid from the State.\tEqually no person  attending
\nany  educational  institution  recognised by  the  State  or
\nreceiving  aid from the State funds should be  compelled  to
\ntake part in any religious instruction that may be  imparted
\nin such institution or to attend any religious worship\tthat
\nmay  be\t ‘Conducted in such institution or in  any  premises
\nattached  thereto  unless such person or in the\t case  of  a
\nminor person his guardian has given his consent thereto.  By
\nArticle 30(2) the State is enjoined not to discriminate,  in
\ngiving aid to an educational institution, on the ground that
\nit  is a minority institution whether based on\treligion  or
\nlanguage.   It\twould thus be clear that  Constitution\tmade
\ndemarcation   between\treligious  part\t personal   to\t the
\nindividual  and\t secular part thereof.\tThe State  does\t not
\nextend\tpatronage  to  any  particular\treligion,  State  is
\nneither\t  pro  particular  religion  nor   anti\t  particular
\nreligion.   It\tstands\taloof,\tin  other  words   maintains
\nneutrality  in\tmatters\t of  religion  and  provides   equal
\nprotection  to\tall  religions\tsubject\t to  regulation\t and
\nactively acts on secular part.\n<\/p>\n
184. In\t Ratilal Panachand Gandhi v. State of Bombay34\tthis
\nCourt defined religion that it is not necessarily  atheistic
\nand,  in fact, there are well-known religions in India\tlike
\nBuddhism  and Jainism which do not believe in the  existence
\nof  God\t or  caste.  A religion\t undoubtedly  has  different
\nconnotations  which are regarded by those who  profess\tthat
\nreligion  to be conducive to their spiritual well-being\t but
\nit  would  not\tbe  correct to say or  seems  to  have\tbeen
\nsuggested  by the one of the learned Brothers  therein\tthat
\nmatters\t of  religion are nothing but matters  of  religious
\nfaith and religious belief.  The religion is not merely only
\na doctrine or belief as it finds expression in acts as well.
\nIn  Commissioner, Hindu Religious Endowments, Madras v.\t Sri
\nLakshmindra  Thirtha Swamiar<\/a> 35, known as Shirur  Mutt\tcase
\nthis  Court  interpreted  religion  in\ta  restricted  sense
\nconfining  to  personal beliefs and attended  ceremonies  or
\nrituals.   The restrictions contemplated in Part III of\t the
\nConstitution  are  not\tthe control  of\t personal  religious
\npractices
\n34 1954 SCR 1055: AIR 1954 SC 388
\n35 1954 SCR 1005: AIR 1954 SC 282
\n169<\/span>
\nas such by the State but to regulate their activities  which
\nare secular in character though. associated with  religions,
\nlike   management   of\tproperty   attached   to   religious
\ninstitutions  or  endowments on secular activity  which\t are
\namenable to such regulation.  Matters such as offering\tfood
\nto  the diety, etc. are essentially religious and the  State
\ndoes not regulate the same, leaving them to the\t individuals
\nfor  their regulation.\tThe caste system though\t formed\t the
\nkernel\tof  Hinduism,  and  as a  matter  of  practice,\t for
\nmillenniums 1\/4th of the Indian population Scheduled  Castes
\nand  Scheduled Tribes were prohibited entry  into  religious
\ninstitutions  like  temples,  maths,  etc.  on\tgrounds\t  of
\nuntouchability;\t Article  17 outlawed it and  declared\tsuch
\npractice  an offence.  Articles 25 and 26 have\tthrown\topen
\nall public places and all places of public worship to  Hindu
\nreligious  denominations  or  sects  for  worship,  offering
\nprayers or performing any religious service in the places of
\npublic worship and no discrimination should be meted out  on
\ngrounds\t of  caste or sect or  religious  denomination.\t  In
\nKesavananda  Bharati case36 and Indira Nehru Gandhi  v.\t Raj
\nNarain37<\/a> this Court held that secularism is a basic  feature
\nof  the Constitution.  It is true that Schedule III  of\t the
\nConstitution  provided the form of oath being taken  in\t the
\nname  of  God.\tThis is not in recognition that he  has\t his
\nreligion or religious belief in God of a particular religion
\nbut  he\t should be bound by the oath to\t administer  and  to
\nabide  by  the Constitution and laws as a  moral  being,  in
\naccordance with their mandate and the individual will ensure
\nthat  he will not transgress the oath taken by him.   It  is
\nsignificant to note that the Oaths Act, 1873 was repealed by
\nOaths\tAct,   1966  and  was  made  consistent\t  with\t the
\nconstitutional scheme of secularism in particular,  Sections
\n7 to 11.\n<\/p>\n
185. Equally  admission into an educational institution\t has
\nbeen  made a fundamental right to every person and he  shall
\nnot  be discriminated on grounds only of religion or  caste.
\nThe  education also should be imparted in  the\tinstitutions
\nmaintained  out of the State fund or receiving aid  only  on
\nsecular lines.\tThe State, therefore, has a missionary\trole
\nto  reform the Hindu society, Hindu social order and  dilute
\nthe  beliefs of caste hierarchy.  Even in matters  of  entry
\ninto  religious\t institutions  or places  of  public  resort
\nprohibition of entry only on grounds of caste or religion is
\noutlawed.\n<\/p>\n
186. Dr\t S.  Radhakrishnan, stated that:  “Religion  can  be
\nidentified  with emotion, sentiments,  intensity,  cultural,
\nprofession,   conscious\t belief\t of  faith.”  According\t  to
\nGandhiji  :  “By religion I do not mean formal\treligion  or
\ncustomary  religion  but that religion which  underlies\t all
\nreligions.”  Religion to him was spiritual  commitment\tjust
\ntotal but intentionally personal.  In other words, it is for
\nonly  development  of  the man for  the\t absolution  of\t his
\nconsciousness (sic conscience) in certain direction which he
\nconsidered to be good.\tTherefore, religion is one of belief
\npersonal to the individual which binds him to his conscience
\nand the moral and basic principles regulating the life of  a
\nman  had  constituted  the religion, as\t understood  in\t our
\nConstitution.\n<\/p>\n
37 1975 Supp SCC’ 1: (1976) 2 SCR 347
\n170<\/span>
\nFreedom\t of  conscience\t allows\t a  person  to\tbelieve\t  in
\nparticular  religious  tenets of his choice.   It  is  quite
\ndistinct  from\tthe  freedom to\t perform  external  acts  in
\npursuance  of  faith.  Freedom of conscience  means  that  a
\nperson\tcannot\tbe made answerable for rights  of  religion.
\nUndoubtedly,  it  means\t that no man possesses\ta  right  to
\ndictate\t to  another  what religion  he\t believes  in;\twhat
\nphilosophy  he\tholds, what shall be his  politics  or\twhat
\nviews he shall accept, etc.  Article 25(1) protects  freedom
\nof  conscience\tand  religion  of  members  of\tonly  of  an
\norganised  system  of  belief  and  faith  irrespective\t  of
\nparticular  affiliations and does not march out\t of  concern
\nitself\tas a part of the right to freedom of conscience\t and
\ndignity\t of person and such beliefs and practices which\t are
\nreasonable.  The Constitution, therefore, protects only\t the
\nessential  and\tintegral  practices of\tthe  religion.\t The
\nreligious  practice  is\t subject to the\t control  of  public
\norder,\t morality  and\thealth\twhich\tincludes   economic,
\nfinancial or other secular activities.\tCould the  religious
\npractice  exercise  control over members to vote or  not  to
\nvote, to ignore the National Flag, National Anthem, national
\ninstitutions?\tFreedom\t of  conscience\t under\tArticle\t  25
\nwhether guarantees people of different religious faiths\t the
\nright  to religious procession to antagonise the  people  of
\ndifferent  religious faiths or right to public worship?\t  It
\nis  a  fact of social and religious history  in\t India\tthat
\nreligious  processions are known to ignite serious  communal
\nriots,\tdisturb peace, tranquillity and public\torder.\t The
\nright to free profession of religion and exercising right to
\norganise religious congregations does not carry with it\t the
\nright  to  make inflammatory speeches, nor be a\t licence  to
\nspread\tviolence,  nor\tspeak religious\t intolerance  as  an
\naspect\tof religious faiths.  They are subject to the  State
\ncontrol.  In order to secure constitutional protection,\t the
\nreligious practices should not only be an essential part but
\nshould also be an integral part of proponent’s religion\t but
\nsubject\t to State’s control.  Otherwise even purely  secular
\npractices which are not an essential or an integral part  of
\nreligion are apt to be quoted as religious forms and make  a
\nclaim  for being treated as religious practices.  Law  as  a
\nsocial engineer provides the means as well as lays down\t the
\nrules for social control and resolution of conflicts of\t all
\nkinds in a human society.  But the motive force for  social,
\neconomic and cultural transformation comes from\t individuals
\nwho comprise the society.  They are the movers in the  mould
\nof  the\t law  as  the principal\t instrument  of\t an  orderly
\ntransient to a new socioeconomic order or social integration
\nand  fraternity\t among\tthe people.   The  Constitution\t has
\nchosen secularism as its vehicle to establish an egalitarian
\nsocial\torder.\t I  am respectfully in\tagreement  with\t our
\nBrethren  Sawant  and  Jeevan Reddy, JJ.  in  this  respect.
\nSecularism,  therefore, is part of the fundamental  law\t and
\nbasic structure of the Indian political system to secure  to
\nall  its  people  socioeconomic needs  essential  for  man’s
\nexcellence  and of (sic his) moral wellbeing, fulfilment  of
\nmaterial and prosperity and political justice.
\nSEPARATION OF POLITICS AND RELIGION\n<\/p>\n
187. Black’s  Law  Dictionary (6th Edn.) page  1158  defined
\n‘political’  as pertaining or relating to the policy or\t the
\nadministration of Government, State or national;  pertaining
\nto, or incidental to, the exercise of the functions
\n171<\/span>
\nvested\tin  those charged with the  conduct  of\t Government;
\nrelating to the management of affairs of State as  political
\ntheories;  of  or  pertaining  to  exercise  of\t rights\t and
\nprivileges or the influence by which individuals of a  State
\nseek to determine or control its public policy; having to do
\nwith  organization  or action of  individuals,\tparties,  or
\ninterests  that\t seek to control appointment  or  action  of
\nthose  who manage affairs of a State.  Political  party\t was
\ndefined\t as  an\t association of\t individuals  whose  primary
\nparliamentary\tpurposes  are  to  promote   or\t  accomplish
\nelections  or appointments to public offices,  positions  or
\njobs.  A political party, association or Organisation  which
\nmakes  contributions  for  the\tpurpose\t of  influencing  or
\nattempting  to\tinfluence  the\telectoral  process  of\t any
\nindividual  or political party whose name is  presented\t for
\nelection  to  any  State or local  elective  public  office,
\nwhether\t or  not such individual is  elected.\tPolitics  in
\npositively  secular State is to get over their religion,  in
\nother  words, in politics a political party  should  neither
\ninvoke\treligion  nor  be dependent on\tit  for\t support  or
\nsustenance.   Constitution  ensures  to\t the  individual  to
\nprotect\t religion,  right to belief or\tpropagate  teachings
\nconducive for secular living, later to be controlled by\t the
\nState  for betterment of human life and progress.   Positive
\nsecularism  concerns with such aspects of human\t life.\t The
\npolitical conduct in his “Political Thought by Dr  Ambedkar”
\ncompiled  by  R.K. Ksheersagar, Intellectual  Public  House,
\n1992 Edn. at page 155, stated that:\n<\/p>\n
\t      “In  India  the majority is  not\ta  political
\n\t      majority.\t The majority is born but not  made,
\n\t      that  is\tthe difference\tbetween\t a  communal
\n\t      majority\t and   a  political   majority.\t   A
\n\t      political\t majority is not purely a  majority,
\n\t      it  is  the  majority which  is  always  made,
\n\t      unmade  and  remade.  A communal\tmajority  is
\n\t      unalterable   majority  in  its  ethics,\t its
\n\t      attitudes.    Whether   the   Hindu   communal
\n\t      majority\twas prepared to accept the views  of
\n\t      the  minorities,\twhether it was\tprepared  to
\n\t      conceive the constitutional safeguards to\t the
\n\t      minorities.”  The\t problems  according  to  Dr
\n\t      Ambedkar\tshould be solved by  adopting  right
\n\t      principles which should be evolved and applied
\n\t      equally without fear or favour.  According  to
\n\t      him  the\tmajority community should  accept  a
\n\t      relative majority and it should claim absolute
\n\t      majority.\t   Communal   majority\tis   not   a
\n\t      political\t  majority  and\t in   politics\t the
\n\t      principle\t of  one vote one  value  should  be
\n\t      adopted\t   irrespective\t     of\t     related
\n\t      considerations.  According to Abul Kalam Azad:
\n\t      “India  is  a democracy  secular\twhere  every
\n\t      citizen  whether he is Hindu, Muslim  or\tSikh
\n\t      has  equal  rights and  privileges.   Rise  of
\n\t      fundamentalism and communalisation in national
\n\t      or regional politics are anti-secular and tend
\n\t      to  encourage separatist and  divisive  forces
\n\t      laying   the   seeds   to\t  disintegrate\t the
\n\t      parliamentary    democratic    system.\t The
\n\t      political\t parties  or  candidates  should  be
\n\t      stopped  from  running after  vote  banks\t and
\n\t      judicial\tprocess must promote  the  citizens’
\n\t      active participation by interpretation of\t the
\n\t      Constitution   and   the\t laws\tin    proper
\n\t      perspective   in\t order\t to   maintain\t the
\n\t      democratic process on an even keel.”\n<\/p><\/blockquote>\n
188. For a political party or an Organisation that seeks  to
\ninfluence  the\telectorates  to\t promote  or   accomplishing
\nsuccess at an election for
\n172<\/span>
\ngovernance   of\t parliamentary\tform  of   Government,\t the
\nprinciples are those embedded in the Directive Principles of
\nthe  Constitution vis-a-vis the Fundamental Rights  and\t the
\nFundamental  Duties  in Part IV A and should  abide  by\t the
\nConstitution  and promote tolerance, harmony and the  spirit
\nof  commonness amongst all the people of India\ttranscending
\nreligious, linguistic, regional or sectional diversities and
\nto  preserve the rich heritage of our composite culture,  to
\ndevelop humanism, spirit of reformation and to abstain\tfrom
\nviolence.   Therefore,\tthe manifesto of a  political  party
\nshould\tbe  consistent\twith  these  fundamental  and  basic
\nfeatures of the Constitution, secularism, socioeconomic\t and
\npolitical justice, fraternity, unity and
\nnational  integrity.\n<\/p>\n
189. Under Section 29-A of the Representation of the  People
\nAct, 1951 for short ‘R.P.  Act’ registration of a  political
\nparty,\tor  a  group of individual  an\tapplication  to\t the
\nElection  Commission constituted under Article 324  for\t its
\nregistration   as  political  party  with  a  copy  of\t the
\nmemorandum or rules or regulations of the association of the
\nbody signed by its Chief Executive Officer.  The application
\nshall  contain a specific provision that the association  or
\nthe  body  shall  bear\ttrue faith  and\t allegiance  to\t the
\nConstitution of India as by law established and its  members
\nshall  be bound by socialism, secularism and  democracy\t and
\nwould uphold the sovereignty and integrity of India.  It is,
\ntherefore,  a mandatory duty of every political party,\tbody
\nof  individuals or association and its members to  abide  by
\nthe   Constitution   and  the  laws;  they   should   uphold
\nsecularism, socialism and democracy, uphold sovereignty\t and
\nintegrity  of the nation.  Section 123(3) prohibits  use  of
\nreligion  or  caste  in\t politics  and\tdeclares  that\t the
\npromotion or attempt to promote violence and hatred  between
\ndifferent  classes  of\tcitizens  of  India  on\t grounds  of
\nreligion  and caste for the furtherance of the prospects  at
\nthe election of the candidate or for affecting the  election
\nof any candidate was declared to be a corrupt practice.\t  As
\nper  sub-section (3-A) of Section 123 the promotion  of,  or
\nattempt\t to  promote  feeling of enmity\t or  hatred  between
\ndifferent classes of Indian citizens on grounds of religion,
\netc.  by a candidate, his election agent or any person\twith
\nhis  consent  to  further the  election\t prospects  of\tthat
\ncandidate or for prejudicially affecting the election of any
\ncandidate  was\tdeclared as corrupt practice.\tA  political
\nparty, therefore, should not ignore the fundamental features
\nof  the Constitution and the laws.  Even its manifesto\twith
\nall sophistication or felicity of its language, a  political
\nparty  cannot escape constitutional mandate and negates\t the
\nabiding faith and solemn responsibility and duty  undertaken
\nto uphold the Constitution and laws after it was  registered
\nunder Section 29-A.  Equally it\/they should not sabotage the
\nsame  basic features of the Constitution either\t influencing
\nthe  electoral\tprocess or working the Constitution  or\t the
\nlaw.   The  political  party  or  the  political   executive
\nsecuring the governance of the State by securing majority in
\nthe legislature through the battle of ballot throughout\t its
\ntenure\tby  its actions and programmes, it  is\trequired  to
\nabide by the Constitution and the laws in letter and spirit.\n<\/p>\n
173<\/span><\/p>\n
190. Article  25  inhibits  the Government  to\tpatronise  a
\nparticular religion as State  religion overtly or  covertly.
\nPolitical party is, therefore, positively enjoined     to
\nmaintain  neutrality  in  religious  beliefs  and   prohibit
\npractices  derogatory  to  the Constitution  and  the  laws.
\nIntroduction  of  religion into politics is  not  merely  in
\nnegation of the constitutional mandates but also a  positive
\nviolation   of\t the   constitutional\tobligation,    duty,
\nresponsibility\tand  positive  prescription  of\t prohibition
\nspecifically enjoined by the Constitution and the R.P.\tAct.
\nA  political  party  that seeks to secure  power  through  a
\nreligious  policy or caste orientation policy  disintegrates
\nthe people on grounds of religion and caste.  It divides the
\npeople\tand  disrupts  the social structure  on\t grounds  of
\nreligion  and caste which is obnoxious and anathema  to\t the
\nconstitutional\tculture\t and  basic  features.\t Appeal\t  on
\ngrounds of religion offends secular democracy.\n<\/p>\n
191. An appeal to the electorates on the grounds of religion
\noffends secular democracy.  In S. Veerabadran Chettiar v. E.
\nV. Ramaswami Naicker38 (SCR<\/a> at pp. 1217 & 1218), this  Court
\nheld   that   the   courts  would  be\tcognizant   to\t the
\nsusceptibilities of class of persons to which the appeal  to
\nreligious  susceptibility  is  made  and  it  is  a  corrupt
\npractice.   Interpreting  Section 123(3-A) this\t Court\theld
\nthat:\n<\/p>\n
\t       “The section has been intended to respect the
\n\t      religious\t  susceptibilities  of\tpersons\t  of
\n\t      different religious persuasions or creeds\t …
\n\t      very  circumspect in such matters and  to\t pay
\n\t      due regard to feelings and religious  emotions
\n\t      of different classes of persons with different
\n\t      beliefs  irrespective  of\t the   consideration
\n\t      whether  or not they share those\tbeliefs,  or
\n\t      whether they are rational or otherwise……\n<\/p><\/blockquote>\n
192. This  Court in Shubnath Deogram v.\t Ramnarain  Prasad39
\nheld that (SCR p. 959)
\n\t      “[I]t  would appear that the pleasure  of\t the
\n\t      deities  is indicated through the cock  taking
\n\t      the  food\t that is given to it  and  that\t the
\n\t      deities  only thereafter accept the  sacrifice
\n\t      of  the  cock.  Therefore,  when\tthe  leaflet
\n\t      stated  that food should be given to the\tcock
\n\t      in the shape of votes what was meant was\tthat
\n\t      the  deities  would be pleased if\t votes\twere
\n\t      cast in the box with the cock symbol.”\n<\/p>\n
193. In\t Z.B. Bukhari v. Brijmohan33 this Court held thus  :
\n(SCR p. 288: SCC p. 24, para 11)
\n\t      “Our Constitution-makers certainly intended to
\n\t      set  up  a  Secular  Democratic  Republic\t the
\n\t      binding  spirit of which is summed up  by\t the
\n\t      objectives  set forth in the preamble  to\t the
\n\t      Constitution.   No  democratic  political\t and
\n\t      social  order,  in  which\t the  conditions  of
\n\t      freedom  and their progressive  expansion\t for
\n\t      all  make\t some regulation of  all  activities
\n\t      imperative, could endure without an  agreement
\n\t      on the basic essentials which could unite\t and
\n\t      hold   citizens  together\t despite   all\t the
\n\t      differences of
\n\t      38 1959 SCR 121 1: AIR 1958 SC 1032
\n\t      39 (1960) 1 SCR 953: AIR 1960 SC 148
\n\t      33 (1976) 2 SCC 17: 1975 Supp SCR 281
\n\t      174<\/span>
\n\t      religion,\t race,\tcaste,\tcommunity,  culture,
\n\t      creed  and  language.  Our  political  history
\n\t      made  it\tparticularly  necessary\t that  these
\n\t      differences,   which  can\t generate   powerful
\n\t      emotions, depriving people of their powers  of
\n\t      rational\tthought\t and action, should  not  be
\n\t      permitted to be exploited lest the  imperative
\n\t      conditions for the preservation of  democratic
\n\t      freedoms are disturbed.  ”\n<\/p>\n
194. In another case S. Harcharan Singh v. S. Sajjan Singh4O
\nthis Court fully discussed the question of what\t constitutes
\nan appeal on grounds of religion falling within the scope of
\nSection\t 123(3) and Section 123(3-A) of the R.P.  Act,\twhen
\nthere  is  an  appeal on the ground  of\t religion.   Section
\n123(3)\t of  R.P.  Act\tshould\tnot  be\t permitted   to\t  be
\ncircumvented   to  resort  to  technical  arguments  as\t  to
\ninterpretation of the section as our Constitution is one  of
\nsecular\t democracy.  In S. Veerabadran Chettiar case38\tthis
\nCourt held
\nthus:\t  (SCR pp. 1217-18)
\n\t      “In  our\topinion,  placing  such\t  restricted
\n\t      interpretation  on the words of  such  general
\n\t      import,  is against all established canons  of
\n\t      construction.   Any object however trivial  or
\n\t      destitute of real value in itself, if regarded
\n\t      as  sacred by any class of persons would\tcome
\n\t      within the meaning of the penal section.\t Nor
\n\t      is it absolutely necessary that the object, in
\n\t      order  to\t be held sacred,  should  have\tbeen
\n\t      actually\tworshipped.  An object may  be\theld
\n\t      sacred  by  a class of persons  without  being
\n\t      worshipped  by them.  It is clear,  therefore,
\n\t      that  the courts below were rather cynical  in
\n\t      so   lightly  brushing  aside  the   religious
\n\t      susceptibilities\tof that class of persons  to
\n\t      which  the complainant claims to belong.\t The
\n\t      section  has  been  intended  to\trespect\t the
\n\t      religious\t  susceptibilities  of\tpersons\t  of
\n\t      different\t religious  persuasions\t or  creeds.
\n\t      Courts have got to be very circumspect in such
\n\t      matters, and to pay due regard to the feelings
\n\t      and religious emotions of different classes of
\n\t      persons  with different beliefs,\tirrespective
\n\t      of the consideration whether or not they share
\n\t      those beliefs, or whether they are rational or
\n\t      otherwise, in the opinion of the court.”\n<\/p>\n
195. In\t  Mullapudi   Venkata\tKrishna\t  Rao\tv.    Vedula
\nSuryanarayana<\/a>  4l this Court held thus : (SCC p.  508,\tpara
\n10: Scale p. 172)
\n\t      “There  is  no  doubt in\tour  mind  that\t the
\n\t      offending\t poster is a religious symbol.\t The
\n\t      depiction\t of anyone, be it N.T. Rama  Rao  or
\n\t      any  other  person,  in  the  attire  of\tLord
\n\t      Krishna  blowing\ta ‘shanku’ and\tquoting\t the
\n\t      words from the Bhagavad Gita addressed by Lord
\n\t      Krishna  to Arjuna that his incarnation  would
\n\t      be  born\tupon the earth in age after  age  to
\n\t      restore  dharma  is  not only to\ta  Hindu  by
\n\t      religion\tbut to every Indian symbolic of\t the
\n\t      Hindu  religion.\t The use by a  candidate  of
\n\t      such  a symbol coupled with the printing\tupon
\n\t      it  of words derogatory of a  rival  political
\n\t      party  must  lead to the conclusion  that\t the
\n\t      religious symbol was used
\n\t      40 (1985) 1 SCC 370: (1985) 2 SCR 159
\n\t      38 1959 SCR 121 1: AIR 1958 SC 1032
\n\t      41 1993 Supp (3) SCC 504: (1993) 2 Scale 170
\n\t      175<\/span>
\nwith  a\t view to prejudicially affect the  election  of\t the
\ncandidate of the rival political party.”\n<\/p>\n
196. The   contention  of  Shri\t Ram  Jethmalani  that\t the
\ninterpretation and applicability of sub-sections (3) and (3-
\nA)  of\tSection 123 of R.P. Act would be  confined  to\tonly
\ncases  in  which individual candidate  offends\treligion  of
\nrival  candidate  in  the election  contest  and  the  ratio
\ntherein\t cannot\t be  extended when  a  political  party\t has
\nespoused  as  part of its manifesto a  religious  cause,  is
\ntotally\t untenable.  This Court laid the law though  in\t the
\ncontext\t of the contesting candidates,\tthat  interpretation
\nlends  no  licence  to a political party  to  influence\t the
\nelectoral  prospects on grounds of religion.  In  a  secular
\ndemocracy, like ours, mingling of religion with politics  is
\nunconstitutional,  in  other  words  a\tflagrant  breach  of
\nconstitutional\tfeatures  of  secular  democracy.   It\t is,
\ntherefore, imperative that the religion and caste should not
\nbe   introduced\t into  politics\t by  any  political   party,
\nassociation or an individual and it is imperative to prevent
\nreligious and caste pollution of politics.  Every  political
\nparty,\tassociation  of persons\t or  individuals  contesting
\nelection  should  abide by the\tconstitutional\tideals,\t the
\nConstitution  and  the laws thereof.  I also agree  with  my
\nlearned\t Brethren  Sawant  and Jeevan Reddy,  JJ.,  in\tthis
\nbehalf.\n<\/p>\n
197. Rise of fundamentalism and communalisation of  politics
\nare anti-secularism.  They encourage separatist and divisive
\nforces\t and   become\tbreeding   grounds   for    national
\ndisintegration and fail the parliamentary democratic  system
\nand   the  Constitution.   Judicial  process  must   promote
\ncitizens’   active   participation  in\t electoral   process
\nuninfluenced by any corrupt practice to exercise their\tfree
\nand  fair  franchise.\tCorrect\t interpretation\t in   proper
\nperspective would be in the defence of the democracy and  to
\nmaintain the democratic process on an even keel even in\t the
\nface  of possible friction, it is but the duty of the  court
\nto interpret the Constitution to bring the political parties
\nwithin\t the  purview  of  constitutional   parameters\t for
\naccountability\tand to abide by the Constitution,  the\tlaws
\nfor their strict adherence.\n<\/p>\n
SCOPE OF JUDICIAL REVIEW OF ARTICLE 356\n<\/p>\n
198. In\t the judicial review in the field of  administrative
\nlaw and the constitutional law, the courts are not concerned
\nwith  the  merits of the decision, but with  the  manner  in
\nwhich  the decision was taken or order was  made.   Judicial
\nreview\tis entirely different from an ordinary appeal.\t The
\npurpose of judicial review is to ensure that the  individual
\nis given fair treatment by the authority or the tribunal  to
\nwhich  he has been subjected to.  It is no part of the\tduty
\nor power of the court to substitute its opinion for that  of
\nthe  tribunal or authority or person constituted by  law  or
\nadministrative\tagency in deciding the matter  in  question.
\nUnder the thin guise of preventing the abuse of power, there
\nis  a lurking suspicion that the court itself is  guilty  of
\nusurping  that power.  The duty of the court, therefore,  is
\nto confine itself to the question of legality, propriety  or
\nregularity  of\tthe  procedure adopted by  the\ttribunal  or
\nauthority to find whether it committed an error of law or
\n176<\/span>
\njurisdiction  in reaching the decision or making the  order.
\nThe  judicial review is, therefore, a protection, but not  a
\nweapon.\t  The  court  with an  avowed  endeavour  to  render
\njustice,  applied principles of natural justice with a\tview
\nto see that the authority would act fairly.  Therefore,\t the
\ngrounds\t of  illegality,  irrationality,   unreasonableness,
\nprocedural impropriety and in some cases proportionality has
\nbeen applied, to test the validity of the decision or order,
\napart\t from\t its   ultra   vires,\t mala\t fides\t  or
\nunconstitutionality.   Initially in the process of  judicial
\nreview\tthe court tested the functions from the\t purview  of
\nthe  “source  of  power”.  In the  course  of  evolution  of
\njudicial  review  it tested on the “nature of  the  subject-
\nmatter”,  “the nature of the power”, “the purpose”  or\t“the
\nindelible effect” of the order or decision on the individual
\nor  public.   The  public  element  was\t evolved,  confining
\ninitially  judicial review to the actions of  State,  public
\nauthority  or  instrumentality of the State but in  its\t due
\ncourse\tmany  a time it entrenched into\t private  law  field
\nwhere  public element or public duty or public\tinterest  is
\ncreated by private person or corporate person and  relegated
\npurely\tprivate\t issues to private law remedy.\t This  Court
\nrelaxed\t  standing  in\tfavour\tof  bona  fide\tpersons\t  or
\naccredited  associations to espouse the cause on  behalf  of
\nthe  underprivileged  or  handicapped  groups  of   persons.
\nInterpreting  Articles\t14  and\t 21,  tested  administrative
\norders or actions or processes on grounds of  arbitrariness,
\nirrationality,\tunfairness or unjustness, It would  thus  be
\napparent  that in exercising the power of  judicial  review,
\nthe    constitutional\tcourts\t in   India   testing\t the
\nconstitutionality  of  an administrative  or  constitutional
\nacts did not adopt any rigid formula universally  applicable
\nto all occasions.  Therefore, it serves no useful purpose to
\nelaborately consider various decisions or textbooks referred
\nto  us during the course of hearing.  Suffice to state\tthat
\neach case should be considered, depending upon the authority
\nthat  exercises the power, the source, the nature, or  scope
\nof  the\t power\tand indelible effects it  generates  in\t the
\noperation  of  law  or affects\tthe  individual\t or  society
\nwithout\t  laying  down\tany  exhaustive\t or   catalogue\t  of
\nprinciples.   Lest  it would itself result  in\tstandardised
\nrule.\tTo  determine  whether\ta  particular  policy  or  a
\ndecision  taken in furtherance thereof is in  fulfilment  of
\nthat policy or is in accordance with the Constitution or the
\nlaw,  many  an\timponderable feature  will  come  into\tplay
\nincluding  the nature of the decision, the  relationship  of
\nthose involved on either side before the decision was taken,
\nexistence or nonexistence of the factual foundation on which
\nthe decision was taken or the scope of the discretion of the
\nauthority  or  the functionary.\t Supervision of\t the  court,
\nultimately,  depends upon the analysis of the nature of\t the
\nconsequences  of  the  decision\t and  yet  times  upon\t the
\npersonality   of  the  authority  that\ttakes  decision\t  or
\nindividual circumstances in which the person was called upon
\nto make the decision and acted on the decision itself.\n<\/p>\n
199. The  scope\t of  judicial  review  of  the\tPresidential
\nProclamation under Article 356 was tested for the first time
\nby this Court in State of Rajasthan v. Union of India3.\t  In
\nthat case clause (5) inserted by the Constitution
\n3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1979) 1 SCR 1
\n177<\/span>
\n(Thirty-eighth)\t  Amendment  Act,  1975\t  which\t  prohibited
\njudicial review of the Presidential Proclamation [which\t was
\nlater  on  substituted by  the\tConstitution  (Forty-fourth)
\nAmendment Act, 1978], was called into operation.  Before its
\nsubstitution  the constitutionality of the letter issued  by
\nthe Home Minister and dissolution of the Assemblies of North
\nIndian\tStates\twere  in  question.   The  reason  for\t the
\ndissolution   was  that\t the  Congress\tParty\twas   routed
\ncompletely  in\t1977  parliamentary election  in  all  those
\nStates\tand  thereby the people’s mandate  was\tagainst\t the
\nlegitimacy  of the Governments of the States represented  by
\nthe Congress Party to remain in office.\t Suits under Article
\n133  and  Article  32 were filed in  this  Court.   In\tthat
\ncontext\t this  Court  held  that though\t the  power  of\t the
\njudicial  review was excluded by clause (5) of Article\t356,
\nas  it\tthen  stood, judicial review  was  open\t on  limited
\ngrounds, namely mala fides, wholly extraneous or  irrelevant
\ngrounds\t without  nexus\t between  power\t exercised  and\t the
\nreasons\t  in  support  thereof.\t  The  contention  of\tShri
\nParasaran, learned counsel for the Union, as stated earlier,
\nis  that though judicial review is available, he paused\t and
\nfell upon the operation of Article 74(2), and contended that
\nthe  Union of India need not produce the records; burden  is
\non  the\t writ  petitioners  to prove  that  the\t orders\t are
\nunconstitutional  or ultra vires; the exercise of  power  by
\nthe  President under Article 356 is constitutional  exercise
\nof  the\t power\tlike one under Article\t123  or\t legislative
\nprocess\t  and  the  principles\tevolved\t in  the  field\t  of
\nadministrative\tlaw are inapplicable.  It should  be  tested
\nonly  on the grounds of ultra vires or\tunconstitutionality.
\nThe  reasons in support of the satisfaction reached  by\t the
\nPresident are part of the advice tendered by the Council  of
\nMinisters.   Therefore,\t they  are  immuned  from   judicial
\nscrutiny,  though every order passed by the  President\tdoes
\nnot  receive the protection under Article 74(2)\t or  Section
\n123 of the Evidence Act.\n<\/p>\n
200. The  question,  therefore,\t is what  is  the  scope  of
\njudicial  review  of  the  Presidential\t Proclamation  under
\nArticle 356.  Though the arm of the court is long enough  to
\nreach injustice wherever it finds and any order or action is
\nnot beyond its ken, whether its reach could be projected  to
\nconstitutional\textraordinary functionary of the  coordinate
\nbranch\tof  the Government, the highest executive,  when  it
\nrecords subjective satisfaction to issue Proclamation  under
\nArticle 356.  The contention of S\/Shri Shanti Bhushan,\tSoli
\nSorabjee  and  Ram  Jethmalani that all\t the  principles  of
\njudicial   review  of  administrative  action  would   stand
\nattracted to the Presidential Proclamation under Article 356
\ncannot be accepted in toto.  Equally the wide proposition of
\nlaw  canvassed by Shri Parasaran is also untenable.  At\t the
\ncost  of repetition it is to reiterate that judicial  review
\nis  the basic feature of the Constitution.  This  Court\t has
\nconstitutional\tduty  and  responsibility,  since   judicial
\nreview\t having\t been  expressly  entrusted  to\t it   as   a
\nconstituent power, to review the acts done by the coordinate
\nbranches,  the\texecutive  or  the  legislature\t under\t the
\nConstitution,  or under law or administrative orders  within
\nthe  parameters applicable to a particular impugned  action.
\nThis  Court has duty and responsibility to find\t the  extent
\nand limits of the power of the coordinate authorities and to
\nfind the law.  It is the province and duty of this Court, as
\n178<\/span>
\nultimate  interpreter of the Constitution, to say  what\t the
\nlaw  is.  This is a delicate task assigned to the  Court  to
\ndetermine  what\t power Constitution has\t conferred  on\teach
\nbranch of the Government, whether it is limited to and if so
\nwhat  are the limits and whether any action of\tthat  branch
\ntransgresses such limits.  The action of the President under
\nArticle\t 356  is a constitutional function and the  same  is
\nsubject\t to  judicial review.  Shri T.R.  Andhyarujina,\t the
\nlearned\t Advocate  General of  Maharashtra,  contended\tthat
\nthough the Presidential Proclamation is amenable to judicial
\nreview,\t it is in the thicket of political question  and  is
\nnot    generally   justiciable.\t    Applying\tself-imposed
\nlimitations this Court may be refrained to exercise judicial
\nreview.\t  This\tcontention  too needs to  be  qualified\t and
\ncircumscribed.\n<\/p>\n
201.\tJudicial   review   must   be\t distinguish\tfrom
\njusticiability.\t the two concepts are not  synonymous.\t The
\npower of judicial review goes to the authority of the court,
\nthough in exercising the power of judicial review, the court
\nin an appropriate case may decline to exercise the power  as
\nbeing not justiciable.\tThe Constitution is both the  source
\nof power as well as it limits the power of an authority,  ex
\nnecessitate.   Judiciary has to decide the  source,  extent,
\nlimitations of the power and legitimacy in some cases of the
\nauthority exercising the power.\t There are no hard and\tfast
\nfixed  rules  as to justiciability of  a  controversy.\t The
\nsatisfaction  of  the  President  under\t Article  356(1)  is
\nbasically  subjective satisfaction based on the material  on
\nrecord.\t   It\tmay  not  be   susceptible   to\t  scientific
\nverification   hedged  with  several   imponderables.\t The
\nquestion, therefore, may be looked at from the point of view
\nof   common  sense  limitation,\t keeping  always  that\t the
\nConstitution   has  entrusted  the  power  to  the   highest
\nexecutive,  the\t President of India, to\t issue\tProclamation
\nunder Article 356, with the aid and advice of the Council of
\nMinisters, again further subject to his own discretion given
\nin  proviso to Article 74(1).  Whether the  question  raised
\nfor  decision is judicially based on  manageable  standards?
\nThe question relating to the extent, scope and power of\t the
\nPresident under Article 356 though wrapped up with political
\nthicket,  per  se  it does not get  immunity  from  judicial
\nreview.\n<\/p>\n
202. However, a distinction be drawn between judicial review
\nof  the\t interpretation of the order or the  extent  of\t the
\nexercise  of the power by the President under  Article\t356.
\nIn the latter case the limits of the power of the  President
\nin issuing the Proclamation under Article 356 and the limits
\nof  judicial  review  itself are to be kept  in\t view.\t The
\nquestion  of  justiciability would in either  case  mutually
\narise  for decision.  In this behalf, the question would  be
\nwhether the controversy is amenable to judicial review in  a
\nlimited\t area but the latter depends upon the nature of\t the
\norder  and  its contents.  The question may  be\t camouflaged
\nwith  a\t political  thicket,  yet  since  the\tConstitution
\nentrusted   that  delicate  task  in  the  scheme   of\t the
\nConstitution  itself to this Court, in an appropriate  case,
\nthe  court may unwrap the dressed up question, to  find\t the
\nvalidity  thereof.   The doctrine of  political\t thicket  is
\nfounded\t on the theory of separation of powers\tbetween\t the
\nexecutive,   the   legislature\tand  the   judiciary.\t The
\nConstitution  of  the  United States  of  America,  gave  no
\nexpress power of judicial review to the Supreme Court of
\n179<\/span>
\nUSA.  Therefore, the scope of political question, when\tcame
\nup  for consideration in Baker v. Carr 42, it was held in  a
\nrestricted sense, but the same was considerably watered down
\nin  later decision of that Court.  Vide Gilligan  v.  Morgan
\n43  . But in deciding the political question the court\tmust
\nkeep   in  forefront  whether  the  court   has\t  judicially
\ndiscoverable   and  manageable\tstandards  to\tdecide\t the
\nparticular  controversy\t placed before it, keeping  in\tview
\nthat the subjective satisfaction was conferred in the widest
\nterms\tto  a  coordinated  political  department,  by\t the
\nConstitution itself.\n<\/p>\n
203. In the State of Rajasthan case 3 Chandrachud, J., as he
\nthen was, held that: (SCR p. 61: SCC p. 644, para 131)
\n\t      “Probing at any greater depth into the reasons
\n\t      given by the Home Minister is to enter a field
\n\t      from which Judges must scrupulously keep away.
\n\t      The field is reserved for the politicians\t and
\n\t      the courts must avoid trespassing into it.”
\nBhagwati,  J.,\tas  he then was, speaking  for\thimself\t and
\nGupta, J., held that (SCR p. 82: SCC p. 662, para 150)
\n\t      “It  is not a decision which can be  based  on
\n\t      what  the Supreme Court of the  United  States
\n\t      has described as ‘judicially discoverable\t and
\n\t      manageable standards’.  It would largely be  a
\n\t      political\t judgment  based  on  assessment  of
\n\t      diverse  and  varied  factors,  fast  changing
\n\t      situations,  potential  consequences,   public
\n\t      reaction,\t  motivations\tand   responses\t  of
\n\t      different\t  classes   of\tpeople\t and   their
\n\t      anticipated  future  behaviour and a  host  of
\n\t      other   considerations,\tin  the\t  light\t  of
\n\t      experience  of  public affairs  and  pragmatic
\n\t      management   of  complex\tand  often   curious
\n\t      adjustments  that\t go to make  up\t the  highly
\n\t      sophisticated mechanism of a modem  democratic
\n\t      government.  It cannot, therefore, by its very
\n\t      nature  be a fit subject-matter  for  judicial
\n\t      determination  and  hence it is  left  to\t the
\n\t      subjective   satisfaction\t  of   the   Central
\n\t      Government  which\t is best in  a\tposition  to
\n\t      decide it.”\n<\/p>\n
\t      Untwalia, J., laid down that: (SCR p. 94:\t SCC
\n\t      p. 672, para 183)
\n\t      “[E]ven  if one were to assume such a fact  in
\n\t      favour  of the plaintiffs or  the\t petitioners
\n\t      the  facts disclosed, undoubtedly, lie in\t the
\n\t      field or an area purely of a political nature,
\n\t      which  are  essentially  non-justiciable.\t  It
\n\t      would  be\t legitimate to characterise  such  a
\n\t      field  as\t a prohibited area in  which  it  is
\n\t      neither  permissible for the courts to  enter,
\n\t      nor should they ever take upon themselves\t the
\n\t      hazardous task of entering into such an area.
\n\t      Fazal Ali, J. reiterating the same view  held,
\n\t      that : (SCR p. II 5: SCC p. 689, para 208)
\n\t      “It  is manifestly clear that the\t court\tdoes
\n\t      not  possess the resources which are  ‘In\t the
\n\t      hands of the Government to f
\n\t      42 7 L Ed 2d 663, 686: 369 US 186 (1962)
\n\t      43 37 L Ed 2d 407, 416: 413 US 1 (1973)
\n\t      3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1
\n\t      SCR 1
\n\t      180<\/span>
\n\t      that they seek to subserve and the feelings or
\n\t      the  aspirations of the nation that require  a
\n\t      particular action to be taken at a  particular
\n\t      time.  It is difficult for the court to embark
\n\t      on an enquiry of that type.”\n<\/p>\n
\t      Beg,  C.J. held that: (SCR p. 26: SCC p.\t616,
\n\t      para 39)
\n\t      “Insofar as article 356(1) may embrace matters
\n\t      of   political   and  executive\tpolicy\t and
\n\t      expediency, courts cannot interfere with these
\n\t      unless   and   until   it\t  is   shown\twhat
\n\t      constitutional  provision\t the  President\t  is
\n\t      going to contravene……\n<\/p>\n
204. We respectfully agree that the above approach would  be
\nthe  proper  course  to tackle\tthe  problem.\tYet  another
\nquestion  to  be disposed of at this stage is the  scope  of
\nArticle 74(2).\tIn the cabinet system of the Government\t the
\nCouncil\t of  Ministers with the Prime Minister as  the\thead
\nwould aid and advise the President to exercise the functions
\nunder the Constitution except where the power was  expressly
\ngiven  to the President to his individual  discretion.\t The
\nscope\tthereof\t was  considered  vis-a-vis  the  claim\t  of
\nprivilege  under  Section 123 of the Evidence Act.   At\t the
\noutset we say that Section 123 of Evidence Act is  available
\nto the President to claim privilege.  In R. K. Jain v. Union
\nof India<\/a>  44  in paragraph 23 at page 143 it was  held\tthat
\nthe  President\texercises his executive\t power\tthrough\t the
\nCouncil\t of  Ministers\tas per the  rules  of  business\t for
\nconvenient transaction of the Government business made under
\nArticle\t 77(3).\t  The Government of  India  (Transaction  of
\nBusiness) Rules, 1961 provide the procedure in that  behalf.
\nAfter  discussing  the\tscope  of  the\tcabinet\t system\t  of
\nGovernment  in\tparagraphs  24 to 28 it was  held  that\t the
\ncabinet\t known as Council of Ministers headed by  the  Prime
\nMinister  is the driving and steering body  responsible\t for
\nthe governance of the country.\tThey enjoy the confidence of
\nParliament and remain in office so long as they maintain the
\nconfidence   of\t the  majority.\t  They\tare  answerable\t  to
\nParliament  and\t accountable  to  the  people.\t They\tbear
\ncollective   responsibility.   Their   executive   functions
\ncomprise  both\tthe determination of the policy as  well  as
\ncarrying  its  execution,  the\tinitiation  of\tlegislation,
\nmaintenance  of\t order,\t promotion of  social  and  economic
\nwelfare\t and  direction\t of foreign policy.   In  short\t the
\ncarrying on or supervision of the general administration  of
\nthe affairs of the Union which includes political’  activity
\nand  carrying on all trading activities, etc. and they\tbear
\ncollective responsibility to the Constitution.\tIt was\talso
\nheld  therein that subject to the claim of  privilege  under
\nSection\t  123  of  the\tEvidence  Act,\tthe   Minister\t was
\nconstitutionally bound under Article 142 to assist the court
\nin  producing the documents before the court and  the  court
\nhas  to strike a balance between the competing\tinterest  of
\npublic\tjustice\t and  the  interest  of\t the  State   before
\ndirecting  to disclose the documents to the opposite  party.
\nBut  the documents shall be placed before the court for\t its
\nperusal in camera.\n<\/p>\n
205. Article  74(2) provides that the question whether\tany,
\nand  if\t sc what, advice was tendered by  Ministers  to\t the
\nPresident shall not be inquired into in any court.  In other
\nwords it intends to give immunity to the Council
\n44  (1993) 4 SCC 11 9: 1993 SCC (L&S) 11 28: (1993)  25\t ATC
\n464<\/span>
\n181<\/span>
\nof  Ministers  to  withhold production\tof  the\t advice\t for
\nconsideration  by  the\tcourt.\t In  other  words  it  is  a
\nrestrictive   power.   Judicial\t review\t is  a\t basic\t and
\nfundamental  feature of the Constitution and it is the\tduty
\nand  responsibility of the constitutional court to  exercise
\nthe  power of judicial review.\tArticle 142, in\t particular,
\ngives\tpower  to  this\t Court\tin  its\t exercise   of\t the
\njurisdiction to make any necessary order “for doing complete
\njustice in any cause or matter pending before it” and  shall
\nbe  enforceable\t throughout the territory of India  in\tsuch
\nmanner as prescribed by or under any law made by  Parliament
\nand  subject to such law.  The said restriction is  only  in
\nmatter\tof  procedure and does not affect  the\tpower  under
\nArticle 142.  This Court has all or every power to make\t any
\norder to secure the “attendance of any person, discovery  or
\nproduction  of any document or investigation”.\tThereby\t the
\npower  of this Court to secure or direct production  of\t any
\ndocument  or  discovery\t is  a\tconstitutional\tpower.\t The
\nrestrictive  clause under Article 74(2) and the wider  power
\nof this Court under Article 142 need to be harmonised.\n<\/p>\n
206. In\t R.K.  Jain  case44 it was held that  the  court  is
\nrequired to consider whether public interest is so strong to
\noverride  the  ordinary right and interest of  the  litigant
\nthat  he shall be able to lay before a court of justice\t the
\nrelevant  evidence in balancing the competing interest.\t  It
\nis  the\t duty  of the court to see hat\tthere  is  a  public
\ninterest and that harm shall not be done to the nation or of
\nthe  public service by disclosure of the document and  there
\nis  a  public interest that the\t administration\t of  justice
\nshall  not be frustrated by withholding the documents  which
\nmust  be  produced,  if\t justice  is  to  be  done.  it\t is,
\ntherefore, the paramount right and duty of the court, not of
\nthe  executive,\t to  decide whether  the  document  will  be
\nproduced or withheld.  The Court must decide which aspect of
\nthe  public  interest  predominates, in\t other\twords  which
\npublic interest requires that the document whether should be
\nproduced  for effectuating justice and\tmeaningful  judicial
\nreview\tperforming  its\t function and\/or should\t it  not  be
\nproduced.   In some cases, therefore, the court must,  in  a
\nclash  of  competing  public  interests\t of  the  State\t and
\nadministration of justice, weigh the scales and decide where
\nthe  balance  lies. The basic question to  which  the  court
\nwould, therefore, have to address itself for the purpose  of
\ndeciding the validity of the objection would be, whether the
\ndocument relates to affairs of the State, in other words, is
\nof such a character that its disclosure would be against the
\ninterest  of  the  State or the public\tservice\t and  if  so
\nwhether\t public interest in its non-disclosure is so  strong
\nthat   it   must  prevail  over\t the  public   interest\t  in
\nadministration of justice.  On that account it should not be
\nallowed to be disclosed. (Vide paras 6 and 1744.)\n<\/p>\n
207. When public interest immunity against disclosure of the
\nState  documents in the transaction of the business  by\t the
\nCouncil\t of Ministers of a class character was\tclaimed,  in
\nthe clash of this interest, it is the right and duty of\t the
\ncourt  to weigh the balance in that case also and  that\t the
\nharm
\n(1993) 4 SCC 119: 1993 SCC (L&S) 1128: (1993) 25 ATC 464
\n182<\/span>
\nshall not be done to the nation or the public service and in
\nthe  administration of justice each case must be  considered
\nin its backdrop.\n<\/p>\n
208. The  President  has  no  implied  authority  under\t the
\nConstitution to withhold the document.\tOn the other hand it
\nis his solemn constitutional duty to act in aid of the court
\nto  effectuate\tjudicial  review. (Vide\t paragraphs  54\t and
\n5544.)\tThat was a case of statutory exercise of  power,  in
\naccordance  with  the  business\t rules\tin  appointing\t the
\nPresident  of CEGAT and considering the facts in that  case,
\nit  was held that it was not necessary to direct  disclosure
\nof  the documents to the other side.  In view of the  scheme
\nof  the\t Constitution and paramount judicial  review  to  do
\ncomplete justice it must be considered in each case  whether
\nrecord\tshould\tbe produced.  But by  operation\t of  Article
\n74(2)  only  the actual advice tendered by  the\t Council  of
\nMinisters gets immunity from production and the court  shall
\nnot inquire into the question whether and if so what  advice
\nwas  tendered by the Minister.\tIn other words, the  records
\nother  than  the  advice tendered by  the  Minister  to\t the
\nPresident,  if\tfound  necessary,  may\tbe  required  to  be
\nproduced before the constitutional court.  This\t restrictive
\ninterpretation would subserve the wider power under  Article
\n142  given  to\tthis Court and the  protection\taccorded  by
\nArticle 74(2) maintaining equibalance.\n<\/p>\n
209. Article 74(2) creates bar of enquiry and not a claim of
\nprivilege  for decision in the exercise of the\tjurisdiction
\nwhether and, if so, what advice was tendered by the  Council
\nof  Ministers to the President.\t The power of Article  74(2)
\napplies\t only to limited cases where the matter has gone  to
\nthe President for his orders on the advice of the Council of
\nMinisters.   Exercise  of personal  discretion\tcalling\t the
\nleader\tof a political party that secured majority  to\tform
\nthe  Government or the leader expressing his  inability,  to
\nexplore\t other\tpossibilities  is  not\tliable\tto  judicial
\nscrutiny.    Action  based  on\tthe  aid  and  advice\talso
\nrestricted  the\t scope,\t for  instance,\t the  power  of\t the
\nPresident to grant pardon or appointing a Minister, etc.  is
\nthe  discretion\t of  President.\t  Similarly  prorogation  of
\nParliament  or dissolution of Parliament done under  Article
\n85 is not liable to judicial review.  The accountability  is
\nof  the\t Prime Minister to the people though  the  President
\nacts in his discretionary power, with the aid and advice  of
\nthe  Prime Minister.  Similarly, the right of the  President
\nto address and send message to the Lok Sabha and Rajya Sabha
\nas under Article 86 are also in the area of discretion\twith
\nthe  aid and advice of the Council of Ministers.  The  power
\nof  President to promulgate an ordinance under\tArticle\t 123
\nand  the assent of the Bills under Article 200 are  reserved
\nfor consideration under Article 201.  As stated earlier, the
\ndiscretion  of\tthe  President on the choice  of  the  Prime
\nMinister   is  his  personal  discretion  though   paramount
\nconsideration  in  the\tchoice would be of  the\t person\t who
\nshould command the majority in the House.  Equally when\t the
\nGovernment has lost its majority in the House and refuses to
\nlay down the office, it is his paramount duty to dismiss the
\nGovernment.  Equally as said earlier, the dissolution of the
\nLok Sabha would be on aid and advice
\n44 (1993) 4 SCC 119:1993 SCC (L&S) 1128:(1993) 25 ATC 464
\n183<\/span>
\nof  the Prime Minister, the President while  dissolving\t the
\nLok  Sabha  without  getting  involved\tin  politics   would
\nexercise  his discretion under Article 85, but the  ultimate
\nresponsibility and the accountability for such advice is  of
\nthe  Prime Minister and the President would  act  consistent
\nwith  the  conventions with an appeal to the people  of\t the
\nnecessity  to dissolve the House and their need\t to  express
\ntheir will at the polls.  In this area the communication  of
\nthe aid and advice whether receives confidentiality and bars
\nthe  enquiry  as to the nature of the advice or\t the  record
\nitself.\t  Therefore, the enquiry under Article 74(2)  is  to
\nthe  advice  and  if so, what advice  was  tendered  to\t the
\nPresident  would be confined to limit power but not  to\t the
\ndecision taken on administrative routine though expressed in
\nthe name of the President under Article 73 read with Article
\n71 of the Constitution.\n<\/p>\n
210. The   matter  can\tbe  looked  at\tfrom   a   different
\nperspective that under Article 361, the President shall\t not
\nbe  answerable\tto  any\t court\tfor  the  exercise  or\t the
\nperformance  of his power and duty of his office or for\t any
\nact  purported to have been done by him in the exercise\t and
\nperformance of those powers and duties.\t When the  President
\nacts not necessarily on the aid and advice of the Council of
\nMinisters  but\tonly  “or  otherwise”  i.e.  on\t any   other
\ninformation  under  Article  356(1) his\t satisfaction  is  a
\nsubjective  one\t that a situation has arisen  in  which\t the
\nGovernment  of the State cannot be carried on in  accordance
\nwith  the  provisions  of the Constitution  and\t issues\t the
\nProclamation   required\t  under\t Article   356(1)   of\t the
\nConstitution.\tWhen it is challenged and asked to give\t his
\nreasons, he is immuned from judicial process.  The Union  of
\nIndia  will  not  have\ta  say\tfor  the  exercise  of\t the
\nsatisfaction  reached by the President “on  otherwise  self-
\nsatisfaction” for his issuing his Proclamation under Article\n<\/p>\n
356.  Then no one can satisfy the court the grounds for\t the
\nexercise of the powers by the President.  Therefore, we\t are
\nof  the\t considered view that the advice and,  if  so,\twhat
\nadvice was tendered by the Council of Ministers for exercise
\nof  the\t power\tunder Article 356(1)  would  be\t beyond\t the
\njudicial  enquiry under Article 74(2) of  the  Constitution.
\nNevertheless,  the record on the basis of which\t the  advice
\nwas  tendered  constitute the material.\t But,  however,\t the
\nmaterial on record, the foundation for advice or a decision,
\ndoes  not  receive  total protection  under  Article  74(2).
\nNormally  the record may not be summoned by “rule  nisi”  or
\n“discovery  order nisi”.  Even if so summoned it may not  be
\nlooked\tinto unless a very strong case is made out from\t the
\npleadings,  the order of Proclamation if produced and  other
\nrelevant  material  on\trecord.\t  If  the  court  after\t due
\ndeliberation  and,  reasoned order by a High  Court,  issues
\n“discovery order nisi” the record is liable to be reproduced
\npursuant to discovery order nisi issued by this Court or the
\nHigh  Court  subject  to  the claim  under  Section  123  of
\nEvidence Act to examine the record in camera.\n<\/p>\n
211. At\t this  juncture we are to  reiterate  that  judicial
\nreview is not concerned with the merits of the decision\t but
\nwith  the decision-making process.  This is on\tthe  premise
\nthat  modern  democratic system has  chosen  that  political
\naccountability\tis  more  important  than  other  kinds\t  of
\naccountability\tand  the judiciary exercising  its  judicial
\nreview may be
\n184<\/span>
\nrefrained to do so when it finds that the controversy is not
\nbased  on judicially discoverable and manageable  standards.
\nHowever,  if  a\t legal\tquestion  camouflaged  by  political
\nthicket\t  has\tarisen,\t  the  power  and   the\t  doors\t  of
\nconstitutional\tcourt  are  not\t closed,  nor  can  they  be
\nprohibited to enter in the political field under the garb of
\npolitical     thicket\t  in\tparticular,\twhen\t the
\nConstitution.expressly has entrusted the duty to it.  If  it
\nis  satisfied that a judicially discoverable and  manageable
\nissue arises, it may be open to the court to issue discovery
\norder  nisi and consider the case and then issue rule  nisi.
\nIt  would thus be the duty and responsibility of this  Court
\nto determine and found law as its premise and lay the law in
\nits   duty  entrusted  by  the\tConstitution,  as   ultimate
\ninterpretor  of\t the Constitution, though it is\t a  delicate
\ntask, and issue appropriate declaration.  This Court equally
\ndeclares and determines the limit, and whether the action is
\nin transgression of such limit.\n<\/p>\n
Interpretation\tof  the\t Constitution  and  scope  of  value
\norientation\n<\/p>\n
212. Before  discussing\t the  crucial  question\t it  may  be
\nnecessary  to preface that the Constitution is\tintended  to
\nendure for succeeding generations to come.  The best of\t the
\nvision\tof  the\t Founding Fathers could\t not  visualise\t the
\npitfalls  in  the  political governance,  except  the  hoary
\nhistory\t of the working of the emergency provisions  in\t the
\nGovernment  of India Act and wished that Article 356  should
\nnot be “put to operation” or be a “dead letter” and at\tbest
\n“sparingly”  be used.  In working the Constitution,  Article
\n356 has been used 90 times so far a daunting exercise of the
\npower.\t But  it  is settled law that  in  interpreting\t the
\nConstitution  neither  motives nor bad faith  nor  abuse  of
\npower  be  presumed  unless  in an  individual\tcase  it  is
\nassailed  and  arises  for consideration  on  that  premise.
\nSection\t  114(e)  of  the  Evidence  Act  raises   statutory
\npresumption   that   official  acts  have   been   regularly
\nperformed.\n<\/p>\n
213. Prof.   Bork in his “Neutral Principles and Some  First
\nAmendment Problems” 47 Ind.  Law Journal, p. 1, 8, 1971 Edn.
\nstated\tthat the choice of fundamental values by the  courts
\ncannot\tbe justified.  When constitutional materials do\t not
\nclearly\t specify  the  value to be preferred,  there  is  no
\nprinciple weighing to prefer any claimed human value to\t any
\nother.\t The  judge  must stick close to the  text  and\t the
\nhistory and their fair implications and not to construct new
\nrights.\t  The same neutral principle was preferred by  Prof.
\nHans Linde in his “Judges Critics and Realistic\t Traditions”
\n[82 Yale Law Journal, 227 at 254, (1972)] that “the judicial
\nresponsibility begins and ends with determining the  present
\nscope  and  meaning  of a decision that the  nation,  at  an
\nearlier\t time, articulated and enacted\tinto  constitutional
\ntext.  Prof.  Ely in his “Wages of Crying Wolf’ a comment on
\nReo  v. Ved 45 stated that a neutral principle if  it  lacks
\nconnection  with  any value, the constitution  marks  it  as
\nspecial.  It is not a constitutional principle and the court
\nhas  no\t business in missing it.  In  Encyclopaedia  of\t the
\nAmerican Constitution by
\n45 1982 Yale LJ 1920, 1949, 1973
\n185<\/span>
\nLeonard\t  W.  Levy  at\tp.  464\t it  is\t stated\t that\t“the
\nConstitution  is a political document; it  serves  political
\nends;  its interpretations are political acts”.\t Any  theory
\nof  constitutional  interpretation therefore  presupposes  a
\nnormative  theory of the Constitution itself a\ttheory,\t for
\nexample, about the constraints that the words and intentions
\nof  the\t adopters  should  impose  on  those  who  apply  or
\ninterpret the Constitution.  As Ronald Dworkin observed:\n<\/p>\n
\t      “Some parts of any constitutional theory\tmust
\n\t      be independent of the intentions or beliefs or
\n\t      indeed  the  acts\t of the\t people\t the  theory
\n\t      designates  as framers.  Some part must  stand
\n\t      on   its\town  political\tor   moral   theory;
\n\t      otherwise\t  the\ttheory\t would\t be   wholly
\n\t      circular.”\n<\/p><\/blockquote>\n
The  courts  as interpreters are called upon to\t fill  those
\nsignificant  constitutional  gaps in variety of\t ways.\t The
\ncourt should vigorously describe as determinaters, of public
\nvalues as small revolution and principles.  Their source  of
\nmoral reasoning and search for moral truth are at least\t the
\nbest  moral foundation available at the time when  momentous
\nissues based on ethical or moral principles arise.  What  is
\nleft  for the other social decision makers, the\t State,\t the
\nlegislature and the executive?\tWhere does the\tnon-original
\npolitical  process  fit in?  Prof.  Neil K. Komuser  in\t his
\n“The  Features of Interpreting Constitution” (North  Western
\nLaw  Review,  1986-87,\t191, 202-10) stated  that  the\tnon-
\noriginalist  interpreters leave the above questions  largely
\nunanswered.  He says:\n<\/p>\n
\t      “They  seem or busy of timing to convince\t the
\n\t      world  that one cannot and should not  have  a
\n\t      non-narrow  originalist approach nor that\t one
\n\t      or  another branch of philosophy\tof  language
\n\t      should prevail for they have failed to address
\n\t      an   essential  to  my  mind,  the   essential
\n\t      question\tof constitutional law, who  decides?
\n\t      None  of the non-originalists vaguely  phrased
\n\t      assignments for the judiciary, such as ‘search
\n\t      for   public   or\t traditional   values’;\t  or
\n\t      ‘protection  of principles’ or  ‘evolution  of
\n\t      morals’  tell us what the courts should do  or
\n\t      hold or describe, what they actually do.”\n<\/p><\/blockquote>\n
The  judiciary\tcan be seen as doing everything\t or  nothing
\nunder  these schemes.  If the judiciary is meant  merely  to
\nlist  values  or  principles that  might  be  considered  by
\npolitical process, the judicial role is toothless.  The list
\nof values or principles that might be justiciably considered
\nis   virtually\t infinite.   Anyone   with   the   slightest
\nsophistication\tcan find some benefit, value or\t justiciable
\nprinciples  in virtually any legislation.  That is  how\t the
\nminimal\t scrutiny or rational review techniques of  judicial
\nreview\tgenerally have been employed.  This level of  review
\nis no review at all.  On the other hand one close up to\t the
\ntenor of the arguments that the non-originalists can be seen
\nas  giving  the judicial task of balancing  the\t conflicting
\npublic\tvalues\tfor Proclamation which\tprinciples  triumph.
\nHere  the judiciary becomes the central\t societal  decision-
\nmaker.\t The resolution of conflicts among public values  is
\ncoterminous  with  social decision-making.  It is  what\t the
\nlegislature,  the executive and even the judiciary do.\t Put
\nsimply, the value formulations
\n186<\/span>
\nof  the non-originalists do not address the essential  issue
\nraised by the earlier discussions.  How shall responsibility
\nfor  decisions be allocated in a world of  highly  imperfect
\ndecision-makers?   How would these scholars  have  judiciary
\n(let  alone  the  other\t institution)  face  such  terms  as
\ndistrust,  uncertainty and ignorance?  One does not have  to
\nbe  hostile to a substantial role for judicial review to  be
\nconcerned when so much constitutional scholarship skirts  so
\ncentral an issue.  Indeed, one could allow for significantly
\nmore  judicial\tactivism  than\tour  constitutional  history
\nreveals\t without  approaching  the limits  inherent  in\t the
\nnebulous   formulations\t of  the   various   non-originalist
\npositions.   As a general matter even in the  most  activist
\nspirit, for example “the Lochner and Warran’s Courts  Eras”,
\nthe  judiciary\tseems to have decided, not  to\tdecide\tmore
\nquestions  leaving  the discovery of the  public  values  or
\nmoral  evolution in most areas to other\t societal  decision-
\nmakers.\t  Although such things are within the  measures,  it
\nseems that there are legislative, executive and to a greater
\nextent\tadministrative agencies, interpreters have  actively
\ninfluenced  only  a  small percentage  of  public  decision-
\nmaking.\t   This\t it  seems  to\tme   the   non-originalists’
\nliterature   threatens\t to   be   largely   irrelevant\t  to
\n“constitutional\t analysis” so long as it does  not  consider
\nwith  greater  care  under what\t circumstances\tthe  usually
\npassive mode of judicial interpretation is to be replaced by
\nthe less common, but more important active mode.  Bennion on
\nStatutory  Interpretation  at  p.  721\tstated\tthat   since
\nconstitutional\tlaw is the framework of the State it is\t not
\nto  be\taltered by a side wind.\t A caveat is  needed  to  be
\nentered\t here.\t In interpreting the Constitution,  to\tgive
\neffect\tto  personal liberty or rights of a section  of\t the
\nsociety, a little play provides teeth to operate the law  or
\nfilling\t the yearning gaps even “purposive principle”  would
\nbe  adaptable which may seek to serve the law.\tBut  we\t are
\ncalled\t to  interpret\tthe  constitutional   operation\t  in
\npolitical  field,  whether it would be\tpermissible  is\t the
\nquestion.\n<\/p>\n
SATISFACTION OF THE PRESIDENT AND JUSTICIABILITY\n<\/p>\n
214. The satisfaction of the President that a President that
\na situation has arisen in which the Government of the  State
\ncannot\tbe carried out in accordance with the provisions  of
\nthe  Constitution is founded normally upon the\treport\tfrom
\nthe  Governor or any other information which  the  President
\nhas   in  possession,  in  other  words,  “the\tCouncil\t  of
\nMinisters”,   “the   President”\t reached   a   satisfaction.
\nNormally,  the report of the Governor would form basis.\t  It
\nis already stated that the Governor’s report should  contain
\nmaterial  facts relevant to the satisfaction reached by\t the
\nPresident.   In an appropriate case where the  Governor\t was
\nnot  inclined to report to the President of  the  prevailing
\nsituation  contemplated\t by Article 356, the  President\t may
\notherwise  have information through accredited\tchannels  of
\ncommunications\t and  have  it\tin  their  custody  and\t  on
\nconsideration\tof  which  the\tPresident  would   reach   a
\nsatisfaction  that  a  situation has  arisen  in  which\t the
\nGovernment  of\ta State cannot be carried on  in  accordance
\nwith the provisions.\n<\/p>\n
187<\/span><\/p>\n
\t\t\t“OTHERWISE”\n<\/p>\n
215. The   word\t “otherwise”  in  Article  356(1)  was\t not
\noriginally found in the Draft Article 278, but it was  later
\nintroduced  by\tan  amendment.\tDr  Ambedkar  supported\t the
\namendment  on the floor of the Constituent Assembly  stating
\nthat :\n<\/p>\n
\t      “The original Article 188 merely provided that
\n\t      the President should act on the report made by
\n\t      the  Governor.  The word ‘otherwise’  was\t not
\n\t      there.   Now  it is felt that in view  of\t the
\n\t      fact  that  Article 277-A\t (now  Article\t355)
\n\t      which  precedes  Article\t278  (Article\t356)
\n\t      imposed  a  duty and an  obligation  upon\t the
\n\t      Centre, it would not be proper to restrict and
\n\t      confine\taction\tof  the\t  President,   which
\n\t      undoubtedly will be taken in the fulfilment of
\n\t      the  duty, to the report made by the  Governor
\n\t      of the province.\tIt may be that the  Governor
\n\t      does  not\t make a report.\t  None-theless,\t the
\n\t      facts  are such that the President feels\tthat
\n\t      his intervention is necessary and imminent.  I
\n\t      think  as\t a  necessary  consequence  to\t the
\n\t      introduction  of Article 277-A, we  must\talso
\n\t      give liberty to the President to act even when
\n\t      there  is no report by the Governor  and\twhen
\n\t      the President has got certain facts within his
\n\t      knowledge\t on which he thinks he ought to\t act
\n\t      in fulfilment of his duty.”\n<\/p><\/blockquote>\n
The width of the power is very wide, the satisfaction of the
\nPresident  is subjective satisfaction.\tIt must be based  on
\nrelevant  materials.   The doctrine  that  the\tsatisfaction
\nreached by an administrative officer based on irrelevant and
\nrelevant grounds and when some irrelevant grounds were taken
\ninto   account,\t the  whole  order  gets  vitiated  has\t  no
\napplication  to\t the  action under  Article  356.   Judicial
\nreview\tof  the Presidential Proclamation is  not  concerned
\nwith the merits of the decision, but to the manner in  which
\nthe  decision  had been reached.  The  satisfaction  of\t the
\nPresident  cannot be equated with the  discretion  conferred
\nupon   an   administrative   agency,   of   his\t  subjective
\nsatisfaction  upon  objective  material\t like  in  detention
\ncases, administrative action or by subordinate\tlegislation.
\nThe analogy of the provisions in the Government of India Act
\nor similar provision in the Constitution of Pakistan and the
\ninterpretation put upon it by the Supreme Court of  Pakistan
\ndo  not assist us.  The exercise of the power under  Article
\n356  is with the aid and advice of the Council of  Ministers
\nwith the Prime Minister as its head.  They are answerable to
\nParliament and accountable to the people.\n<\/p>\n
216. To test the satisfaction reached by the President there
\nis no satisfactory criteria for judicially discoverable\t and
\nmanageable  standards that what grounds prevailed  with\t the
\nPresident  to reach his subjective satisfaction.  There\t may
\nbe  diverse,  varied and variegated considerations  for\t the
\nPresident  to  reach  the  satisfaction.   The\tquestion  of
\nsatisfaction is basically a political one, practically it is
\nan  impossible\tquestion  to adjudicate\t on  any  judicially
\nmanageable   standards.\t  Obviously  the  Founding   Fathers
\nentrusted that power to the highest executive, the President
\nof  India,  with  the  aid and\tadvice\tof  the\t Council  of
\nMinisters.  The satisfaction of the President
\n188<\/span>
\nbeing  subjective, it is not judicially discoverable by\t any
\nmanageable  standards  and the court  would  not  substitute
\ntheir  own  satisfaction  for that of  the  President.\t The
\nPresident’s   satisfaction  would  be  the  result  of\t his
\ncomprehending  in  his own way the facts  and  circumstances
\nrelevant  to  the satisfaction that the\t Government  of\t the
\nState cannot be carried on in accordance with the provisions
\nof the Constitution.  There may be wide range of  situations
\nand  sometimes may not be enumerated, nor can there  be\t any
\nsatisfactory criteria, but on a conspectus of the facts\t and
\ncircumstances the President may reach the satisfaction\tthat
\nthe  Government\t of  the  State\t cannot\t be  carried  on  in
\naccordance   with  the\tprovisions  of\t the   Constitution.
\nTherefore, the subjective satisfaction is not justiciable on
\nany   judicially   manageable  standards.    Moreover,\t the
\nexecutive decision of the President receives the flavour  of
\nthe  legislative  approval after both Houses  of  Parliament
\nhave  approved the Proclamation and  executive\tsatisfaction
\nceases\tto  be relevant.  Article 100  of  the\tConstitution
\nprotects  the parliamentary approval from assailment on\t any
\nground.\t  The  judicial review\tbecomes\t unavailable.\tThat
\napart a writ petition under Article 226, if is\tmaintainable
\nto  question the satisfaction, equally a declaration that  a
\nsituation  has arisen in the State to clamp emergency or  to
\ndeclare\t President’s rule by judicial order  is\t permissible
\nand cannot be wished away.  Could it be done?\n<\/p>\n
217. The use of the word “may” in clause (1) of Article\t 356
\ndiscerns  discretion  vested in the  President\t(Council  of
\nMinisters)  to consider whether the  situation\tcontemplated
\nunder Article 356 has arisen and discernible from the report
\nsubmitted by the Governor or other information otherwise had
\nnecessitated  to dismiss the State Government  and  dissolve
\nthe  Assembly to take over the administration of a State  or
\nany one of the steps envisaged in sub-clauses (a) to (c)  of
\nclause\t(1).   The issuance of Proclamation  is\t subject  to
\napproval which includes (disapproval in inappropriate  case)
\nby both Houses of Parliament.  In other words, the  issuance
\nof the Proclamation and actions taken in furtherance thereof
\nare  subject to the parliamentary control which itself is  a
\ncheck and safeguard to protect the federal character of\t the
\nState and the democratic form of Government.  The  President
\nis  not necessarily required to approve the advice given  by
\nthe Council of Ministers to exercise the power under Article\n<\/p>\n
356.  The proviso to sub-article (1) of Article 74,  brought
\nby the Constitution 44th Amendment Act, itself is a  further
\nassurance   that   it  was  issued  after  due\t and   great
\ndeliberations.\tIt also assures that the President  actively
\napplied\t his  mind to the advice tendered and  the  material
\nplaced before him to arrive at his subjective  satisfaction.
\nIn  an\tappropriate  case  he may  require  the\t Council  of
\nMinisters to reconsider such advice, either generally or  he
\nmay  himself suggest an alternative course of action to\t the
\nproposed  advice tendered by the Council of  Ministers.\t  By
\nnecessary  implication it assures that the President  is  an
\nactive\tparticipant  not merely acting as  a  constitutional
\nhead  under Article 73, but also active participant  in\t the
\ndecision-making\t process  and the  Proclamation\t was  issued
\nafter  due deliberations.  The court cannot,  therefore,  go
\nbehind the issue of
\n189<\/span>
\nProclamation  under  Article  356  and\tsubstitute  its\t own
\nsatisfaction for that of the President.\n<\/p>\n
“CANNOT BE CARRIED ON” MEANING AND SCOPE\n<\/p>\n
218.  We  are  to  remind  ourselves  that  application\t  of
\n“principle  of\tthe source” from Part XVIII, the  family  of
\nemergency   provisions\t conveniently\temployed   or\t the
\ngrammarian’s  rule would stultify the operation\t of  Article
\n356  wisely  incorporated  in  the  Constitution.    Instead
\nplacing\t it  in the spectrum of “purposive  operation”\twith
\nprognosis   would  yield  its  efficacy\t    for\t  succeeding
\ngenerations to meet diverse situations that may arise in its
\noperation.  The phrase “cannot be carried on” in clause\t (1)
\nof Article 356 does not mean that it is impossible to  carry
\non  the\t Government  of the State.  It\tonly  means  that  a
\nsituation  has\tso arisen that the Government of  the  State
\ncannot\tbe carried on its administration in accordance\twith
\nthe provisions of the Constitution.  It is not the violation
\nof  one\t provision or another of  the\t Constitution  which
\nbears  no  nexus to the object of the action  under  Article\n<\/p>\n
356.  The key word in the marginal note of Article 356\tthat
\n“the  failure of constitutional machinery” open up its\tmind
\nof  the operational area of Article 356(1).   Suppose  after
\ngeneral\t elections held, no political party or coalition  of
\nparties or groups is able to secure absolute majority in the
\nlegislative  assembly and despite the  Governor’s  exploring
\nthe  alternatives,  the\t situation has arisen  in  which  no
\npolitical party is able to form stable Government, it  would
\nbe  a  case  of completely  demonstrable  inability  of\t any
\npolitical  party to form a stable Government commanding\t the
\nconfidence  of the majority members of the legislature.\t  It
\nwould  be  a case of failure  of  constitutional  machinery.
\nAfter  formation  of the Ministry, suppose due\tto  internal
\ndissensions, a deliberate deadlock was created by a party or
\na group of parties or members and the Governor recommends to
\nthe  President\tto dissolve the Assembly, situation  may  be
\nfounded\t on  imponderable  variable  opinions  and  if\t the
\nPresident  is  satisfied that the Government  of  the  State
\ncannot\t be  carried  on  and  dissolves  the  Assembly\t  by
\nProclamation  under  Article  356, would  it  be  judicially
\ndiscoverable and based on manageable standard to decide\t the
\nissue?\t Or  a\tMinistry  is voted  down  by  motion  of  no
\nconfidence  but the Chief Minister refuses to resign  or  he
\nresigns due to loss of support and no other political  party
\nis  in\ta position to form an alternative  Government  or  a
\nparty having majority refuses to form the Ministry would not
\na   constitutional  deadlock  be  created?   When  in\tsuch
\nsituations  the\t Governor  reported to\tthe  President,\t and
\nPresident issued Proclamation could it be said that it would
\nbe  unreasonable  or  mala fide\t exercise  of  power?\tTake
\nanother\t instance where the Government of a State,  although
\nenjoying  the  majority\t support in  the  Assembly,  It\t has
\ndeliberately   conducted,  over\t a  period  of\t time,\t its
\nadministration in disregard of the Constitution and the\t law
\nand while ostensibly acting within the constitutional  form,
\ninherently   flouts   the  constitutional   principles\t and
\nconventions  as\t a  responsible\t Government  or\t in   secret
\ncollaboration  with the foreign powers or  agencies  creates
\nsubvertive  situation,\tin all the cases each is a  case  of
\nfailure of the constitutional machinery.\n<\/p>\n
190<\/span><\/p>\n
219. While  it\tis not possible\t to  exhaustively  catalogue
\ndiverse\t situation  when the  constitutional  breakdown\t may
\njustifiably  be inferred from, for instance (i)\t large-scale
\nbreakdown  of the law and order or public  order  situation;\n<\/p>\n
(ii)  gross mismanagement of affairs by a State\t Government;\n<\/p>\n
(iii)  corruption  or  abuse of its power;  (iv)  danger  to
\nnational  integration or security of the State or aiding  or
\nabetting national disintegration or a claim for\t independent
\nsovereign  status  and (v) subversion  of  the\tConstitution
\nwhile professing to work under the Constitution or  creating
\ndisunity  or disaffection among the people  to\tdisintegrate
\ndemocratic social fabric.\n<\/p>\n
220. The Constitution itself provides indication in  Article
\n365  that on the failure of the State Government  to  comply
\nwith or to give effect to any directions given by the  Union
\nGovernment  in\texercise of its executive powers  and  other
\nprovisions  of the Constitution it shall be lawful  for\t the
\nPresident  to hold that a situation has arisen in which\t the
\nGovernment  of the State cannot be carried on in  accordance
\nwith the provisions of the Constitution.  For instance,\t the
\nState  failed  to  preserve  the  maintenance  of  means  of
\ncommunication  declared to be of national or material  means
\nenvisaged  under  Article  257(2) of  the  Constitution\t and
\ndespite the directions, the State Government fails to comply
\nwith  the  same.  It would be an  instance  envisaged  under
\nArticle\t 356.  Similarly protection of the  railways  within
\nthe State is of paramount importance.  If a direction issued
\nunder  Article 257(3) was failed to be complied with by\t the
\nState to protect the railways, it would be another  instance
\nenvisaged  under Article 365.  In these or  other  analogous
\nsituations the warning envisaged by Dr Ambedkar needs to  be
\ngiven  and failure to comply with the same would be  obvious
\nfailure\t   of\tthe   constitutional   machinery.     During
\nProclamation  of emergency under Article 352  if  directions
\nissued\tunder Article 353-A were not complied with or  given
\neffect\tto, it would also be an instance under Article\t365.
\nEqually\t  directions  given  under  Article  360(3)  as\t  to
\nobservance of financial propriety or the Proclamation as  to
\nfinancial  emergency  is yet another instance  envisaged  by
\nArticle\t 365.  The recent phenomena that the Chief  Minister
\ngets life-size photo published in all national and  regional
\ndailies\t everyday  at  great  public  expenditure.   Central
\nGovernment  has\t responsibility\t to  prevent  such  wasteful
\nexpenditure.   Sufficient warning given yielded no  response
\nnor  the Chief Minister desisted to have it published is  it
\nnot  a case for action under Article 356?   These  instances
\nwould furnish evidence as to the circumstances in which\t the
\nPresident  could  be satisfied that the\t Government  of\t the
\nState cannot be carried on in accordance with the provisions
\nof the Constitution.  These instances appear to be  curative
\nin  nature.   In these cases forewarning may be\t called\t for
\nbefore acting under Article 356.\n<\/p>\n
221. Take another instance that under Article 339(2) of\t the
\nConstitution the Union of India gives direction to the State
\nto  draw and execute the schemes specified therein  for\t the
\nwelfare of the Scheduled Tribes in that State and  allocated
\nfunds for the purpose.\tThe State, in defiance, neither drew
\nthe  plans  nor\t executed  the\tschemes,  but  diverted\t the
\nfinances allocated for other purposes, it would be a failure
\nof the constitutional machinery to
\n191<\/span>
\nelongate    the\t  constitutional   purpose    of    securing
\nsocioeconomic  justice\tto  the\t tribals  envisaged  in\t the
\ndirective  principles warranting the President to reach\t his
\nsatisfaction  that the Government of the State is not  being
\ncarried\t on  in\t accordance  with  the\tprovisions  of\t the
\nConstitution.\t Where\t owing\t to   armed   rebellion\t  or
\nextraordinary\tnatural\t calamity,  like   earthquake,\t the
\nGovernment  of\tthe State is unable to perform its  duty  in
\naccordance  with  the provisions of the\t Constitution,\tthen
\nalso  satisfaction of the President that the  Government  of
\nthe  State is unable to perform as a responsible  Government
\nin accordance with the provisions of the Constitution is not
\njusticiable.\n<\/p>\n
222. Conversely,  on the resignation of the  Chief  Minister
\nthe  Governor  without\tattempting or  probing\tto  form  an
\nalternative Government by an opposition party recommends for
\ndissolution of the Assembly, it would be an obvious case  of
\nhighly\tirrational exercise of the power.  Where  the  Chief
\nMinister  himself  expresses  inability\t to  cope  with\t his
\nmajority   legislators,\t recommends  to\t the  Governor\t for
\ndissolution,   and   dissolution   accordingly\t was   made,
\nexercising  the power by the President, it would also  be  a
\ncase of highly irrational exercise of the power.  Where\t the
\nGovernor  recommends  to  the  President  to  dissolve\t the
\nAssembly on the ground that the Chief Minister belongs to  a
\nparticular religion, caste or creed, it would also be a case
\nthat  the  President  reached satisfaction  only  on  highly
\nirrational  consideration  and does not bear  any  nexus  or
\ncorrelation to the approximate purpose of the action.  It is
\nclearly\t unconstitutional.  Take an instance  that  national
\nlanguage  is  Hindi.  Centre  directs  a  non-Hindi-speaking
\nState  to  adopt  Hindi in the Devanagari  script  as  State
\nlanguage,  though predominantly 95% of the  population\tdoes
\nnot  know Hindi, nor has need to adopt it as lingua  franca,
\nthe  violation of the directives does not entail  imposition
\nof President’s rule.\n<\/p>\n
223. The  exercise  of\tpower  under  Article  356  by\t the
\nPresident  through  Council  of\t Ministers  places  a  great
\nresponsibility\ton it and inherent therein are the seeds  of
\nbitterness  between  the Union of India and the\t States.   A
\npolitical party with people’s mandate of requisite  majority
\nor  of coalition with value-based principles  or  programmes
\nand  not of convenience are entitled to form Government\t and
\ncarry on administration for its full term unless voted\tdown
\nfrom  power  in accordance with the Constitution.   We\thave
\nmulti-party  system and in recent past regional parties\t are
\nalso emerging.\tSo one political party would be in power  at
\nthe  Centre and another at the State level.  In\t particular,
\nwhen  the Union of India seeks to dismiss a  State  Ministry
\nbelonging to a different political party, there is bound  to
\nexist  friction.   The motivating factor  for  action  under
\nArticle\t 356(1)\t should never be for political gain  to\t the
\nparty in power at the Centre, rather it must be only when it
\nis  satisfied that the constitutional machinery has  failed.
\nIt  is\tto  reiterate  that the\t federal  character  of\t the
\nGovernment  reimposes the belief that the people’s faith  in
\ndemocratically\telected\t majority  or  coalition  Government
\nwould  run  its full term, would not be\t belied\t unless\t the
\nsituation is otherwise unavoidable.  The frequent  elections
\nwould  belie the people’s belief and faith in  parliamentary
\nform of Government, apart from enormous election expenditure
\nto the State and the candidates.  It also generates
\n192<\/span>
\ndisbelief in the efficacy of the democratic process which is
\na  death-knell for the parliamentary system itself.  It\t is,
\ntherefore,   extremely\t necessary   that   the\t  power\t  of
\nProclamation   under   Article\t356  must   be\t used\twith
\ncircumspection\tand  in a non-partisan manner.\t It  is\t not
\nmeant to be invoked to serve political gain or to get rid of
\nan inconvenient State Government for good or bad governance.
\nBut only in cases of failure of the constitutional machinery
\nof the State Government.\n<\/p>\n
224. As\t stated\t earlier, the constitutional  and  political
\nfeatures  should be nurtured and set conventions be laid  by
\nconsensus  among  the  political parties  either  by  mutual
\nagreement  or  resolution  passed in  this  behalf.   It  is
\nundoubted that Sarkaria Commission appointed by the Union of
\nIndia  and  Rajamannar\tCommission appointed  by  the  State
\nGovernment  of\tTamil Nadu suggested certain  amendments  to
\nArticle\t 356, distinguished Judges gave guidelines.   Though
\nthey  bear  weight,  it\t is for\t the  consideration  of\t the
\npolitical  parties or Governments, but judicially  it  would
\nnot  be adapted as guidance as some of them would  be  beset
\nwith difficulties in implementation.  However, their creases
\ncould  be  ironed out by conference or by consensus  of\t the
\npolitical   parties.   As  regards  horse-trading   by\t the
\nlegislators,  there  are  no  judicially  discoverable\t and
\nmanageable standards to decide in judicial review.  A floor-
\ntest  may provide impetus for corruption and rank force\t and
\nviolence by musclemen or wrongful confinement or  volitional
\ncaptivity of legislators occurs till the date of the  floor-
\ntest  in  the House, to gain majority on the  floor  of\t the
\nHouse.\n<\/p>\n
225. At\t some  quarters\t it is\tbelieved  that\tpower  under
\nArticle 356 was misused.  We are not called to examine\teach
\ncase.  Taking a bird’s-eye view of the Proclamations  issued
\nby  the President under Article 356 it would appear that  on
\nthree  occasions  the Speaker of  the  Legislative  Assembly
\ncreated deadlock to pass the financial bills.  The power was
\nused  to resolve the deadlock.\tWhen there was breakdown  of
\nlaw  and  order\t and  public order  due\t to  agitations\t for
\ncreation  of separate States for Telangana and\tAndhra,\t the
\nAndhra\tPradesh Legislative Assembly was dissolved  and\t the
\nCongress Ministry itself was dismissed while the same  party
\nwas  in\t power at the Centre.  Similar instance\t would\tshow
\nthat   the   power   under  Article  356   was\t used\twhen
\nconstitutional machinery failed.  This would establish\tthat
\nthe width of the power under Article 356 cannot be cut down,
\nclipped\t or crabbed.  Moreover, the elected  representatives
\nfrom  that State represent in Parliament and do\t participate
\nin the discussion of the Presidential Proclamation when\t its
\napproval  is  sought  and  the\ttransaction  of\t legislative
\nbusiness  concerning  that State and express  their  dissent
\nwhen it is misused.  Though temporarily the democratic\tform
\nof  Government was not in the governance of that State,\t the
\nbasic  feature of the Constitution, namely democracy is\t not
\naffected  for  the  governance\tby  the\t elected  executives
\ntemporarily at times for maximum period of three years.\n<\/p>\n
226. The President being the highest executive of the State,
\nit is impermissible to attribute personal mala fides or\t bad
\nfaith  to  the\tPresident.  The\t proviso  to  Article  74(1)
\npresumptively prohibits such a charge, unless
\n193<\/span>
\nestablished by unimpeachable evidence at the threshold.\t For
\nthe  exercise  of  the power under  Article  356  the  Prime
\nMinister   and\this  Council  of  Ministers,   he\/they\t are
\ncollectively  responsible to Parliament and  accountable  to
\nthe  people.  The only recourse, in case of misuse or  abuse
\nof  power  by the President, is to take\t either\t impeachment
\nproceedings  under Article 61 against the President or\tseek
\nconfidence of the people at the polls.\n<\/p>\n
227. These  conclusions\t do  not reach\tthe  journey’s\tend.
\nHowever, it does not mean     that  the court can merely  be
\nan onlooker and a helpless spectator to exercise  of\t the
\npower under Article 356.  It owes duty and responsibility to
\ndefend\tthe  democracy.\t  If the court,\t upon  the  material
\nplaced before it finds that the satisfaction reached by\t the
\nPresident is unconstitutional, highly irrational or  without
\nany nexus, then the court would consider the contents of the
\nProclamation  or  reasons disclosed therein and\t in  extreme
\ncases the material produced pursuant to discovery order nisi
\nto  find the action is wholly irrelevant or bears  no  nexus
\nbetween\t purpose of the action and the satisfaction  reached
\nby  the\t President  or does not bear any  rationale  to\t the
\nproximate  purpose of the Proclamation.\t In that  event\t the
\ncourt  may  declare  that the satisfaction  reached  by\t the
\nPresident  was\teither\ton  wholly  irrelevant\tgrounds\t  or
\ncolourable  exercise of power and consequently\tProclamation
\nissued under Article 356 would be declared unconstitutional.
\nThe  court  cannot go into the question of adequacy  of\t the
\nmaterial  or  circumstances justifying\tthe  declaration  of
\nPresident’s  rule.   Roscoupoun in his\tDevelopment  of\t the
\nConstitutional\tGuarantees  of\tLiberty,  1963\tEdn.  quoted
\nJahering  that,\t “Form is sworn enemy of caprice,  the\ttwin
\nsisters of liberty, fixed forms are the school of discipline
\nand  order and thereby of liberty itself.” The\texercise  of
\nthe   discretion  by  the  President  is  hedged  with\t the
\nconstitutional\tconstraint to obtain approval of  Parliament
\nwithin\ttwo months from the date of the issue, itself is  an
\nassurance of proper exercise of the power that the President
\nexercises  the\tpower  properly and  legitimately  that\t the
\nadministration of the State is not carried on in  accordance
\nwith the provisions of the Constitution.\n<\/p>\n
SCOPE\tOF   REINDUCTION  OF   THE   DISMISSED\t GOVERNMENT,
\nRENOTIFICATION\tAND  REVIVAL OF DISSOLVED ASSEMBLY  AND\t ITS
\nEFFECT\n<\/p>\n
228. Contention\t was  raised  that  until  all\tavenues\t  of
\npreventing   failure   of  the\tmachinery   by\t appropriate
\ndirections  by\tthe Central Government failed  or  found  it
\nabsolutely  impossible for the State Government to carry  on
\nthe administration in accordance with the provisions of\t the
\nConstitution  or  by dual exercise of the  power  partly  by
\nState  and  partly by the President  or\t alternatively\twith
\ndissolution of the Assembly should be deferred till approval
\nby  Parliament\tis  given  and stay  the  operation  of\t the
\nPresidential Proclamation till that time have been canvassed
\nby  the\t counsel for the States.  It is\t already  considered
\nthat  warnings are only in limited areas in the\t appropriate
\ncases  of financial mismanagement, but not in all the  other
\nsituations.\n<\/p>\n
194<\/span><\/p>\n
CONSTITUTIONAL CONVENTIONS PROVIDE FLESH WHICH
\n\t\t  CLOTHES DRY BONES OF LAW\n<\/p>\n
229. Ever since Article 356 was put in operation  convention
\nhas   been  developed  that  the  Legislative  Assembly\t  is
\ndissolved, the State Government is removed and the executive
\npower assumed by the President is entrusted to the  Governor
\nto carry on the executive actions with the aid and advice of
\nthe   appointed\t  Advisors.    Parliament   exercises\t the
\nlegislative powers of the entries in List 11 of the Schedule
\nand  delegates\tlegislative  power to  the  President.\t The
\nPresident  makes  incidental and  consequential\t provisions.
\nThe Government of the State is thus under the administration
\nof  the Union Government.  The Constitution though  provided
\nan  elaborate  procedure with minute details,  that  in\t the
\nevent  Parliament  did not approve the\tProclamation  issued
\nunder Article 356, the contingency of restitution of removed
\nGovernment and restoration of dissolved Assembly,  obviously
\nwith  the  fond hope that Article 356 would remain  a  “dead
\nletter”\t or  it will “not be put to operation”, or  at\tbest
\n“sparingly” used.  Dr Ambedkar in his closing speech in\t the
\nConstituent  Assembly  stated  that  “the  conventions\t and
\npolitical  morality”  would help successful working  of\t the
\nConstitution.\tConstitution cannot provide  detailed  rules
\nfor  every  eventuality.   Conventions\tare  found  in\t all
\nestablished  Constitutions.   The conventions are  meant  to
\nbring about constitutional development without formal change
\nin  the\t law.  Prof K.C. Wheare in his book The\t Statute  of
\nWestminster  and  Dominion  Status (4th\t Edn.)\tdefined\t the
\nconventions thus :\n<\/p>\n
\t      “The  definition\tof conventions may  thus  be
\n\t      amplified\t by saying that their purpose is  to
\n\t      define  the use of constitutional\t discretion.
\n\t      To  put this in slightly different  words,  it
\n\t      may  be  said that conventions  are  non-legal
\n\t      rules regulating the way in which legal  rules
\n\t      shall be applied.”\n<\/p><\/blockquote>\n
230.  Sir W. Ivor Jennings, in his Law and the\tConstitution
\n(5th Edn.) elaborated the constitutional convention :\n<\/p>\n
\t      “Thus within the framework of the law there is
\n\t      room for the development of rules of practice,
\n\t      rules which may be followed as consistently as
\n\t      the  rules  of law, and  which  determine\t the
\n\t      procedure\t  which\t the  men   concerned\twith
\n\t      government must follow.”\n<\/p><\/blockquote>\n
231. The constitutional conventions provide the flesh  which
\nclothes the dry bones of the law; they make the constitution
\nwork;  they  keep it in touch with the growth of  ideas.   A
\nconstitution  does not work itself; it has to be  worked  by
\nmen.   It is an instrument of national cooperation which  is
\nas  necessary  as the instrument.  The conventions  are\t the
\nrules\t elaborated   for   effecting\tthat\tcooperation.
\nConventions  entrust power granted in the constitution\tfrom
\none  person to the other when the law is exercised  by\twhom
\nthey are granted, they are in practice by some other  person
\nor  body of persons.  The primary role of conventions is  to
\nregulate   exercise   of   the\t discretion   facing\tthat
\nirresponsible abuse of power.\n<\/p>\n
232. K.C. Wheare in his book Modern Constitution (1967 Edn.)
\nstated that:\n<\/p>\n
195<\/span><\/p>\n
\t      “The  conventions not only give  discretionary
\n\t      powers to the Government but also in executive
\n\t      governance  and  a  legislature  or  executive
\n\t      relations,  where\t such  rules  and   practice
\n\t      operate.\t They may be found in other  spheres
\n\t      of constitutional activities also.”\n<\/p><\/blockquote>\n
He stated that:\n<\/p>\n
\t      “A  course of conduct may be persisted over  a
\n\t      period  of  time and  gradually  attain  first
\n\t      persuasive  and  then  obligatory\t force.\t   A
\n\t      convention  may arise much more  quickly\tthan
\n\t      that.   There  may be an agreement  among\t the
\n\t      people  concerned to work in a particular\t way
\n\t      and to adopt a particular rule of conduct”.
\n\t      Sir W. Ivor Jennings had stated that:
\n\t      “The law provides only a framework; those\t who
\n\t      put the laws into operation give the framework
\n\t      a meaning and fill in the interstices.   Those
\n\t      who  take\t decisions create  precedents  which
\n\t      others tend to follow, and when they have been
\n\t      followed long enough they acquire the sanctity
\n\t      and the respectability of age.  They not\tonly
\n\t      are followed but they have to be followed.”\n<\/p><\/blockquote>\n
One of us, learned Brother Kuldip Singh, J. had\t elaborately
\nconsidered the scope of conventions which obviated the\tneed
\nto  tread  the\tpath once over and  held  in  Supreme  Court
\nAdvocates-on-Record Association v. Union of India46,<\/a> that  :
\n(SCC p. 651, para 340)
\n\t      “The written Constitutions cannot provide\t for
\n\t      every\t  eventuality.\t      Constitutional
\n\t      institutions   are   often  created   by\t the
\n\t      provisions  which are generally worded.\tSuch
\n\t      provisions  are interpreted with the  help  of
\n\t      conventions  which  grow with the\t passage  of
\n\t      time.   Conventions are vital insofar as\tthey
\n\t      fill  up the gaps in the Constitution  itself,
\n\t      help  solve  problems of\tinterpretation,\t and
\n\t      allow  for  the  future  development  of\t the
\n\t      constitutional framework.\t Whatever the nature
\n\t      of the Constitution, a great deal may be\tleft
\n\t      unsaid   in  legal  rules\t allowing   enormous
\n\t      discretion      to     the      constitutional
\n\t      functionaries.\tConventions   regulate\t the
\n\t      exercise of that discretion.”\n<\/p>\n
233. The   convention\tin  working  Article  356   of\t the
\nConstitution   has   been   established\t  and\tbecame\t the
\nconstitutional\tlaw filling the interstices  of\t legislative
\nprocess.   The actions done by the President  in  accordance
\nwith  the  choice left to him by sub-clauses (a) to  (c)  of
\nArticle\t 356(1) and by Parliament under Article\t 357,  i.e.,
\ndissolution of the Legislative Assembly, removing the  State
\nGovernment, assumption of administration and entrustment  of
\nthe  administration and the executive power to the  Governor
\nof  that  State\t with the aid and advice  of  the  appointed
\nAdvisors   and\tto  take  over\tlegislative   functions\t  by
\nParliament and the power of promulgation of Ordinance by the
\nPresident,  etc. by operation of Article 357 and making\t all
\nincidental  and\t consequential\tprovisions  for\t  convenient
\nadministration of executive Government of the State attained
\nstatus\t of   constitutional   law.    This   constitutional
\nconvention firmly set the working of the Constitution on
\n46 (1993) 4 SCC 441: JT (1993) SC 479
\n196<\/span>
\nsmooth\tworking\t base and is being operated upon  all  these
\nyears.\t We hold that upsetting the settled  convention\t and
\nthe  law  and adopting value-oriented  interpretation  would
\ngenerate uncertainty and create constitutional crises in the
\nadministration and the Government and would lead to  failing
\nthe Constitution itself.\n<\/p>\n
PRESIDENTIAL PROCLAMATION – So FAR PARLIAMENT
\n\t\t     DID NOT DISAPPROVE\n<\/p>\n
234. The  Proclamation issued under Article 356 requires  to
\nbe  laid before each House of Parliament within\t two  months
\nfrom  the  date\t of  its  issue.   Unless  it  receives\t the
\napproval, it shall cease to operate at the expiration of two
\nmonths.\t  The  legal consequences of  the  Proclamation,  as
\nstated earlier, is that the State Government is removed, the
\nLegislative  Assembly  is dissolved and\t in  exercising\t the
\npower  mentioned in sub-clauses (a), (b) and (c)  of  clause
\n(1)  of\t Article  356  the  President  takes  either   steps
\nmentioned  therein and Parliament exercises the power  under
\nArticle\t  357  conferring  the\tlegislative  power  on\t the
\nPresident and arrangement for convenient administration made
\nwhile  exercising legislative powers in the entries in\tList
\n11  of Schedule VII of the Constitution.  The contention  is
\nthat  till  expiry of two months  the  Legislative  Assembly
\nshould\tnot be dissolved and on the approval  received\tfrom
\nboth the Houses of Parliament the President should  dissolve
\nit.   If  the President fails to get the approval  then\t the
\ndissolved  Assembly  must  be  revived\tand  the   dismissed
\nMinistry  should  be  reinducted into office.\tWe  find  it
\ndifficult to give acceptance to this contention and if given
\nacceptance  it would be beset with grave  incongruities\t and
\nresult\tin  operational\t disharmony.   Parliament  did\t not
\ndisapprove  any\t Proclamation so far issued.   There  is  no
\nexpress\t provision engrafted in the Constitution to fill  in
\nthis contingency.  In Rajasthan case3 this Court  considered
\nthe contingency and held that dissolution of the Legislative
\nAssembly is part of the same Proclamation or by a subsequent
\norder  and  that  even if Parliament does  not\tapprove\t the
\nProclamation the dissolved Assembly and the removed Ministry
\ncannot be restored.  We respectfully agree with the view for
\nthe reasons we independently give hereinunder.
\nFUNCTIONAL INCONGRUITY AND DISHARMONY\n<\/p>\n
235. The  executive  power  of the Union  or  the  State  is
\ncoextensive  with  their  legislative  powers  respectively.
\nWhen the President assumed administration of the State under
\nArticle\t 356,  without dissolving the  Legislative  Assembly
\ncould  the President discharge the executive powers  without
\nlegislative  powers being armed with by\t Parliament?   Could
\nthe  President discharge the duties under the directions  of
\nthe   State   Legislature,  if\tneed  arises   for   passing
\nappropriate  legislative sanctions.  Bicameral operation  of
\nthe  legislative  and  executive powers both  by  the  State
\nLegislature  and Parliament in List 11 of VIlth Schedule  is
\nan  anathema to the democratic principle and  constitutional
\nscheme.\t The question of conflict of
\n3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1
\n197<\/span>
\nparliamentary  supremacy and executive overbearing  is\tmore
\nimaginary than actual or real.\n<\/p>\n
236. The reinduction of the Government of the State is\talso
\nbeset with several  incongruities.   It\t cannot\t be  assumed
\nthat the President lightly removed the State Government.  It
\nmust  be  for  formidable  grounds,  though  not  judicially
\ndiscoverable  nor discernable to strict\t judicial  scrutiny.
\nAll the Proclamations so far issued were not disapproved  by
\nParliament.   The dismissed Government, if  restituted\tinto
\npower,\tmay  violate  with impunity the\t provisions  of\t the
\nConstitution   and  laws  for  the  balance  period   taking
\nadvantage  of  majority in the\tlegislature  and  full-scale
\ncorruption  or other unconstitutional acts will\t have  their
\nfree play.  The political party itself and all their members
\nof  the legislature should collectively\t own  responsibility
\nfor   the   removal   of   their   Government\tand    their
\nunconstitutional  governance writes its own  death  warrant.
\nRestitution   thereby\tputs  a\t premium  on   failing\t the
\nConstitution.  The political party must seek afresh  mandate
\nfrom  the  electorates and establish  their  credibility  by
\nwinning\t majority seats.  The existence of  the\t Legislative
\nCouncil\t which is not dissolvable, like Rajya Sabha,  cannot
\nby  itself transact any business, in particular the  finance
\nbills or appropriation bills or annual financial statements.
\nTherefore,  its continuance shall render no criteria to\t the
\ncontinuance of legislature or to assume it be not  dissolved
\non grammarian rule to reconstitute the dissolved Legislative
\nAssembly  of which the majority members belong to  the\tsame
\nparty.\t No doubt dissolution of the  Legislature  literally
\nwould include Legislative Council but not every State has  a
\ncouncil.   No distinction between two types of\tStates,\t one
\nwith  Council  and another without Council  and\t the  former
\nwould be eligible for revival and later per force would\t not
\nbe,  was  not meant by the  Constitution.   Grammarian\trule
\ncarries no consistence.\t Moreover this problem could also be
\ntested\tfrom  the expediency and functional  efficacy.\t The
\npossibility   of  reinduction  creates\tfunctional   hiatus.
\nSuppose\t the court grants stay till Parliament approves\t the
\nProclamation,  if  urgent need arose to issue  ordinance  or
\ntransact legislative or financial business, who would do it?
\nThe  suspended\tAssembly  cannot  do  nor  Parliament.\t The
\ndismissed Ministry cannot transact the legislative business.
\nEven   if   permitted  to  function   and   ultimately\t the
\nProclamation is approved by Parliament, what would happen to
\nthe  validity of the executive and legislative acts done  in
\nthe  interregnum.   As stated, is there\t no  possibility  of
\nlarge-scale abuse of office for personal or political  gain?
\nIf  the\t orders\t are issued by\tthe  courts  on\t value-based
\nopinion,  where is the finality and at what point a stop  is
\nto  be\tput?  If stay is granted, by a High Court  and\twrit
\npetition is not disposed of and the term of the\t legislative
\nAssembly  expires  what\t would happen  to  the\tMinistry  in
\noffice?\t whether  it would continue by order of\t the  court?
\nHow   elections\t are  to  be  conducted\t by   the   Election
\nCommission?   Is it under the orders of the court or by\t the
\nexercise  of  the power under Article 324?  Are day  to\t day
\nexecutive, legislative and administrative actions to be done
\nunder  the  writ  of the court? of a  High  Court  issues  a
\ndirection to allow the dissolved assembly its full course of
\nbalance period including the suspended period what would
\n198<\/span>
\nhappen?\t  Is  it not violative of Article 172?\t Whether  it
\ncould  be  prevented  to  be done?  If\tsuch  order  is\t not
\ncomplied  with, is not the President liable to\tcontempt  of
\nthe  court  and\t if so what happens  to\t the  protection  of
\nArticle 361 ? Instead of solving the problems, does not\t the
\nwrit of the court create constitutional crisis?\t Giving deep
\nand  anxious consideration and visualising the\tfar-reaching
\nconstitutional\tcrisis, we are firmly of the view  that\t the
\nself-restraint\tconstrains  us to express no  value  opinion
\nleaving\t it  to\t Parliament to ponder  over  and  if  deemed
\nnecessary amend Article 356 suitably.\n<\/p>\n
237. The  Constitution\twas amended more than 77  times\t and
\nArticle\t  356  itself  was  amended  6\ttimes  through\t the
\nConstitution’s\t38th Amendment Act; the 42nd Amendment\tAct;
\nthe  44th  Amendment Act; the 59th Amendment Act;  the\t64th
\nAmendment  Act and the 68th Amendment Act.  Apart  from\t the
\nCongress Party, three non-Congress political parties were in
\npower  at the Centre during these 44 years and no  amendment
\nwas  brought  to Article 356(3) that on disapproval  of\t the
\nProclamation  by  Parliament the dissolved  Assembly  stands
\nrevived\t and  removed  Government  stood  reinducted.\t The
\nstatutory construction fortifies this conclusion.
\nCASUS OMISSUS – WHETHER PERMISSIBLE To SUPPLY\n<\/p>\n
238. The question, further arises whether by  interpretative
\nprocess, would it   be\tpermissible  to fill  in  the  gaps.
\nThough it is settled law that in working the law and finding
\nyearning  gaps\ttherein,  to  give life\t and  force  to\t the
\nlegislative  intent, instead of blaming the  draftsman,\t the
\ncourts\tironed out the creases by appropriate  technique  of
\ninterpretation and infused life into dry bones of law.\t But
\nsuch  an  interpretation  in  our  respectful  view  is\t not
\npermissible,  when  we\tare called  upon  to  interpret\t the
\norganic Constitution and working the political\tinstitutions
\ncreated therein.  When Parliament has had an opportunity  to
\nconsider  what\texactly is going wrong\twith  the  political
\nsystem\tdesigned  by the Constitution but took no  steps  to
\namend the Constitution in this behalf, it is a principle  of
\nlegal  policy, that the law should be altered  deliberately,
\nrather\tthan  casually\tby a sidewind  only,  by  major\t and
\nconsidered  process.   Amendment of the\t Constitution  is  a
\nserious\t legislative business and change in the\t basic\tlaw,
\ncarefully work out, more fundamental changes are brought out
\nby  more  thorough-going  and  in-depth\t consideration\t and
\nspecific   provisions  should  be  made\t by  which   it\t  is
\nimplemented.   Such is the way to contradict the problem  by
\nthe legislative process of a civilised State.  It is a well-
\nestablished principle of construction that a statute is\t not
\nto  be\ttaken as affecting parliamentary alteration  in\t the
\ngeneral\t  law\tunless\tit  shows  words  that\t are   found
\nunmistakably to that conclusion.  No motive or bad faith  is
\nattributable  to  the  legislature.   Bennion  at  page\t 338
\nextracting from the Institute of the Law of Scotland Vol. 3,
\npage  1\t of  The  Practice by  David  Maxwell  at  page\t 127
\nabstracted  that  “Where a matter depends  entirely  on\t the
\nconstruction of the words of a statute, there cannot be\t any
\nappeal to the nobile officium”.\t He stated at page 344 that
\n199<\/span>
\n\t      “where  the literal meaning of  the  enactment
\n\t      goes   narrower\tthan  the  object   of\t the
\n\t      legislator, the court may be required to apply
\n\t      a\t rectifying  construction.  Nowadays  it  is
\n\t      regarded\tas  not in  accordance\twith  public
\n\t      policy  to allow a draftsman’s  ineptitude  to
\n\t      prevent  justice\tbeing done.   This  was\t not
\n\t      always the case.”\n<\/p>\n
Where  the language of a statute is clear  and\tunambiguous,
\nthere is no room for the application either of the  doctrine
\nof  casus omissus or of pressing into service external\taid,
\nfor in such a case the words used by the Constitution or the
\nstatute\t speak for themselves and it is not the function  of
\nthe  court to add words or expressions merely to  suit\twhat
\nthe   court  thinks  is\t the  supposed\tintention   of\t the
\nlegislature.   In American Jurisprudence 2d Series, Vol.  73
\nat page 397 in para 203 it is stated that:\n<\/p>\n
\t      “It is a general rule that the courts may not,
\n\t      by  construction insert words or phrases in  a
\n\t      statute  or supply a casus omissus  by  giving
\n\t      force  and  effect  to  the  language  of\t the
\n\t      statute when applied to a subject about  which
\n\t      nothing  whatever is said, and which,  to\t all
\n\t      appearances,  was\t not  in the  minds  of\t the
\n\t      legislature  at the time of the  enactment  of
\n\t      the law.”\n<\/p><\/blockquote>\n
Under such circumstances new provisions or ideas may not  be
\ninterpolated in a statute or engrafted thereon.\t At page 434
\nin para 366 it is further stated that :\n<\/p>\n
\t      ”\t While it has been held that it is  duty  of
\n\t      the courts to interpret a statute as they find
\n\t      it without reference to whether its provisions
\n\t      are expedient or unexpedient, it has also been
\n\t      recognised  that where a statute is  ambiguous
\n\t      and  subject to more than one  interpretation,
\n\t      the  expediency  of one  construction  or\t the
\n\t      other  is properly considered.  Indeed,  where
\n\t      the arguments are nicely balanced,  expediency
\n\t      may  tip the scales in favour of a  particular
\n\t      construction.   It  is not the function  of  a
\n\t      court  in the interpretation of  statutes,  to
\n\t      vindicate\t the  wisdom of the law.   The\tmere
\n\t      fact that the statute leads to unwise  results
\n\t      is  not  sufficient to justify  the  court  in
\n\t      rejecting\t the  plain meaning  of\t unambiguous
\n\t      words  or in giving to a statute a meaning  of
\n\t      which  its language is not susceptible, or  in
\n\t      restricting  the scope of a statute.   By\t the
\n\t      same token, an omission or failure to  provide
\n\t      for  contingencies, which it may seem wise  to
\n\t      have  provided  for  specifically,  does\t not
\n\t      justify any judicial addition to the  language
\n\t      of  the statute.\tTo the contrary, it  is\t the
\n\t      duty  of the courts to interpret a statute  as
\n\t      they find it without reference to whether\t its
\n\t      provisions  are wise or unwise,  necessary  or
\n\t      unnecessary, appropriate or inappropriate,  or
\n\t      well or ill-conceived.  ”\n<\/p><\/blockquote>\n
239.\t  Craies  on  Statute  Law, 7th Edn.,  at  page\t 69,
\nstates\tthat  the second consequence of the  rule  of  casus
\nomissus\t is that the statute may not be extended to  meet  a
\ncase  for  which provision has clearly and  undoubtedly\t not
\nbeen made.  In Construction of Statutes by Crawford at\tpage
\n269  in\t paragraph  169 it is stated  that  omissions  in  a
\nstatute\t  cannot,  as  a  general  rule,  be   supplied\t  by
\nconstruction.\tThus, if a particular case is  omitted\tfrom
\nthe  terms of a statute, even though such a case  is  within
\nthe obvious purpose of
\n200<\/span>
\nthe  statute  and the omission appears to have been  due  to
\naccident  or  inadvertence,  the court\tcannot\tinclude\t the
\nomitted\t case  by supplying the omission.  This\t is  equally
\ntrue  where  the  omission was due to  the  failure  of\t the
\nlegislature to foresee the missing case.  As is obvious,  to
\npermit the court to supply the omissions in statutes,  would
\ngenerally  constitute an encroachment upon the field of\t the
\nlegislature.  In construing the Constitution we cannot\tlook
\nbeyond\tthe  letter of the Constitution to  adopt  something
\nwhich  would  command itself to our minds as  being  implied
\nfrom  the context.  In State of Tasmania v. Commonwealth  of
\nAustralia  and State of Victoria47 Connor, J.  dealing\twith
\nthe question observed thus :\n<\/p>\n
\t      “It  appears to me that the only safe rule  is
\n\t      to  look at the statute itself and  to  gather
\n\t      from  it what is its intention.  If we  depart
\n\t      from  that rule we are apt to run the risk  of
\n\t      the  danger  described by\t Pollack,  C.J.,  in
\n\t      Mille  v.\t Solomons.   ‘If’,  he\tsays,\t‘the
\n\t      meaning of the language be plain and clear, we
\n\t      have   nothing  to  do  but  to  obey  it\t  to
\n\t      administer it as we find it; and, I think,  to
\n\t      take  a  different course is  to\tabandon\t the
\n\t      office of Judge, and to assume the province of
\n\t      legislation’.  Some passages were cited by  Mr
\n\t      Glynn  from  Black on  the  Interpretation  of
\n\t      Laws, which seem to imply that there might  be
\n\t      a difference in the rules of interpretation to
\n\t      be applied to the Constitution and those to be
\n\t      applied  to any other Act of  Parliament,\t but
\n\t      there   is   no  foundation   for\t  any\tsuch
\n\t      distinction.   The intention of the  enactment
\n\t      is  to  be gathered from its  words.   If\t the
\n\t      words are plain, effect must be given to them;
\n\t      if   they\t are  doubtful,\t the  intention\t  of
\n\t      legislature  is to be gathered from the  other
\n\t      provisions   of\tthe  statute  aided   by   a
\n\t      consideration  of\t surrounding  circumstances.<\/p><\/blockquote>\n
\t      In   all\tcases  in  order  to  discover\t the
\n\t      intention\t   you\t may   have   recourse\t  to
\n\t      contemporaneous  circumstances to the  history
\n\t      of  the  law,  and you  may  gather  from\t the
\n\t      instrument   itself   the\t  object   of\t the
\n\t      legislature in passing it.  In considering the
\n\t      history of the law, you may look into previous
\n\t      legislation,  you\t must  have  regard  to\t the
\n\t      historical  facts surrounding the bringing  of
\n\t      law into existence.  In the case of a  Federal
\n\t      Constitution the field of inquiry is naturally
\n\t      more  extended  than in the case\tof  a  State
\n\t      Statute, but the principles to be applied\t are
\n\t      the same.\t You may deduce the intention of the
\n\t      legislature   from  a  consideration  of\t the
\n\t      instrument itself in the light of these  facts
\n\t      and  circumstances, but you cannot  go  beyond
\n\t      it.   If that limitation is to be\t applied  in
\n\t      the  interpretation  of  an  ordinary  Act  of
\n\t      Parliament,   it\t should\t at  least   be\t  as
\n\t      stringently  applied in the interpretation  of
\n\t      an instrument of this kind, which not only  is
\n\t      a\t statutory enactment, but also embodies\t the
\n\t      compact  by  which the people of\tthe  several
\n\t      colonies of Australia agreed to enter into  an
\n\t      indissoluble Union.”\n<\/p><\/blockquote>\n
240. In\t Encyclopaedia of the American Judicial System.\t The
\nConstitutional Interpretation by Craig R. Ducat it is stated
\nthat  the standard for assessing constitutionality  must  be
\nthe words of the Constitution, not
\n47 (1904) 1 CLR 329, 358-59
\n201<\/span>
\nwhat the judges would prefer the Constitution to mean.\t The
\nconstitutional supremacy necessarily assumes that a superior
\nrule  is  what\tthe Constitution says, it is  not  what\t the
\njudges prefer it to be. (Vide page 973). (emphasis supplied)
\nIn  judicial tributes balancing the competing interest\tProf
\nDucat  quoted with approval the statement of Bickel at\tpage
\n798 thus :\n<\/p>\n
\t      “The  judicial process is too  principle-prone
\n\t      and principle-bound it has to be, there is  no
\n\t      other  justification  or explanation  for\t the
\n\t      role  it\tplays.\tIt is also too\tremote\tfrom
\n\t      conditions, and deals, case by case, with\t too
\n\t      narrow   a  slice\t of  reality.\tIt  is\t not
\n\t      accessible  to all the varied  interests\tthat
\n\t      are   in\tplay  in  any  decision\t  of   great
\n\t      consequence.     It   is,\t   very\t   properly,
\n\t      independent.    It   is\tpassive.    It\t has
\n\t      difficulty controlling the stages by which  it
\n\t      approaches  a problem.  It rushes forward\t too
\n\t      fast,  or it lags; its pace hardly ever  seems
\n\t      just right.  For all these reasons, it is,  in
\n\t      a\t vast, complex, changeable society,  a\tmost
\n\t      unsuitable  instrument  for the  formation  of
\n\t      policy.”\n<\/p><\/blockquote>\n
241. In the Modes of Constitutional Interpretation by  Craig
\nR.  Ducat, 1978 Edn. at p. 125, he stated that\tthe  judges’
\ndecision ought to mean society’s values not their own.\t He.
\nquoted Cardozo’s passage from the Nature of Judicial Process
\nat page 108 that, “a judge, I think would err if he were  to
\nimpose\tupon  the  community  as a  rule  of  life  his\t own
\nidiosyncrasies of conduct or belief’.  The court when caught
\nin  a paralysis of dilemma should adopt\t self-restraint,  it
\nmust  use  the judicial review with  greatest  caution.\t  In
\nclash  of  political  forces  in  political  statement\t the
\ninterpretation\tshould\tonly  be  in  rare  and\t  auspicious
\noccasions to nullify ultra vires orders in highly  arbitrary
\nor  wholly irrelevant Proclamation which does not  bear\t any
\nnexus to the predominant purpose for which the\tProclamation
\nwas  issued,  to declare it to be  unconstitutional  and  no
\nmore.\n<\/p>\n
242. Frankfurter, J. says in Dennis v. US48 thus :\n<\/p>\n
\t      “But   how  are  competing  interests  to\t  be
\n\t      assessed?\t  Since\t they  are  not\t subject  to
\n\t      quantitative    ascertainment,\tthe    issue
\n\t      necessarily  resolves itself into asking,\t who
\n\t      is to make the adjustment?  who is to  balance
\n\t      the  relevant  factors  and  ascertain   which
\n\t      interest\tis in the circumstances to  prevail?
\n\t      Full  responsibility for the choice cannot  be
\n\t      given   to   the\tcourts.\t  Courts   are\t not
\n\t      representative bodies.  They are not  designed
\n\t      to  be a good reflex of a democratic  society.<\/p><\/blockquote>\n
\t      Their judgment is best informed, and therefore
\n\t      most dependable, within narrow limits.   Their
\n\t      essential\t quality is detachment,\t founded  on
\n\t      independence.    History\tteaches\t  that\t the
\n\t\t\t    independence  of the judiciary  is\tjeopardize
\nd
\n\t      when  courts become embroiled in the  passions
\n\t      of  the day and assume primary  responsibility
\n\t      in   choosing  between  competing\t  political,
\n\t      economic and social pressures.”\n<\/p>\n
243. Regionalism, linguism and religious fundamentalism have
\nbecome divisive forces to weaken the unity and integrity  of
\nthe country.  Linguistic chauvinism adding its fuel to\tkeep
\nthe people poles apart.\t Communalism and
\n48 341 US 494,525:95 [Ed]137(1951)
\n202<\/span>
\ncasteism  for  narrow  political  gains\t are  creating\tfoul
\natmosphere.  The cessationist forces are working from within
\nand  outside the country threatening  national\tintegration.
\nTo  preserve  the unity and integrity of the nation,  it  is
\nnecessary  to sustain the power of the President  to  wisely
\nuse Article 356 to stem them out and keep the Government  of
\nthe  State functioning in accordance with the provisions  of
\nthe  Constitution.  Article 356 should, therefore,  be\tused
\nsparingly  in only cases in which the exercise of the  power
\nis  called  for.  It is not possible to limit the  scope  of
\naction\tunder Article 356 to specific situations, since\t the
\nfailure of the constitutional machinery may occur in several
\nways  due  to  diverse\tcauses\tbe  it\tpolitical,  internal
\nsubversion  or economic causes and no strait-jacket  formula
\nwould  be  possible to evolve.\tThe  Founding  Fathers\tthus
\nconfided the exercise of the power in the highest executive,
\nthe  President\tof India, through his Council  of  Ministers
\nheaded\tby  the\t Prime\tMinister  of  the  country  who\t  is
\naccountable to the people of the country.\n<\/p>\n
STAY OF ELECTIONS WHETHER COULD BE MADE\n<\/p>\n
244. Under  Article  168  for every  State  there  shall  be
\nLegislative Assembly and in some States Legislative Council.
\nArticle\t 172(1) provides that every Legislative Assembly  of
\nevery State, unless sooner dissolved shall continue for five
\nyears from the date appointed for its first meeting and\t “no
\nlonger”\t and  the expiration of such period  of\t five  years
\nshall operate as a dissolution of the Assembly.\t The proviso
\nto clause (1) or clause (2) are not relevant.  It is thereby
\ndeclared  the constitutional policy that five years’  tenure
\nof  the legislature starts running from the  date  appointed
\nfor its first meeting and expiration of the period  operates
\nconstitutionally  as  date of dissolution of  the  Assembly.
\nThe  phrase “no longer” reinforces its mandatory  character.
\nArticle\t 324(1) enjoins the Election Commission\t to  conduct
\nelections  to  Parliament and to the  Legislature  of  every
\nState,\tetc.   The  R.P. Act,  rules  and  the\tinstructions
\nprescribe  the procedure to conduct and\t complete  elections
\nfour  months before the expiry of the date  of\tdissolution.
\nArticle\t 329(b)\t issues an injunction that “no\telection  to
\neither\tHouse of Parliament or to the House or either  House
\nof  the Legislature of a State shall be called in  question”
\nexcept\tby an election petition presented to such  authority
\nand  in such manner as may be provided for by or  under\t any
\nlaw  made by the appropriate legislature.  In  other  words,
\nthe election process once set in motion should run its\tfull
\ncourse\tand  all  election disputes  shall  be\tresolved  in
\naccordance with the procedure established by R.P. Act.\n<\/p>\n
245. In\t N.P.  Ponnuswami  v.  Returning  Officer,  Namakkal
\nConstituenCy49<\/a>\tat the earliest, Constitution Bench of\tthis
\nCourt  held  that having regard to the\timportant  functions
\nwhich  the  legislatures  have\tto  perform  in\t  democratic
\ncountries,  it has always been recognised to be a matter  of
\nfirst importance that elections shall be concluded as  early
\nas   possible  according  to  the  time\t schedule  and\t all
\ncontroversial  matters\tand  all  disputes  arising  out  of
\nelections  should be postponed till after the elections\t are
\nover,
\n49 1952 SCR 218: AIR 1952 SC 64: 1 ELR 133
\n203<\/span>
\nso that the election proceedings may not be unduly  retarded
\nor  protracted.\t  In  Lakshmi Charan Sen  v.  A.K.M.  Hassan
\nUzzaman50<\/a>  another Constitution Bench considered the  effect
\nof  interim  stay  of  general\telections  to  West   Bengal
\nLegislative Assembly granted by the Calcutta High Court in a
\nwrit  proceeding,  held that the High  Courts  must  observe
\nself-imposed limitation on their power to act under  Article
\n226  by refusing to pass orders or giving  directions  which
\nwill  inevitably  result in an\tindefinite  postponement  of
\nelections to legislative bodies, which are the very  essence
\nof   the  democratic  foundation  and  functioning  of\t our
\nConstitution.\t That  limitation  ought  to   be   observed
\nirrespective  of  the  fact  whether  the  preparation\t and
\npublication of electoral rolls are a part of the process  of
\nelection  within  the  meaning\tof  Article  329(b)  of\t the
\nConstitution.\tIt is the duty of the court to\tprotect\t and
\npreserve  the integrity of the\tconstitutional\tinstitutions
\nwhich are devised to foster democracy and when the method of
\ntheir  functioning  is\tquestioned, which  is  open  to\t the
\ncitizen\t to do, the court must examine the allegations\twith
\nmore  than  ordinary  care.   Very  often  the\texercise  of
\njurisdiction  especially  the  writ  jurisdiction   involves
\nquestions of propriety rather than of power.  The fact\tthat
\nthe court has power to do a certain thing does not mean that
\nit  must  exercise that power  regardless  of  consequences.
\nHolding\t the elections to the legislatures and holding\tthem
\naccording  to law are both matters of  paramount  importance
\nand is the constitutional obligation imposed by Article 168.
\nThe  pragmatic approach was couched thus: (at SCR  p.  523):
\n(SCC p. 709, para 30)
\n\t      “India  is  an oasis of democracy, a  fact  of
\n\t      contemporary  history  which  demands  of\t the
\n\t      courts  the use of wise statesmanship  in\t the
\n\t      exercise\tof their extraordinary powers  under
\n\t      the   Constitution.   The\t High  Courts\tmust
\n\t      observe  a  self-imposed limitation  on  their
\n\t      power to act under Article 226, by refusing to
\n\t      pass  order  or  give  directions\t which\twill
\n\t      inevitably    result    in    an\t  indefinite
\n\t      postponement   of\t elections  to\t legislative
\n\t      bodies,  which  are the very  essence  of\t the
\n\t      democratic  foundation and functioning of\t our
\n\t      Constitution.   That  limitation ought  to  be
\n\t      observed irrespective of the fact whether\t the
\n\t      preparation and publication of electoral rolls
\n\t      are a part of the process of ‘election’ within
\n\t      the   meaning   of  Article  329(b)   of\t the
\n\t      Constitution.”\n<\/p>\n
There are plethora of precedents in this behalf, but suffice
\nfor  the  limited purpose to say that the  exercise  of\t the
\npower either under Article 226 or Article 32 or Article\t 136
\nstaying\t the  elections\t to  the  dissolved  Assembly  under
\nArticle 356 not only flies in the face of the constitutional
\nmandates  and the law laid down by this Court,\tbut  creates
\nuncertainty    and   constitutional   crises\tas    stated
\nhereinbefore.\tEnlightened  public opinion both  inside  or
\noutside\t Parliament,  informed public  objective  criticism,
\nobjective  assessment of the ground realities would  inhibit
\nmisuse of power and hinder highly irrational exercise of the
\npower.\n<\/p>\n
50 (1985) 4 SCC 689: 1985 Supp 1 SCR 493
\n204<\/span>\n<\/p>\n
246. The question which finally emerges is whether  issuance
\nof  the Proclamation under Article 356 without\taffording  a
\nparticular  Chief Minister to test his majority\t support  of
\nhis  party  in\tthe  Legislatures (sic)\t of  Janata  Dal  or
\ncoalition  on the floor of the House is arbitrary and  bears
\nno reasonable nexus or irrational.  Having given our anxious
\nconsideration  to the facts in Bommai case and in the  light
\nof the discussion made hereinbefore that the fluid situation
\nprevailing  during  the\t relevant  period  appears  to\thave
\npersuaded  the President that he had constitutional duty  to
\nmaintain  the purity of the democratic process and  required
\nto  stamp out horse-trading among the legislators which\t had
\nresulted   in  the  failure  of\t constitutional\t  machinery,
\nsatisfied  himself  that  necessitated to  issuance  of\t the
\nProclamation   under  Article  356.   Though  the   majority
\nstrength of the ruling party or coalition in the Legislative
\nAssembly may be tested on the floor of the House and may  be
\na salutary principle as recommended by the conference of the
\nGovernors, it would appear that in its working there emerged
\nseveral\t pitfalls and so it was not found enforceable  as  a
\nconvention.   It is for the political parties or  the  Chief
\nMinisters’ conference to take a decision in that behalf\t and
\nit  is not judicially manageable for the court to  give\t any
\ndeclaration  in\t this behalf.  In regard to  dissolution  of
\nU.P. Assembly, though there is no writ petition filed, since
\nthe  Government machinery of that Government had  failed  to
\nprevent\t destruction  of Sri  Ram  Janmabhoomi-Babri  Masjid
\ndisputed  structure  and  failed to  protect  the  religious
\nproperty,  be  it belong to Hindus or Muslims  and  in\tthat
\nsurged\tatmosphere when it was done, it cannot be  concluded
\nthat the President acted unconstitutionally or that there is
\nno proximate nexus between the action and the demolition  to
\nexercise  the  power under Article 356.\t  Equally  regarding
\ndissolution  of\t Legislative Assemblies of  Madhya  Pradesh,
\nRajasthan and Himachal Pradesh, the reports of the Governors
\ndo  disclose  that  some of the\t Ministers  and\t some  Chief
\nMinisters  actively associated or encouraged kar  sevaks  to
\nparticipate  in\t the  demolition  of  Ram  Janmabhoomi-Babri
\nMasjid disputed structure and also criticised the imposition
\nof ban on RSS.\tThe law and order situation or public  order
\nsituation do not appear to have been brought under  control.
\nThe  common thread of breach of secularism ran\tthrough\t the
\nevents\tand  with prognosis action was taken.\tOur  learned
\nBrother\t  Jeevan  Reddy,  J.  elaborately   considered\t the
\npleadings  of  the parties and arguments by  the  respective
\ncounsel.   He  also deduced the conclusions.  The  need\t for
\ndiscussion once over is thereby redundant.  We\trespectfully
\nagree  with him and in case of Meghalaya also.\tWe  conclude
\nthat  the  satisfaction reached by the President  cannot  be
\nadjudicated with any judicially discoverable and  manageable
\nstandards,  but one stark fact that emerged is that  due  to
\nsustained  campaign by the BJP and other  organizations\t Sri
\nRam   Janmabhoomi-Babri\t  Masjid  disputed   structure\t was
\ndestroyed.   Consequential situation that has arisen due  to
\nwhich the President satisfied that Governments of the States
\nof Madhya Pradesh, Rajasthan and Himachal Pradesh cannot  be
\ncarried\t on  in\t accordance  with  the\tprovisions  of\t the
\nConstitution  and  they breached the basic features  of\t the
\nConstitution, namely secularism.  Therefore the satisfaction
\nreached by
\n205<\/span>
\nthe  President\tcannot be said to be  irrelevant  warranting
\ninterference.\tAs regards Meghalaya is concerned, though  a
\ndeclaration  may  possibly be made on the  validity  of\t the
\nPresidential Proclamation, since the elections have  already
\nbeen held, its need became fait accompli.\n<\/p>\n
CONCLUSIONS\n<\/p>\n
247. Federalism envisaged in the Constitution of India is  a
\nbasic feature in which\t the  Union  of India  is  permanent
\nwithin the territorial limits set in Article 1\t  of\t the
\nConstitution  and  is  indestructible.\t The  State  is\t the
\ncreature of the Constitution and the law made by Articles  2
\nto  4 with no territorial integrity, but a permanent  entity
\nwith  its boundaries alterable by a law made by\t Parliament.
\nNeither\t the relative importance of the legislative  entries
\nin Schedule VII, Lists I and II of the Constitution, nor the
\nfiscal control by the Union per se are decisive to  conclude
\nthat   the   Constitution  is\tunitary.    The\t  respective
\nlegislative  powers are traceable to Articles 245 to 254  of
\nthe Constitution.  The State qua the Constitution is federal
\nin structure and independent in its exercise of\t legislative
\nand  executive\tpower.\tHowever, being the creature  of\t the
\nConstitution  the  State  has no right to  secede  or  claim
\nsovereignty.   Qua the Union, State is quasi-federal.\tBoth
\nare  coordinating institutions and ought to  exercise  their
\nrespective   powers  with  adjustment,\t understanding\t and
\naccommodation to render socioeconomic and political  justice
\nto  the people, to preserve and elongate the  constitutional
\ngoals including secularism.\n<\/p>\n
248. The preamble of the Constitution is an integral part of
\nthe  Constitution.  Democratic form of\tGovernment,  federal
\nstructure,  unity and integrity of the\tnation,\t secularism,
\nsocialism,  social  justice and judicial  review  are  basic
\nfeatures of the Constitution.\n<\/p>\n
249. The  office  of  the Governor is a\t vital\tlink  and  a
\nchannel\t of  impartial and objective  communication  of\t the
\nworking\t of the Constitution by the State Government to\t the
\nPresident  of  India.\tHe  is\tto  ensure  protection\t and
\nsustenance  of the constitutional process of the working  of
\nthe Constitution in the State playing an impartial role.  As
\nhead of the Executive he should truthfully with high  degree
\nof constitutional responsibility inform the President that a
\nsituation  has arisen in which the constitutional  machinery
\nhas failed and the State cannot be carried on in  accordance
\nwith  the  provisions  of the  Constitution  with  necessary
\nfactual details in a non-partisan attitude.\n<\/p>\n
250. The  Union of India shall protect the State  Government
\nand  as corollary under Article 356 it is enjoined that\t the
\nGovernment of every State should be carried on in accordance
\nwith  the provisions of the Constitution.  On receipt  of  a
\nreport from the Governor or otherwise the President (Council
\nof Ministers) on being satisfied that a situation has arisen
\nin  which the Government of a State cannot be carried on  in
\naccordance  with  the  provisions of  the  Constitution,  is
\nempowered  to  issue Proclamation under Article\t 356(1)\t and
\nimpose President’s rule in the State in the manner laid down
\nin  sub-clauses\t (a)  to  (c)  of  Article  356(1)  of\t the
\nConstitution.\n<\/p>\n
206<\/span><\/p>\n
251. The  exercise  of\tthe power under Article\t 356  is  an
\nextraordinary  one and needs to be used sparingly  when\t the
\nsituation  contemplated by Article 356 warrants to  maintain
\ndemocratic  form of Government and to prevent paralysing  of
\nthe political process.\tSingle or individual act or acts  of
\nviolation  of the Constitution for good, bad or\t indifferent
\nadministration\tdoes not necessarily constitute\t failure  of
\nthe   constitutional  machinery\t or  characterises  that   a
\nsituation  has arisen in which the Government of  the  State
\ncannot\tbe carried on in accordance with the  provisions  of
\nthe  Constitution.  The exercise of power under Article\t 356
\nshould under no circumstance be for a political gain to\t the
\nparty  in power in the Union Government.  It should be\tused
\nsparingly and with circumspection that the Government of the
\nState  function with responsibility in accordance  with\t the
\nprovisions of the Constitution.\n<\/p>\n
252. Rule of law has been chosen as an instrument of  social
\nadjustment and resolution of conflicting social problems  to
\nintegrate diverse sections of the society professing  multi-
\nreligious  faiths,  creed, caste or region  fostering  among
\nthem fraternity, transcending social, religious,  linguistic
\nor regional barriers.  Citizenship is either by birth or  by
\ndomicile  and  not  as a member of  religion,  caste,  sect,
\nregion\tor  language.\tSecularism  has\t both  positive\t and
\nnegative  contents.   The  Constitution\t struck\t a   balance
\nbetween temporal parts confining it to the person professing
\na  particular  religious faith or belief and allows  him  to
\npractice,  profess  and propagate his religion,\t subject  to
\npublic\torder,\tmorality and health.  The positive  part  of
\nsecularism  has been entrusted to the State to\tregulate  by
\nlaw  or by an executive order.\tThe State is  prohibited  to
\npatronise  any particular religion as State religion and  is
\nenjoined to observe neutrality.\t The State strikes a balance
\nto  ensure an atmosphere of full faith and confidence  among
\nits people to realise fill growth of personality and to make
\nhim a rational being on secular lines, to improve individual
\nexcellence,   regional\t growth,   progress   and   national
\nintegrity.  Religion being susceptible to the individuals or
\ngroups\t of   people  professing  a   particular   religion,
\nantagonistic  to  another  religion  or\t groups\t of  persons
\nprofessing  different religion, brings inevitable social  or
\nreligious  frictions.  If religion is allowed  to  overplay,
\nsocial\tdisunity  is  bound to\terupt  leading\tto  national
\ndisintegration.\t Secularism is a part of the basic  features
\nof the Constitution.  Political parties, group of persons or
\nindividuals  who would seek to influence  electoral  process
\nwith a view to come to political power, should abide by\t the
\nConstitution and the laws including secularism, sovereignty,
\nintegrity  of the nation.  They\/he should not  mix  religion
\nwith politics.\tReligious tolerance and fraternity are basic
\nfeatures and postulates of the Constitution as a scheme\t for
\nnational  integration  and  sectional  or  religious  unity.
\nProgrammes or principles evolved by political parties  based
\non religion amounts to recognising religion as a part of the
\npolitical   governance\twhich  the  Constitution   expressly
\nprohibited.    It  violates  the  basic\t features   of\t the
\nConstitution.  Positive secularism negates such a policy and
\nany action in furtherance thereof would be violative of\t the
\nbasic  features\t of  the Constitution.\tAny act\t done  by  a
\npolitical party or the Government of the
\n207<\/span>
\nState  run by that party in furtherance of its programme  or
\npolicy\twould also be in violation of the  Constitution\t and
\nthe  law.   When  the President receives  a  report  from  a
\nGovernor   or  otherwise  had  such  information  that\t the
\nGovernment  of\tthe  State  is\tnot  being  carried  on\t  in
\naccordance  with  the provisions of  the  Constitution,\t the
\nPresident is entitled to consider such report and reach\t his
\nsatisfaction in accordance with law.\n<\/p>\n
253. A\tperson who challenges the Presidential\tProclamation
\nmust  prove  strong prima facie case that  the\tPresidential
\nProclamation  is  unconstitutional  or invalid\tand  not  in
\naccordance  with  law.\tOn the Court’s satisfying  that\t the
\nstrong\tprima  facie case has been made out and if it  is  a
\nHigh   Court,  it  should  record  reasons  before   issuing
\n“discovery order nisi”, summoning the records from the Union
\nof  India.   The Government is entitled to  claim  privilege
\nunder  Section 123 of the Indian Evidence Act and  also\t the
\nclaim under Article 74(2) of the Constitution.\tThe court is
\nto consider the records in camera before taking any  further
\nsteps  in  the matter.\tArticle 74(2) is not a\tbarrier\t for
\njudicial  review.   It\tonly places  limitation\t to  examine
\nwhether any advice and if so what advice was tendered by the
\nCouncil\t of  Ministers\tto  the\t President.   Article  74(2)
\nreceives   only\t  this\tlimited\t  protective   canopy\tfrom
\ndisclosure,  but  the  material on the basis  of  which\t the
\nadvice\twas tendered by the Council of Ministers is  subject
\nto judicial scrutiny.\n<\/p>\n
254. The Union of India, when discovery order nisi is issued
\nby  this Court, would act in aid of the Court under  Article
\n142(2)\tand  is\t enjoined  to  produce\tthe  material,\t the
\nfoundation  for action under Article 356.  As  held  earlier
\nbefore\tcalling upon the Union to produce the material,\t the
\ncourt  must first find strong prima facie case and when\t the
\nrecords are produced they are to be considered in camera.\n<\/p>\n
255. Judicial review is a basic feature of the Constitution.
\nThis   Court\/High  Courts  have\t constitutional\t  duty\t and
\nresponsibility\tto exercise judicial review as\tsentinel  on
\nthe  qui  vive.\t Judicial review is not concerned  with\t the
\nmerits\tof  the decision, but with the manner in  which\t the
\ndecision was taken.  The exercise of the power under Article
\n356  is a constitutional exercise of the power.\t The  normal
\nsubjective  satisfaction  of an administrative\tdecision  on
\nobjective  basis  applied by the  courts  to  administrative
\ndecisions  by  subordinate  officers  or  quasi-judicial  or
\nsubordinate  legislation does not apply to the\tdecision  of
\nthe President under Article 356.\n<\/p>\n
256. Judicial\treveiw\tmust  be  distinguished\t  from\t the
\njusticiability\tby  the\t court.\t The two  concepts  are\t not
\nsynonymous.   The power of judicial review is a\t constituent
\npower  and  cannot  be\tabdicated  by  judicial\t process  of
\ninterpretation.\t  However,  justiciability of  the  decision
\ntaken  by the President is one of exercise of the  power  by
\nthe court hedged by self-imposed judicial restraint.  It  is
\na  cardinal  principle\tof our\tConstitution  that  no\tone,
\nhowsoever lofty, can claim to be the sole judge of the power
\ngiven  under the Constitution.\tIts actions are\t within\t the
\nconfines of the powers given by the Constitution.\n<\/p>\n
208<\/span><\/p>\n
257. This  Court  as  final  arbiter  in  interpreting\t the
\nConstitution,  declares what the law is.   Higher  judiciary
\nhas  been assigned a delicate task to determine what  powers
\nthe  Constitution  has\tconferred  on  each  branch  of\t the
\nGovernment and whether the actions of that branch transgress
\nsuch limitations, it is the duty and responsibility of\tthis
\nCourt\/High   Courts  to\t lay  down  the\t law.\tIt  is\t the
\nconstitutional duty to uphold the constitutional values\t and
\nto  enforce the constitutional limitations as  the  ultimate
\ninterpreter  of\t the  Constitution.   The  judicial  review,
\ntherefore,  extends to examine the constitutionality of\t the
\nProclamation issued by the President under Article 356.\t  It
\nis a delicate task, though loaded with political  overtones,
\nto  be\texercised with circumspection and  great  care.\t  In
\ndeciding  finally  the validity of the\tProclamation,  there
\ncannot\tbe any hard and fast rules or fixed set of rules  or
\nprinciples  as\tto  when  the  President’s  satisfaction  is
\njusticiable and valid.\n<\/p>\n
258. Justiciability  is\t not a legal concept  with  a  fixed
\ncontent,  nor is it susceptible of scientific  verification.
\nIts  use  is  the result of  many  pressures  or  variegated
\nreasons.  Justiciability may be looked at from the point  of
\nview  of  common sense limitation.  Judicial review  may  be
\navoided on questions of purely political nature, though pure
\nlegal  questions camouflaged by the political questions\t are
\nalways\t justiciable.\tThe  courts  must  have\t  judicially
\nmanageable  standards  to decide a  particular\tcontroversy.
\nJusticiability on a subjective satisfaction conferred in the
\nwidest\tterms to the political coordinate  executive  branch
\ncreated\t by the constitutional scheme itself is one  of\t the
\nconsiderations\tto  be kept in view in\texercising  judicial
\nreview.\t There is an initial presumption that the acts\thave
\nbeen regularly performed by the President.\n<\/p>\n
259. The  proviso  to Article 74(1) reinforces that  on\t the
\nadvice\t tendered  by  the  Council  of\t Ministers  to\t the
\nPresident, the latter actively applies his mind and  reaches
\nthe  satisfaction that a situation has arisen in  which\t the
\nGovernment  of the State cannot be carried on in  accordance
\nwith   the  provisions\tof  the\t Constitution.\t  The\tword
\n“otherwise”  enlarges  the width and ambit  of\tsatisfaction
\nreached\t by the President.  In some cases such\tsatisfaction
\nlacks  judicially manageable standards for resolution.\t The
\nabuse  of  the power by\t high  constitutional  functionaries
\ncannot\tbe  assumed, but must be strictly proved.   It\talso
\ncannot\tbe  assumed that the Presidential  Proclamation\t was
\nlightly issued.\t The exercise of discretionary\tsatisfaction
\nmay  depend on diverse varied and variegated  circumstances.
\nThe  Constitution  confided  exercise  of  the\tpower  under
\nArticle\t 356  in  the highest executive\t of  the  land,\t the
\nPresident  of  India  aided and advised by  the\t Council  of
\nMinisters  at  its head by the Prime  Minister.\t  The  Prime
\nMinister  and his Council of Ministers are collectively\t and
\nindividually  responsible to Parliament and  accountable  to
\nthe  people.   Confidence reposed on the  highest  executive
\nitself\tis  a circumstance to be kept in view  in  adjudging
\nwhether\t the  satisfaction  reached  by\t the  President\t  is
\nvitiated by law.  It is impermissible to attribute bad faith
\nor  personal  mala  fides to the President in  the  face  of
\nconstitutional prohibition of answerability by Article\t361.
\nBut if the proof of
\n209<\/span>
\n mala  fide abuse of power is available, appropriate  remedy
\nwould be available in the Constitution under Article 61.\n<\/p>\n
260. The decision can be tested on the ground of legal\tmala
\nfides,\tor  high  irrationality\t in  the  exercise  of\t the
\ndiscretion  to issue Presidential Proclamation.\t  Therefore,
\nthe  satisfaction reached by the President for\tissuing\t the
\nProclamation under Article 356 must be tested only on  those
\ngrounds of unconstitutionality, but not on the grounds\tthat
\nthe material which enabled him to reach the satisfaction was
\nnot sufficient or inadequate.  The traditional parameters of
\njudicial  review, therefore, cannot be extended to the\tarea
\nof  exceptional\t and extraordinary  powers  exercised  under
\nArticle\t 356.\tThe doctrine of\t proportionality  cannot  be
\nextended  to  the power exercised under\t Article  356.\t The
\nultimate  appeal over the action of the President is to\t the
\nelectorate and judicial self-restraint is called in aid,  in
\nwhich  event the faith of the people in the efficacy of\t the
\njudicial  review  would\t be strengthened  and  the  judicial
\nremedy becomes meaningful.\n<\/p>\n
261. Under  Article  356  as soon  as  the  Proclamation  is
\nissued,\t under sub-clause (3) of Article 356, the  President
\nshall  seek  its  approval from both  Houses  of  Parliament
\nwithin\ttwo months from the date of its issue unless  it  is
\nrevoked\t in  the  meanwhile.   A  consistent  constitutional
\nconvention   has  been\testablished  that  on  issuing\t the
\nProclamation   the  President  on  his\tassumption  of\t the
\nfunctions  of  the  Government\tof  the\t State\tdirects\t the
\nGovernor  to  exercise all the executive  functions  of\t the
\nGovernment  of\tthe  State with the aid and  advice  of\t the
\nappointed  Advisors.   He  declares that the  power  of\t the
\nLegislature  of the State shall be exercisable by  or  under
\nthe  authority\tof  Parliament\tand  makes  incidental\t and
\nconsequential  provisions  necessary to give effect  to\t the
\nobject\tof Proclamation by suspending whole or any  part  of
\nthe operation of any provision of the Constitution  relating
\nto  any\t body  or  authority of\t the  State  which  includes
\ndissolution  of the Legislative Assembly and removal of\t the
\nState  Government.   Parliament\t exercises  the\t legislative
\npower  thereon under Article 357 and in turn it\t confers  on
\nthe  President the powers relating to entries in List II  of
\nthe VIIth Schedule.  The Governor of the State with the\t aid
\nand advice of the advisors exercises the executive functions
\non  behalf  of the President.  The convention  attained\t the
\nstatus\tof  law.   This consistent law\thas  been  operating
\nwithout\t any  constitutional hiatus.  Granting\tof  stay  of
\noperation     of    Presidential    Proclamation     creates
\nconstitutional\tand administrative hiatus  and\tincongruity.
\nThe  Union and the State simultaneously cannot\toperate\t the
\nlegislative  and  executive  powers  in\t List  II  of  VIIth
\nSchedule   of\tthe  Constitution.    Thereby\tsimultaneous
\nbicameral  functions  by  the  Union and  the  State  is  an
\nanathema  to  the democratic  principle\t and  constitutional
\nscheme.\t It would lead to incongruity and incompatibility.\n<\/p>\n
262. There  is no express provision in the  Constitution  to
\nrevive\t the  Assembly\tdissolved  under  the\tPresidential
\nProclamation  or to reinduct the removed Government  of\t the
\nState.\t In interpreting the Constitution on the working  of
\nthe  democratic institutions set up under the  Constitution,
\nit  is impermissible to fill the gaps or to give  directions
\nto revive the dissolved
\n210<\/span>
\nAssembly  and  to reinduct the dismissed Government  of\t the
\nState  into office. Equally, stay cannot be granted  of\t the
\noperation of the Presidential Proclamation till both  Houses
\nof  Parliament\tapprove the Presidential  Proclamation.\t The
\nsuspension without dissolution of theLegislative Assembly
\nof  the State also creates functional disharmony leading  to
\nconstitutional crisis. The grant of stay of elections to the
\nLegislative    Assembly,   occasioned\tpursuant   to\t the
\nPresidential   Proclamation,  also  creates   constitutional
\ncrisis.\t  Therefore,  the  courts  should  not\tissue\tsuch
\ndirections   leaving   it  to  Parliament   to\t amend\t the
\nConstitution if need be.\n<\/p>\n
263.The\t floor-test  may  be one  consideration\t which\tthe
\nGovernor may keep in view.  But whether or not to resort  to
\nit would depend on prevailing situation.  The possibility of
\nhorse-trading  is also to be kept in view having  regard  to
\nthe  prevailing political situation.  It is not possible  to
\nformulate  or comprehend a set of rules for the exercise  of
\nthe  power  by\tthe Governor  to  conduct  floor-test.\t The
\nGovernor  should  be left free to deal\twith  the  situation
\naccording   to\this  best  judgment  keeping  in  view\t the
\nConstitution and the conventions of the parliamentary system
\nof  Government.\t Though Sarkaria Commission  and  Rajamannar
\nCommission, headed by two distinguished Judges of this land,
\nrecommended  floor-test, it could only mean that that  is  a
\nconsideration which must cross the mind of the Governor.  It
\nwould  suffice to say that the Governor should be  alive  to
\nthe situation but he would be the sole judge on the question
\nwhether or not conditions are conducive to resort to  floor-
\ntest.\n<\/p>\n
264.The\t satisfaction reached by the President\tin  issuing
\nPresidential  Proclamation  and dissolving  the\t Legislative
\nAssemblies of Madhya Pradesh, Rajasthan and Himachal Pradesh
\ncannot\tbe faulted as it was based on the fact of  violation
\nof the secular features of the Constitution which itself  is
\na  ground to hold that a situation has arisen in  which\t the
\nGovernment  of the States concerned cannot be carried on  in
\naccordance   with  the\tprovisions  of\t the   Constitution.
\nTherefore,   the   satisfaction\t cannot\t be   said   to\t  be
\nunwarranted.  The appeals of the Union from the judgment  of
\nthe Madhya Pradesh High Court is allowed accordingly and the
\njudgment of the High Court is set aside.  The dissolution of
\nthe  Meghalaya\tAssembly  though  vulnerable  to  attack  as
\nunconstitutional,   it\t has  become  infructuous   due\t  to
\nsubsequent elections and the newly elected State Legislature
\nand the Government of the State of Meghalaya are functioning
\nthereafter.   Therefore, no futile writs could be issued  as
\nthe  Court does not act in vain.  The appeal of\t Bommai\t and
\nthe transferred petitions are accordingly dismissed, but  in
\nthe circumstances without costs.\n<\/p>\n
B.P. JEEVAN REDDY, J. (on behalf of Agrawal, J. and himself)
\nArticle\t 356  of the Constitution of India  is\ta  provision
\nwithout\t a  parallel.\tConstitution  of  no  other  country
\ncontains  a similar provision.\tThe only other\tconstitution
\nthat   contains\t  a  somewhat  similar\tprovision   is\t the
\nConstitution  of Pakistan of 1973, viz., Article  58(2)\t and
\nArticle\t 112(2).  Both the Indian and  Pakistani  provisions
\nappear\tto be inspired by Section 45 and Section 93  of\t the
\nGovernment  of\tIndia Act, 1935.  Article 356,\thowever,  is
\nqualitatively
\n211<\/span>
\ndifferent, while the Pakistani provisions are more akin\t  to
\nthe  provisions\t of  1935  Act.\t  Under\t Article  356,\t the
\nPresident  is  empowered  to remove  the  State\t Government,
\ndissolve the Legislative Assembly of the State and take over
\nthe  functions of the Government of the State in case he  is
\nsatisfied  that\t the  Government of  that  State  cannot  be
\ncarried\t on  in\t accordance  with  the\tprovisions  of\t the
\nConstitution.\tIn  the context of the\tIndian\tConstitution
\n[more  specifically after the amendment of Article 74(1)  by
\nthe 42nd (Amendment) Act this really is the power vested  in
\nthe Council of Ministers headed by the Prime Minister at the
\nCentre.\t The action can be taken either on the report of the
\nGovernor  or on the basis of information received  otherwise
\nor both.  An awesome power indeed.  The only check envisaged
\nby the Constitution  apart from the judicial review  is\t the
\napproval by both Houses of Parliament which in practice\t has
\nproved to be ineffective, as this judgment will demonstrate.
\nAnd  with  respect to judicial review of  the  action  under
\nArticle\t 356,  serious\treservations are  expressed  by\t the
\ncounsel\t for the Union of India and other  respondents.\t  If
\nwhat  they say is accepted, there is a danger of this  power
\neroding\t the  very  federal  structure\tof  our\t State\t and
\nintroducing  a\tserious\t imbalance  in\tour   constitutional
\nscheme.\t   It  is,  therefore,\tnecessary  to\tdefine\t the
\nparameters  of\tthis power and the parameters  ‘of  judicial
\nreview\t in   these   matters  in  the\t interest   of\t our
\nconstitutional system.\tIt is for this reason that we  heard
\nelaborate  arguments from all the parties before us  on\t the
\nmeaning,  scope\t and  dimensions of  the  power\t under\tthis
\narticle.   We  may say, we are fully aware of  the  delicate
\nnature\tof  the\t problem.   We are  aware  that\t though\t the
\nquestions  raised  herein are constitutional  in  character,
\nthey  do have political overtones.  It is quite likely\tthat
\nour  views  will  not be found palatable by  some  but\tthat
\nprobably   cannot   be\t helped.   Sworn   to\tuphold\t the
\nConstitution, we must say what the article says and means.\n<\/p>\n
266.It\tis true that on account of elections  having  taken
\nplace  subsequent  to  the  issuance  of  the  Proclamations
\nimpugned herein, no effective relief can be granted in these
\nmatters,  we are yet requested by all the parties  concerned
\nherein\tthat we should express ourselves on all\t the  issues
\narising\t herein\t so that the principles enunciated  by\tthis
\nCourt  may  serve  as  guidelines for  the  future  for\t all
\nconcerned.\n<\/p>\n
\t\tARTICLE 356: THE BACKGROUND\n<\/p>\n
267.India  became  a  British  colony  in  the\tyear  1858.
\nRoughly two-thirds of it was under direct British rule while
\nthe remaining one-third was under the rulership of more than
\n500  Princes, who in turn were directly under the  thumb  of
\nthe  British Crown.  The 1935 Act introduced, for the  first
\ntime,  the concept of division of powers between the  Centre
\nand  the provinces.  Most of the powers were  retained\twith
\nthe  Centre.  The Provincial Governments were kept under  an
\never-watchful and all powerful Centre.\tThe Governors in the
\nprovinces  and the Governor General at the Centre  exercised
\nreal  and  substantial power, unlike the Governors  and\t the
\nPresident under the Constitution. From the British point  of
\nview,  it was an experiment, the first one, in self-rule  by
\nthe Indians.  A few powers were entrusted to the elected
\n212<\/span>
\nGovernments  at the Centre or in the provinces;\t even  those
\ncould  be resumed and taken back by the Governor General  or
\nGovernor, as the case may be, whenever he was satisfied that
\nthe Government at the Centre or of the province could not be
\ncarried\t on  in accordance with the provisions of  the\tAct.
\nGovernor General and Governor, under the 1935 Act, meant the
\nimperial colonial power.  Evidently, the British  Parliament
\nwas  not  prepared to trust the\t Indian\t political  parties.
\nMany of them were opposed to British rule and some of  their
\nleaders\t had  declared\topenly that  they  would  enter\t the
\nLegislatures  and  the Government with a view to  break\t the
\nsystem from within.  Sections 45 and 93 were the products of
\nthis mistrust.\n<\/p>\n
268.But then Why was a provision like Article 356 ever made
\nin  the Constitution?  What was the occasion  and  necessity
\nfor  it?  For ascertaining this, we may have to turn to\t the
\ndebates\t in  the Constituent Assembly.\tThe  draft  Articles
\n277-A  and 278 (corresponding to Articles 355 and 356)\twere
\ntaken  up for consideration on August 3, 1949.\tIt would  be
\nappropriate to read both Articles 355 and 356 as enacted  by
\nthe Constituent Assembly :\n<\/p>\n
\t      “355.   Duty  of the Union to  protect  States
\n\t      against\texternal  aggression  and   internal
\n\t      disturbance.-  It\t shall be the  duty  of\t the
\n\t      Union to protect every State against  external
\n\t      aggression  and  internal disturbance  and  to
\n\t      ensure  that the Government of every State  is
\n\t      carried  on in accordance with the  provisions
\n\t      of this Constitution.\n<\/p><\/blockquote>\n
\t      356. Provisions\tin  case  of   failure\t of
\n\t      constitutional  machinery in States.-  (1)  If
\n\t      the  President, on receipt of report from\t the
\n\t      Governor of a State orotherwise,\t      is
\n\t      satisfied that a situation has arisen in which
\n\t      the Government of the State cannot be  carried
\n\t      on  in accordance with the provisions of\tthis
\n\t      Constitution,    the    President\t   may\t  by
\n\t      Proclamation(a)  assume to himself all or\t any
\n\t      of  the  functions of the\t Government  of\t the
\n\t      State  and all or any of the powers vested  in
\n\t      or exercisable by the Governor or any body  or
\n\t      authority\t  in  the  State  other\t  than\t the
\n\t      Legislature of the State;\n<\/p><\/blockquote>\n
\t      (b)declare   that\t  the\tpowers\t of   the
\n\t      Legislature of the State shall be\t exercisable
\n\t      by or under the authority of Parliament;\n<\/p><\/blockquote>\n
\t      (c)make  such incidental and  consequential
\n\t      provisions  as appear to the President  to  be
\n\t      necessary\t or desirable for giving  effect  to
\n\t      the  objects  of the  Proclamation,  including
\n\t      provisions for suspending in whole or in\tpart
\n\t      the  operation  of  any  provisions  of\tthis
\n\t      Constitution relating to any body or authority
\n\t      in the State :\n<\/p><\/blockquote>\n
\t      Provided\tthat  nothing in this  clause  shall
\n\t      authorise\t the President to assume to  himself
\n\t      any of the powers vested in or exercisable  by
\n\t      a\t High  Court, or to suspend in whole  or  in
\n\t      part  the operation of any provision  of\tthis
\n\t      Constitution relating to High Courts. (2)\t Any
\n\t      such Proclamation may be revoked or varied  by
\n\t      a subsequent Proclamation.\n<\/p><\/blockquote>\n
\t      (3)Every\tProclamation  issued  under  this
\n\t      article  shall  be laid before each  House  of
\n\t      Parliament  and  shall, except where it  is  a
\n\t      Proclamation
\n\t      213<\/span>
\n\t      revoking\ta  previous Proclamation,  cease  to
\n\t      operate at the expiration of two months unless
\n\t      before  the expiration of that period  it\t has
\n\t      been approved by resolutions of both Houses of
\n\t      Parliament :\n<\/p><\/blockquote>\n
\t      Provided\tthat if any such  Proclamation\t(not
\n\t      being  a\tProclamation  revoking\ta   previous
\n\t      Proclamation)  is\t issued at a time  when\t the
\n\t      House  of\t the  People  is  dissolved  or\t the
\n\t      dissolution  of the House of the People  takes
\n\t      place during the period of two months referred
\n\t      to  in  this  clause,  and  if  a\t  resolution
\n\t      approving the Proclamation has been passed  by
\n\t      the Council of States, but no resolution\twith
\n\t      respect  to such Proclamation has been  passed
\n\t      by   the\tHouse  of  the\tPeople\tbefore\t the
\n\t      expiration  of that period,  the\tProclamation
\n\t      shall  cease to operate at the  expiration  of
\n\t      thirty  days from the date on which the  House
\n\t      of   the\t People\t  first\t  sits\t after\t its
\n\t      reconstitution unless before the expiration of
\n\t      the  said period of thirty days  a  resolution
\n\t      approving\t the  Proclamation  has\t been\talso
\n\t      passed by the House of the People.
\n\t      (4)A Proclamation so approved shall, unless
\n\t      revoked, cease to operate on the expiration of
\n\t      a period of six months from the date of  issue
\n\t      of the Proclamation
\n\t      Provided\tfurther that if the  dissolution  of
\n\t      the House of the People takes place during any
\n\t      such  period  of six months and  a  resolution
\n\t      approving\t the  continuance in force  of\tsuch
\n\t      Proclamation has been passed by the Council of
\n\t      States, but no resolution with respect to\t the
\n\t      continuance in force of such Proclamation\t has
\n\t      been passed by the House of the People  during
\n\t      the said period, the Proclamation shall  cease
\n\t      to  operate at the expiration of\tthirty\tdays
\n\t      from the date on which the House of the People
\n\t      first  sits  after its  reconstitution  unless
\n\t      before  the expiration of the said  period  of
\n\t      thirty   days  a\tresolution   approving\t the
\n\t      continuance  in force of the Proclamation\t has
\n\t      been also passed by the House of the People.”\n<\/p><\/blockquote>\n
Dr B.R. Ambedkar was of the view that the Constitution\tmust
\nprovide\t for  situation of breakdown of\t the  constitutional
\nmachinery   in\tthe  States  analogous\tto  the\t  provisions
\ncontained  in  Section 93 of the 1935 Act.  If\ta  situation
\narises, for whatever reason, where the Government of a State
\ncannot\tbe carried on in accordance with the  provisions  of
\nthe  Constitution, he said, the President of India  must  be
\nempowered  to  remedy it.  For that purpose, he\t could\ttake
\nover  all or any of the functions of the Government as\twell
\nas of the State Legislature.  He could also make such  other
\nprovisions  as he may think necessary  including  suspension
\nof the provisions of the Constitution except those  relating
\nto High Court.\tThis power, he stated, must be understood in
\nthe context of draft Article 277-A (Article 355), which cast
\nan obligation upon the Union to protect every State  against
\nexternal  aggression and internal disturbance and to  ensure
\nthat  the  Government  of  every  State\t is  carried  on  in
\naccordance  with  the provisions of  the  Constitution.\t  To
\ndischarge this obligation, he said, the Centre must be
\n214<\/span>
\nempowered to take over the Government of the State.  At\t the
\nsame time, he said, the President is not expected to act  in
\na  wanton or arbitrary manner but on the basis of  a  report
\nfrom  the Governor or on the basis of other material in\t his
\npossession, as the case may be.\n<\/p>\n
269.Several members strongly opposed the incorporation of a
\nprovision like the one contained in draft Article 278 on the
\nground\tinter  alia that it would be an\t invasion  upon\t the
\nfield  reserved\t for  the States  and  that  permitting\t the
\nPresident  to take over the Government of the State even  on
\nthe  basis  of the information\treceived  “otherwise”\ti.e.
\nwithout there being a report of the Governor to that effect,
\nwas  bound  to be abused.  A few members pleaded  that\tthis
\npower should be exercised only on the report of the Governor
\nand that the words “or otherwise” should be deleted from the
\narticle.   All\tthese  objections  were\t overridden  by\t  Dr
\nAmbedkar  with\tthe  argument  that  no\t provision  of\t any
\nConstitution, for that matter, is immune from being  abused.
\nHe  then  made\tthis significant  statement  :\t(Constituent
\nAssembly Debates, Vol.\tIX, p. 177)
\n\t      “In  fact I share the sentiments expressed  by
\n\t      my  honourable friend Mr Gupte yesterday\tthat
\n\t      the  proper thing we ought to expect  is\tthat
\n\t      such  articles  will  never  be  called\tinto
\n\t      operation\t and that they would remain  a\tdead
\n\t      letter.\tIf  at\tall they  are  brought\tinto
\n\t      operation,  I  hope  the\tPresident,  who\t  is
\n\t      endowed  with these powers, will\ttake  proper
\n\t      precautions  before  actually  suspending\t the
\n\t      administration of the provinces.”\n<\/p>\n
\t      He added:\n<\/p>\n
\t      “I hope the first thing he will do would be to
\n\t      issue  a mere warning to a province  that\t has
\n\t      erred,  that things were not happening in\t the
\n\t      way  in which they were intended to happen  in
\n\t      the Constitution.”\n<\/p>\n
270.Article 356 was thus conceived as a mechanism to ensure
\nthat the Government of the State is carried on in accordance
\nwith  the provisions of the Constitution.   Democratic\trule
\nbased on adult franchise was being introduced for the  first
\ntime.  Almost 1\/3rd of the country, under princely rule, had
\nnever  known elections.\t Rule of law was a novelty in  those
\nareas.\t The  infant democracy required\t careful  nurturing.
\nMany  a\t hiccup\t was expected in the  days  to\tcome.\tThis
\nperhaps\t explains the need for a provision like the  one  in
\nArticle 356.\n<\/p>\n
271.Article 356 finds place in Part XVIII which carries the
\nheading\t “Emergency  Provisions”.  Article  352,  the  first
\narticle\t in  this Part, empowers the President of  India  to
\nproclaim emergency in the country or any part thereof if  he
\nis  satisfied  that  a grave emergency\texists\twhereby\t the
\nsecurity of India or any part thereof is threatened  whether
\nby war, external aggression or armed rebellion. (By the 44th
\nAmendment,  the words “armed rebellion” were substituted  in
\nthe  place of the words “internal  disturbance”).   Articles
\n353  and 354 set out the effects of such a Proclamation\t and
\nprovide\t for certain incidental matters.  Article  355,\t set
\nout  hereinbefore, imposes a duty upon the Union to  protect
\nthe  States against external aggression and armed  rebellion
\nand  also  to ensure that the Government of every  State  is
\ncarried on
\n215<\/span>
\nin  accordance\twith  the provisions  of  the  Constitution.
\nArticles 355, 356 and 357 go together.\tArticle 356 provides
\nfor  the  action to be taken by the President  where  he  is
\nsatisfied   that  a  situation\thas  arisen  in\t which\t the
\nGovernment  of\ta State cannot be carried on  in  accordance
\nwith  the  provisions  of  the\tConstitution  by  making   a
\nProclamation in that behalf, while Article 357 sets out\t the
\npowers\t that  can  be\texercised  by  Parliament   when   a
\nProclamation  under Article 356 is in  operation.   Articles
\n358  and  359 deal with suspending  of\tcertain\t fundamental
\nrights during the period the Proclamation under Article\t 352
\nis in operation, while Article 360 empowers the President to
\ndeclare financial emergency in certain situations.\n<\/p>\n
272.In\ta  sense,  Article 356 is  an  emergency  provision
\nthough,\t it is true, it is qualitatively different from\t the
\nemergency  contemplated by Article 352, or for that  matter,
\nfrom  the financial emergency contemplated by  Article\t360.
\nUndoubtedly, breakdown of the constitutional machinery in  a
\nState\tdoes  gives  rise  to  a  situation  of\t  emergency.
\nEmergency means a situation which is not normal, a situation
\nwhich calls for urgent remedial action.\t Article 356 confers
\na  power  to be exercised by the  President  in\t exceptional
\ncircumstances  to discharge the obligation cast upon him  by
\nArticle\t 355.  It is a measure to protect and  preserve\t the
\nConstitution, consistent with his oath.\t He is as much bound
\nto  exercise  this  power in  a\t situation  contemplated  by
\nArticle\t 356  as  he is bound not to use  it  where  such  a
\nsituation has not really arisen.\n<\/p>\n
273.By the 42nd (Amendment) Act of the Constitution, clause
\n(5)  was added in Article 356.\tIt was deleted by  the\t44th
\n(Amendment)  Act which incorporated an altogether  different
\nprovision  as clause (5).  It would be appropriate  to\ttake
\nthe article as it now stands while trying to understand\t its
\nmeaning, purpose and scope.  But before we do that, it would
\nbe   appropriate  to  examine  the  nature  of\tthe   Indian
\nFederation as ordained by our Constitution.
\nTHE FEDERAL NATURE OF THE CONSTITUTION\n<\/p>\n
274.The\t  expression  “Federation”  or\t“federal  form\t of
\nGovernment”  has no fixed meaning.  It broadly\tindicates  a
\ndivision  of powers between a Central  (federal)  Government
\nand  the units (States) comprised therein.  No\ttwo  federal
\nconstitutions  are  alike.   Each of them,  be\tit  of\tUSA,
\nCanada,\t Australia  or\tof any other country,  has  its\t own
\ndistinct  character.   Each of them is\tthe  culmination  of
\ncertain historical process.  So is our Constitution.  It is,
\ntherefore,   futile  to\t try  to  ascertain  and   fit\t our
\nConstitution   into  any  particular  mould.   It  must\t  be
\nunderstood  in the light of our own historical\tprocess\t and
\nthe  constitutional evolution.\tOne thing is clear   it\t was
\nnot  a case of independent States coming together to form  a
\nFederation as in the case of USA.\n<\/p>\n
275.A  review of the provisions of the\tConstitution  shows
\nunmistakably that while creating a federation, the  Founding
\nFathers\t wished to establish a strong Centre.  In the  light
\nof the past history of this sub-continent, this was probably
\na  natural and necessary decision.  In a land as  varied  as
\nIndia is, a
\n216<\/span>
\nstrong\tCentre\tis perhaps a necessity.\t This  bias  towards
\nCentre is reflected in the distribution of legislative heads
\nbetween the Centre and States.\tAll the more important heads
\nof  legislation\t are  placed  in  List\tI.  Even  among\t the
\nlegislative  heads  mentioned in List II, several  of  them,
\ne.g., Entries 2, 13, 17, 23, 24, 26, 27, 32, 33, 50, 57\t and
\n63 are either limited by or made subject to certain  entries
\nin  List  I  to\t some or the  other  extent.   Even  in\t the
\nConcurrent  List (List III), the parliamentary enactment  is
\ngiven  the  primacy, irrespective of the fact  whether\tsuch
\nenactment  is earlier or later in point of time to  a  State
\nenactment on the same subject-matter.  Residuary powers\t are
\nwith the Centre.  By the 42nd Amendment, quite a few of\t the
\nentries in List II were omitted and\/or transferred to  other
\nlists.\tAbove all, Article 3 empowers Parliament to form new
\nStates\tout of existing States either by merger or  division
\nas also to increase, diminish or alter the boundaries of the
\nStates.\t  In the process, existing States may disappear\t and
\nnew  ones  may\tcome into existence.  As  a  result  of\t the
\nReorganization of States Act, 1956, fourteen States and\t six
\nUnion  Territories  came  into existence  in  the  place  of
\ntwentyseven  States  and one area.  Even the  names  of\t the
\nStates can be changed by Parliament unilaterally.  The\tonly
\nrequirement,  in all this process, being the one  prescribed
\nin  the\t proviso to Article 3, viz.,  ascertainment  of\t the
\nviews of the Legislatures of the affected States.  There  is
\nsingle citizenship, unlike USA.\t The judicial organ, one  of
\nthe  three  organs of the State, is one and single  for\t the
\nentire country\tagain unlike USA, where you have the federal
\njudiciary  and State judiciary separately.  Articles 249  to
\n252  further demonstrate the primacy of Parliament.  If\t the
\nRajya  Sabha passes a resolution by 2\/3rd majority  that  in
\nthe  national  interest, Parliament should  make  laws\twith
\nrespect\t to  any  matter in List II, Parliament\t can  do  so
\n(Article  249), no doubt, for a limited period.\t During\t the
\noperation  of  a Proclamation of emergency,  Parliament\t can
\nmake  laws  with respect to any matter in List\tII  (Article\n<\/p>\n
250).\tSimilarly,  Parliament has power to  make  laws\t for
\ngiving effect to International Agreements (Article 253).  So
\nfar  as the finances are concerned, the States again  appear
\nto have been placed in a less favourable position, an aspect
\nwhich has attracted a good amount of criticism at the  hands
\nof  the States and the proponents of the  States’  autonomy.
\nSeveral\t taxes\tare collected by the Centre and\t made  over,
\neither\tpartly or fully, to the States.\t Suffice it  to\t say
\nthat  Centre has been made far more powerful  vis-a-vis\t the
\nStates.\t Correspondingly, several obligations too are placed
\nupon  the Centre including the one in Article 355  the\tduty
\nto  protect  every  State against  external  aggression\t and
\ninternal  disturbance.\t Indeed, this very  article  confers
\ngreater\t power\tupon the Centre in the name  of\t casting  an
\nobligation upon it, viz., “to ensure that the Government  of
\nevery State is carried on in accordance with the  provisions
\nof  this Constitution”.\t It is both a responsibility  and  a
\npower.\n<\/p>\n
276.The\t fact  that under the scheme of\t our  Constitution,
\ngreater\t power\tis conferred upon the Centre  vis-a-vis\t the
\nStates does not mean that States are mere appendages of\t the
\nCentre.\t  Within  the sphere allotted to  them,\t States\t are
\nsupreme.  The Centre cannot tamper with their powers.\tMore
\nparticularly, the
\n217<\/span>
\ncourts\tshould\tnot adopt an  approach,\t an  interpretation,
\nwhich  has  the\t effect of or tends to have  the  effect  of
\nwhittling  down the powers reserved to the States.  It is  a
\nmatter\tof  common  knowledge that  over  the  last  several
\ndecades,  the trend the world over is towards  strengthening
\nof  Central  Governments  be it the result  of\tadvances  in
\ntechnological\/scientific fields or otherwise, and that\teven
\nIn   USA   the\t Centre\t has  become   far   more   powerful
\nnotwithstanding\t the  obvious bias in that  Constitution  in
\nfavour of the States.  All this must put the court on  guard
\nagainst\t any conscious whittling down of the powers  of\t the
\nStates.\t  Let it be said that the federalism in\t the  Indian
\nConstitution is not a matter of administrative\tconvenience,
\nbut  one  of principle\tthe outcome of\tour  own  historical
\nprocess\t and  a recognition of the ground  realities.\tThis
\naspect has been dealt with elaborately by Shri M.C. Setalvad
\nin his Tagore Law Lectures “Union and State relations  under
\nthe  Indian  Constitution”  (Eastern  Law  House,  Calcutta,
\n1974).\t The nature of the Indian federation with  reference
\nto   its   historical  background,   the   distribution\t  of
\nlegislative powers, financial and administrative  relations,
\npowers\tof taxation, provisions relating to trade,  commerce
\nand industry, have all been dealt with analytically.  It  is
\nnot possible  nor is it necessary  for the present  purposes
\nto   refer  to\tthem.\tIt  is\tenough\tto  note  that\t our
\nConstitution  has certainly a bias towards Centre  vis-a-vis
\nthe States Automobile Transport (Rajasthan) Ltd. v. State of
\nRajasthan51.   It  is equally necessary\t to  emphasise\tthat
\ncourts should be careful not to upset the delicately-crafted
\nconstitutional scheme by a process of interpretation.\n<\/p>\n
277.A\tfew   decisions\t supporting  the   view\t  expressed
\nhereinabove  may be referred to briefly.  In Berubari  Union
\nand  Exchange  of  Enclaves31 Reference\t under\tArticle\t 143
\nGajendragadkar, J. observed : (SCR at p. 285)
\n\t      “It   may,  therefore,  be  assumed  that\t  in
\n\t      construing  Article  3  we  should  take\tinto
\n\t      account\tthe  fact  that\t  the\tConstitution
\n\t      contemplated changes of the territorial limits
\n\t      of  the  constituent States and there  was  no
\n\t      guarantee about their territorial integrity.”\n<\/p>\n
\t      278.Similarly  in State of W.B. v. Union\tof
\n\t      India’ (SCR at p. 405), this Court observed :
\n\t      “There is no constitutional guarantee  against
\n\t      alteration  of the boundaries of\tthe  States.
\n\t      By  Article 2 of the  Constitution  Parliament
\n\t      may  admit  into the Union  or  establish\t new
\n\t      States  on  such terms and  conditions  as  it
\n\t      thinks fit, and by Article 3 Parliament is  by
\n\t      law   authorised\tto  form  a  new  State\t  by
\n\t      redistribution of the territory of a State  or
\n\t      by  by uniting two or more States or parts  of
\n\t      States  or by uniting any territory to a\tpart
\n\t      of any State, increase the area of any  State,
\n\t      diminish\tthe  area of any  State,  alter\t the
\n\t      boundaries of any State, and alter the name of
\n\t      any  State.   Legislation\t which\tso   vitally
\n\t      affects the very existence
\n\t      51 (1963) 1 SCR 491, 540: AIR 1962 SC 1406
\n\t      31 (1960) 3 SCR 250: AIR 1960 SC 845
\n\t      1 (1964)1SCR371:AIR 1963SC 1241
\n\t      218<\/span>
\n\t      of   the\t States\t  may  be   moved   on\t the
\n\t      recommendation  of  the  President  which\t  in
\n\t      practice means the recommendation of the Union
\n\t      Ministry,\t and  if the proposal  in  the\tBill
\n\t      affects the area, boundaries or name of any of
\n\t      the  States,  the President has to  refer\t the
\n\t      Bill  to\tthe Legislature of  that  State\t for
\n\t      merely\texpressing   its   views    thereon.\n<\/p>\n
\t      Parliament  is therefore by law invested\twith
\n\t      authority to alter the boundaries of any State
\n\t      and to diminish its area so as even to destroy
\n\t      a State with all its powers and authority.”
\n\t\t AN ANALYSIS OF ARTICLE 356\n<\/p>\n
279.The\t heading  of  Article 356  characterises  it  as  a
\nprovision providing for failure of constitutional  machinery
\nin  States.   Clause (1), however, does not  use  the  words
\n“failure   of  constitutional  machinery”.   Even  so,\t the
\nsignificance   of  the\ttitle  of  the\tsection\t cannot\t  be
\noverlooked.   It  emphasises  the  level,  the\tstage,\t the
\nsituation in which the power is to be exercised.  Clause (1)
\nspeaks\tof the President being satisfied “that\ta  situation
\nhas  arisen in which the Government of the State  cannot  be
\ncarried\t on  in\t accordance  with  the\tprovisions  of\tthis
\nConstitution”.\t If so satisfied, he may,  by  Proclamation,
\nassume\tand  exercise the several powers mentioned  in\tsub-
\nclauses (a), (b) and (c).  An analysis of clause (1) of\t the
\narticle\t yields\t the  following ingredients  :\t(a)  if\t the
\nPresident  is satisfied; (b) on receipt of report  from\t the
\nGovernor  of  State or otherwise; (c) that a  situation\t has
\narisen\tin  which  the Government of  the  State  cannot  be
\ncarried\t on  in\t accordance  with  the\tprovisions  of\t the
\nConstitution;  (d)  the President may by  Proclamation,\t (i)
\nassume\tto  himself  all  or any of  the  functions  of\t the
\nGovernment  of the State or all or any of the powers of\t the
\nGovernor or any other body or authority in the State  except
\nthe  Legislature of the State; (ii) declare that the  powers
\nof  the\t Legislature  of the State  shall  be  exercised  by
\nParliament  or\tunder  its authority; and  (iii)  make\tsuch
\nincidental  or consequential provisions as appear to him  to
\nbe  necessary or desirable for giving effect to the  objects
\nof  the Proclamation including provisions for suspending  in
\nwhole  or  in part the operation of any provisions  of\tthis
\nConstitution relating to any body or authority in the State.
\nThe proviso to clause (1) clarifies that nothing in the said
\nclause\tshall authorise the President to assume\t to  himself
\nany  of the powers vested in or exercisable by a High  Court
\nor  to\tsuspend\t in  whole or  part  the  operation  of\t any
\nprovisions  relating to High Courts.  Clause (2)  says\tthat
\nany  Proclamation under clause (1) can be revoked or  varied
\nby  a  subsequent Proclamation.\t Clause\t (3)  provides\tthat
\nevery  Proclamation  issued  under  clause  (1)\t (except   a
\nProclamation revoking a previous Proclamation) shall be laid
\nbefore\teach  House of Parliament and “shall  …  cease  to
\noperate\t at the expiration of two months unless\t before\t the
\nexpiration   of\t that  period  it  has\tbeen   approved\t  by
\nresolutions  of both Houses of Parliament”.  The proviso  to
\nclause\t(3) provides for a situation where the Lok Sabha  is
\ndissolved  on the date of the Proclamation or  is  dissolved
\nwithin\ttwo  months of such Proclamation.  Clause  (4)\tsays
\nthat a Proclamation so approved by both Houses of Parliament
\nshall,\tunless\trevoked\t earlier, cease to  operate  on\t the
\nexpiration of
\n219<\/span>
\n  period  of six months. (By the 42nd Amendment,  the  words
\n‘one  year’ were substituted for the words ‘six months’\t but
\nby  the\t 44th Amendment, the words ‘six\t months’  have\tbeen
\nrestored).   The  three provisos to clause (4)\tprovide\t for
\ncertain\t situations  which  it is not necessary\t for  us  to
\nconsider  for  the purpose of these cases.  Clause  (5),  as
\ninserted by the 38th Amendment ran as follows :
\n“(5)  Notwithstanding  anything in  this  Constitution,\t the
\nsatisfaction of the President mentioned in clause (1)  shall
\nbe  final and conclusive and shall not be questioned in\t any
\ncourt on any grounds.”\n<\/p>\n
By  the\t 44th Amendment, however, this clause  was  repealed
\naltogether  and\t in its place a new  clause  (5)  introduced
\nwhich\tlimits\tthe  maximum  period,  for  which   such   a
\nProclamation can be operative, to one year except in a\tcase
\nwhere  a Proclamation of emergency is in operation.   It  is
\nnot necessary to consider clause (5) also for the purpose of
\nthese cases.\n<\/p>\n
280.The\t power\tconferred by Article 356 is  a\tconditioned
\npower;\tit is not an absolute power to be exercised  in\t the
\ndiscretion of the President.  The condition is the formation
\nof  satisfaction  subjective, no doubt\tthat a situation  of
\nthe  type  contemplated\t by the\t clause\t has  arisen.\tThis
\nsatisfaction may be formed on the basis of the report of the
\nGovernor  or on the basis of other information\treceived  by
\nhim  or\t both.\t The existence of  relevant  material  is  a
\nprecondition  to the formation of satisfaction.\t The use  of
\nthe  word  ‘may’  indicates not only  a\t discretion  but  an
\nobligation to consider the advisability and necessity of the
\naction.\t It also involves an obligation to consider which of
\nthe several steps specified in sub-clauses (a), (b) and\t (c)
\nshould be taken and to what extent?  The dissolution of\t the
\nLegislative Assembly assuming that it is permissible  is not
\na  matter of course.  It should be resorted to only when  it
\nis necessary for achieving the purposes of the Proclamation.
\nThe exercise of the power is made subject to approval of the
\nboth  Houses of Parliament.  Clause (3) is both a  check  on
\nthe power and a safeguard against abuse of power.
\nClause\t(1):  Clause  (1)  opens  with\tthe  words  “if\t the
\nPresident … is satisfied”.  These words are indicative  of
\nthe   satisfaction  being  a  subjective  one.\t In   Barium
\nChemicals  Ltd. v. Company Law Board6<\/a>  a  decision  followed
\nuniformly  ever since it was pronounced\t Shelat, J.  pointed
\nout,  on  a  consideration of  several\tEnglish\t and  Indian
\nauthorities that the expressions “is satisfied”, “is of\t the
\nopinion”,  “or\thas reasons to believe”\t are  indicative  of
\nsubjective  satisfaction, though it is true that the  nature
\nof  the\t power\thas  to\t be  determined\t on  a\ttotality  of
\nconsideration of all relevant provisions.  Indeed, there was
\nno controversy before us regarding the nature of this power.
\nClause (1), it may be noted, uses the words “is\t satisfied”,
\nwhich  indicates  a  more definite state  of  mind  than  is
\nindicated  by  the expressions “is of the opinion”  or\t“has
\nreasons\t to  believe”.\t Since it is a\tcase  of  subjective
\nsatisfaction,  question\t of  observing\tthe  principles\t  of
\nnatural justice does not and cannot arise.  Having regard to
\nthe nature of the power
\n6    1966 Supp SCR 31 1: AIR 1967 SC 295: (1966) 36 Comp Cas
\n639<\/span>
\n220<\/span>
\nand  the situation in which it is supposed to be  exercised,
\nprinciples  of natural justice cannot be imported  into\t the
\nclause.\t  It  is  evident that the satisfaction\t has  to  be
\nformed\tby the President fairly, on a consideration  of\t the
\nreport of the Governor and\/or other material, if any, placed
\nbefore him.  of course, the President under our Constitution
\nbeing,\twhat  may  be  called,\ta  constitutional  President
\nobliged\t to  act upon the aid and advice of the\t Council  of
\nMinisters which aid and advice is binding upon him by virtue
\nof  clause (1) of Article 741, the satisfaction referred  to
\nin Article 356(1) really means the satisfaction of the Union
\nCouncil of Ministers with the Prime Minister at its head.
\n280-A.\t Clause (1) requires the President to  be  satisfied
\nthat  a situation has arisen in which the Government of\t the
\nState  “cannot”\t be  carried  on  “in  accordance  with\t the
\nprovisions   of\t this  Constitution”.\tThe  word   “cannot”
\nemphasises the type of situation contemplated by the clause.
\nThese  words read with the title of the article\t “provisions
\nin  case of failure of constitutional machinery\t in  States”
\nemphasise the nature of the situation contemplated.\n<\/p>\n
281.The\t words “provisions of this Constitution” mean  what
\nthey say.  The said words cannot be limited or confined to a
\nparticular  chapter in the Constitution or to  a  particular
\nset   of  articles.   While  construing\t  a   constitutional
\nprovision,  such  a limitation ought not  to  be  ordinarily
\ninferred  unless the context does clearly so  require.\t The
\nprovisions of the Constitution include the chapter  relating
\nto  Fundamental\t Rights, the chapter relating  to  Directive
\nPrinciples  of\tState  Policy as also the  preamble  to\t the
\nConstitution.\tThough,\t at one time, it  was  thought\tthat
\npreamble  does not form part of the Constitution, that\tview
\nis  no longer extant.  It has been held by the\tmajority  of
\nJudges\tin  Kesavananda Bharati v. State  of  Kerala35\tthat
\npreamble  does form part of the Constitution.  It cannot  be
\notherwise.   The attempt to limit the said words to  certain
\nmachinery provisions in the Constitution is misconceived and
\ncannot be given effect to.  It is difficult to believe\tthat
\nthe  said words do not take in fundamental  provisions\tlike
\nthe fundamental rights in Chapter III.\tIt must, however, be
\nremembered that it is not each and every non-compliance with
\na  particular provision of the Constitution that  calls\t for
\nthe  exercise of the power under Article 356(1).   The\tnon-
\ncompliance  or violation of the Constitution should be\tsuch
\nas  to\tlead  to  or given rise to  a  situation  where\t the
\nGovernment  of the State cannot be carried on in  accordance
\nwith  the  provisions  of the Constitution.   It  is  indeed
\ndifficult  nor\tis it advisable\t to  catalogue\tthe  various
\nsituations  which  may arise and which\twould  be  comprised
\nwithin\tclause\t(1).  It would be more appropriate  to\tdeal
\nwith concrete cases as and when they arise.\n<\/p>\n
282.The satisfaction of the President referred to in clause
\n(1) may be formed either on the receipt of the report(s)  of
\nthe  Governor  or  otherwise.  The Governor of\ta  State  is
\nappointed by the President under Article 155.  He is  indeed
\na part of the Government of the State.\tThe executive  power
\nof  the\t State\tis vested in him and  is  exercised  by\t him
\ndirectly   or  through\tofficers  subordinate  to   him\t  in
\naccordance with the provisions of the Constitution
\n35 1954 SCR 1005: AIR 1954 SC 282
\n221<\/span>
\n (Article 154).\t All executive action of the Government of a
\nState is expressed to be taken in the name of the  Governor,
\nexcept\ta few functions which he is required to exercise  in
\nhis discretion.\t He has to exercise his powers with the\t aid
\nand  advice  of\t the Council of\t Ministers  with  the  Chief
\nMinister  at  its head (Article 163).  He  takes  the  oath,
\nprescribed  by Article 159, to preserve, protect and  defend
\nthe  Constitution and the laws to the best of  his  ability.
\nIt  is this obligation which requires him to report  to\t the
\nPresident the commissions and omissions of the Government of
\nhis  State  which  according to him  are  creating  or\thave
\ncreated a situation where the Government of the State cannot
\nbe  carried  on\t in accordance with the\t provisions  of\t the
\nConstitution.  In fact, it would be a case of his  reporting
\nagainst\t his  own Government but this may be a case  of\t his
\nwearing\t two hats, one as the head of the  State  Government
\nand the other as the holder of an independent constitutional
\noffice whose duty it is to preserve, protect and defend\t the
\nConstitution (See Shamsher Singh v. State of Punjab22)\t(SCC
\np.  849 : SCR at p. 835).  Since he cannot himself take\t any
\naction\tof  the nature contemplated by\tArticle\t 356(1),  he
\nreports\t the  matter  to the President and  it\tis  for\t the
\nPresident to be satisfied  whether on the basis of the\tsaid
\nreport or on the basis of any other information which he may
\nreceive otherwise that situation of the nature\tcontemplated
\nby Article 356(1) has arisen.  It is then and only then that
\nhe can issue the Proclamation.\tOnce the Proclamation  under
\nArticle\t 356(1)\t is issued or simultaneously  with  it,\t the
\nPresident  can\ttake  any or all the  actions  specified  in
\nclauses (a), (b) and (c).\n<\/p>\n
  Power\t of the President to dissolve  Legislative  Assembly
\nof the State :\n<\/p>\n
283.We shall now examine whether clause (1) of Article\t356
\nempowers the President to dissolve the Legislative  Assembly
\nof  the State.\tThere are two points of view  which  we\t may
\nset out before expressing our preference :\n<\/p>\n
284.ONE VIEW, which is supported by the opinions of some of
\nthe learned Judges in State of Rajasthan v. Union of  India3
\nis  that  the power of the dissolution is implicit  in\tsub-
\nclause (a).  The reasoning runs thus : The President assumes
\nthe functions of the Government of the State as well as\t the
\npowers\tof  the\t Governor under\t the  said  sub-clause;\t the
\nLegislative Assembly can be dissolved by the Governor  under
\nArticle\t 174(2)(b); of course, this may have to be  done  on
\nthe  advice  of\t the Council of\t Ministers  with  the  Chief
\nMinister at its head; since the President assumes to himself
\nthe  powers  and functions of both the\tGovernment  and\t the
\nGovernor,  he can dissolve the Legislative Assembly as\tpart
\nof the same Proclamation or by a subsequent order.\n<\/p>\n
285.THE\t OTHER VIEW, which says that the President  has\t no
\nsuch power, runs along the following lines.  The clause does
\nnot speak of dismissal of the Government or the\t dissolution
\nof  the Legislative Assembly. It says that if the  President
\nis satisfied “that a situation has arisen in which
\n22 (1974) 2 SCC 831: 1974 SCC (L & S) 550: (1975) 1 SCR 814
\n3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1
\n222<\/span>
\nthe  Government\t of  the  State\t cannot\t be  carried  on  in
\naccordance  with the provisions of this\t Constitution”,\t the
\nPresident  may\t(i)  assume to himself all  or\tany  of\t the
\nfunctions  of  the Government of the State; (ii)  assume  to
\nhimself all or any of the powers vested in or exercisable by
\nthe  Governor;\t(iii) assume to himself all or\tany  of\t the
\nfunctions  of any body or authority in the State other\tthan
\nthe  Legislature of the State, (iv) declare that the  powers
\nof  the Legislature of the State shall be exercisable by  or
\nunder  the  authority  of  Parliament  and  (v)\t make\tsuch
\nincidental  or consequential provision, as may be  necessary
\nfor  giving effect to the Proclamation including  suspending
\nin  whole  or part the operation of any\t provisions  of\t the
\nConstitution relating to any body or authority in the  State
\nexcept\tthe High Court.\t Now, when subclause (a)  speaks  of
\nthe  President assuming to himself all or any of the  powers
\nvested in or exercisable by the Governor, it surely does not
\nmean  or  imply\t dismissal  or\tremoval\t of  the   Governor.
\nSimilarly,  the assuming by the President of all or  any  of
\nthe  functions\tor powers of any body or  authority  in\t the
\nState  (other  than the Legislature of the State)  does\t not
\nmean the dismissal or dissolution of such body or authority.
\nFor  the  same reason, it must be held that the\t words\t“the
\nPresident may assume to himself all or any of the  functions
\nof the Government of the State” in sub-clause (a) do not  by
\nthemselves mean the dismissal of the State Government.\t But
\nif  these words are read along with the main limb of  clause
\n(1) which speaks of a situation in which “the Government  of
\nthe  State  cannot  be carried on  in  accordance  with\t the
\nprovisions  of\tthis  Constitution”, it can  and  does\tmean
\ndismissal  of the Government for the reason that  Government
\nof  the State is carried on by the Government of  the  State
\nalone,This  dismissal  is  not absolute in the\tsense  of  a
\nphysical death of a living being.  It only means putting the
\nGovernment out of the way.  Such dismissal does not preclude
\nthe President from restoring the Government after the period
\nof Proclamation is over, or at any time earlier by  revoking
\nthe Proclamation, if he is so advised.\tComing to sub-clause\n<\/p>\n
(b),  when  it speaks of the powers of\tLegislature  of\t the
\nState  being  made exercisable by Parliament, or  under\t its
\nauthority, it cannot and does not mean or imply\t dissolution
\nof the Legislature of the State.  It is significant to\tnote
\nthat  the sub-clause refers to Legislature of the State\t and
\nnot Legislative Assembly.  In a given State, the Legislature
\nmay  consist of Legislative Assembly as well as\t Legislative
\nCouncil.   In  such  a case, there can\tbe  no\tquestion  of
\ndissolving the Legislative Council since it is a  continuing
\nbody [Article 172(3)].\tOnly the Legislative Assembly can be
\ndissolved [Article 174(2)(b)].\tIn other words, there can be
\nno question of dissolution of the “Legislature of the State”
\nthe expression employed in sub-clause (b).  The question may
\nthen  arise, why was sub-clause (b) put in and what does  it
\nimply?\t The answer must be that when the Government of\t the
\nState  is dismissed or removed from office, the\t Legislative
\nAssembly  cannot  function  normally.  It  is  difficult  to
\nvisualise  a  Legislative  Assembly,  or  for  that   matter
\nLegislature,  functioning  without a Council  of  Ministers,
\ni.e., Government.  Thus, where the Government of a State  is
\ndismissed or removed from the office, the Legislature of the
\nState becomes ipso facto unworkable.  It is for
\n\t\t\t     223<\/span>
\nthis reason that sub-clause (b) provides that the powers  of
\nthe  Legislature  of the State shall be\t exercisable  by  or
\nunder  the authority of Parliament.  Indeed, the  very\tfact
\nthat  clause (b) has provided for only one  situation  (viz.
\nthe  powers of the Legislature being vested  in\t Parliament)
\nmeans  and implies that any other step like  dissolution  of
\nthe Legislative Assembly was not within the contemplation of
\nthe  Constitution-makers.   Sub-clause\t(c)  empowers\tthat
\nPresident   to\t make  such  incidental\t  or   consequential
\nprovisions  as may appear to be necessary or  desirable\t for
\ngiving\teffect\tto the objects of  the\tProclamation.\tSuch
\nincidental  or\tconsequential provisions  may  also  include
\n“suspending in whole or part the operation of any provisions
\nof  this  Constitution relating to any\tbody  or  authority”
\nexcept,\t of course, the High Court.  The provisions  of\t the
\nConstitution  relating\tto the Legislative Assembly  of\t the
\nState  may  be\tsuspended under sub-clause  (c)\t during\t the
\nperiod of Proclamation\tgenerally referred to as keeping the
\nLegislative  Assembly under suspended animation\t to  prevent
\nthe  majority  party (or any other party) calling  upon\t the
\nGovernor  to  invite  it to form  the  Ministry\t and\/or\t for
\npreventing  the\t Legislature  from  passing  resolutions  or
\ntransacting  other  business which may\tinterfere  with\t the
\nPresident’s rule in the State.\tIt is significant to  notice
\nin  this  connection that during  the  Constituent  Assembly
\ndebates\t on  these  articles,  Dr  Ambedkar  only  spoke  of
\nsuspension  of the powers of the Legislatures and not  their
\ndissolution.  (Vide Constituent Assembly Debates, Vol.\t IX,
\npage 134.)\n<\/p>\n
286.According\tto  this  line\tof  reasoning  ‘since\tthe
\nLegislature  of the State can only be kept  under  suspended
\nanimation  by  suspending  the relevant\t provisions  of\t the
\nConstitution   the Legislature of the State springs back  to
\nlife with the expiry of the period of Proclamation.  This is
\nfor  the  reason  that\twith the expiry\t of  the  period  of
\nProclamation  or on the revocation of the  Proclamation,  as
\nthe  case  may be, the suspension of the provisions  of\t the
\nConstitution will also come to an end.\n<\/p>\n
287.The proponents of this view criticize the other (first)
\nview on several grounds\t firstly, they say, it does not seem
\nto take into consideration the fact that dissolution of\t the
\nLegislative  Assembly is an extremely serious step; if\tthis
\npower  was supposed to be conferred on the  President  under
\nclause\t(1)  of Article 356, the  Constitution-makers  would
\nhave  said  so\texpressly and not left it  to  be  inferred.
\nSecondly,  it ignores the language of sub-clause (b).\tSub-
\nclause\t(b)  speaks  of “powers of the\tLegislature  of\t the
\nState” being exercised by Parliament or under its authority.
\nSub-clause (b) does not speak of dissolution of “Legislature
\nof  the\t State”, since that is an  impossibility   only\t the
\nLegislative   Assembly\t can  be  dissolved  and   not\t the
\nLegislative  Council  as explained hereinabove.\t  There\t are
\nquite  a  few  States  where  the  Legislature\tconsists  of
\nLegislative   Assembly\tas  well  as  Legislative   Council.
\nThirdly, clause (1) speaks of failure of the Government\t and
\nnot  of\t the Legislative Assembly, though it  is  true,\t the
\nGovernment  is drawn from and very often forms the  majority
\nparty  in  the Legislative Assembly.   But  the\t Legislative
\nAssembly also consists of the opposition and other  parties,
\ngroups and independent members, who may
\n224<\/span>
\nthemselves have been pointing out and remonstrating  against
\nthe unconstitutional working of the Government.\t There\tdoes
\nnot  appear  to\t be  any good  reason  why  the\t Legislative
\nAssembly  should be dissolved for the acts and\tdefaults  of
\nthe  Government.   It is true, say the\tproponents  of\tthis
\nview,  if  the\tPresident cannot  dissolve  the\t Legislative
\nAssembly,  it would spring back to life after the period  of
\nProclamation  and elect the very same Government  which\t was
\ndismissed.   They answer it by saying firstly that this\t may
\nor  may\t not happen.  Secondly, they say, even if  the\tsame
\nGovernment is elected again, it is in no way contrary to the
\nspirit\tof  the\t article.   The objection  was\tnot  to\t its
\nexistence but to its working.  There is no reason to presume
\nthat it will again carry on the Government otherwise than in
\naccordance with the provisions of the Constitution.\n<\/p>\n
288.Having  given  our anxious consideration  to  both\tthe
\ncontending  viewpoints\t and  notwithstanding  the   obvious
\nappeal of the second point of view  we are inclined to agree
\nwith the first view which says that clause (1) does  empower
\nthe  President\tto dissolve the Legislative  Assembly,\tThis
\nview  is  also\tsupported  by  the  decision  in  State\t  of
\nRajasthan3  besides the fact that over the  last  forty-four
\nyears,\tthe  said power has never been questioned.   We\t are
\ninclined to hold that the power to dissolve the\t Legislative
\nAssembly is implicit in sub-clause (a) of clause (1)  though
\nthere is no such thing as dissolution of the “Legislature of
\nthe State” where it consists of two Houses.  It must also be
\nrecognised  that  in  certain  situations,  dissolution\t  of
\nLegislative  Assembly  may  be found  to  be  necessary\t for
\nachieving the purposes of the Proclamation.  Power there is.
\nIts exercise is a different matter.  The existence of  power
\ndoes  not  mean\t that dissolution  of  Legislative  Assembly
\nshould either be treated as obligatory or should  invariably
\nbe ordered whenever a Government of the State is  dismissed.
\nIt should be a matter for the President to consider,  taking
\ninto consideration all the relevant facts and circumstances,
\nwhether the Legislative Assembly should also be dissolved or
\nnot.  If he thinks that it should be so dissolved, it  would
\nbe appropriate, indeed highly desirable, that he states\t the
\nreasons for such extraordinary step in the order itself.\n<\/p>\n
289.The\t question  then\t arises at  what  stage\t should\t he
\nexercise this power?  To answer this query, we must turn  to
\nclause (3).  Clause (3) says that every Proclamation  issued
\nunder  Article\t356(1) shall be laid before both  Houses  of
\nParliament  and shall cease to operate at the expiry of\t two
\nmonths\tunless before the expiration of that period  it\t has
\nbeen approved by resolutions passed by both Houses.  This is
\nconceived  both\t as  a\tcheck  upon  the  power\t and  as   a
\nvindication of the principle of parliamentary supremacy over
\nthe Executive.\tThe President’s action\twhich is really\t the
\naction\tof  the Union Council of Ministers   is\t subject  to
\napproval  of both Houses of Parliament.\t Unless approved  by
\nboth  Houses of Parliament, the Proclamation lapses  at\t the
\nend  of\t two  months and earlier if  it\t is  disapproved  or
\ndeclined to be approved by both the Houses of Parliament, as
\nexplained
\n3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1
\n225<\/span>
\nhereinafter.   Having  regard  to  the\tincongruity  of\t the
\nExecutive  (even  though  Union\t Executive)  dissolving\t the
\nLegislature  (even  if of a State), it would  be  consistent
\nwith the scheme and spirit of the Constitution\tparticularly
\nin  the absence of a specific provision in the\tConstitution
\nexpressly  empowering the President to do so  to  hold\tthat
\nthis power of dissolution can be exercised by the  President
\nonly   after   both  Houses  of\t  Parliament   approve\t the
\nProclamation and not before such approval.  Once  Parliament
\nplaces\tits  sea of approval on\t the  Proclamation,  further
\nsteps  as may be found necessary to achieve the purposes  of
\nthe Proclamation, i.e., dissolution of Legislative Assembly,
\ncan  be ordered.  In other words, once\tParliament  approves
\nthe  initial exercise of his power, i.e.,  his\tsatisfaction
\nthat  a\t situation had arisen where the\t Government  of\t the
\nState  could  not  be  carried on  in  accordance  with\t the
\nConstitution,  the President can go ahead and  take  further
\nsteps necessary for effectively achieving the objects of the
\nProclamation.\tUntil  the approval, he can  only  keep\t the
\nAssembly  under suspended animation but shall  not  dissolve
\nit.\n<\/p>\n
290.It must be made clear even at this stage that while\t no
\nwrit petition shall beentertained by any court before the
\nactual\tissuance of Proclamation under clause (1), it  shall
\nbe open to a High Court or Supreme Court to entertain a writ
\npetition  questioning  the Proclamation if it  is  satisfied
\nthat  the  writ\t petition  raises  arguable  questions\twith
\nrespect\t to  the validity of the  Proclamation.\t  The  court
\nwould  be  entitled to entertain such a writ  petition\teven
\nbefore\tthe approval of the Proclamation by  Parliament\t  as
\nalso after such approval.  In an appropriate case and if the
\nsituation  demands,  the High Court\/Supreme Court  can\talso
\nstay  the  dissolution\tof the Assembly but not\t in  such  a
\nmanner\tas  to\tallow the Assembly to  continue\t beyond\t its
\noriginal  term.\t But in every such case where such an  order
\nis passed the High Court\/Supreme Court shall have to dispose
\nof the matter within two to three months.  Not disposing  of
\nthe writ petition while granting such an interim order would
\ncreate\tseveral\t complications\tbecause\t the  life  of\t the
\nProclamation  does  not\t exceed six months  even  after\t the
\napproval  by  Parliament and in any event  the\tProclamation
\ncannot\tsurvive\t beyond\t one year except  in  the  situation
\ncontemplated   by  clause  (5)\twhich  is,  of\tcourse,\t  an
\nexceptional situation.\n<\/p>\n
Meaning of approval in clause (3)
\nIn State of Rajasthan3 Chandrachud, Bhagwati and A.C. Gupta,
\nJJ.  have  expressed the view that the\tProclamation  issued
\nunder  clause (1) remains in operation for a period  of\t two
\nmonths\tin  any event.\tIt is held that even  if  Parliament
\ndisapproves  or declines to approve the Proclamation  within
\nthe said period of two months, the Proclamation continues to
\nbe  valid for two months.  The approval of Parliament  under
\nclause\t(3) is held to be relevant only for the\t purpose  of
\ncontinuance  of the Proclamation beyond two months.  It\t has
\nalso  been held further that even if both the Houses do\t not
\napprove or disapprove the Proclamation, the Government which
\nhas been dismissed or
\n3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1
\n226<\/span>
\nthe  Assembly which may have been dissolved do\tnot  revive.
\nWith utmost respect to the learned Judges, we find ourselves
\nunable\tto agree with the said view insofar as it says\tthat
\neven  where both Houses of Parliament disapprove or  do\t not
\napprove\t the  Proclamation, the Government  which  has\tbeen
\ndismissed  does\t not revive. (The State of  Rajasthan3\talso
\nholds that such disapproval or non-approval does not  revive
\nthe  Legislative Assembly which may have been dissolved\t but
\nwe  need  not deal with this aspect since according  to\t the
\nview  expressed\t by us hereinabove, no such  dissolution  is
\npermissible before the approval of both the Houses).  Clause
\n(3),  it  may  be emphasised, uses the\twords  “approved  by
\nresolutions  of\t both  Houses  of  Parliament”.\t  The\tword
\n“approval”  means affirmation of the action by a  higher  or
\nsuperior  authority.   In  other words, the  action  of\t the
\nPresident has to be approved by Parliament.  The  expression
\n“approval” has an intrinsic meaning which cannot be ignored.
\nDisapproval  or\t non-approval  means  that  the\t Houses\t  of
\nParliament  are saying that the President’s action  was\t not
\njustified or warranted and that it shall no longer continue.
\nIn  such a case, the Proclamation lapses, i.e.,ceases to  be
\nin  operation  at  the\tend of\ttwo  months   the  necessary
\nconsequence of which is the status quo ante revives.  To say
\nthat  notwithstanding the disapproval or  non-approval,\t the
\nstatus\tquo  ante does not revive is to rob the\t concept  of
\napproval  of its content and meaning.  Such a  view  renders
\nthe  check  provided  by clause (3) ineffective\t and  of  no
\nsignificance  whatsoever.   The Executive would\t be  telling
\nParliament: “I have dismissed the Government.  Now,  whether
\nyou  approve or disapprove is of no consequence because\t the
\nGovernment  in no event can be revived.\t The deed  is  done.
\nYou  better  approve  it because  you  have  practically  no
\nchoice.”  We do not think that such a course  is  consistent
\nwith   the   principle\tof   parliamentary   supremacy\t and
\nparliamentary control over the Executive, the basic  premise
\nof parliamentary supremacy.  It would indeed mean  supremacy
\nof  the\t Executive  over Parliament.   The  dismissal  of  a
\nGovernment under subclause (a) of clause (1) cannot also  be
\nequated\t to the physical death of a living being.  There  is
\nno irrevocability about it.  It is capable of being  revived
\nand  it revives.  Legislative Assembly which may  have\tbeen
\nkept  in suspended animation also springs back to life.\t  So
\nfar  as\t the validity of the acts done,\t orders\t passed\t and
\nlaws,  if  any, made during the period of operation  of\t the
\nProclamation  is  concerned, they  would  remain  unaffected
\ninasmuch as the disapproval or non-approval does not  render
\nthe Proclamation invalid with retrospective effect.  It\t may
\nbe recalled that the power under Article 356(1) is the power
\nvested in the President subject no doubt to approval  within
\ntwo  months.  The non-approval means that  the\tProclamation
\nceases to be in operationat  the expiry of two\tmonths,
\nas held in State of Rajasthan3.\n<\/p>\n
291.Now,  coming to the power of the court to  restore\tthe
\nGovernment to officein\tcase it finds the  Proclamation
\nto  be\tunconstitutional,  it is,  in  our  opinion,  beyond
\nquestion.  Even in case the Proclamation is approved by
\n3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1
\n227<\/span>
\n  Parliament  it would be open to the court to\trestore\t the
\nState  Government to its office in case it strikes down\t the
\nProclamation  as unconstitutional.  If this power  were\t not
\nconceded  to  the court, the very power of  judicial  review
\nwould\tbe  rendered  nugatory\tand  the   entire   exercise
\nmeaningless.   If the court cannot grant the relief  flowing
\nfrom  the invalidation of the Proclamation, it may  as\twell
\ndecline\t to  entertain\tthe challenge  to  the\tProclamation
\naltogether.    For,   there  is\t no  point  in\t the   court
\nentertaining  the challenge, examining it, calling upon\t the
\nUnion  Government  to produce the material on the  basis  of
\nWhich the requisite satisfaction was formed and yet not give
\nthe  relief.   In our considered opinion, such a  course  is
\ninconceivable.\n<\/p>\n
292.A  question may arise  what happens to the\tacts  done,
\norders\tmade  and laws enacted by Parliament  or  under\t its
\nauthority   during  the\t period\t the  Proclamation  was\t  in
\noperation  in  case  the  Proclamation\tis  declared  to  be
\nunconstitutional  by  the court?  Would all of\tthem  become
\nunconstitutional  or void?  Firstly, there is no  reason  to
\npresume\t that  a court which strikes down  the\tProclamation
\nwould not provide for this contingency.\t It would be  within
\nthe power of the court to say that these acts and orders are
\nsaved.\tIndeed, it should say so in the interests of general
\npublic\tand to avoid all kinds of complications, leaving  it
\nto Government and the Legislature of the State concerned  to
\nrectify,  modify  or repeal them, if they  so  choose.\t The
\ntheory\tof  factum valet may also be available to  save\t the
\nacts,  orders and things done by the President or under\t his
\nauthority during the said period.\n<\/p>\n
293.It\twas  suggested\tby Shri\t Ram  Jethmalani  that\tthe
\nPresident  can “assume all or any of the functions”  of\t the
\nState\tGovernment   without  dismissing   the\t Government.
\nEmphasis  is laid upon the words “all or any” in  sub-clause
\n(1).\tIn  particular,\t he  submitted,\t where\t the   State
\nGovernment is found remiss in performing one or some of\t the
\nfunctions,  that or those functions of the State  Government
\ncan  be assumed by the President with a view to\t remedy\t the
\nsituation.   After  rectifying the  situation,\tthe  counsel
\nsubmitted,  the President will give those functions back  to
\nthe  State  Government and that in such\t a  situation  there
\nwould  be no occasion or necessity for dismissing the  State
\nGovernment.  The learned counsel gave the analogy of a motor
\ncar   if one or a few of the parts of a car  malfunction  or
\ncease to function, one need not throw away the car.  That or
\nthose particular parts can be replaced or rectified and\t the
\ncar would function normally again.  It is difficult to agree
\nwith  the  said\t interpretation.  The  power  under  Article
\n356(1)\tcan  be\t exercised  only  where\t the  President\t  is
\nsatisfied  that\t “the  Government of  the  State  cannot  be
\ncarried\t on  in\t accordance  with  the\tprovisions  of\t the
\nConstitution”.\t The  title  to\t the  article  “failure\t  of
\nconstitutional\tmachinery in the States” also  throws  light
\nupon  the  nature of the situation contemplated by  it.\t  It
\nmeans  a situation where the Government of the\tState,\t and
\nnot  one  or a few functions of the  Government\t  cannot  be
\ncarried\t on  in\t accordance  with  the\tConstitution.\t The
\ninability or unfitness aforesaid may arise either on account
\nof  the\t non-performance or malperformance of  one  or\tmore
\nfunctions of the Government or on account of abuse or misuse
\nof any of the powers, duties and obligations of the
\n228<\/span>
\nGovernment.  A Proclamation under Article 356(1) necessarily
\ncontemplates  the  removal of the Government  of  the  State
\nsince it is found unable or unfit to carry on the Government
\nof  the\t State\tin accordance with  the\t provisions  of\t the
\nConstitution.  In our considered opinion, it is not possible
\nto  give  effect  to the argument of  Shri  Ram\t Jethmalani.
\nAcceptance  of such an argument would introduce the  concept
\nof   two  Governments  in  the\tsame  sphere   the   Central
\nGovernment exercising one or some of the powers of the State
\nGovernment  and\t the State Government performing  the  rest.
\nApart  from its novelty, such a situation, in  our  opinion,
\ndoes not promote the object underlying Article 356 nor is it
\npracticable.\n<\/p>\n
294.Shri Jethmalani brought to our notice the British Joint
\nParliamentary Report, para 109, in support of his contention
\naforementioned.\t  We are unable to see any relevance of\t the
\nsaid  para to the interpretation of Article  356(1).   Under
\nthe Government of India Act, 1935, the Governor General\t and
\nthe Governor were not constitutional heads of State as under
\nthe  Constitution.  They exercised real power in  their\t own
\nright.\t Only  a few powers were entrusted  to\tthe  elected
\nGovernments  and  even\tthose could be taken  away  (by\t the
\nGovernor  General  at  the Centre and the  Governor  in\t the
\nprovinces) as and when they were satisfied that a  situation
\nhas  arisen  where the Government at the Centre\t or  of\t the
\nprovince  cannot  be  carried  on  in  accordance  with\t the
\nprovisions of the said Act.  Under Article 356, the position
\nis  entirely  different.  The power can\t be  exercised\tonly
\nagainst the States and that too by the President and not  by
\nthe  Governor.\t The  entire  constitutional  philosophy  is
\ndifferent.  Therefore, merely because the same words “all or
\nany”  in Sections 93 and 45 of the Government of  India\t Act
\noccur  in  Article  356(1),  the  same\tmeaning\t cannot\t  be
\nattributed to them mechanically, ignoring all other  factors
\nassuming that the said words in Sections93 and 45 meant what
\nShri Jethmalani says.\n<\/p>\n
ARTICLE 356 IN ACTION\n<\/p>\n
295.Since   the\t commencement  of  the\tConstitution,\tthe
\nPresident  has invoked Article 356 on as many as  ninety  or
\nmore  occasions.  Quite a performance for a provision  which
\nwas   supposed\tto  remain  a  ‘dead-letter’.\tInstead\t  of
\nremaining  a ‘dead-letter’, it has proved to be the  ‘death-
\nletter’\t of  scores  of State  Governments  and\t Legislative
\nAssemblies.  The Sarkaria Commission which was appointed  to
\nlook  into and report on Centre-State  relations  considered
\ninter alia the manner in which this power has been exercised
\nover the years and made certain recommendations designed  to
\nprevent\t its misuse.  Since the Commission was headed  by  a
\ndistinguished  Judge of this Court and also because it\tmade
\nits  report after an elaborate and exhaustive study  of\t all
\nrelevant  aspects,  its opinions are certainly\tentitled  to
\ngreat  weight notwithstanding the fact that the\t report\t has
\nnot been accepted so far by the Government of India.\n<\/p>\n
296.In para 6.3.23, the Commission observed that though the
\nwords  “a  Government of the State cannot be carried  on  in
\naccordance  with the provisions of the Constitution” are  of
\nwide amplitude, each and every breach
\n229<\/span>
\n and infraction of constitutional provision, irrespective of
\nits  significance, extent and effect, cannot be\t treated  as
\nconstituting  failure of constitutional machinery.   Article
\n356,  the Commission said, provides remedy for\ta  situation
\nwhere\tthere\thas  been  an  actual\tbreakdown   of\t the
\nconstitutional machinery of the State.\tAny abuse or  misuse
\nof  this  drastic power, said the  Commission,\tdamages\t the
\nfabric\tof  the\t Constitution.\tA  literal  construction  of
\nArticle 356(1) should be avoided, it opined.\n<\/p>\n
297.In\tpara 6.4.01, the Commission noted that\tfailure\t of
\nconstitutional machinery may occur in a number of cases.  It
\nset  out  some\tof the instances leading to  it,  viz.,\t (a)
\npolitical  crisis;  (b)\t internal  subversion;\t(c)   fiscal
\nbreakdown;   and  (d)  non-compliance  with   constitutional
\ndirections of the Union Executive.  The Commission, however,
\nhastened  to  add that the instances set out by it  are\t not
\nclaimed\t to be comprehensive or perfect.  Then\tit  examined
\neach of the said four heads separately.\n<\/p>\n
298.In para 6.5.01, the Commission set out illustrations in
\nwhich invokingArticle 356 would be improper.   Illustration\n<\/p>\n
(iii) in the said paragraph reads thus:\n<\/p>\n
\t      “(iii)  Where,  despite the advice of  a\tduly
\n\t      constituted   ministry  which  has  not\tbeen
\n\t      defeated\ton  the\t floor\tof  the\t house,\t the
\n\t      Governor decides to dissolve the assembly\t and
\n\t      without giving the ministry an opportunity  to
\n\t      demonstrate  its majority through\t the  floor-
\n\t      test,   recommends   its\t supersession\t and
\n\t      imposition  of  President’s  rule\t merely\t  on
\n\t      subjective  assessment  that the\tministry  no
\n\t      longer   commands\t  the  confidence   of\t the
\n\t      assembly.”\n<\/p><\/blockquote>\n
299.In\tpara 6.6.01, the Commission noticed  the  criticism
\nlevelled  against the frequent invoking of Article  356\t and
\nproceeded   to\texamine\t its  validity.\t  In  its   opinion,
\ndismissal of nine assemblies following the general elections
\nto  the\t Lok  Sabha in March 1977 and  a  similar  dismissal
\nfollowing  the\tgeneral elections to the Lok Sabha  in\t1980
\nwere  clear  instances of invoking Article  356\t for  purely
\npolitical   purposes  unrelated\t to  Article   356.    After
\nexamining  the\tfacts and the principle of the\tdecision  of
\nthis  Court  in State of Rajasthan v. Union  of\t India3\t and
\nafter  considering the various suggestions placed before  it
\nby  several  parties,  individuals  and\t organisations,\t the
\nCommission  made the following recommendations in para\t6.8,
\nwhich have been strongly commended for our acceptance by the
\nlearned counsel for the petitioners.  They read as follows :\n<\/p>\n
\t      “RECOMMENDATIONS
\n\t      6.8.01.Article   356  should  be\t used\tvery
\n\t      sparingly,  in extreme cases, as a measure  of
\n\t      last  resort, when all available\talternatives
\n\t      fail  to\tprevent or rectify  a  breakdown  of
\n\t      constitutional  machinery in the\tState.\t All
\n\t      attempts should be made to resolve the  crisis
\n\t      at  the State level before taking recourse  to
\n\t      the   provisions\t of   Article\t356.\t The
\n\t      availability and choice of these\talternatives
\n\t      will    depend   on   the\t  nature   of\t the
\n\t      constitutional   crisis,\t its   causes\t and
\n\t      exigencies of the situation.  These
\n\t      3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1
\n\t      SCR 1
\n\t      230<\/span>
\n\t      alternatives  may\t be dispensed with  only  in
\n\t      cases of extreme urgency where failure on\t the
\n\t      part  of\tthe Union to take  immediate  action
\n\t      under  Article  356 will\tlead  to  disastrous
\n\t      consequences.  Paragraph 6.7.04)
\n\t      6.8.02.  A  warning should be  issued  to\t the
\n\t      errant  State, in specific terms, that  it  is
\n\t      not carrying on the Government of the State in
\n\t      accordance  with\tthe  Constitution.    Before
\n\t      taking   action\tunder\tArticle\t  356,\t any
\n\t      explanation received from the State should  be
\n\t      taken into account.  However, this may not  be
\n\t      possible\tin  a  situation  when\tnot   taking
\n\t      immediate\t action\t would\tlead  to  disastrous
\n\t      consequences. (Paragraph 6.7.08)
\n\t      6.8.03.When   an\t‘external   aggression’\t  or
\n\t      ‘internal\t disturbance’  paralyses  the  State
\n\t      administration  creating a situation  drifting
\n\t      towards\ta   potential\tbreakdown   of\t the
\n\t      constitutional  machinery\t of the\t State,\t all
\n\t      alternative courses available to the Union for
\n\t      discharging its paramount responsibility under
\n\t      Article 355 should be exhausted to contain the
\n\t      situation. (Paragraph 6.3.17)
\n\t      6.8.04.(a)  In  a situation  of  political
\n\t      breakdown, the Governor should exploreall
\n\t      possibilities for having a Government enjoying
\n\t      majority\tsupport in the Assembly.  If  it  is
\n\t      not  possible  for  such a  Government  to  be
\n\t      installed\t and if fresh elections can be\theld
\n\t      without  avoidable  delay, he should  ask\t the
\n\t      outgoing\t Ministry,  if\tthere  is  one,\t  to
\n\t      continue\tas a caretaker Government,  provided
\n\t      the  Ministry was defeated solely on  a  major
\n\t      policy issue, unconnected with any allegations
\n\t      of  maladministration  or\t corruption  and  is
\n\t      agreeable\t to continue.  The  Governor  should
\n\t      then   dissolve  the   Legislative   Assembly,
\n\t      leaving  the resolution of the  constitutional
\n\t      crisis to the electorate.\t During the  interim
\n\t      period,  the  caretaker Government  should  be
\n\t      allowed\tto   function.\t As  a\t matter\t  of
\n\t      convention,  the caretaker  Government  should
\n\t      merely carry on the day-to-day Government\t and
\n\t      desist from taking any major policy  decision.
\n\t      (Paragraph 6.4.08)\n<\/p><\/blockquote>\n
\t      (b)   If\tthe important ingredients  described
\n\t      above  are absent, it would not be proper\t for
\n\t      the  Governor  to dissolve  the  Assembly\t and
\n\t      instal  a caretaker Government.  The  Governor
\n\t      should  recommend Proclamation of\t President’s
\n\t      rule   without   dissolving   the\t   Assembly.
\n\t      (Paragraph 6.4.09)
\n\t      6.8.05.Every Proclamation should be placed
\n\t      before   each  House  of\tParliament  at\t the
\n\t      earliest, in any case before the expiry of the
\n\t      two months’period contemplated in\t clause
\n\t      (3) of Article 356. (Paragraph 6.7.13)
\n\t      6.8.06.The  State Legislative Assembly  should
\n\t      not be dissolved either by the Governor or the
\n\t      President before the Proclamation issued under
\n\t      Article 356(1) has been laid before Parliament
\n\t      and it has had an opportunity to consider\t it.
\n\t      Article  356  should be  suitably\t amended  to
\n\t      ensure this.\t    (Paragraph 6.6.20)
\n\t      231<\/span>
\n\t      6.8.07.Safeguards corresponding, in principle,
\n\t      to  clauses (7) and (8) of Article 352  should
\n\t      be  incorporated\tin  Article  356  to  enable
\n\t      Parliament to review continuance in force of a
\n\t      Proclamation.\n<\/p><\/blockquote>\n
\t       (Paragraph 6.6.23)
\n\t      6.8.08.To\t make the remedy of judicial  review
\n\t      on  the  ground of mala fides  a\tlittle\tmore
\n\t      meaningful, it should be provided, through  an
\n\t      appropriate     amendment,     notwithstanding
\n\t      anything\tin clause (2) of Article 74  of\t the
\n\t      Constitution,  the material facts and  grounds
\n\t      on  which Article 356(1) is invoked should  be
\n\t      made  an\tintegral part  of  the\tProclamation
\n\t      issued  under  that article.  This  will\talso
\n\t      make  the\t control  of  Parliament  over\t the
\n\t      exercise of this power by the Union Executive,
\n\t      more effective. (Paragraph 6.6.25)
\n\t      6.8.09.Normally,\tthe  President is  moved  to
\n\t      action under Article 356 on the report of\t the
\n\t      Governor.\t  The  report  of  the\tGovernor  is
\n\t      placed before each House of Parliament.\tSuch
\n\t      a\t report\t should\t be  a\t‘speaking  document’
\n\t      containing  a precise and clear  statement  of
\n\t      all material facts and grounds on the basis of
\n\t      which the President may satisfy himself as  to
\n\t      the  existence or otherwise of  the  situation
\n\t      contemplated\t in\t  Article\t356.\n<\/p><\/blockquote>\n
\t      (Paragraph 6.6.26)
\n\t      6.8.10.The  Govern’s report, on the  basis  of
\n\t      which  a Proclamation under Article 356(1)  is
\n\t      issued, should be given wide publicity in\t all
\n\t      the media and in full.\t (Paragraph 6.6.28)
\n\t      6.8.11.Normally,\tPresident’s rule in a  State
\n\t      should  be  proclaimed  on the  basis  of\t the
\n\t      Governor’s   report  under   Article   356(1).
\n\t      (Paragraph 6.6.29)
\n\t       6.8.12.\tIn  clause (5) of Article  356,\t the
\n\t      word  ‘and’ occurring between sub-clauses\t (a)
\n\t      and   (b)\t should\t be  substituted  by   ‘or’.
\n\t      (Paragraph 6.7.1 1)”\n<\/p><\/blockquote>\n
300.The aforesaid recommendations are evidently the outcome
\nof the opinion formed by the Commission that more often than
\nnot,   the  power  under  Article  356\thas   been   invoked
\nimproperly.  It is not for us to express any opinion whether
\nthis  impression of the Commission is justified or not.\t  It
\nis  not\t possible for us to review all the ninety  cases  in
\nwhich  the said power has been invoked and to say  in  which
\ncases  it was invoked properly and in which cases, not.\t  At
\nthe same time, we are inclined to say, having regard to\t the
\nconstitutional scheme obtaining under our Constitution, that
\nthe recommendations do merit serious consideration.\n<\/p>\n
301.It\tis probably because he was of the opinion that\tthe
\ninvocation  of this power was not warranted in\tmany  cases,
\nShri  P.V. Rajamannar, former Chief Justice of\tMadras\tHigh
\nCourt,\t (who was appointed as the Inquiry Committee by\t the
\nGovernment  of\tTamil  Nadu to report  on  the\tCentre-State
\nrelations)   recommended  that\tArticles  356  and  357\t  be
\nrepealed altogether. [See para (8) in Chapter IX, “Emergency
\nProvisions”  of\t his  report, submitted in  1971].   In\t the
\nalternative, he recommended, safeguards must be provided
\n232<\/span>
\nto secure the interests of the States against the  arbitrary
\nand  unilateral\t action of a party  commanding\toverwhelming
\nmajority   at\tthe  Centre.   In   other   respects,\tShri
\nRajamannar’s  views accord broadly with the views  expressed
\nby the Sarkaria Commission and hence, need not be set out in
\nextenso.\n<\/p>\n
THE CONSTITUTION OF INDIA AND THE CONCEPT OF SECULARISM:\n<\/p>\n
302.Article   356(1)  speaks  of  a  situation\twhere\tthe
\nGovernment  of\ta State cannot be carried on  in  accordance
\nwith  the  provisions  of the Constitution.   We  have\tsaid
\nhereinbefore   that  the  words\t “the  provisions  of\tthis
\nConstitution”  take  in\t all the  provisions  including\t the
\npreamble   to  the  Constitution.   The\t preamble   to\t the
\nConstitution speaks of a secular Indian Republic.  While the
\nrespondents’ counsel contended that secularism being a basic
\nfeature\t of  the  Constitution, a State\t Government  can  be
\ndismissed if it is guilty of unsecular acts, the counsel for
\npetitioners, Shri Ram Jethmalani strongly refuted the  idea.
\nAccording  to  Shri  Jethmalani,  ‘secularism’\tis  a  vague
\nconcept,  not defined in the Constitution and hence,  cannot
\nfurnish\t a  ground  for taking\taction\tunder  Article\t356.
\nWithout going into the specifics of the said contention,  we
\nshall examine first how far this concept is embedded in\t our
\nConstitution and in what sense.\n<\/p>\n
303.Having   completed\t the   process\t of   framing\tthe
\nConstitution, the Constituent Assembly proceeded to finalise
\nits preamble.  Speaking on behalf of and in the name of\t the
\npeople\tof  India,  they  said, their  object  has  been  to
\nconstitute India into a “Sovereign Democratic Republic”, and
\nto  secure  to all its citizens social justice,\t liberty  of
\nbelief,\t faith\tand  worship, and  equality  of\t status\t and
\nopportunity.  They said, the goal was also to promote  among
\nall the people of India “fraternity assuring the dignity  of
\nthe   individual……\t By  the  42nd\tAmendment   to\t the
\nConstitution,  the  words “socialist,  secular”\t were  added
\nafter the word “sovereign” and before the word “democratic”.
\nNo  other  provision  of the  Constitution  was\t amended  to
\nadumbrate these concepts.\n<\/p>\n
304.Both  the  expressions  ‘socialist’ and  ‘secular’\t by
\nthemselves  are not capable of precise definition.  We\tare,
\nhowever,  not  concerned  with\ttheir  general\tmeaning\t  or
\ncontent.   Our\tobject is to ascertain the  meaning  of\t the
\nexpression “secular” in the context of our Constitution.  As
\nthe   discussion  hereafter  would  demonstrate,  the\t42nd
\nAmendment merely made explicit what was implicit in it.\t The
\npreamble  speaks  of “social justice”, “liberty\t of  belief,
\nfaith  and  worship”  and  of “equality\t of  status  and  of
\nopportunity”.\tArticle 14 (under the sub-heading “Right  of
\nEquality”)  enjoins  the  State not to deny  to\t any  person
\nequality  before  the law or the equal\tprotection  of\tlaws
\nwithin the territory of India.\tArticles 15 and 16 elucidate
\nthis  doctrine of equality.  They say that the\tState  shall
\nnot  discriminate  against  any citizen on  ground  only  of
\nreligion, race or caste, whether in the matter of employment
\nunder the State or otherwise.  By Article 25, “all  persons”
\nare  declared equally entitled to freedom of conscience\t and
\nthe   right  to\t freely\t profess,  practice  and   propagate
\nreligion, subject, of course, to public order, morality\t and
\nhealth.\t  Articles  26,\t 27 and\t 28  elucidate\tthe  freedom
\nguaranteed by
\n233<\/span>
\n Article  25.  Article 27 declares that no person  shall  be
\ncompelled  to  pay  any taxes, the  proceeds  of  which\t are
\nspecifically  appropriated  in payment of expenses  for\t the
\npromotion  or  maintenance  of any  particular\treligion  or
\nreligious  denomination.   Article  28(1)  decrees  that  no
\nreligious  instruction shall be provided in any\t educational
\ninstitution  wholly maintained out of the State funds  while
\nArticle\t 28(3) says that no person attending an\t educational
\ninstitution recognised by the State or receiving aid out  of
\nState funds shall be required to take part in any  religious
\nworship\t conducted in such institution, except with  his  or
\nhis guardian’s (in the case of a minor) consent.  Similarly,
\nclause\t(2)  of\t Article 30 enjoins upon the  State  not  to
\ndiscriminate   against\tany  educational   institution,\t  in
\ngranting aid, on the ground that it is under the  management
\nof  a  minority,  religious or linguistic.   Clause  (3)  of
\nArticle\t 51 A [introduced by the 42nd (Amendment) Act]\tsays
\nthat  “it  shall be the duty of every citizen of  India\t  to
\npromote\t harmony and spirit of brotherhood amongst  all\t the
\npeople\tof  India  transcending\t religious,  linguistic\t and
\nregional or sectional diversities”.  What do these articles,
\nread  together with the preamble signify?  While Article  25
\nof the Constitution guarantees to all its people freedom  of
\nreligion,  Articles 14, 15 and 16 enjoin upon the  State  to
\ntreat all its people equally irrespective of their religion,
\ncaste, faith or belief.\t While the citizens of this  country
\nare  free to profess, practice and propagate such  religion,
\nfaith  or  belief  as they choose, so far as  the  State  is
\nconcerned,  i.e., from the point of view of the\t State,\t the
\nreligion, faith or belief of a person is immaterial.  To it,
\nall  are equal and all are entitled to be  treated  equally.
\nHow  is this equal treatment possible, if the State were  to
\nprefer\tor  promote a particular religion,  race  or  caste,
\nwhich  necessarily means a less favourable treatment of\t all
\nother\treligions,   races   and  castes.    How   are\t the
\nconstitutional\tpromises  of  social  justice,\tliberty\t  of
\nbelief,\t faith\tor  worship and equality of  status  and  of
\nopportunity  to\t be attained unless the\t State\teschews\t the
\nreligion, faith or belief of a person from its consideration
\naltogether  while dealing with him, his rights,\t his  duties
\nand  his  entitlements?\t  Secularism is\t thus  more  than  a
\npassive\t attitude of religious tolerance.  It is a  positive
\nconcept of equal treatment of all religions.  This  attitude
\nis  described by some as one of neutrality towards  religion
\nor  as one of benevolent neutrality.  This may be a  concept
\nevolved\t by  western liberal thought or it may be,  as\tsome
\nsay,  an abiding faith with the Indian people at all  points
\nof time.  That is not material.\t What is material is that it
\nis  a  constitutional  goal  and  a  basic  feature  of\t the
\nConstitution as affirmed in Kesavananda Bharati36 and Indira
\nN. Gandhi v. Raj Narain37.  Any step inconsistent with\tthis
\nconstitutional policy is, in plain words,  unconstitutional.
\nThis  does not mean that the State has no say whatsoever  in
\nmatters\t of  religion.\t Laws can  be  made  regulating\t the
\nsecular\t affairs  of temples, mosques and  other  places  of
\nworships and maths. (See S. P. Mittal v. Union of India52.)
\n36 Kesavananda Bharati v. State of Kerala,<\/a> (1973) 4 SCC 225:
\n1973 Supp SCR 1
\n37 1975 Supp SCC 1: (1976) 2 SCR 347
\n52 (1983) 1 SCC 51: (1983) 1 SCR 729
\n234<\/span>
\nThe  power  of\tParliament to  reform  and  rationalise\t the
\npersonal laws is unquestioned.\tThe command of Article 44 is
\nyet  to\t be realised.  The correct perspective\tappeared  to
\nhave been placed by Shri K.M. Munshi during the\t Constituent
\nAssembly Debates.  He said :\n<\/p>\n
\t      “Religion must be restricted to spheres  which
\n\t      legitimately  appertain to religion,  and\t the
\n\t      rest  of life must be regulated,\tunified\t and
\n\t      modified in such a manner that we may  evolve,
\n\t      as   early   as\tpossible,   a\tstrong\t and
\n\t      consolidated  nation.  Our first\tproblem\t and
\n\t      the  most\t important  problem  is\t to  produce
\n\t      national\tunity in this country.\tWe think  we
\n\t      have  got national unity.\t But there are\tmany
\n\t      factors\tand  important factors\twhich  still
\n\t      offer   serious\tdangers\t to   our   national
\n\t      consolidation,  and it is very necessary\tthat
\n\t      the  whole  of  our  life, so  far  as  it  is
\n\t      restricted to secular spheres, must be unified
\n\t      in  such a way that as early as  possible,  we
\n\t      may be able to say.  ‘Well, we are not  merely
\n\t      a\t nation\t because  we say  so,  but  also  in
\n\t      effect,  by the way we live, by  our  personal
\n\t      law,   we\t are  a\t strong\t  and\tconsolidated
\n\t      nation’.”\n<\/p><\/blockquote>\n
305.Shri M.C. Setalvad in his lecture on secularism  (Patel
\nMemorial Lectures  1965) points out that after affirming the
\nideas  of religious liberty and adequate protection  to\t the
\nminorities at its Karachi Session (1931), the Congress Party
\nasserted   emphatically\t that  “the  State   shall   observe
\nneutrality  in regard to all religions”.  He says that\tthis
\nresolution  is in a manner the key to the  understanding  of
\nthe  attitude  adopted\tby  those  who\tframed\tthe   Indian
\nConstitution nearly twenty years later, embodying in it\t the
\nguarantee of religious neutrality.  He also points out\tthat
\n“the debates in the Constituent Assembly leave little  doubt
\nthat  what  was\t intended by the Constitution  was  not\t the
\nsecularisation\tof  the State in the sense of  its  complete
\ndissociation  from  religion,  but  rather  an\tattitude  of
\nreligious neutrality, with equal treatment to all  religions
\nand religious minorities”.  The same idea is put forward  by
\nGajendragadkar, J., (in his inaugural address to the Seminar
\non  “Secularism\t :  Its implications for  law  and  life  in
\nIndia”) in the following words :\n<\/p>\n
\t      ” It is true that the Indian Constitution does
\n\t      not  use\tthe word secularism’ in any  of\t its
\n\t      provisions,  but its material  provisions\t are
\n\t      inspired\tby the concept of secularism.\tWhen
\n\t      it promised all the citizens of India that the
\n\t      aim  of  the  Constitution  is  to   establish
\n\t      socioeconomic  justice, it placed\t before\t the
\n\t      country  as  a whole, the ideal of  a  welfare
\n\t      State.   And the concept of welfare is  purely
\n\t      secular and not based on any considerations of
\n\t      religion.\t  The essential basis of the  Indian
\n\t      Constitution  is that all citizens are  equal,
\n\t      and this basic equality (guaranteed by Article\n<\/p><\/blockquote>\n
\t      14) obviously proclaims that the religion of a
\n\t      citizen  is entirely irrelevant in the  matter
\n\t      of his fundamental rights.  The State does not
\n\t      owe  loyalty  to any  particular\treligion  as
\n\t      such;  it is not irreligious or  antireligion;
\n\t      it  gives equal freedom for all religions\t and
\n\t      holds  that  the religion of the\tcitizen\t has
\n\t      nothing to do in the matter of socioeconomic
\n\t      235<\/span>
\n\t       problems.     That    is\t   the\t   essential
\n\t      characteristic  of  secularism which  is\twrit
\n\t      large  in\t all the provisions  of\t the  Indian
\n\t      Constitution.”\n<\/p><\/blockquote>\n
306.Prof.  Upendra Baxi says that “Secularism” in the Indian
\nConstitution connotes :\n<\/p>\n
\t      “(i) The State by itself, shall not espouse or
\n\t      establish or practice any religion;\n<\/p><\/blockquote>\n
\t      (ii)public  revenues  will not  be  used\tto
\n\t      promote any religion;\n<\/p><\/blockquote>\n
\t      (iii)the\tState  shall  have  the\t power\t to
\n\t      regulate\tany  ‘economic, financial  or  other
\n\t      secular  activity’ associated  with  religious
\n\t      practice\t  [Article    25(2)(a)\t  of\t the
\n\t      Constitution];\n<\/p><\/blockquote>\n
\t      (iv)the  State shall have the power  through
\n\t      the  law\tto provide for\tsocial\twelfare\t and
\n\t      reform  or  the  throwing open  of  the  Hindu
\n\t      religious\t institutions of a public  character
\n\t      to   all\tclasses\t and  sections\tof   Hindus’
\n\t      [Article 25(2)(b) of the Constitution];\n<\/p><\/blockquote>\n
\t      (v)the practice of untouchability\t (insofar
\n\t      as  it may be justified by Hindu religion)  is
\n\t      constitutionally outlawed by Article 17;\n<\/p><\/blockquote>\n
\t      (vi)every\t individual person will\t have,\tin
\n\t      that  order,  an\tequal right  to\t freedom  of
\n\t      conscience and religion;\n<\/p><\/blockquote>\n
\t      (vii)these rights are however subject to\tthe
\n\t      power  of\t the  State through  law  to  impose
\n\t      restrictions  on the ground of ‘public  order,
\n\t      morality and health’,\n<\/p><\/blockquote>\n
\t      (viii)”these   rights   are   furthermore
\n\t      subject  to other fundamental rights  in\tPart
\n\t      III;”\n<\/p><\/blockquote>\n
\t      (The   Struggle  for  the\t  Re-definition\t  of
\n\t      Secularism in India published in Social Action
\n\t      Vol. 44  January-March 1994)\n<\/p><\/blockquote>\n
307.In\tshort, in the affairs of the State (in\tits  widest
\nconnotation)  religion\tis  irrelevant;\t it  is\t strictly  a
\npersonal  affair.   In this sense and in  this\tbehalf,\t our
\nConstitution   is  broadly  in\tagreement  with\t  the\tU.S.
\nConstitution,  the  First Amendment  whereof  declares\tthat
\n“Congress shall make no laws respecting an establishment  of
\nreligion  or  prohibiting  the free  exercise  thereof\t…”
\n(generally  referred  to  as  the  “establishment  clause”).
\nPerhaps,  this is an echo of doctrine of the  separation  of
\nChurch and State; may be it is the modern political  thought
\nwhich seeks to separate religion from the State\t it  matters
\nvery little.\n<\/p>\n
308.In this view of the matter, it is absolutely  erroneous
\nto  say\t that secularism is a “vacuous word” or\t a  “phantom
\nconcept”.\n<\/p>\n
309.It\tis perhaps relevant to point out that our  Founding
\nFathers read this concept into our Constitution not  because
\nit  was\t fashionable  to  do  so,  but\tbecause\t it  was  an
\nimperative  in the Indian context.  It is true\tas Shri\t Ram
\nJethmalani was at pains to emphasise  that India was divided
\non  the\t basis of religion and that  areas  having  majority
\nMuslim\tpopulation  were  constituted  into  a\tnew   entity
\nPakistan  which immediately proceeded to proclaim itself  as
\nan  Islamic  Republic, but it is equally a  fact  that\teven
\nafter  partition, India contained a sizeable  population  of
\nminorities.  They
\n236<\/span>
\ncomprised  not\tless  than  10 to  12%\tof  the\t population.
\nInspired   by\tthe  Indian  tradition\tof   tolerance\t and
\nfraternity, for whose sake, the greatest son of Modem India,
\nMahatma Gandhi, laid down his life and seeking to redeem the
\npromise\t of religious neutrality held forth by the  Congress
\nParty,\tthe  Founding Fathers proceeded to create  a  State,
\nsecular in its outlook and egalitarian in its action.\tThey
\ncould  not  have  countenanced\tthe  idea  of  treating\t the
\nminorities  as second-class citizens.  On the contrary,\t the
\ndominant thinking appears to be that the majority community,
\nHindus,\t must be secular and thereby help the minorities  to
\nbecome\tsecular.   For, it is the majority  community  alone
\nthat  can  provide  the sense of security  to  others.\t The
\nsignificance  of the 42nd (Amendment) Act lies in  the\tfact
\nthat  it formalised the pre-existing situation.\t It put\t the
\nmatter\t beyond\t  any  doubt,  leaving\tno  room   for\t any
\ncontroversy.   In such a situation, the debate\twhether\t the
\npreamble  to the Constitution is included within  the  words
\n“the provisions of this Constitution” is really unnecessary.
\nEven  if we accept the reading of Shri Jethmalani,  preamble
\nis a key to the understanding of the relevant provisions  of
\nthe  Constitution.  The 42nd (Amendment) Act  has  furnished
\nthe key in unmistakable terms.\n<\/p>\n
310.Given the above position, it is clear that if any party
\nor Organisation seeks to fight the elections on the basis of
\na  plank  which\t has the proximate  effect  of\teroding\t the
\nsecular philosophy of the Constitution it would certainly be
\nguilty\tof following an unconstitutional course\t of  action.
\nPolitical  parties are formed and exist to capture or  share
\nState  power.  That is their aim.  They may be\tassociations
\nof   individuals  but  one  cannot  ignore  the\t  functional
\nrelevance.  An association of individuals may be devoted  to
\npropagation  of\t religion;  it would be\t a  religious  body.
\nAnother may be devoted to promotion of culture; it would  be
\na  cultural Organisation.  They are not aimed  at  acquiring
\nState power, whereas a political party does.  That is one of
\nits  main  objectives.\t This  is what\twe  mean  by  saying
\n“functional relevance”.\t One cannot conceive of a democratic
\nform of Government without the political parties.  They\t are
\npart  of  the political system\tand  constitutional  scheme.
\nNay,  they  are integral to the governance of  a  democratic
\nsociety.   If  the  Constitution requires the  State  to  be
\nsecular in thought and action, the same requirement attaches
\nto  political  parties as well.\t The Constitution  does\t not
\nrecognise,  it\tdoes not permit, mixing religion  and  State
\npower.\tBoth must be kept apart.  That is the constitutional
\ninjunction.   None  can\t say  otherwise\t so  long  as\tthis
\nConstitution  governs  this country.   Introducing  religion
\ninto politics is to introduce an impermissible element\tinto
\nbody politic and an imbalance in our constitutional  system.
\nIf  a political party espousing a particular religion  comes
\nto  power, that religion tends to become, in  practice,\t the
\nofficial  religion.  All other religions come to  acquire  a
\nsecondary  status, at any rate, a less favourable  position.
\nThis would be plainly antithetical to Articles 14 to 16,  25
\nand the entire constitutional scheme adumbrated hereinabove.
\nUnder  our  Constitution,  no  party  or  Organisation\t can
\nsimultaneously be a political and a religious party.  It has
\nto  be\teither.\t Same would be the position, if a  party  or
\nOrganisation acts and\/or
\n237<\/span>
\n behaves  by word of mouth, print or in any other manner  to
\nbring  about the said effect, it would equally be guilty  of
\nan  act of unconstitutionality.\t It would have no  right  to
\nfunction as a political party.\tThe fact that a party may be
\nentitled  to  go to people seeking a mandate for  a  drastic
\namendment of the Constitution or its replacement by  another
\nConstitution is wholly irrelevant in the context.  We do not
\nknow  how  the Constitution can be amended so as  to  remove
\nsecularism  from the basic structure of the  Constitution**.
\nNor do we know how the present Constitution can be  replaced
\nby   another;  it  is  enough  for  us\tto  know  that\t the
\nConstitution  does  not provide for such a course   that  it
\ndoes not provide for its own demise.\n<\/p>\n
311.Consistent\twith  the constitutional  philosophy,  sub-
\nsection\t (3)  of Section 123 of the  Representation  of\t the
\nPeople Act, 1951 treats an appeal to the electorate to\tvote
\non  the basis of religion, race, caste or community  of\t the
\ncandidate  or  the  use of religious symbols  as  a  corrupt
\npractice.  Even a single instance of such a nature is enough
\nto  vitiate the election of the candidate.  Similarly,\tsub-
\nsection (3-A) of Section 123 provides that “promotion of, or
\nattempt\t to  promote, feelings of enmity or  hatred  between
\ndifferent  classes  of\tcitizens  of  India  on\t grounds  of
\nreligion, race, caste, community or language” by a candidate
\nor  his agent, etc. for the furtherance of the prospects  of
\nthe  election  of  that\t candidate  is\tequally\t a   corrupt
\npractice.    Section  29-A  provides  for  registration\t  of
\nassociations  and  bodies  as  political  parties  with\t the
\nElection  Commission.  Every party contesting elections\t and
\nseeking to have a uniform symbol for all its candidates\t has
\nto  apply for registration.  While making such\tapplication,
\nthe  association  or  body  has\t to  affirm  its  faith\t and
\nallegiance  to “the principles of socialism, secularism\t and
\ndemocracy”  among  others.  Since  the\tElection  Commission
\nappears to have made some other orders in this behalf  after
\nthe  conclusion of arguments and because those\torders\thave
\nnot been placed before us or debated, we do not wish to say
\nanything more on this subject.\n<\/p>\n
ARTICLE 74(2)  ITS MEANING AND SCOPE\n<\/p>\n
312.The Constitution of India has introduced  parliamentary
\ndemocracy  in  this country.   The  parliamentary  democracy
\nconnotes  vesting of real power of governance in  the  Prime
\nMinister  and  Council of his Ministers who are\t very  often
\ndrawn  from the majority party in Parliament.  Some  jurists
\nindeed\trefer to it derisively as Prime-ministerial form  of
\nGovernment.  In such a democracy, the head of the State,  be
\nhe the King or the President, remains a constitutional\thead
\nof the State.  He acts in accordance with the aid and advice
\ntendered  to him by the Council of Ministers with the  Prime
\nMinister at its head.  This is what clause (1) of Article 74
\nprovided, even before it was amended by the 42nd (Amendment)
\nAct.   It  was so understood and interpreted in\t Ram  Jawaya
\nKapur v. State of Punjab53 and in Shamsher
\n** The decision of this Court in Kesavananda Bharati  (1973)
\n4 SCC 225,: 1973 Suppl SCR 1, 166, 280] says that secularism
\nis one of the basic features of the Constitution.
\n53 AIR 1955 SC 549: (1955) 2 SCR 225
\n238<\/span>
\nSingh22.   The 42nd Amendment merely made explicit what\t was
\nalready implicit in clause (1).\t The 44th Amendment inserted
\na  proviso to clause (1) which too was in recognition of  an
\nexisting reality.  It empowers the President to require\t the
\nCouncil\t of Ministers to reconsider the advice\ttendered  by
\nthem.\tThe advice tendered on such reconsideration is\tmade
\nbinding upon the President.  Since clause (2) of Article  74
\nhas to be read and understood having regard to its  context,
\nit would be appropriate to read both the clauses of  Article
\n74 as they stand now :\n<\/p>\n
\t      “74.   Council of Ministers to aid and  advise
\n\t      President.-  (1) There shall be a\t Council  of
\n\t      Ministers with the Prime Minister at the\thead
\n\t      to aid and advise the President who shall,  in
\n\t      the   exercise  of  his  functions,   act\t  in
\n\t      accordance with such advice :\n<\/p><\/blockquote>\n
\t      Provided\tthat the President may\trequire\t the
\n\t      Council\tof  Ministers  to  reconsider\tsuch
\n\t      advice, either generally or otherwise, and the
\n\t      President\t shall\tact in accordance  with\t the
\n\t      advice tendered after such reconsideration.
\n\t      (2)The  question\twhether any,  and  if  so
\n\t      what, advice was tendered by Ministers to\t the
\n\t      President\t shall not be inquired into  in\t any
\n\t      Court.” (emphasis added)\n<\/p><\/blockquote>\n
 313.  Article\t53(1)  of the Constitution  says  that\t“the
\nexecutive  power  of  the  Union shall\tbe  vested.  in\t the
\nPresident  and shall be exercised by him either directly  or
\nthrough officers subordinate to him in accordance with\tthis
\nConstitution.”\tClause (2), however, declares  that  without
\nprejudice  to clause (1), the supreme command of  the  Armed
\nForces\tof  the Union shall be vested in the  President\t and
\nthat the exercise of such power shall be regulated by law.\n<\/p>\n
314.Clause  (1) of Article 77 provides that “all  executive
\naction\tof the Government of India shall be expressed to  be
\ntaken  in the name of the President”.  Clause (2) then\tsays
\nthat  all orders made and other instruments executed in\t the
\nname of the President shall be authenticated in such  manner
\nas  may\t be  specified\tin  the rules  to  be  made  by\t the
\nPresident.   It\t further provides that the  validity  of  an
\norder  or  instrument which is authenticated  in  accordance
\nwith  the said rules shall not be called in question on\t the
\nground\tthat  it  is  not an order  or\tinstrument  made  or
\nexecuted  by  the President.  Rules have been  made  by\t the
\nPresident  as  contemplated  by\t this  clause  contained  in
\nNotification  No.  S.O.\t 2297 dated November  11,  1958\t (as
\namended\t from  time  to\t time).\t  Several  officers  of\t the
\nGovernment  have been empowered to authenticate\t the  orders
\nand other instruments to be made and executed in the name of
\nthe  President.\t Clause (3) requires the President  to\tmake
\nrules for the more convenient transaction of the business of
\nthe  Government of India and for allocation among  Ministers
\nof the said business.  In other words, rules have to be made
\nby  the President under clause (3) for two  purposes,  viz.,\n<\/p>\n
(a)  for the more convenient transaction of the business  of
\nthe  Government\t of India and (b) for the  allocation  among
\nMinisters of the said business.\t Rules
\n22 (1974) 2 SCC 831: 1974 SCC (L&S) 550: (1975) 1 SCR 814
\n239<\/span>
\nof business have indeed been made as required by this clause
\nand  the  business  of the  Government\tof  India  allocated
\nbetween several Ministers,\n<\/p>\n
315.Yet\t another  article which requires to be\tnoticed\t in
\nthis  connection  is Article 361 which\tdeclares  that\t“the
\nPresident  shall  not  be answerable to any  court  for\t the
\nexercise  and  performance of the powers and duties  of\t his
\noffice\tor for any act done or purporting to be done by\t him
\nin the exercise and performance of those powers and duties”.
\nNo  criminal  proceedings  can be  instituted  or  continued
\nagainst\t the President in any court while he is\t in  office,
\nnor  is\t he  subject  to  any  process\tfor  his  arrest  or
\nimprisonment.\n<\/p>\n
316.Article  78 specifies the duties of the Prime  Minister
\nas  regards the furnishing of information to  President\t and
\ncertain\t other\tmatters.   Clause  (a)\tobliges\t the   Prime
\nMinister  to communicate to the President all  decisions  of
\nthe  Council of Ministers relating to the administration  of
\nthe  affairs  of the Union and\tproposals  for\tlegislation.
\nClause\t(b)  says  that Prime Minister\tshall  furnish\tsuch
\ninformation  as the President may call for with\t respect  to
\nthe  matters  communicated  under clause  (a).\t Clause\t (c)
\nobliges the Prime Minister, if required by the President, to
\nsubmit\tany  matter for reconsideration of  the\t Council  of
\nMinisters which has not been considered by it.\n<\/p>\n
317.The\t President  is\tclothed\t with  several\tpowers\tand
\nfunctions  by  the  Constitution.  It is  not  necessary  to
\ndetail\tthem  to expect to say that Article 356\t is  one  of
\nthem.  When Article 74(1) speaks of the President acting “in
\nthe  exercise of his functions”, it refers to  those  powers
\nand  functions.\t  Besides the  Constitution,  several  other
\nenactments  too confer and may hereinafter  confer,  certain
\npowers\tand functions upon the President.  They too will  be
\ncovered\t by  Article  74(1).  To wit,  the  President  shall
\nexercise those powers and discharge those functions only  on
\nthe  aid  and advice of the Council of\tMinisters  with\t the
\nPrime Minister at its head.\n<\/p>\n
318.Article   361  is  the  manifestation  of  the   theory
\nprevalent  in English Law that “King can do no\twrong”\tand,
\nfor  that reason, beyond the process of the court.  Any\t and
\nevery action taken by the President is really the action  of
\nhis  Ministers\tand subordinates.  It is they  who  have  to
\nanswer for, defend and justify any and every action taken by
\nthem  in  the  name  of the President,\tif  such  action  is
\nquestioned  in\ta  court of law.  The  President  cannot  be
\ncalled upon to answer for or justify the action.  It is\t for
\nthe Council of Ministers to do so.  Who comes forward to  do
\nso  is a matter for them to decide and for the court  to  be
\nsatisfied  about  it.  Normally speaking,  the\tMinister  or
\nother official or authority of the Ministry as is  entrusted
\nwith the relevant business of the Government, has to do it.\n<\/p>\n
319.Article 53(1) insofar as says that the executive  power
\nof the Union, which vests in the President, can be exercised
\nby  him either directly or through officers  subordinate  to
\nhim  in accordance with the Constitution stresses  the\tvery
\nidea.  Even where he acts directly, the President has to act
\non  the\t aid and advice of the Council of Ministers  or\t the
\nMinister concerned, as the case may be. (Advice tendered  by
\na Minister is deemed to be the
\n240<\/span>
\nadvice\ttendered by the Council of Ministers in view of\t the
\nprinciple of joint responsibility of the Cabinet\/Council  of
\nMinisters).  If such act is questioned in a court of law, it
\nis  for\t the  Minister\tconcerned  (according  to  rules  of
\nbusiness) or an official of that Ministry to defend the Act.
\nWhere the President acts through his subordinates, it is for
\nthat subordinate to defend the action.\n<\/p>\n
320.Articles 74 and 77 are in a sense complimentary to each
\nother, though they may operate in different fields.  Article
\n74(1) deals with the acts of the President done “in exercise
\nof  his\t functions”,  whereas  Article\t77  speaks  of\t the
\nexecutive  action of the Government of India which is  taken
\nin  the\t name  of the President of India.   Insofar  as\t the
\nexecutive action of the Government of India is concerned, it
\nhas  to be taken by the Minister\/official to whom  the\tsaid
\nbusiness  is allocated by the rules of business\t made  under
\nclause (3) of Article 77 for the more convenient transaction
\nof  the\t business of the Government of\tIndia.\t All  orders
\nissued\tand  the  instruments  executed\t relatable  to\t the
\nexecutive  action  of  the Government of India\thave  to  be
\nauthenticated in the manner and by the officer empowered  in
\nthat  behalf.  The President does not really come  into\t the
\npicture so far as Article 77 is concerned.  All the business
\nof the Government of India is transacted by the Ministers or
\nother officials empowered in that behalf, of course, in\t the
\nname  of the President.\t Orders are issued, instruments\t are
\nexecuted  and  other  acts done\t by  various  Ministers\t and
\nofficials,  none of which may reach the President or may  be
\nplaced\tbefore\thim  for his  consideration.   There  is  no
\noccasion in such cases for any aid and advice being tendered
\nto  the\t President  by the  Council  of\t Ministers.   Though
\nexpressed in the name of the President, they are the acts of
\nthe Government of India.  They are distinct from the acts of
\nthe   President\t  “in  the  exercise   of   his\t  functions”
\ncontemplated by Article 74. of course, even while acting  in
\nexercise  of  his  functions, the President has\t to  act  in
\naccordance  with the aid and advice tendered by the  Council
\nof  Ministers  with the Prime Minister at its head.   He  is
\nthus  rendered\ta constitutional  or a\ttitular\t head.\t[The
\nproviso\t to clause (1) no doubt empowers him to require\t the
\nCouncil\t of  Ministers\tto reconsider  such  advice,  either
\ngenerally  or  in any particular case, but if and  when\t the
\nCouncil\t  of   Ministers   tenders  the\t  advice   on\tsuch
\nreconsideration,  he is bound by it.] Then comes clause\t (2)
\nof Article 74 which says that the question “whether any, and
\nif  so,\t what advice was tendered by the  Ministers  to\t the
\nPresident  shall  not be inquired into in any  court”.\t The
\nidea behind clause (2) is this : The court is not to enquire
\nit is not concerned with  whether any advice was tendered by
\nany  Minister or Council of Ministers to the President,\t and
\nif  so, what was that advice.  That is a matter between\t the
\nPresident  and\this Council of Ministers.  What\t advice\t was
\ntendered,  whether it was required to be reconsidered,\twhat
\nadvice was tendered after reconsideration, if any, what\t was
\nthe opinion of the President, whether the advice was changed
\npursuant to further discussion, if any, and how the ultimate
\ndecision  was  arrived\tat,  are  all  matters\tbetween\t the
\nPresident and his Council of Ministers.\t They are beyond the
\nken  of the court.  The court is not to go into it.   It  is
\nenough that
\n241<\/span>
\nthere is an order\/act of the President in appropriate  form.
\nIt  will take it as the order\/act of the President.   It  is
\nconcerned  only with the validity of the order and  legality
\nof  the\t proceeding  or action taken  by  the  President  in
\nexercise of his functions and not with what happened in\t the
\ninner  councils of the President and his Ministers.  No\t one
\ncan challenge such decision or action on the ground that  it
\nis  not\t in  accordance\t with the  advice  tendered  by\t the
\nMinisters or that it is based on no advice.  If, in a  given
\ncase, the President acts without, or contrary to, the advice
\ntendered   to  him,  it\t may  be  a  case   warranting\t his
\nimpeachment, but so far as the court is concerned, it is the
\nact of the President. (We do not wish to express any opinion
\nas to what would be the position if in the unlikely event of
\nthe  Council of Ministers itself questioning the  action  of
\nthe President as being taken without, or contrary, to  their
\nadvice).\n<\/p>\n
321.Clause  (2)\t of Article 74, understood  in\tits  proper
\nperspective,  is  thus\tconfined to a  limited\taspect.\t  It
\nprotects  and  preserves the secrecy  of  the  deliberations
\nbetween\t the  President and his Council\t of  Ministers.\t  In
\nfact,  clause  (2) is a reproduction of sub-section  (4)  of
\nSection\t 10  of\t the Government of  India  Act,\t 1935.\t[The
\nGovernment  of\tIndia  Act  did\t not  contain  a   provision
\ncorresponding  to Article 74(1) as it stood before or  after
\nthe  amendments\t aforementioned].  The scope of\t clause\t (2)
\nshould not be extended beyond its legitimate field.  In\t any
\nevent,\tit  cannot be read or understood  as  conferring  an
\nimmunity   upon\t  the\tCouncil\t  of   Ministers   or\t the
\nMinister\/Ministry  concerned to explain, defend and  justify
\nthe orders and acts of the President done in exercise of his
\nfunctions*.   The  limited provision  contained\t in  Article
\n74(2)\tcannot\t override  the\tbasic  provisions   in\t the
\nConstitution  relating to judicial review.  If and when\t any
\naction\ttaken by the President in exercise of his  functions
\nis  questioned in a court of law, it is for the\t Council  of
\nMinisters to justify the same, since the action or order  of
\nthe  President is presumed to have been taken in  accordance
\nwith Article 74(1).  As to which Minister or which  official
\nof  which Ministry comes forward to defend the\torder\/action
\nis  for\t them to decide and for the court  to  be  satisfied
\nabout it.  Where, of course, the act\/order questioned is one
\npertaining  to\tthe  executive power of\t the  Government  of
\nIndia, the position is much simpler.  It does not  represent
\nthe act\/order of the President done\/taken in exercise of his
\nfunctions  and\thence there is no occasion for\tany  aid  or
\nadvice\tby  the Ministers to him.  It is  the  act\/order  of
\nGovernment  of\tIndia, though expressed in the name  of\t the
\nPresident.  It is for the Minister or Ministry concerned, to
\nwhom  the function is allocated under the rules of  business
\nto defend and justify such action\/order.\n<\/p>\n
*  The\torders and acts of the President of India  made\t and
\ntaken  in exercise of his functions are generally  expressed
\nas  having been ordered or taken by the President  of  India
\nwhereas\t the executive action of the Government of India  is
\nexpressed to have been ordered or taken by the Government of
\nIndia  in  the\tname  of  the  President  of  India.\tThis
\ndifference in form is only indicative  and no( obligatory or
\nmandatory.\n<\/p>\n
242<\/span><\/p>\n
322.Section 123 of the Evidence Act, in our opinion, is\t in
\nno manner relevant in ascertaining the meaning and scope  of
\nArticle\t  74(2).   Its\tfield  and  purpose  is\t  altogether
\ndifferent and distinct.\t Section 123 reads thus :\n<\/p>\n
\t      “123.   Evidence as to affairs of\t State.-  No
\n\t      one  shall be permitted to give  any  evidence
\n\t      derived  from  unpublished  official   records
\n\t      relating to any affairs of State, except\twith
\n\t      the  permission of the officer at the head  of
\n\t      the  department concerned, who shall  give  or
\n\t      withhold such permission as he thinks fit.”\n<\/p><\/blockquote>\n
323.Evidence Act is a pre-Constitution enactment.   Section
\n123 enacts a rule of English Common Law that no one shall be
\npermitted to give evidence derived from unpublished official
\nrecords\t relating  to  affairs\tof  State  except  with\t the
\npermission of the concerned head of the department.  It does
\nnot prevent the head of department permitting it or the head
\nof  the\t department himself giving evidence on\tthat  basis.
\nThe  law  relating  to\tSection\t 123  has  been\t elaborately
\ndiscussed  in several decisions of this Court and is not  in
\nissue  herein.\tOur only object has been to  emphasise\tthat
\nArticle\t 74(2) and Section 123 cover different and  distinct
\nareas.\tIt may happen that while justifying the Government’s
\naction in court, the Minister or the official concerned\t may
\nclaim  a  privilege  under Section 123.\t If  and  when\tsuch
\nprivilege  is claimed, it will be decided on its own  merits
\nin  accordance\twith the provisions of that  section.\tBut,
\nArticle\t 74(2) does not and cannot mean that the  Government
\nof India need not justify the action taken by the  President
\nin  the exercise of his functions because of  the  provision
\ncontained  therein.   No such immunity was intended   or  is
\nprovided   by  the  clause.   If the act  or  order  of\t the
\nPresident  is  questioned in a court of law, it is  for\t the
\nCouncil\t of  Ministers\tto  justify  it\t by  disclosing\t the
\nmaterial which formed the basis of the act\/order.  The court
\nwill not ask whether such material formed part of the advice
\ntendered  to  the  President or whether\t that  material\t was
\nplaced\tbefore the President.  The court will not  also\t ask
\nwhat   advice\twas   tendered\tto   the   President,\twhat
\ndeliberations\tor  discussions\t took  place   between\t the
\nPresident  and\this  Ministers\tand  how  was  the  ultimate
\ndecision  arrived at.  The court will only see what was\t the
\nmaterial on the basis of which the requisite satisfaction is
\nformed\tand  whether  it is relevant  to  the  action  under
\nArticle 356(1).\t The court will not go into the\t correctness
\nof the material or its adequacy.  Even if the court were  to
\ncome  to  a different conclusion on the\t said  material,  it
\nwould not interfere since the article speaks of satisfaction
\nof the President and not that of the court.\n<\/p>\n
324.In our respectful opinion, the above obligation  cannot
\nbe  evaded  by\tseeking refuge\tunder  Article\t74(2).\t The
\nargument that the advice tendered to the President comprises
\nmaterial  as well and, therefore, calling upon the Union  of
\nIndia  to disclose the material would amount  to  compelling
\nthe  disclosure\t of  the  advice  is,  if  we  can  say\t  so
\nrespectfully, to indulge in sophistry.\tThe material  placed
\nbefore\tthe President by the Minister\/Council  of  Ministers
\ndoes  not thereby become part of advice.  Advice is what  is
\nbased upon the said material.  Material is not advice.\t The
\nmaterial may be placed
\n243<\/span>
\n before\t the  President to acquaint him\t and if need  be  to
\nsatisfy\t him  that the advice being tendered to him  is\t the
\nproper one.  But it cannot mean that such material, by\tdint
\nof  being  placed  before the President in  support  of\t the
\nadvice,\t becomes advice itself.\t One can understand  if\t the
\nadvice\tis tendered in writing; in such a case that  writing
\nis  the advice and is covered by the protection provided  by
\nArticle\t 74(2).\t But it is difficult to appreciate how\tdoes
\nthe   supporting  material  become  part  of  advice.\t The
\nrespondents cannot say that whatever the President sees\t  or
\nwhatever  is placed before the President becomes  prohibited
\nmaterial  and  cannot  be seen or  summoned  by\t the  court.
\nArticle\t 74(2)\tmust be interpreted and\t understood  in\t the
\ncontext of entire constitutional system.  Undue emphasis and
\nexpansion   of\t its  Parameters   would   engulf   valuable
\nconstitutional\tguarantees.  For these reasons, we  find  it
\ndifficult to agree with the reasoning in State of Rajasthan3
\non this score, insofar as it runs contrary to our holding.
\nARTICLE 356 AND JUDICIAL REVIEW\n<\/p>\n
325.Judicial review of administrative and statutory  action
\nis  perhaps tile most important development in the field  of
\npublic\tlaw in the second half of this century.\t  In  India,
\nthe  principles governing this jurisdiction are\t exclusively
\nJudge-made.   A good amount of debate took place  before  us
\nwith  respect  to  the applicability,  scope  and  reach  of
\njudicial  review  vis-a-vis the Proclamation issued  by\t the
\nPresident  under  Article 356 of the Constitution.  a  large
\nvolume\tof  case-law and legal literature  has\tbeen  placed
\nbefore\tus.  Though it may not be possible to refer  to\t all
\nthat material, we shall refer to the relevant among them  at
\nthe appropriate place.\n<\/p>\n
326.One of the contentions raised by the Union of India\t in
\nWrit Petition No. 237 of 1993 (filed by Shri Sunderlal Patwa
\nand  others  in Madhya pradesh High  Court  questioning\t the
\nProclamation)  and other writ petitions is that inasmuch  as
\nthe  action  under Article 356 is taken\t on  the  subjective
\nsatisfaction  of  the  President  and  further\tbecause\t the
\nPresident  cannot  be sued in a court of law  by  virtue  of
\nArticle\t 361, the impugned Proclamation is not\tjusticiable.
\nThis  argument\tis, however, not pressed before us.   It  is
\nalso  covered  that since Parliament has approved  the\tsaid
\nProclamation,  the  court sought not to entertain  the\twrit
\npetition and\/or examine the correctness or otherwise of\t the
\nPresidential Proclamation. (This contention has been further
\naborated  and  pressed\tbefore\tus,  as\t we  shall   mention
\nhereinafter).\tArticle 4(2) is relied upon to\tsubmit\tthat
\nthe  material  on which the President  based  the  requisite
\nsatisfaction  cannot be compelled to be produced  in  court.
\n(This  contention has already been dealt with by us.) It  is
\nalso  submitted that the report of the Governor which  forms
\nthe basis of action under Article 356 and the material\tupon
\nwhich it is based cannot be called in question by virtue  of
\nArticle 361  (urged in a modified form).\n<\/p>\n
327.Shri  K. Parasaran, learned counsel appearing  for\tthe
\nUnion  of  India conceded that the action of  the  President
\nunder  Article 356 cannot be said to beyond judicial  review
\nand judicial scrutiny.\tHe, however, submitted that
\n(1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1
\n244<\/span>
\nhaving\tregard\tto  the nature of  the\tfunction,  the\thigh
\nconstitutional status of the authority in whom the power  is
\nvested and the exigencies in which the said action is taken,
\nthe  court  ought  not\tto  go\tinto  the  question  of\t the
\nadvisability  of  the  action or into the  adequacy  of\t the
\nmaterial  on  which it is based.  The  Presidential  action,
\ncounsel\t submitted,  is not susceptible to normal  rules  of
\njudicial  review, having regard to the political  nature  of
\nthe   action  and  absence  of\tany  judicially\t  manageable
\nstandards.   There  may\t be  several  imponderables  in\t the
\nsituation  which  the court cannot weigh.   The\t President’s
\naction under Article 356 cannot be equated to administrative
\naction\tof  a  government official.  It\t is  exercise  of  a
\nconstitutional\tfunction  by the highest  dignitary  of\t the
\nnation, the President of India.\t May be, the learned counsel
\nsubmitted, in a case like Maghalaya (Transferred Case Nos  5
\nand 7 of 1992), the court may interfere where the invalidity
\nof  action is demonstrable with reference to the  orders  of
\nthis Court, i.e., where the invalidity is writ large in\t its
\nface.\tBut, generally speaking, the court is ill fitted  to
\njudge the material on which the action is based to determine
\nwhether\t the said material warranted the action taken.\t The
\ncourt  cannot  sit  in judgment over the  prognosis  of\t the
\nPresident  (for\t that  matter,\tof  the\t Union\tCouncil\t  of
\nMinisters),that\t the situation in a given State was  one  in
\nwhich  the Government of that State could not be carried  on
\nin accordance with the provisions of the Constitution.\tThis
\nis  an\tinstance, the learned counsel continued,  where\t the
\nConstitution  has  committed  a\t particular  power  to\t the
\nPresident  to  be  exercised in his  discretion\t in  certain
\nspecified situations power flowing from the obligation\tcast
\nby  Article 355 upon the Union of India to ensure that\t“the
\nGovernment  of every State is carried on in accordance\twith
\nthe provisions of this Constitution”.  The President is oath
\nbound  to protect and preserve the Constitution.  Placed  as
\nhe  is and having regard to the material which is  available
\nto  him alone  and also because he alone is best  fitted  to
\ndetermine  on the basis of material before him\twhether\t the
\nsituation  contemplated\t by Article 356(1) has\tarisen\t the
\nmatter\tmust  be left to his judgment and  good\t sense.\t  He
\nalone  is  presumed  to possess\t the  astute  political-cum-
\nadministrative\texpertise necessary for a proper  and  sound
\nexercise  of the said power.  Judicial approach,  which\t the
\ncourts\tare trained to adopt, is not suited to the  function
\nunder  Article\t356.  The court would be better\t advised  to
\nleave  the function to those to whom it is entrusted by\t the
\nConstitution.  The President of India has to be trusted.  of
\ncourse\tPresident in Article 356(1) means the Union  Council
\nof  Ministers  by  virtue of Article 74(1)  but\t that  makes
\nlittle\tdifference  in\tprinciple.  That is  the  system  of
\nGovernment  we have adopted.  There is no reason to  believe
\nthat  the  highest authority like the  President  of  India,
\ni.e.,  the Union Council of Ministers  would not act  fairly
\nand  honestly or that they would not act in accordance\twith
\nthe  spirit and scheme of the Constitution.  Shri  Parasaran
\nfurther\t submitted that where a particular  Proclamation  is
\nquestioned,  the burden of establishing its invalidity\tlies
\nupon the petitioner.  It is for him to produce the  material
\nto  substantiate  his  contentions.  By\t virtue\t of  Article
\n74(2), the court would not enquire into the advice  tendered
\nby the Minister
\n245<\/span>
\nto  the\t President leading to the issuance of  the  impugned
\nProclamation.\tThe  advice  comprises\tand  is\t based\tupon
\ncertain\t material and information.  The advice and  material
\ncannot\tbe separated.  If the court cannot enquire into\t the
\nadvice,\t it  cannot  also call upon the Union  of  India  to
\ndisclose  that\tmaterial.   The\t learned  counsel  submitted
\nfurther that there is a distinction between judicial  review
\nof   administrative   action   and   judicial\treview\t  of
\nconstitutional action.\tThe decisions of this Court relating
\nto judicial review of administrative or statutory action and
\ndiscretion   cannot  be\t applied  to  judicial\t review\t  of
\nconstitutional action.\tAppeal against such action, properly
\nand  truly  speaking,  must, and should always\tbe,  to\t the
\nultimate political sovereign  the people.\n<\/p>\n
328.Shri P.P. Rao, learned counsel for the State of  Madhya
\nPradesh while adopting the contentions of Shri K.  Parasaran
\nconcentrated   mainly  upon  the  secular  nature   of\t our
\nConstitution,  with the sequiter that  nonsecular  policies,
\nprogrammes and acts of political parties place such  parties
\noutside the pale of constitutionalism.\tHe submitted that by
\nadopting  such policies and programmes and by  indulging  in
\nnon-secular  course of action, the Governments run  by\tsuch
\nparties\t render themselves amenable to action under  Article
\n356  According\tto  the\t learned  counsel,  BJP’s   election
\nmanifesto,  together  with the speeches and  acts  of  their
\nleaders\t and  cadres  make  it\ta  non-secular\tparty\tand,
\ntherefore,  the\t dismissal  of their  Government  in  Madhya
\nPradesh is perfectly justified.\t Shri Andhyarujina,  learned
\nAdvocate General of Maharashtra submitted that the  doctrine
\nof  political question has not been given up  altogether  by
\nthe  decision of the U.S. Supreme Court in Baker v.  Carr42.
\nAll  that  the\tdecision has done is to limit  the  area  of
\noperation of the said doctrine.\t The dismissal of the  State
\nGovernment or dissolution of a State Legislative Assembly is
\nessentially   a\t  political  question,\tthe   validity\t and
\ncorrectness whereof cannot be adjudged with reference to any
\nknown judicial standards and\/or dicta.\tSuch matters be best
\nleft  to the wisdom of the President and ultimately  of\t the
\npeople.\t It is for the people to judge whether a  particular
\ndismissal or dissolution was just or not.\n<\/p>\n
329.S\/Shri   Soli  Sorabjee,  Ram  Jethmalani  and   Shanti
\nBhushan,  learned counsel for the petitioners submitted,  on
\nthe  other  hand,  that the action of  the  president  under
\nArticle\t  356\tis  not\t beyond\t judicial   scrutiny.\t The
\nConstitution does not create any such immunity and it  would
\nnot be desirable to infer any such immunity by a process  of
\nreasoning  or as a matter of self-restraint by\tthis  Court.
\nThe  power  has been used more often than not  for  purposes
\nother than those contemplated by Article 356.  The provision
\nhas been abused Repeatedly over the years reducing the State
\nGovernments and the State Legislatures to the status of mere
\nmunicipalities.\t If the court were to refuse to enquire into
\nthe validity of such Proclamations, a serious imbalance will
\nset in in the constitutional scheme.  This Court is as\tmuch
\nbound  to uphold, protect and preserve the  Constitution  as
\nthe President of India.\t The Founding
\n42 7 L Ed 2d 663, 686: 369 US 186 (1962)
\n246<\/span>
\nFathers did not say or indicate anywhere that the  President
\nshall\texercise   the\t said\tpower\tin   his    absolute
\ndiscretion\/judgment.   On the contrary, the action  is\tmade
\nexpressly  subject  to\tapproval  by  both  the\t Houses\t  of
\nParliament.   The  remedy of judicial review  guaranteed  by
\nArticles 32 and 226 extends and applies to this action as to
\nany  other action of the President under  the  Constitution.
\nWhere Parliament wished to bar judicial review, it has\tsaid
\nso  expressly,\te.g., Articles 31-B and 31 C.  There  is  no
\ndistinction\tbetween\t   the\t  judicial     review\t  of
\nadministrative\/statutory  action  and  judicial\t review\t  of
\nconstitutional\taction.\t The tests are the same.   No  other
\ntests  can possibly be suggested.  The power  under  Article
\n356  is\t undoubtedly  the  power  to  be  exercised  on\t the
\nsubjective  satisfaction of the President, which  means\t the
\nCouncil of Ministers.  The latter is undoubtedly a political
\nbody  and the experience shows that where a different  party
\nis  in\tpower in a State, the Central  Government  has\tbeen
\nresorting  to Article 356 to destabilise that party  and  to
\nfurther the prospects of their own party.  The circumstances
\nin  which  and\tthe grounds on which  the  action  based  on
\nsubjective  satisfaction can be interfered with,  have\tbeen
\nexhaustively  stated by this Court in Barium  Chemical56  as
\nfar back as 1966 which decision has been followed  uniformly
\nby  this  Court\t over the last\tthree  decades.\t  The  tests
\nevolved\t in the said decision are relevant even in the\tcase
\nof action under Article 356.  The power under Article 356 is
\na  conditioned\tpower;\tit can be exercised  only  when\t the
\nPresident is satisfied that the Government of a State cannot
\nbe  carried  on\t in accordance with the\t provisions  of\t the
\nConstitution.\tEven  in  the case  of\tan  unqualified\t and
\nunconditional power like the one under Article 72 (power  to
\ngrant  pardon, etc.) this Court has held that the action  of
\nthe President is amenable to judicial review (Kehar Singh v.
\nUnion  of  India19).  The satisfaction must  be\t based\tupon
\nexisting  material  and\t must  be  such\t as  would  lead   a
\nreasonable  man to be satisfied that the Government  of\t the
\nState cannot be carried on in accordance with the provisions
\nof  the Constitution.  Even if the action is taken with\t the
\nbest of intentions, it would be bad if the action is outside
\nthe pale of Article 356.  If the grounds are not relevant or
\nif   there   are  no  grounds\twarranting   the   requisite
\nsatisfaction, the action would be bad.\tArticle 74(2) has no
\nrelevance in this behalf.  It is a sort of red herring drawn
\nacross the trail by the respondents’ counsel to confuse\t the
\nissue.\tThe petitioners are not interested in or anxious  to
\nknow  what advice, if any, was tendered by the Ministers  to
\nthe  President\tleading\t to the\t issuance  of  the  impugned
\nProclamation.\tThey  are  not interested  in  that  aspect.
\nTheir  challenge is to the validity of the Proclamation\t and
\nsince it is an action based upon subjective satisfaction and
\nalso  because the Proclamation does not recite\tthe  grounds
\nupon which it has been issued, it is for the Union of  India
\nto  justify  their action before this Court.   This  is\t the
\ngeneral\t  principle  applicable\t to  cases   of\t  subjective
\nsatisfaction  and the Proclamation under Article 356  is  no
\nexception to this rule\tsay the counsel.\n<\/p>\n
330.Since  it is not disputed by the counsel for the  Union
\nof  India and other respondents that the Proclamation  under
\nArticle\t 356  is  amenable to judicial\treview,\t it  is\t not
\nnecessary for us to dilate on that aspect.  The power
\n247<\/span>
\n under\tArticle 356(1) is a conditional power.\tIn  exercise
\nof  the power of judicial review, the court is\tentitled  to
\nexamine whether the condition has been satisfied or not.  In
\nwhat circumstances the court would interfere is a  different
\nmatter but the amenability of the action to judicial  review
\nis  beyond  dispute.   It would be  sufficient\tto  quote  a
\npassage from State of Rajasthan3 (SCR pp. 80-8 1: SCC p.  66
\n1, para 149)
\n\t      “So  long\t as  a question\t arises\t whether  an
\n\t      authority\t under\tthe Constitution  has  acted
\n\t      within the limits of its power or exceeded it,
\n\t      it  can  certainly be decided  by\t the  court.\n<\/p>\n
\t      Indeed   it   would  be\tits   constitutional
\n\t      obligation  to  do so … this  Court  is\t the
\n\t      ultimate\tinterpreter of the Constitution\t and
\n\t      to this Court is assigned the delicate task of
\n\t      determining  what\t is the power  conferred  on
\n\t      each  branch  of\tGovernment,  whether  it  is
\n\t      limited,\tand if so, what are the\t limits\t and
\n\t      whether any action of that branch transgresses
\n\t      such  limits.  It is for this Court to  uphold
\n\t      the  constitutional values and to enforce\t the
\n\t      constitutional   limitations.   That  is\t the
\n\t      essence of the rule of law.”\n<\/p>\n
\t      The controversy really pertains to the  scope,
\n\t      reach and extent of the judicial review.\n<\/p>\n
\t      331.Regarding   the  scope  and\treach\tof
\n\t      judicial\treview, it must be said at the\tvery
\n\t      outset that there is not, and there cannot be,
\n\t      a uniform rule applicable to all cases.  It is
\n\t      bound  to\t vary depending\t upon  the  subject-\n<\/p>\n
\t      matter, nature of the right and various  other
\n\t      factors.\n<\/p>\n
\t      332.This aspect has been emphasised by  this
\n\t      Court in Indra Sawhney v. Union of<\/a>India54 in
\n\t      the following words : (SCC p. 753, para 842  :
\n\t      JT p. 655)
\n\t       “The  extent and scope of  judicial  scrutiny
\n\t\t\t    depends upon the nature of the  subject-matter
\n,
\n\t      the   nature  of\tthe  right   affected,\t the
\n\t      character\t of  the  legal\t and  constitutional
\n\t      provisions applicable and so on.\tThe acts and
\n\t      orders  of the State made under Article  16(4)
\n\t      do not enjoy any particular kind of  immunity.
\n\t      At the same time, we must say that court would
\n\t      normally extend due deference to the  judgment
\n\t      and  discretion of the Executive\t a  co-equal
\n\t      wing    in  these\t matters.    The   political
\n\t      executive, drawn as it is from the people\t and
\n\t      represent as it does the majority will of\t the
\n\t      people, is presumed to know the conditions and
\n\t      the needs of the people and hence its judgment
\n\t      in matters within its judgment and  discretion
\n\t      will be entitled to due weight.”\n<\/p>\n
\t      333.A\tpassage\t   from\t   the\t   article\n\t      \"Justiciability\t and\tthe    control\t  of\n<\/pre>\n
\t      discretionary  power” by Prof D.G.T.  Williams
\n\t      appears  to echo our thought  correctly.\t The
\n\t      Professor says,
\n\t      “Variability,  of course, is  the\t outstanding
\n\t      feature  of judicial review of  administrative
\n\t      action … an English Judge has commented that
\n\t      (with administrative law ‘in a phase of active
\n\t      development’)  the  Judges  ‘will\t adapt\t the
\n\t      rules  … to protect the rule of law’ and  an
\n\t      Australian Judge has
\n\t      3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1
\n\t      SCR 1
\n\t      54 1992 Supp (3) SCC 217: 1992 SCC (L&S)\tSupp
\n\t      1: (1992) 22  ATC 385: JT (1992) 6 SC 273
\n\t      248<\/span>
\n\t      noted  that  there  ‘is no  fixed\t rule  which
\n\t      requires the same answer to be given in  every
\n\t      case’.  Similar sentiments have been expressed
\n\t      in the case of express procedural requirements
\n\t      where  the  courts have to  wrestle  with\t the
\n\t      distinction  between mandatory  and  directory
\n\t      requirements, where the law has been described
\n\t      ‘as  inextricable tangle of loose\t ends’,\t and
\n\t      where   the  variables   including  ideas\t  of
\n\t      ‘substantial  compliance’\t or  as\t to  whether
\n\t      anyone has been prejudiced  are such that even
\n\t      the   same   statutory   provision   may\t  be
\n\t      differently   interpreted\t according  to\t the
\n\t      circumstances  of a case … the\tfluidity  of
\n\t      the  rules on express procedural\trequirements
\n\t      has  been eloquently recognized both  by\tLord
\n\t      Hailsham\twho,  against a background  of\t‘the
\n\t      rapidly\t  developing\tjurisprudence\t  of
\n\t      administrative  law’ spoke of a  ‘spectrum  of
\n\t      possibilities’  when  he\tstressed  that\t the
\n\t      Courts  are not necessarily ‘bound to fit\t the
\n\t      facts  of a particular case and  a  developing
\n\t      chain of events into rigid legal categories or
\n\t      to   stretch  or\tcramp  them  on\t a  bed\t  of
\n\t      Procrustes   invested  by\t lawyers   for\t the
\n\t      purposes of convenient exposition…….”.\n<\/p>\n
334.Having  said this, we may now proceed to examine a\tfew
\ndecisions  where Proclamations of emergency were  questioned
\nto  notice how the challenge was dealt with.  We  may  first
\nnotice the decision of the Privy Council in Bhagat Singh  v.
\nEmperor55.  Section 72 of the Government of India Act,\t1919
\nempowered  the\tGovernor  General  to  make  and  promulgate
\nordinance for the peace and good government of British India
\nin  case of emergency.\tThe ordinance so made, however,\t was
\nto be effective for a period of six months from the date  of
\nits  promulgation and was to be effective like an  enactment
\nmade  by the Indian legislature and be subject to  the\tvery
\nsame  restrictions  applying  to an enactment  made  by\t the
\nIndian legislature.  The section read as follows:\n<\/p>\n
\t      “72.   The Governor General may, in  cases  of
\n\t      emergency, make and promulgate ordinances\t for
\n\t      the peace and good government of British India
\n\t      or any part thereof, and any ordinance so made
\n\t      shall,  for  the space of not  more  than\t six
\n\t      months  from its promulgation, have  the\tlike
\n\t      force  of law as an Act passed by\t the  Indian
\n\t      legislature but the power of making ordinances
\n\t      under  this  section is subject  to  the\tlike
\n\t      restrictions  as\tthe  power  of\tthe   Indian
\n\t      legislature  to make laws; and  any  ordinance
\n\t      made under this section is subject to the like
\n\t      disallowance  as an Act passed by\t the  Indian
\n\t      legislature   and\t  may\tbe   controlled\t  or
\n\t      superseded by any such Act.”\n<\/p><\/blockquote>\n
335.Exercising the said power, the Governor General  issued
\nan ordinance whereunder the appellant was convicted.  In the
\nappeal\tto  the Board, the appellant contended\tthat,  as  a
\nmatter of fact, there was no state of emergency and that the
\nGovernor  General  acted illegally in proclaiming  that\t one
\nexists\tand  issuing  the ordinance  on\t that  basis.\tThis
\ncontention was rejected by the Board in the following words
\n55 AIR 1931 PC 11 1: 58 IA 169: 35 CWN 646
\n249<\/span>
\n\t      “That  raises directly the question who is  to
\n\t      be  the judge of whether a state of  emergency
\n\t      exists.\tA  state of emergency  is  something
\n\t      that does not permit of any exact definition :
\n\t      It  connotes  a state of matters\tcalling\t for
\n\t      drastic  action which is to be judged as\tsuch
\n\t      by someone.  It is more than obvious that that
\n\t      someone  must be the Governor General  and  he
\n\t      alone.   Any other view would  render  utterly
\n\t      inept the whole provision.  Emergency  demands
\n\t      immediate action and that action is prescribed
\n\t      to be taken by the Governor General.  It is he
\n\t      alone who can promulgate the ordinance.\n<\/p>\n
\t      Yet,  if the view urged by the petitioners  is
\n\t      right,  the judgment of the  Governor  General
\n\t      could  be\t upset\teither\t(a)  by\t this  Board
\n\t      declaring\t  that\t once  the   ordinance\t was
\n\t      challenged  in  proceedings by way  of  habeas
\n\t      corpus the Crown ought to prove  affirmatively
\n\t      before  a\t court\tthat a\tstate  of  emergency
\n\t      existed,\tor  (b) by a finding of\t this  Board
\n\t      after  a\tcontentious and\t protracted  enquiry
\n\t      that  no state of emergency existed, and\tthat
\n\t      the ordinance with all that followed on it was
\n\t      illegal.\n<\/p>\n
\t      In  fact,\t the  contention  is  so  completely
\n\t      without  foundation on the fact of it that  it
\n\t      would  be\t idle to allow an  appeal  to  argue
\n\t      about it.\n<\/p>\n
\t      It  was next said that the ordinance  did\t not
\n\t      conduce  to the peace and good  government  of
\n\t      British India.  The same remarks applies.\t The
\n\t      Governor\tGeneral is also the judge  of  that.
\n\t      The  power given by Section 72 is an  absolute
\n\t      power  without any limits\t prescribed,  except
\n\t      only  that  it  cannot  do  what\tthe   Indian
\n\t      legislature would be unable to do, although it
\n\t      is  made clear that it is only to be  used  in
\n\t      extreme  cases  of necessity  where  the\tgood
\n\t      government of India demands it.”\n<\/p>\n
336.Thus, the approach of the Board was one of ‘hands-off’.
\nThe  Governor General was held to be the final judge of\t the
\nquestion  whether an emergency exists.\tThe power  conferred
\nby Section 72 was described as an absolute power without any
\nlimits\tprescribed, except that which apply to an  enactment
\nmade  by the Indian legislature.  It was also observed\tthat
\nthe  subject-matter is not a fit one for a court to  enquire
\ninto.\n<\/p>\n
337.We\tmay  point out that this extreme  position  is\tnot
\nadopted by Shri Parasaran, learned counsel appearing for the
\nUnion  of India.  He did concede that judicial review  under
\nthe   Constitution  is\tnot  excluded  in  the\t matter\t  of
\nProclamation under Article 356(1) though his submission\t was
\nthat  it  should  be available in an  extremely\t narrow\t and
\nlimited area since it is a power committed expressly to\t the
\nPresident by the Constitution and also because the issue  is
\nnot  one  amenable  to judicial\t review\t by  applying  known
\njudicially  manageable\tstandards.   The  Supreme  Court  of
\nPakistan  in  Federation  of Pakistan  v.  Mohd.   Saifullah
\nKhan56 described the approach (adopted in Bhagat Singh55) in
\nthe following words (quoting Cornelius, J.)
\n56 PLD (1989)SC 166
\n55 AIR 1931 PC 11 1: 58 IA 169: 35 CWN 646
\n250<\/span>
\n\t      “In  the\tperiod\tof  foreign  rule,  such  an
\n\t      argument, i.e., that the opinion of the person
\n\t      exercising  authority is absolute may have  at
\n\t      times  prevailed, but under  autonomous  rule,
\n\t      where  those who exercise power in  the  State
\n\t      are themselves citizens of the same State,  it
\n\t      can hardly be tolerated.”\n<\/p>\n
338.We have no hesitation in rejecting the said approach as
\ntotally inconsistent with the ethos of our Constitution,  as
\nwould be evident from the discussion infra.\n<\/p>\n
339.The\t view taken in Bhagat Singh55 was affirmed  by\tthe
\nPrivy  Council in the year 1944 in King Emperor\t v.  Benoari
\nLal Sarma57.  It was held that whether an emergency  existed
\nat  the\t time the ordinance was made and promulgated  was  a
\nmatter of which the Governor General was the sole judge.  If
\nit were not so, it was observed, the Governor General  would
\nbe  disabled  from  taking  action  necessary  to  meet\t the
\nemerging dangerous situation, according to his assessment of
\nthe  situation.\t  It is enough to say that this\t case  again
\nrepresents  what  we have called the extreme  view.   It  is
\ninappropriate in the context of Article 356.\n<\/p>\n
340.The\t next  decision is again of the\t Privy\tCouncil\t in
\nStephen\t  Kalong  Ningkan  v.  Govt.  of  Malaysia58.\t The
\nappellant  was the Chief Minister of Sarawak, an  Estate  in
\nthe Federation of Malaysia.  On June 16, 1966, the  Governor
\nof Sarawak requested him to resign on the ground that he had
\nceased to command the confidence of the Council Negri.\t The
\nappellant  refused  whereupon the Governor informed  him  on
\nJune  17,  1966\t that he ceased to  hold  the  office.\t The
\nappellant  approached the High Court of Kuching against\t the
\nGovernor’s intimation.\tOn September 7, 1966, the High Court
\nupheld his plea and ruled that the Governor had no power  to
\ndismiss\t him.  On September 14, 1966.  His Majesty Yang\t di-
\nPertuan\t Agong (Head of the State of Malaysia) proclaimed  a
\nstate  of emergency throughout the territories of the  State
\nof Sarawak.  The Proclamation was made under Article 150  of
\nthe Federal Constitution of Malaysia, which reads thus :\n<\/p>\n
\t      “150.  (1)  If the Yang  di-Pertuan  Agong  is
\n\t      satisfied\t  that\ta  grave  emergency   exists
\n\t      whereby  the security or the economic life  of
\n\t      the  Federation  or  of any  part\t thereof  is
\n\t      threatened,  he  may issue a  Proclamation  or
\n\t      emergency.”\n<\/p><\/blockquote>\n
341.The article provided for such Proclamation being placed
\nfor  approval before both the Houses of Parliament, who\t had
\nthe power to disapprove the same.  Clause (5) of Article 150
\nempowered  the\tFederal Parliament, during  the\t period\t the
\nProclamation  of  emergency was in operation, to  make\tlaws
\nwith  respect  to  any matter which it\tappeared  to  it  as
\nrequired  by  reason  of the emergency.\t Such  law,  it\t was
\nprovided,   shall  be  operative  notwithstanding   anything
\ncontained  either in the Constitution of the  Federation  or
\nthe Constitution of the State of Sarawak, and will not be
\n55 AIR 1931 PC 11 1: 58 IA 169: 35 CWN 646
\n57 (1944) 72 IA 57: AIR 1945 PC 48: 46 Cri LJ 589
\n58 (1970) AC 379
\n251<\/span>
\n treated  as  amendment to the Constitution.  Any  such\t law
\nwas,  however,\tto  be\tin force  only\tfor  the  period  of
\nemergency.  In exercise of the power conferred by clause (5)
\nof  Article 150, the Federation Parliament passed  Emergency
\n(Federal  Constitution\tand Constitution  of  Sarawak)\tAct,
\n1966.\tSection\t 5 of this Act\tspecifically  empowered\t the
\nGovernor  to  dismiss the Chief Minister,  in  his  absolute
\ndiscretion,  if, at any time, the Council Negri\t passed\t the
\nresolution of no confidence in the Government by a  majority
\nand  yet the Chief Minister failed to resign.  On  September
\n23, 1966, the Council Negri met and passed the resolution of
\nno  confidence\tin the Chief Minister (appellant).   On\t the
\nnext day, the Governor dismissed the appellant under the new
\nAct.   He  impugned  the  action in  the  Federal  Court  of
\nMalaysia, wherein he sought for a declaration that the\t1966
\nAct  aforesaid was ultra vires the Federal  Parliament.\t  He
\ncontended that the Proclamation of emergency was a fraud  on
\nthe  Constitution and of no effect inasmuch as no  state  of
\ngrave  emergency existed.  The Act aforesaid founded  as  it
\nwas  on the Proclamation of emergency, was equally void\t and
\nof no effect, he submitted.  He contended that the  evidence
\nshowed that none of the usual signs and symptoms of ”  grave
\nemergency”  existed in Sarawak at or before the time of\t the
\nProclamation;  that  no disturbances, riots or\tstrikes\t had
\noccurred; that no extra troops or police had been placed  on
\nduty;  that no curfew or other restrictions on movement\t had
\nbeen  found  necessary and that the  ‘\tconfrontation’\twith
\nIndonesia  had\talready come to an end.\t The  Federation  of
\nMalaysia repudiated all the said contentions.  It  submitted
\nthat  the Proclamation of emergency was conclusive  and\t not
\nassailable before the court.\n<\/p>\n
342.The\t Privy\tCouncil (Lord MacDermott speaking  for\tthe
\nBoard) expressed the view in the first instance that it\t was
\n“unsettled and debatable” whether a Proclamation made by the
\nSupreme\t Head of the Federation of Malaysia under  statutory
\npowers could be challenged on some or other grounds but then
\nproceeded on the assumption that the matter is\tjusticiable.
\nOn  that  assumption,  the Board,proceeded  to\texamine\t the
\nfurther\t contentions  of the appellant.\t It found  that\t the
\nProclamation  of emergency and the impugned Act were  really
\ndesigned to meet the constitutional deadlock that had arisen
\non  account  of\t the absence  of  provision  empowering\t the
\nGovernor  to  dismiss the Chief Minister  where\t the  latter
\nceased\tto  enjoy the confidence of the Council\t Negri.\t  It
\nobserved  : “It is not for their Lordships to  criticise  or
\ncomment upon the wisdom or expediency of the steps taken  by
\nthe Governor of Malaysia in dealing with the  constitutional
\nsituation  which  had  occurred in Sarawak,  or\t to  enquire
\nwhether\t that situation could itself have been avoided by  a
\ndifferent approach.” The Privy Council observed further that
\n“they  can  find, in the material presented, no\t ground\t for
\nholding\t  that\t the  respondent    Government\t was   acting
\nerroneously or in any way mala fide in taking the view\tthat
\nthere  was  a  constitutional crisis  in  Sarawak,  that  it
\ninvolved or threatened a breakdown of a State Government and
\namounted to an emergency calling for immediate action.\t Nor
\ncan  their  Lordships find any reason for  saying  that\t the
\nemergency thus considered to exist was not grave
\n252<\/span>
\nand  did not threaten the security of Sarawak.\t These\twere
\nessential matters to be determined according to the judgment
\nof the respondent-ministers in the light of their  knowledge
\nand  experience\t … and that he (the appellant)  failed  to
\nsatisfy\t the  Board that the steps taken by  the  Government
\nincluding  the\tProclamation and the impugned Act,  were  in
\nfraudem\t legis\tor otherwise unauthorised  by  the  relevant
\nlegislation”.  The appeal was accordingly dismissed.\n<\/p>\n
343.Three strands of reasoning are evident in the decision.
\nFirstly,  the  Privy  Council assumed  that  the  issue\t was
\njusticiable.   On that basis, it examined the facts  of\t the
\ncase  and  found  that\tthe  situation\tdid  amount  to\t  an
\nemergency.   Secondly and more importantly, it examined\t and
\nfound  that  there  was\t no  “reason  for  saying  that\t the
\nemergency thus considered to exist was not grave and did not
\nthreaten the security of Sarawak”, though at the same  time,
\nit  held  that\texistence of emergency is  a  matter  to  be
\ndetermined by the Council of Ministers in the light of their
\nknowledge  and\texperience and thirdly, that  the  appellant
\nfailed to establish that the Proclamation of emergency was a
\nfraud on the Constitution.\n<\/p>\n
344.We\tmay  now  notice the only decision  of\tthis  Court
\ndealing\t with Article 356, viz., State of  Rajasthan3.\t Two
\ncircumstances  must  be\t kept in mind  while  examining\t the
\ndecision, viz., (i) the writ petitions (and suits) filed  by
\nvarious States were not directed against Proclamation(s)  of
\nemergency, since no such Proclamations were issued prior  to
\nthe  filing of those suits and writ petitions; and  (ii)  at
\nthat time, clause (5) introduced by 38th (Amendment) Act was
\nin force.  Clause (5) read as follows :\n<\/p>\n
\t      “5.    Notwithstanding   anything\t  in\tthis
\n\t      Constitution,   the   satisfaction   of\t the
\n\t      President\t mentioned  in clause (1)  shall  be
\n\t      final   and  conclusive  and  shall   not\t  be
\n\t      questioned in any court on any ground.”  [This
\n\t      clause   was  substituted\t by  an\t  altogether
\n\t      different clause by the 44th (Amendment) Act.]\n<\/p><\/blockquote>\n
345.The\t subject-matter\t of challenge in the  suits  (under
\nArticle\t 131) and writ petitions (under Article 32) in\tthis
\nmatter\twas  a letter written by the then Home\tMinister  to
\nChief Ministers of certain States advising them to seek\t the
\ndissolution of respective Legislative Assemblies and seek  a
\nfresh  mandate from the people.\t The letter stated that\t the
\nelections to Lok Sabha held in March 1977 indicated that the
\nCongress  Party,  in  power in those States,  has  lost\t its
\nmandate\t totally and has become alienated with\tthe  people.
\nThe letter, together with a statement made by the then Union
\nLaw Minister, was treated as a threat to dismiss those State
\nGovernments.  To ward off such a threat, they approached the
\nSupreme Court by way of suits and writ petitions.  They were
\nheard  expeditiously  and  dismissed  on  April\t 29,   1977.
\nReasoned  opinions  were  delivered  later,  by\t which\tdate
\nProclamations  under  Article 356(1) were  actually  issued.
\nOne  of the questions related to the maintainability of\t the
\nsuits, with which question, of course, we are not concerned.
\n3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1
\n253<\/span>\n<\/p>\n
346.Six\t opinions were delivered by the seven-Judge  Bench.
\nThough all of them agreed that the writ petitions and  suits
\nbe  dismissed,\ttheir reasoning is not uniform.\t  It  would,
\ntherefore,  be\tappropriate to notice the  ratio  underlying
\neach  of  the  opinions insofar as it is  relevant  for\t our
\npurposes :\n<\/p>\n
Beg, C.J.- The opinion of Beg, C.J. contains several strands
\nof thought.  They may be stated briefly thus :\n<\/p>\n
\t      (i)The  language\tof Article  356\t and  the
\n\t      practice\tsince  1950 shows that\tthe  Central
\n\t      Government  can enforce its will\tagainst\t the
\n\t      State Governments with respect to the question
\n\t      how the State Governments should function\t and
\n\t      who should hold reins of power.\n<\/p><\/blockquote>\n
\t      (ii)By virtue of Article 356(5) and  Article
\n\t      74(2),  it  is  impossible for  the  court  to
\n\t      question\tthe satisfaction of  the  President.
\n\t      It has to decide the case on the basis of only
\n\t      those  facts as may have been admitted  by  or
\n\t      placed by the President before the court.\n<\/p><\/blockquote>\n
\t      (iii)The\tlanguage of Article 356(1) is  very
\n\t      wide.   It is desirable that  conventions\t are
\n\t      developed\t channelising the exercise  of\tthis
\n\t      power.  The court can interfere only when\t the
\n\t      power  is\t used  in  a  grossly  perverse\t and
\n\t      unreasonable manner so as to constitute patent
\n\t      misuse  of  the provisions or to an  abuse  of
\n\t      power.  The same idea is expressed at  another
\n\t      place  saying that if “a\tconstitutionally  or
\n\t      legally prohibited or extraneous or collateral
\n\t      purpose  is  sought  to be  achieved”  by\t the
\n\t      Proclamation, it would be liable to be  struck
\n\t      down. The question whether the majority  party
\n\t      in  the  Legislative Assembly of a  State\t has
\n\t      become  totally estranged from the  electorate
\n\t      is not a matter for the court to determine.\n<\/p><\/blockquote>\n
      (iv) The\t assessment  of\t the   Central
\n\t      Government  that\t a fresh  chance  should  be
\n\t      given  to the electorate in certain States  as
\n\t      well  as\tthe question when  to  dissolve\t the
\n\t      Legislative  Assemblies are not matters  alien
\n\t      to  Article  356. It cannot be said  that\t the
\n\t      reasons assigned by the Central Government for
\n\t      the  steps taken by them are not\trelevant  to
\n\t      the purposes underlying Article 356.<\/p><\/blockquote>\n
     We\t  may  say  at\tonce  that  we\tare  in\t  respectful
\ndisagreement   with   propositions  (i),   (ii)\t  and\t(iv)
\naltogether.  So far as proposition (iii) is concerned, it is
\nnot far off the mark and in substance accords with our view,
\nas we shall presently show.\n<\/p>\n
Y.   V.\t Chandrachud, J.- On the scope of  judicial  review,
\nthe  learned Judge held that where the reasons disclosed  by
\nthe  Union  of India are wholly extraneous,  the  court\t can
\ninterfere  on the ground of mala fides.\t Judicial  scrutiny,
\nsaid  the  learned  Judge, is  available  “for\tthe  limited
\npurpose\t of  seeing whether the reasons\t bear  any  rational
\nnexus  with the action proposed”.  The court cannot  sit  in
\njudgment   over\t the  satisfaction  of\tthe  President\t for
\ndetermining  whether  any  other view of  the  situation  is
\nreasonably  possible, opined the learned Judge.\t Turning  to
\nthe  facts  of\tthe   case before  him,\t the  learned  Judge
\nobserved that the grounds assigned by the Central Government
\nin its counter-affidavit cannot be said to be irrelevant to
\n254<\/span>
\nArticle 356.  The court cannot go deeper into the matter nor
\nshall the court enquire whether there were any other reasons
\nbesides those disclosed in the counter-affidavit.
\nP.N.  Bhagwati\tand  A. C. Gupta, JJ.-\tThe  learned  Judges
\nenunciated the following propositions in their opinion :\n<\/p>\n
\t      The  action under Article 356 has to be  taken
\n\t      on   the\t subjective  satisfaction   of\t the
\n\t      President.  The satisfaction is not objective.
\n\t      There  are  no  judicially  discoverable\t and
\n\t      manageable  standards by which the  court\t can
\n\t      examine the correctness of the satisfaction of
\n\t      the President.  The satisfaction to be arrived
\n\t      at is largely political in nature, based on an
\n\t      assessment  of  various and varied  facts\t and
\n\t      factors besides several imponderables and fast
\n\t      changing\tsituations.  The court is not a\t fit
\n\t      body   to\t enquire  into\tor   determine\t the
\n\t      correctness   of\tthe  said  satisfaction\t  or
\n\t      assessment, as it may be called.\tHowever,  if
\n\t      the  power is exercised mala fide or is  based
\n\t      upon wholly extraneous or irrelevant  grounds,
\n\t      the  court would have jurisdiction to  examine
\n\t      it.   Even  clause (5) is not a bar  when\t the
\n\t      contention  is that there was no\tsatisfaction
\n\t      at all.\n<\/p><\/blockquote>\n
\t      The  scope  of judicial review of\t the  action
\n\t      under Article 356, the learned Judges held, is
\n\t      confined\tto a “narrow minimal area.   May  be
\n\t      that in most cases, it would be difficult,  if
\n\t      not  impossible, to challenge the exercise  of
\n\t      power  under Article 356(1) on  the  aforesaid
\n\t      limited\tground,\t  because  the\t facts\t and
\n\t      circumstances  on\t which the  satisfaction  is
\n\t      based, would not be known.  However, where  it
\n\t      is possible, the existence of satisfaction can
\n\t      always be challenged on the ground that it  is
\n\t      mala  fide or based on wholly  extraneous\t and
\n\t      irrelevant grounds”.\n<\/p><\/blockquote>\n
\t      We may say with great respect that we find  it
\n\t      difficult to agree with the above formulations
\n\t      in  toto.\t We agree only with  the  statements
\n\t      regarding\t   the\t permissible   grounds\t  of
\n\t      interference by court and the effect of clause
\n\t      (5),  as\tit  then obtained.   We\t also  agree
\n\t      broadly with the first proposition, though not
\n\t      in the absolute terms indicated therein.
\n\t      Goswami\tand  Untwalia,\tJJ.-  The   separate
\n\t      opinions\t of   Goswami  and   Untwalia,\t JJ.
\n\t      emphasise\t  one  single  fact,  namely,\tthat
\n\t      inasmuch\tas the facts stated in the  counter-
\n\t      affidavit filed by the Home Minister cannot be
\n\t      said   to\t  be  “mala  fide,   extraneous\t  or
\n\t      irrelevant”,  the\t action impugned  cannot  be
\n\t      assailed in the court.\n<\/p><\/blockquote>\n
\t      Fazal Ali, J.- The learned Judge held that\n<\/p><\/blockquote>\n
\t      (i)   the\t action under Article 356 is  immune
\n\t      from  judicial scrutiny unless the  action  is
\n\t      “guided\tby  extraneous\t consideration”\t  or
\n\t      “personal considerations”.\n<\/p><\/blockquote>\n
\t      (ii)  the\t inference  drawn  by  the   Central
\n\t      Government following the 1977 elections to the
\n\t      Lok  Sabha cannot be said to be  unreasonable.
\n\t      It cannot be said that the inference drawn had
\n\t      no nexus with Article 356.\n<\/p><\/blockquote>\n
347. It\t would thus be seen that there is a broad  consensus
\namong five of the seven Judges that the court can  interfere
\nif  it is satisfied that the power has been  exercised\tmala
\nfide or on wholly extraneous or irrelevant grounds.\n<\/p>\n
255<\/span><\/p>\n
 Some  learned Judges have stated the rule in  narrow  terms
\nand  some  others in a little less narrow terms\t but  not  a
\nsingle\tlearned Judge held that the Proclamation  is  immune
\nfrom judicial scrutiny.\t It must be remembered that at\tthat
\ntime  clause  (5) was there barring judicial review  of\t the
\nProclamation  and yet they said that court can interfere  on
\nthe  ground  of mala fides or where it is  based  wholly  on
\nextraneous  or irrelevant grounds.  Surely, the deletion  of
\nclause (5) has not restricted the scope of judicial  review.
\nIndeed,\t it removed the cloud cast on the said\tpower.\t The
\ncourt  should, if anything, be more inclined to examine\t the
\nconstitutionality of the Proclamation after such deletion.\n<\/p>\n
348. It would be appropriate at this stage to examine a\t few
\ndecisions   of\tthe  Pakistan  Supreme\tCourt,\t since\t the
\nConstitution of Pakistan, 1973 contains a provision somewhat
\nsimilar to Article 356.\n<\/p>\n
349. Article  58  of  the  Constitution\t of  Pakistan,\t1973
\nprovides  for dissolution of National Assembly.\t Clause\t (1)
\nsays that the President shall dissolve the National Assembly
\nif  so advised by the Prime Minister.  It  further  provides
\nthat  in any event on the expiry of forty-eight hours  after
\nthe Prime Minister has advised the dissolution, the National
\nAssembly  stands dissolved.  Clause (2) is relevant for\t our
\npurpose.  It reads thus :\n<\/p>\n
\t      “(2)  Notwithstanding  anything  contained  in
\n\t      clause  (2) of Article 48, the  President\t may
\n\t      also  dissolve  the National Assembly  in\t his
\n\t      discretion where, in his opinion\n<\/p><\/blockquote>\n
\t      (a)   a  vote  of no  confidence\thaving\tbeen
\n\t      passed  against the Prime Minister,  no  other
\n\t      member  of the National Assembly is likely  to
\n\t      command  the  confidence of  majority  of\t the
\n\t      members of the National Assembly in accordance
\n\t      with  the\t provisions of the  Constitution  as
\n\t      ascertained  in  a  session  of  the  National
\n\t      Assembly summoned for the purpose; or\n<\/p><\/blockquote>\n
\t      (b)   a  situation  has arisen  in  which\t the
\n\t      Government of the Federation cannot be carried
\n\t      on  in accordance with the provisions  of\t the
\n\t      Constitution  and an appeal to the  electorate
\n\t      is necessary.”\n<\/p><\/blockquote>\n
350. Sub-clause (b) of clause (2) approximates to clause (1)
\nof Article 356 of our Constitution.  Under this clause,\t the
\nPresident  may\tdissolve  the  National\t Assembly,  in\t his
\ndiscretion, where in his opinion, a situation has arisen  in
\nwhich the Government of the Federation cannot be carried  on
\nin accordance with the provisions of the Constitution and an
\nappeal to the electorate is necessary.\n<\/p>\n
351. The  first\t decision is in Federation  of\tPakistan  v.
\nMohd.\tSaifullah  Khan56 a decision of a  Bench  of  twelve
\nJudges of the Pakistan Supreme Court.  Acting under  Article
\n58(2)(b),  the President of Pakistan dissolved the  National
\nAssembly  and dismissed the federal cabinet  with  immediate
\neffect by a notification dated May 29, 1988.  The order made
\nby the President
\n56 PLD (1 989) SC 166
\n256<\/span>
\nrecited\t “that\tthe  objects  and  purposes  for  which\t the
\nNational Assembly was elected have not been fulfilled;\tthat
\nthe  law  and order in the country have broken\tdown  to  an
\nalarming  extent,  resulting in tragic loss  of\t innumerable
\nvaluable lives as well as property; that the life, property,
\nhonour\tand security of the citizens of Pakistan  have\tbeen
\nrendered totally unsafe; and that the integrity and ideology
\nof  Pakistan have been seriously endangered”.  The  validity
\nof the said order was challenged by a member of the National
\nAssembly  by way of writ petition in the Lahore High  Court,
\nwhich  allowed it but declined to grant the  further  relief
\nsought\tfor  by\t the petitioner, viz.,\trestoration  of\t the
\nNational  Assembly, [Provincial Assembly of Punjab was\talso
\ndissolved by a similar order made by the Governor of  Punjab
\nunder  Article\t112(2)(b), which too was questioned  in\t the
\nHigh Court and with the same result].  In the appeal  before
\nthe  Supreme Court, it was contended that the action of\t the
\nPresident  was immune from judicial scrutiny inasmuch as  it
\nwas an instance of exercise of his discretionary power.\t The
\ncontention  was\t repelled  by  the  Supreme  Court  in\t the
\nfollowing words :\n<\/p>\n
\t      “The discretion conferred by Article  58(2)(b)
\n\t      of  the Constitution on the President  cannot,
\n\t      therefore, be regarded to be an absolute\tone,
\n\t      but is to be deemed to be a qualified one,  in
\n\t      the  sense  that it is  circumscribed  by\t the
\n\t      object of the law that confers it.
\n\t      It  must further be noted that the reading  of
\n\t      the  provisions  of Articles 48(2)  and  58(2)
\n\t      shows that the President has to first form his
\n\t      opinion, objectively, and then, it is open  to
\n\t      him to exercise his discretion one way or\t the
\n\t      other,  i.e., either to dissolve the  Assembly
\n\t      or  to  decline to dissolve it. Even  if\tsome
\n\t      immunity\t envisaged  by\tArticle\t  48(2)\t  is
\n\t      available\t to the action taken  under  Article
\n\t      58(2) that can possibly be only in relation to
\n\t      his  ‘opinion’.  An obligation is cast on\t the
\n\t      President\t by  the  aforesaid   constitutional
\n\t      provision\t   that\t  before   exercising\t his
\n\t      discretion he has to form his ‘opinion’ that a
\n\t      situation\t of  the kind envisaged\t in  Article
\n\t      58(2)(b)\thas  arisen which  necessitates\t the
\n\t      grave   step   of\t dissolving   the   National
\n\t      Assembly.\t  In Abul Ala Mabsoodi v.  Govt.  of
\n\t      West   Pakistan59\t  Cornelius   C.J.,    while
\n\t      interpreting   certain   provisions   of\t the
\n\t      Criminal\tLaw Amendment Act,  1908,  construed
\n\t      the word ‘opinion’ as under:\n<\/p><\/blockquote>\n
\t      ‘….it is a duty of Provincial Government  to
\n\t      take into consideration all relevant facts and
\n\t      circumstances.   That imports the exercise  of
\n\t      an  honest  judgment as to  the  existence  of
\n\t      conditions in which alone the opinion must  be
\n\t      formed  honestly,\t that  the  restriction\t  is
\n\t      necessary.  In this process, the only  element
\n\t      which  I find to possess a subjective  quality
\n\t      as  against  objective determination,  is\t the
\n\t      final  formation\tof opinion that\t the  action
\n\t      proposed\t is   necessary.    Even   this\t  is
\n\t      determined,   for\t the  most  part,   by\t the
\n\t      existence\t of  circumstances  compelling\t the
\n\t      conclusion.    The  scope\t for   exercise\t  of
\n\t      personal discretion is extremely limited.\t …
\n\t      As  I  have  pointed out, if  the\t section  be
\n\t      construed\t in  a\tcomprehensive  manner,\t the
\n\t      requirement
\n\t      59 PLD (1 964) SC 673
\n\t      257  of  an  honest  opinion  based  upon\t the
\n\t      ascertainment  of\t certain matters  which\t are
\n\t      entirely within the grasp and appreciation  of
\n\t      the    government\t  agency   is\tclearly\t   a
\n\t      prerequisite to the exercise of the power.  In
\n\t      the period of foreign rule, such an  argument,
\n\t      i.e.,   that   the  opinion  of\tthe   person
\n\t      exercising  authority is absolute may have  at
\n\t      times  prevailed, but under  autonomous  rule,
\n\t      where  those who exercise power in  the  State
\n\t      are themselves citizens of the same States, it
\n\t      can hardly be tolerated’.\t ”\n<\/p><\/blockquote>\n
352. It was further held that “though the President can make
\nhis  own  assessment of the situation as to  the  course  of
\naction\tto  be followed but his opinion must be\t founded  on
\nsome material”.\n<\/p>\n
353. One  of the learned Judges (Shaifur Rehman,  J.)  dealt
\nwith  the meaning and significance of the words\t “cannot  be
\ncarried\t on” occurring in Article 58(2)(b) in the  following
\nwords :\n<\/p>\n
\t      “the   expression\t ‘cannot  be   carried\t on’
\n\t      sandwiched   as  it  is  between\t ‘Federation
\n\t      Government’   and\t ‘in  accordance  with\t the
\n\t      provisions  of the Constitution’,\t acquires  a
\n\t      very potent, a very positive and very concrete
\n\t      content.\t Nothing has been left to  surmises,
\n\t      likes  or dislikes, opinion or view.  It\tdoes
\n\t      not  concern  itself  with  the  pace  of\t the
\n\t      progress,\t the  shade of the  quality  or\t the
\n\t      degree  of the performance or the\t quantum  of
\n\t      the achievement.\tIt concerns itself with\t the
\n\t      breakdown\t of the constitutional mechanism,  a
\n\t      stalemate, a deadlock ensuring the  observance
\n\t      of the provisions of the Constitution.”\n<\/p><\/blockquote>\n
354. The next decision of the Pakistan Supreme Court brought
\nto our notice is in Khaja Ahmed Tariq Rahim v. Federation of
\nPakistan21.   On August 6, 1990, the President\tof  Pakistan
\ndissolved   the\t National  Assembly  in\t exercise   of\t his
\ndiscretion,  by an order made under Article 58(2)(b) of\t the
\nConstitution of Pakistan.  The formal order referred to\t the
\nNational Assembly being afflicted with internal\t dissensions
\nand frictions, persistent and scandalous ‘horse-trading’ for
\npolitical  gain\t and  furtherance  of  personal\t  interests,
\ncorrupt\t practices  and inducement in contravention  of\t the
\nConstitution   and   the  law  and  failure   to   discharge
\nsubstantive legislative functions other than the adoption of
\nthe  finance bill all of which led the president to  believe
\nthat  the National Assembly has lost the confidence  of\t the
\npeople.\t  The  validity\t of the order was  challenged  by  a
\nformer federal minister in the Lahore High Court.  The\tHigh
\nCourt upheld the Presidential order whereupon the matter was
\ncarried to the Supreme Court.  Both the parties agreed\tthat
\nthe principles enunciated by the Supreme Court in Federation
\nof  Pakistan  v.  Mohd.\t  Saifullah  Khan56  do\t govern\t the
\ncontroversy.\n<\/p>\n
355. On\t facts, the Supreme Court found that though some  of
\nthe  goods  given  may\tnot be\trelevant,  there  are  other
\nrelevant goods all of which read together “are sufficient to
\njustify the action taken”.\n<\/p>\n
1 PLD(1992)SC646,664
\n6 PLD (1989) SC 166
\n258<\/span>\n<\/p>\n
356. The  next decision relied upon by Shri Sorabjee  is  in
\nMian  Mohd.  Nawaz Sharif v. President of  Pakistan29.\t The
\nsaid  decision pertains to the most recent dismissal of\t the
\nFederal Government and dissolution of the National  Assembly
\nby  the President of Pakistan by his order dated  April\t 18,
\n1993.\n<\/p>\n
357. In\t this  decision,  several  propositions\t have\tbeen
\nenunciated by the court.  Firstly, it is reiterated that “if
\nit  could be shown that no grounds existed on the  basis  of
\nwhich  an honest opinion could be formed ‘that\ta  situation
\nhad arisen in which the Government of the Federation  cannot
\nbe  carried  on\t in accordance with the\t provisions  of\t the
\nConstitution  and an appeal to the electorate is  necessary’
\nthe exercise of the power would be unconstitutional and open
\nto  correction\tthrough judicial review”.  It is  next\theld
\nthat  “Article\t58(2)(b) of the\t Constitution  empowers\t the
\nexecutive head to destroy the legislature and to remove\t the
\nchosen representatives.\t It is an exceptional power provided
\nfor an exceptional situation and must receive, as it has  in
\nFederation  of\tPakistan v. Haji Md.  Saifullah\t Khan56\t the
\nnarrowest interpretation”.  It is also held that if there is
\na  doubt whether the Prime Minister had lost the  confidence
\nof   the   National   Assembly\t “the\tonly   course\tleft
\nconstitutionally open for the President for arriving at\t his
\nsatisfaction  in  this\tmatter is to  ‘summon  the  National
\nAssembly and require the Prime Minister to obtain a vote  of
\nconfidence  in\tthe National Assembly’ “.  This\t observation
\nwas, of course, made in the context of Article 91(5),  which
\nsays:\n<\/p>\n
\t      “(5)  The\t Prime Minister\t shall\thold  office
\n\t      during the pleasure of the President, but\t the
\n\t      President shall not exercise his powers  under
\n\t      this  clause unless he is satisfied  that\t the
\n\t      Prime Minister does not command the confidence
\n\t      of the majority of the members of the National
\n\t      Assembly,\t in which case he shall\t summon\t the
\n\t      National\t Assembly  and\trequire\t the   Prime
\n\t      Minister\tto obtain a vote of confidence\tfrom
\n\t      the Assembly.”\n<\/p><\/blockquote>\n
358. The court then examined the Presidential Order and held
\nthat none of the grounds therein bore any nexus to the order
\npassed\tand  that  the grounds stated  were  extraneous\t and
\nirrelevant  and\t in clear departure  of\t the  constitutional
\nprovisions.  Accordingly, it was held that the\tPresidential
\ndeclaration  was unconstitutional and that as a natural\t and
\nlogical\t corollary,  the Ministry which has  been  dismissed
\nalong with the dissolved National Assembly must be  restored
\nand revived.\n<\/p>\n
359.Before we refer to the principle of these decisions,  it
\nis  necessary  to  bear\t in mind the  nature  of  the  power
\nconferred  by the Constitution of Pakistan.   Under  Article
\n58(2)(b),. the President, who acts alone and personally,  is
\nempowered  not\tonly to dismiss the Federal  Government\t but
\nalso to dissolve the National Assembly if, in his opinion, a
\nsituation  has\tarisen\tin  which  the\tGovernment  of\t the
\nFederation  cannot  be\tcarried on in  accordance  with\t the
\nprovisions  of\tthe  Constitution  and\tan  appeal  to\t the
\nelectorate  is\tnecessary.   This is,  of  course,  not\t the
\nposition under our
\n29 PLD(1993)SC473
\n56 PLD (1989) SC 166
\n259<\/span>
\n Constitution.\tUnder our Constitution, the President has to
\nact  and  does\tact in accordance with the  aid\t and  advice
\ntendered  to him by the Council of Ministers with the  Prime
\nMinister  at  its  head.   There  is  no  occasion  for\t the
\nPresident  to  act  in\this  personal  capacity\t or  without
\nreference   to\tthe  Council  of  Ministers.\tThe   second
\ndistinguishing\t feature   is  that   under   the   Pakistan
\nConstitution  the  President  is empowered  to\tdismiss\t the
\nFederal\t Government  just as the Governor of a\tprovince  is
\nempowered  to  dismiss the  Provincial\tGovernment,  whereas
\nunder  our Constitution, there is no question  of  President
\ndismissing  the Union Government; it is really a case  where
\nthe  Union Government dismisses the State Government if\t the
\nsituation contemplated by Article 356(1) arises.  The strong
\nremarks made by the Pakistan Supreme Court must no doubt  be
\nunderstood  in\tthe context of the  aforesaid  character  of
\nArticle 58(2)(b).  Yet the relevance of the approach adopted
\nby the Pakistan Supreme Court is not without significance.\n<\/p>\n
360. We\t may  at  this stage refer to the  decision  of\t the
\nConstitution Bench of this Court in Kehar Singh v. Union  of
\nIndia19.   Article 72 of the Constitution confers  upon\t the
\nPresident the power to grant pardons, reprieves, respites or
\nremissions of punishment or to suspend, remit or commute the
\nsentence of any person convicted of any offence.  The  power
\nextends to cases where the sentence is a sentence of  death.
\nThe  article does not provide any guidance in which  matters
\nshould the President exercise which power and in which cases
\nto refuse.  In other words, the power appears ex facie to be
\nabsolute.   Kehar Singh was convicted under Section 302\t IPC
\nin  connection\twith  the assassination of  the\t then  Prime
\nMinister of India, Smt Indira Gandhi and sentenced to death.
\nThe  sentence  was  confirmed by this Court  on\t appeal.   A
\nsubsequent  writ  petition and review filed by him  in\tthis
\nCourt  failed.\tKehar Singh’s son then presented a  petition
\nto the President of India for grant of pardon under  Article\n<\/p>\n
72.  He requested a personal hearing.  Personal hearing\t was
\nrefused and in a letter addressed to Kehar Singh’s  counsel,
\nthe  Secretary\tto the President expressed  the\t President’s
\nopinion that the President cannot go into the merits of\t the
\ncase finally decided by the Highest Court of the land.\t The
\npetition  was  accordingly rejected.  The rejection  of\t the
\npetition  was  questioned by way of writ  petition  in\tthis
\nCourt.\tThis Court expressed the view that under Article  72
\nit  is open to the President to scrutinise the\tevidence  on
\nrecord of a criminal case and come to a different conclusion
\nfrom  that  recorded by the Court both on  the\tquestion  of
\nguilt as well as sentence.  This power, it was held, is\t not
\nin conflict with nor in supersession of judicial power.\t  It
\nis  an\taltogether  different  power,  an  executive   power
\nexercised on the aid and advice of the Council of Ministers.
\nit  was\t also stated that any number of\t considerations\t may
\nenter  the  decision  of the President and that\t it  is\t not
\npossible to lay any guidelines governing the exercise of the
\nsaid power.  What is relevant for our purpose is the holding
\nregarding  the extent of judicial review of the exercise  of
\npower under the said article.  It was held that the exercise
\nof power under Article 72 falls
\n9 (1989) 1 SCC 204: 1989 SCC (Cri) 86: 1988 Supp 3 SCR 1102
\n260<\/span>
\nsquarely  within the judicial domain and can be examined  by
\nthe court by way of judicial review.  While the court cannot
\ngo into the merits, the limitations of such review are those
\nenunciated in Maru Ram v. Union of India6O (SCC p. 154:\t SCR
\nat p. 1249).  The Court held’ :\n<\/p>\n
\t      “The  function of determining whether the\t act
\n\t      of  a constitutional or statutory\t functionary
\n\t      falls within the constitutional or legislative
\n\t      conferment  of power, or is vitiated by  self-
\n\t      denial  on  an erroneous appreciation  of\t the
\n\t      full  amplitude of the power is a\t matter\t for
\n\t      the court.”\n<\/p><\/blockquote>\n
 This was so held in spite of the seemingly absolute  nature
\nof  the\t power conferred by Article 72 upon  the  President.
\nThe  argument of the learned Attorney General of India\tthat
\nthe  exercise of power under Article 72 was not\t justiciable
\nwas accordingly rejected.\n<\/p>\n
361. Counsel  appearing\t on  both the  sides  placed  strong
\nreliance upon the decision of the House of Lords in CCSU  v.
\nMinister for the Civil Service8 as laying down correctly the
\nprinciples  to be followed in the matter of judicial  review
\nof administrative action whether governed by a statute or by
\n‘common law’.  The petitioners say that this approach  ought
\nto be adopted even in the case of constitutional action like
\nthe one under Article 356.  The respondents demur to it.  It
\nis,  therefore,\t necessary  to examine what  does  the\tsaid
\ndecision lay down precisely.\n<\/p>\n
362. The Government Communications Headquarters is a  branch
\nof  the public services under the Foreign  and\tCommonwealth
\nOffice.\t  Its main functions are to ensure the\tsecurity  of
\nthe United Kingdom military and official communications\t and
\nto  provide signals intelligence for the Government.   Since
\n1947,  i.e., from the time of its establishment,  the  staff
\nemployed therein were permitted to belong to national  trade
\nunions and most of them did so.\t There were several disputes
\nbetween\t the staff and the Government over the years all  of
\nwhich  were  settled by negotiations with  the\tUnions.\t  On
\nJanuary\t 25, 1984, however, the Secretary of the  State\t for
\nForeign and Commonwealth Affairs announced suddenly that the
\nstaff of the Government Communications Headquarters will  no
\nlonger\tbe permitted to belong to national trade unions\t and
\nthat  they  would  be  permitted to  belong  to\t only  to  a
\ndepartmental  staff  association approved by  the  Director.
\nThe  said  decision was given effect to\t by  certain  orders
\nissued\ton  December 22, 1993.\tThe  Unions  questioned\t the
\nvalidity of the said instructions.\n<\/p>\n
363. The  conditions  of  service of the  staff\t working  in
\nGovernment Communications Headquarters were to be  regulated
\nby  the Minister for the Civil Service, empowered as he\t was
\nby Article 4 of the 1982 Order in Council.  The said  Order-
\nin-Council was not issued under powers conferred by any\t Act
\nof Parliament.\tIt was issued by the Sovereign by virtue  of
\nher prerogative.  According to the definition given by Dicey
\nin   “Introduction   to\t the  study  of\t the  Law   of\t the
\nConstitution”  which has been accepted and
\n60 (1981)1 SCC 107:1981 SCC(Cri) 112:(1981) 1 SCR 1196
\n+\tEd.:In\t     Kehar\tSingh\t    v.Union\t  of
\nIndia,(1989)ISCC204,214(parall)
\n8 (1985) AC 374: (1984) 3 All ER 935
\n261<\/span>
\n followed at all points of time in U.K.\t “prerogative is the
\nname  for  the\tremaining portion of  the  Crown’s  original
\nauthority,  and\t is therefore, as already pointed  out,\t the
\nname  for  the residue of discretionary power  left  at\t any
\nmoment\tin the hands of the Crown, whether such power be  in
\nfact  exercised\t by the King himself or by  his\t Ministers”.
\nThe  very same idea has been stated by Lord Diplock  in\t the
\nfollowing words :\n<\/p>\n
\t      “For a decision to be susceptible to  judicial
\n\t      review, the decisionmaker must be empowered by
\n\t      public law (and not merely, as in arbitration,
\n\t      by agreement between private parties) to\tmake
\n\t      decisions that, if validly made, will lead  to
\n\t      administrative   action  or  abstention\tfrom
\n\t      action  by  an authority endowed by  law\twith
\n\t      executive\t powers, which have one or other  of
\n\t      the  consequences mentioned in  the  preceding
\n\t      paragraph.    The\t ultimate  source   of\t the
\n\t      decision-making\tpower\tis   nearly   always
\n\t      nowadays a statute or subordinate\t legislation
\n\t      made under the statute; but in the absence  of
\n\t      any  statute regulating the subject-matter  of
\n\t      the  decision,  the source  of  the  decision-
\n\t      making  power  may  still be  the\t common\t law
\n\t      itself, i.e., that part of the common law that
\n\t      is   given  by  lawyers  the  label   of\t the
\n\t      prerogative.”\n<\/p><\/blockquote>\n
364. The  contention  on  behalf of the\t Minister  was\tthat
\naction taken by him in exercise of the prerogative power  is
\nnot  amenable to judicial review.  The said  contention\t was
\nrejected.   So\tfar as the merits are  concerned,  the\tonly
\ncontention  urged  by the Unions related to “the  manner  in
\nwhich  the  decision which led to these\t instructions  being
\ngiven, was taken, that is to say, without prior consultation
\nof  any\t kind with the appellant or, indeed,  others”.\t The
\nright  of prior consultation was founded upon the theory  of
\nlegitimate  expectation.   All\tthe Law\t Lords\tagreed\tthat
\nhaving\t regard\t  to  the  practice  in\t vogue\t since\t the
\nestablishment  of the said establishment, the  Unions  could
\nclaim  a  legitimate  expectation  to  be  consulted  before
\neffecting  any\tchange in the conditions of  their  service.
\nBut,  they  held,  the said  legitimate\t expectation  cannot
\nprevail\t over the considerations of national security  which
\nprompted  the Minister to issue the  impugned  instructions.
\nIt is on this ground alone that the House of Lords dismissed
\nthe appeal preferred by the Unions.\n<\/p>\n
365.So far as India is concerned, there is no such thing  as
\n‘prerogative’.\t There\tis  the\t executive  power   of\t the
\nGovernment  of\tIndia  and  there  are\tthe   constitutional
\nfunctions  of  the President.  It is not  suggested  by\t the
\ncounsel\t for the respondents that all the orders passed\t and
\nevery  action  taken by the President or the  Government  of
\nIndia  is beyond judicial review.  All that is suggested  is
\nthat some of the powers of the President and the  Government
\nof India are immune.  Shri Parasaran relies upon the opinion
\nof  Lord Roskill where certain prerogative powers  are\theld
\nnot fit subject-matters for judicial scrutiny.\tThey are the
\npowers relating to entering of treaties with foreign  power,
\ndefence\t of the realm, grant of pardon\/mercy, conferring  of
\nhonours,  dissolution  of  Parliament  and  appointment\t  of
\nMinisters.   We\t agree\tthat  broadly  speaking\t the   above
\nmatters,  because of their very nature, are outside the\t ken
\nof  courts  and the courts would not,  ordinarily  speaking,
\ninterfere  in matters relating to above subjects.  But\tthat
\nis different from saying that all
\n262<\/span>
\nthe  President’s  action  are immune.\tIn  fact,  the\tmain
\nholding in this decision is that action taken in exercise of
\nthe  prerogative  power is not immune from  judicial  review
\napart from the clear enunciation of the grounds of  judicial
\nreview.\t  It  is  also\theld, of  course,  that\t in  matters
\ninvolving government policy, the ground of irrationality may
\nnot be an appropriate one.\n<\/p>\n
366. We\t may now examine the principles enunciated  by\tthis
\nCourt in Barium Chemicals6 which is the leading decision  of
\nthis  Court on the subject of subjective  satisfaction.\t  It
\nexhaustively lays down the parameters of judicial review  in
\nsuch  matters.\t Barium\t Chemicals6 was\t concerned  with  an
\nenquiry ordered into the affairs of the appellant-company by
\nthe Company Law Board under Section 237(b) of the  Companies
\nAct, 1956.  Section 237 read as follows :\n<\/p>\n
\t      “237.   Without prejudice to its powers  under
\n\t      Section 235, the Central Government\n<\/p><\/blockquote>\n
\t      (a)   shall  appoint  one\t or  more  competent
\n\t      persons  as  inspectors  to  investigate\t the
\n\t      affairs of a company and to report thereon  in
\n\t      such  manner  as the  Central  Government\t may
\n\t      direct, if-\n<\/p><\/blockquote>\n
\t      (i)   the company, by special resolution, or\n<\/p><\/blockquote>\n
\t      (ii)  the\t Court, by order, declares that\t the
\n\t      affairs\tof   the   company   ought   to\t  be
\n\t      investigated by an inspector appointed by\t the
\n\t      Central Government; and (b) may do so, if,  in
\n\t      the  opinion of the Central Government,  there
\n\t      are circumstances suggesting-\n<\/p><\/blockquote>\n
\t      (i)   that  the  business of  the\t company  is
\n\t      being  conducted\twith intent to\tdefraud\t its
\n\t      creditors,  members or any other\tpersons,  or
\n\t      otherwise\t  for  a  fraudulent   or   unlawful
\n\t      purpose,\tor in a manner oppressive of any  of
\n\t      its  members, or that the company\t was  formed
\n\t      for any fraudulent or unlawful purpose;\n<\/p><\/blockquote>\n
\t      (ii)  that persons concerned in the  formation
\n\t      of  the  company\tor  the\t management  of\t its
\n\t      affairs  have  in\t connection  therewith\tbeen
\n\t      guilty   of   fraud,  misfeasance\t  or   other
\n\t      misconduct towards the company or towards
\n\t      any of its members; or\n<\/p><\/blockquote>\n
\t      (iii)that the members of the company have\t not
\n\t      been given all the information with respect to
\n\t      its   affairs  which  they  might\t  reasonably
\n\t      expect, including information relating to\t the
\n\t      calculation  of  the commission payable  to  a
\n\t      managing\tor  other  director,  the   managing
\n\t      agent, the secretaries and treasurers, or\t the
\n\t      manager of the company.”\n<\/p><\/blockquote>\n
 367. Clause (b) empowered the Central Government to appoint
\none  or more persons as inspectors to investigate  into\t the
\naffairs of a company and to report thereon if in its opinion
\n“there are circumstances suggesting” one or the other of the
\ncircumstances  mentioned in sub-clauses (i), (ii)  an  iii).
\nmain  opinion  was delivered by Shelat, J. That\t the  action
\ncontemplated under
\n6 1966 Supp SCR 311:AIR 1967 SC 295:(1966) 36 Comp Cas 639
\n263<\/span>
\n Section   237(b)   could  be  taken   on   the\t  subjective
\nsatisfaction  of the Central Government was not in  dispute.
\nThe  controversy, however, centered round the  next  aspect.
\nAccording   to\tthe  appellant,\t though\t the   opinion\t was
\nsubjective, the existence of circumstances set out in clause\n<\/p>\n
(b)  was  a  condition precedent to the\t formation  of\tsuch
\nopinion and, therefore, even if the impugned orders were  to
\ncontain\t a recital of the existence of those  circumstances,
\nthe  court can go behind that recital and determine  whether
\nthey  did in fact exist.  On the other hand, the  contention
\nfor the Company Law Board was that clause (b) was  incapable
\nof  such  dichotomy  and  that\tnot  only  the\topinion\t was
\nsubjective but that the entire clause was made dependent  on
\nsuch  opinion.\t It was urged that the words  “opinion”\t and
\n“suggesting” were clear indications that the entire function
\nwas subjective, that the opinion which the authority has  to
\nform  is  that circumstances suggesting what is set  out  in
\nsub-clauses (i) and (ii) exist and, therefore, the existence
\nof  those circumstances is by itself a matter of  subjective
\nopinion.  The legislature having entrusted that function  to
\nthe authority, it was urged, the court cannot go behind\t its
\nopinion\t and  ascertain whether the  relevant  circumstances
\nexist or not.\n<\/p>\n
368. After considering a large number of decisions,  Shelat,
\nJ. held (SCR p. 362)
\n\t      “… the words, ‘reason to believe’ or ‘in the
\n\t      opinion\tof’  do\t not  always  lead  to\t the
\n\t      construction that the process of\tentertaining
\n\t      ‘reason  to  believe’ or ‘the opinion’  is  an
\n\t      altogether  subjective  process  not   lending
\n\t      itself even to a limited scrutiny by the court
\n\t      that  such ‘a reason to believe’ or  ‘opinion’
\n\t      was not formed on relevant facts or within the
\n\t      limits  of,  as Lord Radcliffe and  Lord\tReid
\n\t      called,  the restraints of the statute  as  an
\n\t      alternative  safeguard  to  rules\t of  natural
\n\t      justice where the function is administrative.”
\n\t      The  learned  Judge then examined\t the  object
\n\t      underlying Section 237 and held (SCR pp.\t362-\n<\/p>\n
\t      63)
\n\t      “There  is  no  doubt that  the  formation  of
\n\t      opinion by the Central Government is a  purely
\n\t      subjective  process.   There can\talso  be  no
\n\t      doubt that since the legislature has  provided
\n\t      for  the opinion of the Government and not  of
\n\t      the court such an opinion is not subject to  a
\n\t      challenge\t  on   the   ground   of   property,
\n\t      reasonableness   or  sufficiency.\t   But\t the
\n\t      Authority\t is  required to arrive at  such  an
\n\t      opinion from circumstances suggesting what  is
\n\t      set out in sub-clauses (i), (ii) or (iii).  If
\n\t      these circumstances were not to exist, can the
\n\t      Government still say that in its opinion\tthey
\n\t      exist or can the Government say the same thing
\n\t      where the circumstances relevant to the clause
\n\t      do  not exist?  The legislature no  doubt\t has
\n\t      used     the     expression     “circumstances
\n\t      suggesting”.  But, that expression means\tthat
\n\t      the  circumstances need not be such  as  would
\n\t      conclusively establish an intent to defraud or
\n\t      a fraudulent or illegal purpose.\tThe proof of
\n\t      such  an\tintent\tor purpose is  still  to  be
\n\t      adduced  through\tan investigation.   But\t the
\n\t      expression  “circumstances suggesting”  cannot
\n\t      support the construction
\n\t      264<\/span>
\n\t      that even the existence of circumstances is  a
\n\t      matter of subjective opinion.  That expression
\n\t      points out that there must exist circumstances
\n\t      from which the Authority forms an opinion that
\n\t      they are suggestive of the crucial matters set
\n\t      out  in the three sub-clauses.  It is hard  to
\n\t      contemplate  that the legislature\t could\thave
\n\t      left  to\tthe  subjective\t process  both\t the
\n\t      formation of opinion and also the existence of
\n\t      circumstances  on which it is to\tbe  founded.
\n\t      It  is  also not reasonable to  say  that\t the
\n\t      clause permitted the Authority to say that  it
\n\t      has formed the opinion on circumstances  which
\n\t      in its opinion exist and which in its  opinion
\n\t      suggest  an intent to defraud or a  fraudulent
\n\t      or   unlawful   purpose.\t  It   is    equally
\n\t      unreasonable  to\tthink that  the\t legislature
\n\t      could have abandoned even the small  safeguard
\n\t      of  requiring  the opinion to  be\t founded  on
\n\t      existent\t circumstances\twhich  suggest\t the
\n\t      things  for  which  an  investigation  can  be
\n\t      ordered  and  left the opinion  and  even\t the
\n\t      existence of circumstances from which it is to
\n\t      be  formed to a subjective process. …  There
\n\t      must, therefore, exist circumstances which  in
\n\t      the opinion of the Authority suggest what\t has
\n\t      been  set\t out in sub-clauses  (i),  (ii)\t and\n<\/p>\n
\t      (iii).  If it is shown that the  circumstances
\n\t      do not exist or that they are such that it  is
\n\t      impossible  for  any one to  form\t an  opinion
\n\t      therefrom suggestive of the aforesaid  things,
\n\t      the opinion is challengeable on the ground  of
\n\t      nonapplication of mind or perversity or on the
\n\t      ground  that  it\twas  formed  on\t  collateral
\n\t      grounds  and  was\t beyond\t the  scope  of\t the
\n\t      statute.”\n<\/p>\n
\t      369.  Hidayatullah,  J. observed thus  in\t his
\n\t      separate opinion : (SCR p. 336)
\n\t      Since  the existence of ‘circumstances’  is  a
\n\t      condition\t fundamental  to the  making  of  an
\n\t      opinion,\tthe existence of the  circumstances,
\n\t      if questioned, has to be proved at least prima
\n\t      facie.   It is not sufficient to\tassert\tthat
\n\t      the  circumstances exist and give no  clue  to
\n\t      what  they are because the circumstances\tmust
\n\t      be  such as to lead to conclusions of  certain
\n\t      definiteness.  The conclusions must relate  to
\n\t      an intent to defraud, a fraudulent or unlawful
\n\t      purpose,\t fraud\t or   misconduct   or\t the
\n\t      withholding  of  information of  a  particular
\n\t      kind.”\n<\/p>\n
\t      The  learned Judge proceeded further to say  :
\n\t      (SCR pp. 336-37)
\n\t      “We  have to see whether the Chairman  in\t his
\n\t      affidavit\t  has\tshown\tthe   existence\t  of
\n\t      circumstances   leading  to   such   tentative
\n\t      conclusions.  If he has, his action cannot  be
\n\t      questioned  because  the inference  is  to  be
\n\t      drawn  subjectively  and even  if\t this  Court
\n\t      would not have drawn a similar inference\tthat
\n\t      fact   would  be\tirrelevant.   But   if\t the
\n\t      circumstances  pointed  out are such  that  no
\n\t      inference of the kind stated in Section 237(b)
\n\t      can at all be drawn the action would be  ultra
\n\t      vires the Act and void.”\n<\/p>\n
The  principles enunciated in this case are not\t only  self-
\nevident, they have been followed uniformly since.  We do not
\nthink it necessary to restate these principles\tthey are too
\nwell-known.\n<\/p>\n
265<\/span><\/p>\n
370. Counsel  brought to our notice a decision of  the\tHigh
\nCourt  of Australia in the Queen v. Toohey ex parte  Northem
\nLand Council61.\t Under the Aboriginal Land Rights  (Northern
\nTerritory) Act, 1976, provision was made for the aboriginals
\nto claim return of the land traditionally occupied by  them.
\nThe application was to be made to the commissioner under the
\nAct.   Toohey,\tJ.  was acting\tas  the\t commissioner.\t The
\napplication  was  made\tby  the\t Prosecutor,  Northern\tLand
\nCouncil.   According to the Land Rights Act, no\t such  claim
\ncould  be laid if the land claimed was comprised in a  town.
\nThe  expression ‘town’ was defined to have the same  meaning
\nas ‘in the law relating to Planning and Development of Town.
\nIn  1979,  Planning Act was enacted superseding\t an  earlier
\nAct.   In  Section 4(1) of the Planning\t Act,  ‘town’  meant
\ninter alia “lands specified by the regulations to be an area
\nwhich  has to be treated as a town”.   Planning\t regulations
\nwere  made  by the Administrator of the\t Northern  Territory
\nunder  the  Planning  Act  specifying  inter  alia  the\t Cox
\npeninsula  as part of ‘Darwin town’.  The Cox peninsula\t was
\nseparated from Darwin town-proper by an arm of the sea.\t The
\nland  route  for reaching the peninsula\t from  Darwin  town-
\nproper\twas  a\tdifficult and  long  one.   The\t Prosecutor,
\nNorthern  Land\tCouncil\t challenged  the  validity  of\t the
\nplanning regulation on the ground that the inclusion of\t Cox
\npeninsula in the Darwin town is not really for the  purposes
\ngermane\t to  the  Planning  Act\t and  the  regulations\tmade
\nthereunder  but for an altogether extraneous  purpose.\t The
\nquestion was whether such a plea can be investigated by\t the
\ncourts.\t  The  contention  of the other side  was  that\t the
\nAdministrator\twas  the  Crown’s  Representative   in\t the
\nTerritory  and,\t therefore, the power exercised by  him\t was
\nimmune\tfrom any examination by the courts.   This  argument
\nwas  met  by  the Prosecutor of the  Northern  Land  Council
\nsaying\tthat  the Administrator is only the servant  of\t the
\nCrown  and  not its representative and hence,  possesses  no
\nimmunity  and on the further ground that even if he  is\t the
\nRepresentative\tof  the Crown, there was no  such  immunity.
\nThe  majority  (Murphy, J. dissenting)\theld  that  judicial
\nreview\tof the regulations was not barred.   The  conclusion
\nmay best be set out in the words of Stephen, J.\n<\/p>\n
\t      “Conclusion on examinability.\n<\/p><\/blockquote>\n
\t      The   trend  of  decisions  in   British\t and
\n\t      Commonwealth  courts  has\t encouraged  me\t  to
\n\t      conclude\tthat,  in  the\tunsettled  state  of
\n\t      Australian   authority,\tthe   validity\t  of
\n\t      Regulation  5 was open to be attacked  in\t the
\n\t      manner attempted by the Council.\tSuch a\tview
\n\t      appears to me to be in accord with  principle.
\n\t      It  involves no intrusion by the\tcourts\tinto
\n\t      the sphere either of the legislature or of the
\n\t      executive.    It\t ensures   that,   just\t  as
\n\t      legislatures   of\t  constitutionally   limited
\n\t      competence must remain within their limits  of
\n\t      power, so too must the executive, the exercise
\n\t      by   it  of  power  granted  to  it   by\t the
\n\t      legislature being confined to the purposes for
\n\t      which   it   was\tgranted.   In\tdrawing\t  no
\n\t      distinction  of principle between the acts  of
\n\t      the  representative of the Crown and those  of
\n\t      Ministers\t of the Crown it recognises that  in
\n\t      the exercise of statutory powers the former
\n\t      61 151 Commonwealth LR 170
\n\t      266<\/span>
\n\t      acts  upon  the  advice of  the  latter  :  as
\n\t      Latham, C.J. said in the Australian  Communist
\n\t      Party   case,  the  opinion  of  the   Queen’s
\n\t      representative  ‘is really the opinion of\t the
\n\t      Government  of the day’.\tThat this is  so  in
\n\t      the Northern Territory appears from Section 33
\n\t      of  the Northern Territory  (Self\t Government)
\n\t      Act, 1978.\n<\/p><\/blockquote>\n
\t      I have already referred to the possibility  of
\n\t      a\t legislature by appropriate words  excluding
\n\t      judicial\t review\t of  the  nature   here\t  in
\n\t      question.\t  The terms of the present grant  of
\n\t      power  conferred by Section 165(1) are  devoid
\n\t      of  any  suggestion  of  such  exclusion.\t  It
\n\t      follows that if it be shown that a  regulation
\n\t      made  under that power was made for a  purpose
\n\t      wholly  alien to the Planning Act it  will  be
\n\t      ultra  vires the power and will be so  treated
\n\t      by the courts.”\n<\/p><\/blockquote>\n
371. This  case establishes that the validity of  an  action
\nwhether taken by a Minister or a Representative of the Crown
\nis  subject  to\t judicial  review even\tif  done  under\t the
\nstatute.  In this case, it may be noted, the regulations  in
\nquestion  were\tmade  under  a\tstatute,  no  doubt  by\t the
\nAdministrator  who was supposed to be the Representative  of
\nthe  Crown in the Territory.  This factor, the\tcourt  held,
\ndid  not preclude the court from reviewing the\tvalidity  of
\nthe regulations made by him.\n<\/p>\n
372. Having  noticed various decisions projecting  different
\npoints of view, we may now proceed to examine what should be
\nthe  scope and reach of judicial review when a\tProclamation
\nunder  Article 356(1) is questioned.  While  answering\tthis
\nquestion,  we  should be, and we are, aware that  the  power
\nconferred  by  Article 356(1) upon the President  is  of  an
\nexceptional character designed to ensure that the Government
\nof  the\t States\t are  carried  on  in  accordance  with\t the
\nConstitution.  We are equally aware that any misuse or abuse
\nof this power is bound to play havoc with our constitutional
\nsystem.\t  Having  regard to the form of Government  we\thave
\nadopted,  the power is really that of the Union\t Council  of
\nMinisters with the Prime Minister at its head.\tIn a  sense,
\nit  is\tnot really a power but an obligation cast  upon\t the
\nPresident in the interest of preservation of  constitutional
\nGovernment  in the States.  It is not a power  conceived  to
\npreserve or promote the interests of the political party  in
\npower at the Centre for the time being nor is it supposed to
\nbe  a weapon with which to strike your\tpolitical  opponent.
\nThe  very  enormity of this power  undoing the will  of\t the
\npeople\tof  a  State  by  dismissing  the  duly\t constituted
\nGovernment  and\t dissolving  the  duly\telected\t Legislative
\nAssembly  must itself act as a warning against its  frequent
\nuse  or\t misuse, as the case may be.  Every misuse  of\tthis
\npower  has  its\t consequences  which  may  not\tbe   evident
\nimmediately but surface in a vicious form a few years later.
\nSow a wind and you will reap the whirlwind.  Wisdom lies  in
\nmoderation and not in excess.\n<\/p>\n
373. Whenever\ta   Proclamation  under\t  Article   356\t  is
\nquestioned,   the  court  will\tno  doubt  start  with\t the
\npresumption  that it was validly issued but it will not\t and
\nit  should  not hesitate to interfere if the  invalidity  or
\nunconstitutionality of the Proclamation is clearly made out.
\nRefusal to
\n267<\/span>
\n interfere in such a case would amount to abdication of\t the
\nduty cast upon the court  Supreme Court and High Courts\t  by
\nthe Constitution.  Now, what are the grounds upon which\t the
\ncourt can interfere and strike down the Proclamation?  While
\ndiscussing the decisions hereinabove, we have indicated\t the
\nunacceptability of the approach adopted by the Privy Council
\nin Bhagat Singh v. Emperor55 and King Emperor<\/a> v. Benoari Lal
\nSharma57.  That was in the years 1931 and 1944, long  before
\nthe  concept  of judicial review had  acquired\tits  present
\nefficacy.   As\tstated by the Pakistan Supreme\tCourt,\tthat
\nview  is totally unsuited to a democratic polity.  Even\t the
\nPrivy Council has not stuck to that view, as is evident from
\nits  decision  in  the case  from  Malaysia  Stephen  Kalong
\nNingkan\t v.  Govt. of Malaysia58.  In this case,  the  Privy
\nCouncil proceeded on the assumption that such a Proclamation
\nis amenable to judicial review.\t On facts and  circumstances
\nof this case, it found the action justified.  Now, coming to
\nthe approach adopted by the Pakistan Supreme Court, it\tmust
\nbe  said  as indicated hereinbefore  that it is coloured  by
\nthe  nature  of the power conferred upon  the  President  by
\nSection\t 58(2)(b) of the Pakistani Constitution.  The  power
\nto dismiss the Federal Government and the National  Assembly
\nis  vested in the President and President alone.  He has  to
\nexercise that power in his personal discretion and judgment.
\nOne man against the entire system, so to speak\teven  though
\nthat  man  too\tis elected by  the  representatives  of\t the
\npeople.\t  That\tis not true of our Constitution.   Here\t the
\nPresident acts on the aid and advice of the Union Council of
\nMinisters and not in his personal capacity.  Moreover, there
\nis  the\t check\tof approval  by\t Parliament  which  contains
\nmembers from that State (against the  Government\/Legislative
\nAssembly  of which State, action is taken) as well.  So\t far
\nas  the approach adopted by this Court in Barium  Chemicals6
\nis  concerned,\tit  is\ta  decision  concerning\t  subjective
\nsatisfaction  of  an authority created by  a  statute.\t The
\nprinciples evolved then cannot ipso facto be extended to the
\nexercise  of  a\t constitutional\t power\tunder  Article\t356.
\nHaving regard to the fact that this is a high constitutional
\npower exercised by the highest constitutional functionary of
\nthe  Nation,  it may not be appropriate to adopt  the  tests
\napplicable  in\tthe  case of action taken  by  statutory  or
\nadministrative\tauthorities   nor  at  any  rate,  in  their
\nentirety.  We would rather adopt the formulation evolved  by
\nthis  Court  in State of Rajasthan’ as\twe  shall  presently
\nelaborate.  We also recognise, as did the House of Lords  in
\nCCSU  v.  Minister  for the Civil Service8  that  there\t are
\ncertain\t areas including those elaborated therein where\t the
\ncourt  would  leave  the  matter  almost  entirely  to\t the
\nPresident\/Union\t Government.   The court would\tdesist\tfrom
\nentering  those arenas, because of the very nature of  those
\nfunctions.   They  are not the matters which  the  court  is
\nequipped to deal with.\n<\/p>\n
55   AIR 1931 PC 11 1: 58 IA 169: 35 CWN 646
\n57   (1944) 72 IA 57: AIR 1945 PC 48: 46 Cri LJ 589
\n58   (1970) AC 379
\n6    1966 Supp SCR 31 1: AIR 1967 SC 295: (1966) 36 Comp Cas
\n639<\/span>
\n3    (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1
\n8  (1985) AC 374: (1984) 3 All ER 935
\n268<\/span>
\nThe court has never interfered in those matters because they
\ndo  not\t admit\tof judicial review  by\ttheir  very  nature.
\nMatters\t concerning  foreign policy,  relations\t with  other
\ncountries, defence policy, power to enter into treaties with
\nforeign powers, issues relating to war and peace are some of
\nthe  matters where the court would decline to entertain\t any
\npetition  for judicial review.\tBut the same cannot be\tsaid
\nof  the power under Article 356.  It is another matter\tthat
\nin  a  given  case  the court  may  not\t interfere.   It  is
\nnecessary  to  affirm that the\tProclamation  under  Article
\n356(1)\tis  not\t immune from  judicial\treview,\t though\t the
\nparameters  thereof  may  vary\tfrom  an  ordinary  case  of
\nsubjective satisfaction.\n<\/p>\n
374. Without trying to be exhaustive, it can be stated\tthat
\nif a Proclamation is found to be mala fide or is found to be
\nbased wholly on extraneous and\/or irrelevant grounds, it  is
\nliable\tto  be struck down, as indicated by  a\tmajority  of
\nlearned\t Judges\t in the State of Rajasthan3.   This  holding
\nmust be read along with our opinion on the meaning and scope
\nof  Article 74(2) and the further circumstance\tthat  clause
\n(5) which expressly barred the jurisdiction of the courts to
\nexamine the validity of the Proclamation has been deleted by
\nthe 44th Amendment to the Constitution.\t In other words, the
\ntruth or correctness of the material cannot be questioned by
\nthe court nor will it go into the adequacy of the  material.
\nIt  will  also not substitute its opinion for  that  of\t the
\nPresident.  Even if some of the material on which the action
\nis  taken is found to be irrelevant, the court\twould  still
\nnot  interfere\tso long as there is some  relevant  material
\nsustaining  the action.\t The ground of mala fides  takes  in
\ninter alia situations where the Proclamation is found to  be
\na clear case of abuse of power, or what is sometimes  called
\nfraud  on  power   cases where this  power  is\tinvoked\t for
\nachieving   oblique   ends.   This  is\tindeed\t merely\t  an
\nelaboration  of\t the  said  ground.   The  Meghalaya   case,
\ndiscussed hereinafter, demonstrates that the types of  cases
\ncalling\t  for  interference  cannot  either  be\t closed\t  or
\nspecified exhaustively.\t It is a case, as will be elaborated
\na little later, where the Governor recommended the dismissal
\nof  the Government and dissolution of the Assembly in  clear
\ndisregard of the orders of this Court.\tInstead of  carrying
\nout  the  orders  of this Court, as he\tought  to  have,  he
\nrecommended  the dismissal of the Government on\t the  ground
\nthat  it  has  lost the majority support, when\tin  fact  he
\nshould\thave held following this Court’s orders that it\t did
\nnot.  His action can be termed as a clear case of mala fides
\nas well.  That a Proclamation was issued acting upon such  a
\nreport is no less objectionable.\n<\/p>\n
375. It\t is  necessary to reiterate that the court  must  be
\nconscious  while examining the validity of the\tProclamation
\nthat  it  is a power vested in\tthe  highest  constitutional
\nfunctionary  of\t the  Nation.  The court  will\tnot  lightly
\npresume\t abuse\tor misuse.  The court would, as\t it  should,
\ntread  wearily,\t making\t allowance for\tthe  fact  that\t the
\nPresident  and the Union Council of Ministers are  the\tbest
\njudges\tof the situation, that they alone are in  possession
\nof information and material  sensitive in nature sometimes
\n3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1
\n269<\/span>
\nand that the Constitution has trusted their judgment in\t the
\nmatter.\t  But all this does not mean that the President\t and
\nthe Union Council of Ministers are the final arbiters in the
\nmatter\tor that their opinion is conclusive.  The very\tfact
\nthat  the  Founding  Fathers  have  chosen  to\tprovide\t for
\napproval  of  the Proclamation by Parliament  is,  itself  a
\nproof  of the fact that the opinion or satisfaction  of\t the
\nPresident (which always means the Union Council of Ministers
\nwith  the  Prime  Minister  at its head)  is  not  final  or
\nconclusive.  It is well-known that in the parliamentary form
\nof Government, where the party in power commands a  majority
\nin Parliament more often than not, approval of Parliament by
\na simple majority is not difficult to obtain.  Probably,  it
\nis  for this reason that the check created by clause (3)  of
\nArticle 356 has not proved to be as effective in practice as
\nit  ought  to have been.  The very fact that even  in  cases
\nlike  Meghalaya\t and Karnataka, both  Houses  of  Parliament
\napproved  the  Proclamations shows the\tenervation  of\tthis
\ncheck.\tEven the proponents of the finality of the  decision
\nof  the President in this matter could not but concede\tthat
\nthe  said check has not proved to be an effective one.\t Nor
\ncould  they say with any conviction that judicial review  is
\nexcluded in this behalf.  If judicial review is not excluded
\nin matters of pardon and remission of sentence under Article
\n72   a\tseemingly absolute and unconditional  power   it  is
\ndifficult to see on what principle can it be said   that  it
\nis excluded in the case of a conditional power like the\t one
\nunder Article 356.\n<\/p>\n
376. We recognise that judicial process has certain inherent
\nlimitations.  It is suited more for adjudication of disputes
\nrather\tthan  for administering the country.   The  task  of
\ngovernance  is the job of the Executive.  The  Executive  is
\nsupposed  to know how to administer the country,  while\t the
\nfunction  of  the Judiciary is limited to  ensure  that\t the
\nGovernment is carried on in accordance with the Constitution
\nand  the laws.\tJudiciary accords, as it should, due  weight
\nto the opinion of the Executive in such matters but that  is
\nnot   to  say,\tit  defers  to\tthe  opinion  of   Executive
\naltogether.    What  ultimately\t determines  the  scope\t  of
\njudicial review is the facts and circumstances of the  given
\ncase.\tA  case\t may  be a clear  one\tlike  Meghalaya\t and
\nKarnataka  cases   where the court can\tfind  unhesitatingly
\nthat the Proclamation is bad.  There may also be cases\tlike
\nthose  relating\t to Madhya Pradesh, Rajasthan  and  Himachal
\nPradesh\t  where\t the  situation\t is  so\t complex,  full\t  of
\nimponderables  and a fast-evolving one that the court  finds
\nit not a matter which admits of judicial prognosis, that  it
\nis  a matter which should be left to the judgment of and  to
\nbe  handled  by the Executive and may be in  the    ultimate
\nanalysis  by  the  people  themselves.\t The  best  way\t  of
\ndemonstrating  what we say is by dealing with  the  concrete
\ncases before us.\n<\/p>\n
377. Shri Parasaran, learned counsel for the Union of  India
\nurged that inasmuch as the Proclamation under clause (1) has
\nbeen  approved by both Houses of Parliament as\tcontemplated
\nby  clause  (3), the Proclamation assumes the  character  of
\nLegislation  and that it can be struck down only on  grounds
\non which a Legislation can be struck down.  We cannot agree.
\nEvery  act  of Parliament does not amount to  and  does\t not
\nresult in Legislation,
\n270<\/span>
\nthough\t Legislation  is  its  main  function.\t  Parliament
\nperforms many other functions, e.g., election of Speaker and
\nDeputy\tSpeaker,  vote of confidence\/no\t confidence  in\t the
\nMinistry,  motion  of  thanks to  the  President  after\t the
\naddress\t by the President and so on.  One of such  functions
\nis the approval of the Proclamation under clause (3).\tSuch
\napproval  can  by  no  stretch\tof  imagination\t be   called
\n‘Legislation’.\tIt is not processed or passed as a Bill\t nor
\nis it presented to the President for his assent.  Its  legal
\ncharacter  is  wholly  different.  It  is  a  constitutional
\nfunction,  a check upon the exercise of power  under  clause
\n(1).   It  is  a  safeguard conceived  in  the\tinterest  of
\nensuring  proper exercise of power under clause (1).  It  is
\nanother\t matter\t that in practice the check has\t not  proved
\neffective.   But  that may not be so in future\tor  for\t all
\ntimes  to  come.   Be that as it may, it  is  certainly\t not
\nLegislation nor Legislative in character.\n<\/p>\n
378. Shri   Shanti   Bhushan,  learned\t counsel   for\t the
\npetitioners  urged  that the deletion of clause (5)  by\t the
\n44th  Amendment,  which clause was introduced  by  the\t38th
\nAmendment,  necessarily implies that the exercise  of  power
\nunder  clause  (1) is amenable to judicial review in  a\t far
\nmore  extensive\t manner.  Clause (5), as introduced  by\t the
\n38th Amendment, read as follows :\n<\/p>\n
\t      “(5)   Notwithstanding   anything\t  in\tthis
\n\t      Constitution,   the   satisfaction   of\t the
\n\t      President\t mentioned  in clause (1)  shall  be
\n\t      final   and  conclusive  and  shall   not\t  be
\n\t      questioned in any court on any ground.”\n<\/p><\/blockquote>\n
379. The effect of this clause was considered by this  Court
\nin  State of Rajasthan3.  It was held that the\tsaid  clause
\ndoes  not  preclude  the court from  examining\twhether\t the
\nexercise  of  power is mala fide or is based  on  extraneous
\ngrounds\t or whether it is based on no satisfaction  at\tall.
\nIt was held that the said clause does not prevent the  court
\nfrom  examining the Proclamation on the\t aforesaid  grounds.
\nWe,  however,  agree  that the deletion of  this  clause  is
\ncertainly  significant\tin the sense that  the\texpress\t bar
\ncreated in the way of judicial review has since been removed
\nconsciously and deliberately in exercise of the\t constituent
\npower  of  Parliament. (See A.K. Roy v. Union  of  India25).
\nThe cloud cast by the clause on the power of judicial review
\nhas been lifted.\n<\/p>\n
380. It\t was  urged  by\t Shri  Parasaran,  learned   counsel
\nappearing  for\tthe  Union  of India  that  where  a  person
\nchallenges  the validity of the Proclamation  under  Article
\n356(1),\t the burden lies upon him to establish its  validity
\nand that it is not part of the duty of the Union of India to
\nassist the petitioner in establishing his case.\t Reliance is
\nplaced on certain observations in Stephen Kalong Ningkong58.
\nHe submitted that it would not be a correct practice for the
\ncourt  to  call\t upon  the Union of  India  to\tjustify\t and
\nestablish the validity of the Proclamation merely because  a
\nperson\tchooses to question it. We do not think\t that  there
\nought to be any room for confusion on this
\n3    (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1
\n25   (1982) 1 SCC 271: 1982 SCC (Cri) 152: (1982) 2 SCR 272
\n58   (1970) AC 379
\n271<\/span>
\nscore\tnor  can  the observations of  Hidayatullah,  J.  in
\nBarium\tChemicals6 quoted elsewhere be understood as  saying
\nso.   We agree that merely because a person  challenges\t the
\nvalidity  of  the  Proclamation, the court would  not  as  a
\nmatter of course call upon the Union of India to produce the
\nmaterial\/information  on  the basis of which  the  President
\nformed\tthe  requisite\tsatisfaction.\tThe  court  must  be
\nsatisfied,  prima facie, on the basis of the averments\tmade
\nby the petitioner and the material, if any, produced by\t him
\nthat  it  is a fit case where the Union of India  should  be
\ncalled upon to produce the material\/information on the basis
\nof  which the President formed the  requisite  satisfaction.
\nIt  is\tthen that the Union of India comes under a  duty  to
\ndisclose the same.  Since the material\/information on  which
\nthe  satisfaction was formed is available to, and known\t to,
\nonly the Union of India, it is for it to tell the court what
\nthat material\/information was.\tThey are matters within\t the
\nspecial\t knowledge of the Union of India.  In such  a  case,
\nonly  the Union of India can be called upon to\tsatisfy\t the
\ncourt  that there was relevant\tmaterial\/information  before
\nthe President on the basis of which he had acted.  It may be
\nthat, in a given case, the material\/information may be\tsuch
\nthat  the Union of India may feel it necessary to claim\t the
\nprivilege  provided  by Section 123 of the  Indian  Evidence
\nAct.  As and when such claim is made, it is obvious, it will
\nbe dealt with according to law.\n<\/p>\n
381. While  on\tthis question, we may mention that if  in  a
\ngiven  case  the  Proclamation contains\t the  reasons,\twith
\nadequate specificity, for which the Proclamation was issued,
\nthe  court may have to be satisfied before calling upon\t the
\nUnion of India to produce the material\/information that\t the
\nreasons given in the Proclamation are prima facie irrelevant
\nto  the formation of the requisite satisfaction and\/or\tthat
\nit is a fit case where the Union of India must yet be called
\nupon to place the material\/information on the basis of which
\nit  had\t formed the satisfaction.  The Union  of  India\t may
\nperhaps\t be well advised to follow the practice\t of  stating
\nthe  reasons  and  the\tgrounds\t upon  which  the  requisite
\nsatisfaction is founded.\n<\/p>\n
ARTICLE\t 356  Is IT CONFINED ONLY TO CASES WHERE  THE  STATE
\nGOVERNMENT  FAILS  OR  REFUSES To ABIDE\t BY  THE  DIRECTIONS
\nISSUED BY THE CENTRAL GOVERNMENT?\n<\/p>\n
382. It\t was  submitted\t by  Shri  Jethmalani,\tthe  learned
\ncounsel for some of the petitioners that in view of  Article
\n365  of\t the Constitution, the only situation in  which\t the
\npower  under Article 356 can be invoked by the President  is
\nthe  failure  of the State Government to comply with  or  to
\ngive  effect  to  the directions given in  exercise  of\t the
\nexecutive power of the Union under any of the provisions  of
\nthe  Constitution and not in any other case.   Reference  is
\nmade  in this connection to Articles 256 and 257.  It  would
\nbe appropriate to read all the three articles at this  stage
\n:\n<\/p>\n
\t      “256.   Obligation of States and\tthe  Union.-
\n\t      The executive power of every State shall be so
\n\t      exercised\t as  to ensure compliance  with\t the
\n\t      laws made by Parliament and any existing\tlaws
\n\t      which apply in that State, and
\n\t      6\t 1966 Supp SCR 31 1: AIR 1967 SC 295: (1966)
\n\t      36 Comp Cas 639
\n\t      272<\/span>
\n\t      the executive power of the Union shall  extend
\n\t      to the giving of such directions to a State as
\n\t      may  appear to the Government of India  to  be
\n\t      necessary for that purpose.\n<\/p><\/blockquote>\n
\t      257.  Control  of\t the Union  over  States  in
\n\t      certain  cases.-\t(1) The executive  power  of
\n\t      every  State shall be so exercised as  not  to
\n\t      impede  or  prejudice  the  exercise  of\t the
\n\t      executive\t  power\t of  the  Union,   and\t the
\n\t      executive\t power of the Union shall extend  to
\n\t      the  giving of such directions to a  State  as
\n\t      may  appear to the Government of India  to  be
\n\t      necessary for that purpose.\n<\/p><\/blockquote>\n
\t      (2)   The\t executive power of the Union  shall
\n\t      also  extend to the giving of directions to  a
\n\t      State  as to the construction and\t maintenance
\n\t      of  means\t of communication  declared  in\t the
\n\t      direction\t to  be\t of  national  or   military
\n\t      importance:\n<\/p><\/blockquote>\n
\t      Provided that nothing in this clause shall  be
\n\t      taken  as restricting the power of  Parliament
\n\t      to   declare  highways  or  waterways  to\t  be
\n\t      national highways or national waterways or the
\n\t      power  of\t the  Union  with  respect  to\t the
\n\t      highways or waterways so declared or the power
\n\t      of  the Union to construct and maintain  means
\n\t      of communication as part of its functions with
\n\t      respect  to  naval,  military  and  air  force
\n\t      works.\n<\/p><\/blockquote>\n
\t      (3)   The\t executive power of the Union  shall
\n\t      also  extend to the giving of directions to  a
\n\t      State  as to the measures to be taken for\t the
\n\t      protection of the railways within the State.
\n\t      (4)   Where  in  carrying\t out  any  direction
\n\t      given to a State under clause (2)\t  as to\t the
\n\t      construction  or maintenance of any  means  of
\n\t      communication  or under clause (3) as  to\t the
\n\t      measures to be taken for the protection of any
\n\t      railway, costs have been incurred in excess of
\n\t      those  which would have been incurred  in\t the
\n\t      discharge of the normal duties of the State if
\n\t      such direction had not been given, there shall
\n\t      be  paid\tby the Government of  India  to\t the
\n\t      State  such  sum\tas may\tbe  agreed,  or,  in
\n\t      default of agreement, as may be determined  by
\n\t      an  arbitrator appointed by the Chief  Justice
\n\t      of  India,  in respect of the extra  costs  so
\n\t      incurred by the State.\n<\/p><\/blockquote>\n
\t      365.  Effect of failure to comply with, or  to
\n\t      give  effect  to,\t directions  given  by\t the
\n\t      Union.-  Where any State has failed to  comply
\n\t      with,  or\t to give effect to,  any  directions
\n\t      given  in the exercise of the executive  power
\n\t      of  the Union under any of the  provisions  of
\n\t      this Constitution, it shall be lawful for\t the
\n\t      President to hold that a situation has  arisen
\n\t      in which the Government of the State cannot be
\n\t      carried  on in accordance with the  provisions
\n\t      of this Constitution.”\n<\/p><\/blockquote>\n
383. In\t our opinion, the contention urged is  unacceptable.
\nArticle 256 merely states that the executive power of  every
\nState shall be so exercised as to ensure compliance with the
\nlaws  made by Parliament whether existing or to be  made  in
\nfuture.\t  It is stated therein that the executive  power  of
\nthe  Union  shall extend to giving of such directions  to  a
\nState  as  may\tappear\tto the Government  of  India  to  be
\nnecessary for the said purpose.\t This article is
\n273<\/span>
\n confined   to\t proper\t and  due  implementation   of\t the
\nparliamentary  enactments and the power to  give  directions
\nfor that purpose.  Article 257 says that executive power  of
\nevery  State  shall  be so exercised as\t not  to  impede  or
\nprejudice the exercise of the executive power of the  Union;
\nfor ensuring the same, the Union Government is empowered  to
\ngive  appropriate  directions.\t Clauses (2),  (3)  and\t (4)
\nillustrate and elaborate the power contained in clause\t(1).
\nArticle\t 365,  which  incidentally does not  occur  in\tPart
\nXVIII,\tbut  in Part XIX (Miscellaneous)  merely  says\tthat
\nwhere any State has failed to comply with or give effect  to
\nany  directions given by the Union of India in\texercise  of
\nits  executive\tpower  under any of the\t provisions  of\t the
\nConstitution,  it shall be lawful for the President to\thold
\nthat  a situation has arisen in which the Government of\t the
\nState cannot be carried on in accordance with the provisions
\nof  the\t Constitution.\t The article  merely  sets  out\t one
\ninstance in which the President may hold that the Government
\nof  the\t State cannot be carried on in accordance  with\t the
\nprovisions  of\tthe  Constitution.  It\tcannot\tbe  read  as
\nexhaustive of the situation where the President may form the
\nsaid  satisfaction.  Suffice it to say that  the  directions
\ngiven  must be lawful and their disobedience must give\trise
\nto a situation contemplated by Article 356(1).\tArticle\t 365
\nmerely\tsays  that  in case of failure to  comply  with\t the
\ndirections given, “it shall be lawful” for the President  to
\nhold  that the requisite type of situation [contemplated  by
\nArticle\t 356(f) has arisen.  It is not as if each and  every
\nfailure\t ipso facto gives rise to the  requisite  situation.
\nThe  President has to judge in each case whether it  has  so
\narisen.\t  Article 365 says it is permissible for him to\t say
\nso in such a case.  The discretion is still
\nthere and has to be exercised fairly.\n<\/p>\n
\t   FACTS AND MEP ITS OF INDIVIDUAL CASES
\n\t\t\t KARNATAKA\n<\/p>\n
384. By\t a Proclamation dated April 21, 1989  the  President
\ndismissed   the\t Government  of\t Karnataka,  dissolved\t the
\nLegislative Assembly, took over the powers of the Government
\nand the Governor, vested the powers of the State Legislature
\nin  Parliament\tand  made  other  incidental  and  ancillary
\nprovisions suspending several provisions of the Constitution
\nwith  respect  to  that State.\tThe  Proclamation  does\t not
\ncontain any reasons except barely reciting the\tsatisfaction
\nof  the President.  The satisfaction is stated to have\tbeen
\nformed on a consideration of the report of the Governor\t and
\nother information received by him.  Shri S.R. Bommai was the
\nChief Minister then.\n<\/p>\n
385. The  Janata Legislature Party emerged as  the  majority
\nparty  in the State Legislature following elections  to\t the
\nAssembly in March 1985.\t Shri Ramakrishna Hegde was  elected
\nthe leader of the Janata Legislature Party and was sworn  in
\nas  the Chief Minister in March 1985.  In August 1988,\tShri
\nHegde resigned and Shri Bommai was elected as the leader and
\nsworn  in  as  the Chief Minister on August  30,  1988.\t  In
\nSeptember  1988,  Janata  Party\t and  Lok  Dal\t(B)   merged
\nresulting in the formation of Janata Dal.  The Janata  Party
\nin  Karnataka Legislature was renamed Janata Dal.  On  April
\n15, 1989 the Ministry was expanded by Shri Bommai  including
\nthirteen more
\n274<\/span>
\nmembers.   On April 17, 1989, a legislator, Shri Kalyan\t Rao
\nMolakery, defected from the party and presented a letter  to
\nthe  Governor  withdrawing  his support to  the\t Janata\t Dal
\nGovernment.   On  the  next day, he  met  the  Governor\t and
\npresented nineteen letters purported to have been signed  by
\nseventeen Janata Dal legislators, one associate\t independent
\nlegislator and one BJP legislator withdrawing their  support
\nto the Government.  The Governor is said to have called\t the
\nSecretary   of\tthe  Legislature  Department  and  got\t the
\nauthenticity of the signatures on the letters verified.\t  He
\ndid   not,  of\tcourse,\t inform\t Shri  Bommai  about   these
\ndevelopments.  On April 19, 1989, the Governor sent a report
\nto  the\t President stating that there  were  dissensions  in
\nJanata\tParty  which led to the resignation  of\t Shri  Hegde
\nearlier\t and  that even after the formation of\tJanata\tDal,
\nthere have been dissensions and defections.  He referred  to
\nthe  letters  received\tby him from  defecting\tmembers\t and
\nopined\tthat  on  that account, the ruling  party  has\tbeen
\nreduced\t to  minority in the Assembly.\tHe stated  that\t the
\nCouncil of Ministers headed by Shri Bommai does not  command
\na  majority  in the House and that, therefore,\t“it  is\t not
\nappropriate  under  the\t Constitution  to  have\t the   State
\nadministered  by  an  Executive\t consisting  of\t Council  of
\nMinisters who do not command the majority in the House”.  He
\nopined\tthat  no other party is in a position  to  form\t the
\nGovernment and recommended action under Article 356(1).\n<\/p>\n
386. On\t April 20, 1989, seven legislators out of those\t who
\nwere  said  to have submitted the letters  to  the  Governor
\nsubmitted  letters  to the Governor complaining\t that  their
\nsignatures    were    obtained\t on   those    letters\t  by
\nmisrepresentation  and by misleading them.  They  reaffirmed
\ntheir support to the Bommai Ministry.  On the same day,\t the
\nState  Cabinet\tmet  and decided  to  convene  the  Assembly
\nSession\t on April 27, 1989.  The Chief Minister and the\t Law
\nMinister  met the Governor on that day itself  and  informed
\nhim about the summoning of the Assembly Session.  They\talso
\nbrought\t to the Governor’s notice the recommendation of\t the
\nSarkaria  Commission  that the support and strength  of\t the
\nChief  Minister\t should\t be  tested  on\t the  floor  of\t the
\nAssembly.  Shri Bommai offered to prove his majority on\t the
\nfloor  of  the House.  He even expressed  his  readiness  to
\nprepone the Assembly Session if so desired by the  Governor.
\nHe also sent a telex message to that effect to the President
\nof  India.  In spite of all this, the Governor sent  another
\nreport to the President of India on April 20, 1989 referring
\nto  the\t letter of seven members withdrawing  their  earlier
\nletters\t and  opining that the said letters  were  evidently
\nobtained  by  Shri Bommai by pressurising  those  MLAs.\t  He
\nreported  that “horse-trading is going on and atmosphere  is
\ngetting\t vitiated”.   He reiterated his\t opinion  that\tShri
\nBommai has lost the confidence of the majority in the  State
\nAssembly and requested that action be taken on his  previous
\nletter.\t  On  that  very  day,\tthe  President\tissued\t the
\nProclamation.  It says that the said action was taken on the
\nbasis  of  “the\t report from the Governor of  the  State  of
\nKarnataka and  other information received”.\n<\/p>\n
387. Both the Houses of Parliament duly met and approved the
\nsaid  Proclamation as contemplated by clause (3) of  Article\n<\/p>\n
356.
\n275<\/span>\n<\/p>\n
388. The validity of the Proclamation was challenged by Shri
\nBommai and certain other members of the Council of Ministers
\nby  way\t of  a\twrit petition (W.P. 7899  of  1989)  in\t the
\nKarnataka  High\t Court.\t  The  Union  of  India\t (the  first
\nrespondent in the writ petition) submitted that the decision
\nof  the\t President  of\tIndia based on\tthe  report  of\t the
\nGovernor and other information brought to his notice is\t not
\njusticiable  and cannot be challenged in the writ  petition.
\nWhile  making a report, it was submitted, the Governor\tdoes
\nnot  act on the aid and advice of his Council  of  Ministers
\nbut in his individual capacity.\t The report of the  Governor
\ncannot\tbe  challenged\tin  view  of  Article  361  of\t the
\nConstitution  nor  can he or the President be  compelled  to
\ndisclose  the information or material upon which  they\thave
\nacted.\t Article  74(2) was said to be a bar  to  the  court
\nenquiring  into the said information, material\tand  advice.
\nIt  was also submitted that the Proclamation has since\tbeen
\napproved  by both Houses of Parliament under clause  (3)  of
\nArticle\t 356.\tThe State of Karnataka\tsubmitted  that\t the
\nGovernor  had  taken into consideration all  the  facts\t and
\ncircumstances  prevailing in the State while submitting\t his
\nreport\tand  that the Proclamation issued on that  basis  is
\nunobjectionable.\n<\/p>\n
389. A Special Bench of three Judges of High Court heard the
\nwrit  petition\tand  dismissed the  same  on  the  following
\nreasoning :\n<\/p>\n
(1)  The  Proclamation\tunder Article 356(1) is\t not  immune
\nfrom  judicial scrutiny.  The court can examine whether\t the
\nsatisfaction  has been formed on wholly extraneous  material
\nor  whether there is a rational nexus between  the  material
\nand the satisfaction.\n<\/p>\n
(2)  In\t Article 356, the President means the Union  Council
\nof  Ministers.\t The  satisfaction referred  to\t therein  is
\nsubjective satisfaction.  This satisfaction has no doubt  to
\nbe   formed  on\t a  consideration  of  all  the\t facts\t and
\ncircumstances.\n<\/p>\n
(3)  The  two  reports\tof  the\t Governor  conveyed  to\t the
\nPresident  essential and relevant facts which were  relevant
\nfor  the  purpose of Article 356.  The facts stated  in\t the
\nGovernor’s  report cannot be stated to be irrelevant.\tThey
\nare perfectly relevant.\n<\/p>\n
(4)  Where  the\t Governor’s “personal bona  fides”  are\t not
\nquestioned,  his  satisfaction that no other party is  in  a
\nposition  to form the Government has to be accepted as\ttrue
\nand  is\t based\tupon  a reasonable  assessment\tof  all\t the
\nrelevant facts.\n<\/p>\n
(5)  Recourse  to  floor  test was  neither  compulsory\t nor
\nobligatory.   It  was  not a prerequisite to  sending  up  a
\nreport recommending action under Article 356(1).
\n(6)  The  introduction of Xth Schedule to  the\tConstitution
\nhas  not  affected in any manner the content  of  the  power
\nunder Article 356.\n<\/p>\n
(7)  Since  the\t Proclamation  has  to\tbe  issued  on\t the
\nsatisfaction   of  the\tUnion  Council\tof  Ministers,\t the
\nGovernor’s  report cannot be faulted on the ground of  legal
\nmala fides.\n<\/p>\n
276<\/span><\/p>\n
(8)  Applying  the test indicated in the State of  Rajasthan
\nv.  Union  of India3 the court must hold, on  the  basis  of
\nmaterial disclosed, that the subjective satisfaction arrived
\nat  by\tthe President is conclusive and cannot\tbe  faulted.
\nThe Proclamation, therefore, is unobjectionable.\n<\/p>\n
390. We\t find ourselves unable to agree with the High  Court
\nexcept\ton points (1) and (2).\tTo begin with, we  must\t say
\nthat question of ‘personal bona fides’ of Governor is really
\nirrelevant.\n<\/p>\n
391. We\t must also say that the observation under point\t (7)
\nis equally misplaced.  It is true that action under  Article
\n356  is\t taken\ton the basis of satisfaction  of  the  Union
\nCouncil\t of  Ministers but on that score it cannot  be\tsaid
\nthat ‘legal mala fides’ of the Governor is irrelevant.\tWhen
\nthe  article speaks of the satisfaction being formed on\t the
\nbasis of the Govern’s report, the legal mala fides, if\tany,
\nof  the\t Governor  cannot be said  to  be  irrelevant.\t The
\nGovernor’s report may not be conclusive but its relevance is
\nundeniable.  Action under Article 356 can be based only\t and
\nexclusively  upon  such\t report.  Governor is  a  very\thigh
\nconstitutional\tfunctionary.  He is supposed to\t act  fairly
\nand  honestly  consistent  with his oath.   He\tis  actually
\nreporting against his own Government.  It is for this reason
\nthat  Article 356 places such implicit faith on his  report.
\nIf, however, in a given case his report is vitiated by legal
\nmala fides, it is bound to vitiate the President’s action as
\nwell.\tRegarding the other points made in the\tjudgment  of
\nthe  High Court, we must say that the High Court went  wrong
\nin law in approving and upholding the Governor’s report\t and
\nthe  action  of\t the  President\t under\tArticle\t 356.\t The
\nGovernor”s  report is vitiated by more than  one  assumption
\ntotally\t unsustainable\tin law.\t The Constitution  does\t not
\ncreate\tan obligation that the political party\tforming\t the
\nministry   should  necessarily\thave  a\t majority   in\t the
\nLegislature.  Minority Governments are not unknown.  What is
\nnecessary   is\tthat  that  Government\tshould\t enjoy\t the
\nconfidence  of\tthe House.  This aspect does not  appear  to
\nhave  been kept in mind by the Governor.  Secondly and\tmore
\nimportantly,  whether the Council of Ministers has lost\t the
\nconfidence of the House is not a matter to be determined  by
\nthe  Governor  or for that matter anywhere else\t except\t the
\nfloor  of the House.  The principle of democracy  underlying
\nour  Constitution necessarily means that any  such  question
\nshould\tbe decided on the floor of the House.  The House  is
\nthe  place where the democracy is in action.  It is not\t for
\nthe Governor to determine the said question on his own or on
\nhis  own  verification.\t  This is not a\t matter\t within\t his
\nsubjective satisfaction.  It is an objective fact capable of
\nbeing  established  on\tthe  floor  of\tthe  House.   It  is
\ngratifying  to\tnote that Shri R. Venkataraman,\t the  former
\nPresident  of  India has affirmed this view  in\t his  Rajaji
\nMemorial Lecture (Hindustan Times dated February 24, 1994).\n<\/p>\n
392. Exceptional and rare situations may arise where because
\nof   all   pervading  atmosphere  of   violence\t  or   other
\nextraordinary  reasons,\t it  may not  be  possible  for\t the
\nmembers of the Assembly to express their opinion freely.
\n3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1
\n277<\/span>
\nBut  no\t such situation had arisen here.  No  one  suggested
\nthat  any  such\t violent atmosphere  was  obtaining  at\t the
\nrelevant time.\n<\/p>\n
393. In\t this connection, it would be appropriate to  notice
\nthe unanimous report of the committee of Governors appointed
\nby  the President of India.  The five Governors\t unanimously
\nrecommended  that  “the test of confidence in  the  Ministry
\nshould normally be left to a vote in the Assembly. … Where
\nthe Governor is satisfied by whatever process or means, that
\nthe  Ministry no longer enjoys majority support,  he  should
\nask  the Chief Minister to face the Assembly and  prove\t his
\nmajority  within the shortest possible time.  If  the  Chief
\nMinister  shirks  this primary responsibility and  fails  to
\ncomply,\t the  Governor would be in duty\t bound\tto  initiate
\nsteps  to form an alternative Ministry.\t A Chief  Minister’s
\nrefusal\t to test his strength on the floor of  the  Assembly
\ncan  well  be  interpreted as prima facie proof\t of  his  no
\nlonger enjoying the confidence of the legislature.  If then,
\nan  alternative\t Ministry  can\tbe  formed,  which,  in\t the
\nGovernor’s  view,  is  able to command\ta  majority  in\t the
\nAssembly,  he must dismiss the Ministry in power and  instal
\nthe  alternative Ministry in office.  On the other hand,  if
\nno such Ministry is possible, the Governor will be left with
\nno  alternative but to make a report to the President  under
\nArticle 356. … As a general proposition, it may be  stated
\nthat, as far as possible, the verdict as to majority support
\nclaimed\t by  a Chief Minister and his Council  of  Ministers
\nshould be left to the Legislature, and that it is only if  a
\nresponsible  Government cannot be maintained  without  doing
\nviolence   to  correct\tconstitutional\tpractice  that\t the
\nGovernor    should   resort   to   Article   356   of\t the
\nConstitution.  …  What is important to  remember  is\tthat
\nrecourse  to  Article 356 should be the last  resort  for  a
\nGovernor to seek… the guiding principle being, as  already
\nstated,\t that  the  constitutional machinery  in  the  State
\nshould, as far as possible, be maintained”. (quoted from the
\nbook  President’s Rule in the States, edited by Shri  Rajeev
\nDhavan\tand published under the auspices of the\t Indian\t Law
\nInstitute,  New Delhi).\t It is a pity that the\tGovernor  of
\nKarnataka  did\tnot keep the above salutary  guidelines\t and
\nprinciples in mind while making his report.\n<\/p>\n
394. Dr G.S. Dhillon, Speaker, Lok Sabha (in his address  to
\nthe  conference\t of the Presiding  Officers  of\t legislative
\nbodies\tin India) too affirmed in clear words that  “whether
\nthe  Ministry continued to command majority support  in\t the
\nLegislature, the doubt should as far as possible be left  to
\nbe  resolved  on  the floor of the House  and  the  Governor
\nshould not take upon himself unenviable task of deciding the
\nquestion himself outside the Legislature”.\n<\/p>\n
395. The  High Court, in our opinion, erred in holding\tthat
\nthe floor test is not obligatory.  If only one keeps in mind
\nthe democratic principle underlying the Constitution and the
\nfact that it is the Legislative Assembly that represents the
\nwill of the people  and not the Governor  the position would
\nbe  clear  beyond  any\tdoubt.\tIn  this  case,\t it  may  be
\nremembered that the Council of Ministers not only decided on
\nApril 20, 1989 to convene the Assembly on 27th of that\tvery
\nmonth, i.e., within 7 days, but also offered to prepone\t the
\nAssembly  if the Governor so desired.  It pains us  to\tnote
\nthat the
\n278<\/span>
\nGovernor did not choose to act upon the said offer.  Indeed,
\nit  was\t his duty to summon the Assembly and call  upon\t the
\nChief  Minister to establish that he enjoyed the  confidence
\nof  the\t House.\t  Not only did he not do  it  but  when\t the
\nCouncil of Ministers offered to do the same, he demurred and
\nchose instead to submit the report to the President.  In the
\ncircumstances, it cannot be said that the Governor’s  report
\ncontained,  or\twas based upon,\t relevant  material.   There
\ncould be no question of the Governor making an assessment of
\nhis  own.   The\t loss  of confidence of\t the  House  was  an
\nobjective fact, which could have been demonstrated, one\t way
\nor  the other, on the floor of the House.  In  our  opinion,
\nwherever a doubt arises whether the Council of Ministers has
\nlost the confidence of the House, the only way of testing it
\nis  on\tthe floor of the House except  in  an  extraordinary
\nsituation  where  because  of  all-pervasive  violence,\t the
\nGovernor  comes to the conclusion  and records the  same  in
\nhis  report  that for the reasons mentioned by him,  a\tfree
\nvote is not possible in the House.\n<\/p>\n
396.  We  make\tit clear that what we  have  said  above  is
\nconfined to a  situation where the incumbent Chief  Minister
\nis  alleged  to\t have  lost  the  majority  support  or\t the
\nconfidence of the House.  It is not relevant to a  situation
\narising\t after a general election where the Governor has  to
\ninvite\tthe leader of the party commanding majority  in\t the
\nHouse  or  the\tsingle\tlargest\t party\/group  to  form\t the
\nGovernment.   We  need express no opinion regarding  such  a
\nsituation.\n<\/p>\n
397. We\t are equally of the opinion that the High Court\t was
\nin error in holding that enactment\/addition of Xth  Schedule
\nto  the Constitution has not made any difference.  The\tvery
\nobject\tof  the Xth Schedule is to  prevent  and  discourage
\n‘floor-crossing’  and  defections,  which at  one  time\t had
\nassumed alarming proportions.  Whatever may be his  personal
\npredilections, a legislator elected on the ticket of a party
\nis bound to support that party in case of a division or vote
\nof confidence in the House, unless he is prepared to  forego
\nhis membership of the House.  The Xth Schedule was  designed
\nprecisely to counteract ‘horse-trading’.  Except in the case
\nof  a  split, a legislator has to support his  party  willy-
\nnilly.\t  This\tis  the\t difference  between  the   position
\nobtaining prior to and after the Xth Schedule.\tPrior to the
\nsaid  amendment, a legislator could shift his  loyalty\tfrom
\none  party  to\tthe  other  any\t number\t of  times   without
\nimperiling his membership of the House\tit was as if he\t had
\na property in the office.\n<\/p>\n
398. Though  the Proclamation recites that  the\t President’s
\nsatisfaction was based also on “other information received”,
\nthe  counter-affidavit\tof  the\t Union\tof  India  does\t not
\nindicate  or state that any other  information\/material\t was
\navailable to the President or the Union Council of Ministers
\nother  than the report of the Governor\tmuch  less  disclose
\nit.   In the circumstances, we must hold that there  was  no
\nother information before the President except the report  of
\nthe  Governor  and  that the  word  “and  other\t information
\nreceived  by me” were put in the Proclamation  mechanically.
\nThe Governor’s report and the ‘facts’ stated therein  appear
\nto  be\tthe  only basis of  dismissing\tthe  Government\t and
\ndissolving the Assembly under Article 356(1).  The
\n279<\/span>
\nProclamation  must, therefore, be held to be not   warranted
\nby  Article 356.  It is outside its purview.  It  cannot  be
\nsaid, in the circumstances, that the President (or the Union
\nCouncil of Ministers) was ‘satisfied’ that the Government of
\nthe  State  cannot  be carried on  in  accordance  with\t the
\nprovisions  of the Constitution.  The action was  mala\tfide
\nand  unconstitutional.\t The  Proclamation  is\t accordingly
\nliable\tto be struck down and we would have struck  it\tdown
\nherewith but for the fact that the elections have since been
\nheld  to  the Legislative Assembly of the State\t and  a\t new
\nHouse  has come into being.  The issuance of a writ at\tthis
\njuncture  would be a futile one.  But for the said fact,  we
\ncould  certainly  have considered  restoring  the  dismissed
\nGovernment   to\t office\t and  reactivating   the   dissolved
\nAssembly.   In\tany event, the judgment\t of  Karnataka\tHigh
\nCourt is set aside.\n<\/p>\n
\t\t\t MEGHALAYA
\n(Transferred Case.Nos. 5 and 7 of 1992)\n<\/p>\n
399. In\t March\t1990,  Hill Peoples’  Union,  to  which\t the
\npetitioner, Gonald Stone Massar, belonged and several  other
\nState political parties and certain independent MLAs  joined
\ntogether  to  form  a ‘Front’,\tknown  as  Meghalaya  United
\nParliamentary  Party (MUPP).  This Front had a\tmajority  in
\nthe  Assembly and formed the Government headed by Shri\tB.B.
\nLyngdoh.   On July 25, 1991, the then Speaker of the  House,
\nShri  P.R. Kyndiah Arthree was elected as the leader of\t the
\nopposition  group  known as United  Meghalaya  Parliamentary
\nForum  (UMPF), which was led by the Congress Party to  which
\nShri  Kyndiah  belonged.   He claimed  the  support  of\t the
\nmajority of members in the House and requested the  Governor
\nto  invite  him\t to  form  the\tGovernment.   Thereupon\t the
\nGovernor requested Shri Lyngdoh to prove his majority on the
\nfloor of the House.  On August 7, 1991, a special session of
\nthe Assembly was convened to pass a motion of confidence  in
\nthe  Ministry.\t On the motion being moved,  thirty  members
\nsupported  it  and twenty-seven voted  against\tit.   Before
\nannouncing  the result, however, the Speaker announced\tthat
\nhe had received a complaint against five independent MLAs in
\nthe  ruling  coalition alleging disqualification  under\t the
\nAnti-defection\tLaw  and that he  was  forthwith  suspending
\ntheir  right  to vote.\tThis resulted in an  uproar  in\t the
\nAssembly.   The session had to be adjourned.  On August\t 11,
\n1991,  the Speaker sent identical show-cause notices to\t the
\nsaid  five  independent MLAs on the basis of  the  complaint
\nfiled by one Shri H.S. Shylla.\tOn August 16, the five\tMLAs
\nsent their replies denying that they have joined any of\t the
\nparties\t as  alleged.  They affirmed that they\tcontinue  to
\nremain independents.  On August 17, 1991 the Speaker  passed
\nan order disqualifying all the 5 MLAs on the basis that four
\nof  them were Ministers in the Lyngdoh Ministry and  one  of
\nthem  (Shri  Chamberlain Marak) was  the  Deputy  Government
\nChief Whip.  The disqualification, it may be noted, was\t not
\non the ground alleged in the show-cause notice.\n<\/p>\n
400. Meanwhile, on the Governor’s advice, the Chief Minister
\nsummoned  the session of the Assembly for September 9,\t1991
\nfor  passing a vote of confidence.  The Speaker\t refused  to
\nsend the notices of the session to
\n280<\/span>
\nthe   five   MLAs  disqualified\t by  him.   He\t also\tmade
\narrangements  to. ensure that the said five members are\t not
\nallowed\t to enter the Assembly.\t On September 6, 1991,\tfour
\nof the said five MLAs approached this Court and obtained  an
\ninterim\t order\tstaying the operation of the orders  of\t the
\nSpeaker\t dated\tAugust\t7, 1991 and August  17,\t 1991.\t(one
\nmember,\t Shri Ch.  Marak, did not obtain any  such  orders).
\nOn  coming to know of the order of this Court,\tthe  Speaker
\nissued a press statement saying that he does not accept\t any
\ninterference  by  any court with his order dated  August  7,
\n1991   disqualifying   five  members.\tHe   issued   strict
\ninstructions  to the security guards not to allow  the\tsaid
\nfive  members  to  enter the  Assembly\tpremises.   In\tthis
\nexplosive  situation,  the Governor adjourned  the  Assembly
\nindefinitely  by an order dated September 8, 1991.  After  a
\nbrief  interval\t and  on the advice  of\t the  Governor,\t the
\nAssembly  was  again summoned to meet on  October  8,  1991.
\nMeanwhile,  a contempt petition was filed by the  said\tfour
\nMLAs  in  this Court against the Speaker.   They  complained
\nthat  his action in preventing them from entering  into\t the
\nAssembly premises and from acting as members of the Assembly
\nwas in violation of the orders of this Court dated September
\n6,  1991.   On October 3, 1991, this  Court  passed  another
\norder affirming that all authorities of the State  including
\nthe Governor must ensure that the orders of this Court dated
\nSeptember  6, 1991 are implemented.  Accordingly,  the\tsaid
\nfour  independent MLAs were issued invitation to attend\t the
\nsession\t on  October 8, 1991.  The agenda  relating  to\t the
\nbusiness of the House showed two items for consideration  on
\nthat  day (1) a motion of confidence in the  Government\t and
\n(2) a motion of no confidence in the Speaker.\n<\/p>\n
401.On\tOctober\t 8,  1991, 56 MLAs apart  from\tthe  Speaker
\nattended the session. The four MLAs who were disqualified by
\nthe Speaker but who had obtained orders from this Court also
\nattended  but  not Shri Ch.  Marak who did  not\t obtain\t any
\norders\tfrom any court.\t After the motion of  confidence  in
\nthe Government was put to vote, the Speaker declared that 26
\nvoted for the motion and 26 against.  In counting the  votes
\ncasts in favour of the motion, he excluded the votes of\t the
\nsaid four independent MLAs again.  Holding that there was  a
\ntie,  he cast his vote against the motion and  declared\t the
\nmotion\tlost.\tHe  then  adjourned  the  House\t sine\tdie,
\nevidently  with\t a view to ward off the\t passing  of  motion
\nagainst himself.  The thirty, MLAs (including the said\tfour
\nindependent  MLAS) however, continued to stay in the  House.
\nThey  elected a Speaker from among themselves and  continued
\nthe  business of the Assembly.\tThe new Speaker found  on  a
\nscrutiny of the records relating to voting on the motion  of
\nconfidence that actually 30 members have signed in favour of
\nthe  motion and 26 against.  Accordingly, he  declared\tthat
\nthe  motion  of confidence in the  Government  was  carried.
\nThey also passed the motion of no confidence in the Speaker,
\nShri  Kyndiah.\t The 26 members who had\t voted\tagainst\t the
\nmotion\thad,  of course, left the House by that\t time.\t The
\nsaid  30  MLAs\tthereafter sent a  letter  to  the  Governor
\naffirming  that they had voted in favour of  the  Government
\nand  also  in favour of the motion of no confidence  in\t the
\nSpeaker.  In’ spite of all this, the Chief Minister received
\na  letter dated October 9, 1991 from the  Governor  advising
\nhim to resign in
\n281<\/span>
\nview  of  the proceedings of the Assembly dated\t October  8,
\n1991.  The Governor observed in his letter that the  dispute
\nabout the Speaker not taking cognizance of the orders of the
\nSupreme\t Court\twas  a matter between the  Speaker  and\t the
\nSupreme\t Court\tand in that view of the\t matter,  the  Chief
\nMinister  should resign.  Immediately, thereupon, the  Chief
\nMinister  apprised his advocate in the Supreme Court of\t the
\nsaid letter of the Governor.  The counsel brought the matter
\nto the notice of this Court and at 4.00 p.m. on the same day
\n(October  9, 1991), this Court passed the following order  :
\n“Since\tthe  matter is extremely urgent, we deem it  fit  to
\npass this further order asking the Governor while taking any
\ndecision on the question whether the Government has lost the
\nmotion of confidence and lost its majority in the House,  to
\ntake into account, the two earlier orders dated September 6,
\n1991 and October 3, 1991 of this Court and also to take into
\naccount\t how  the aforesaid four appellants had\t cast  their
\nvote.” No heed was paid to this order and on October 11, 199
\n1,  the\t President  of India  issued  a\t Proclamation  under
\nArticle\t 356  of  the Constitution  declaring  that  he\t was
\nsatisfied  on  the basis of a report from  the\tGovernor  of
\nMeghalaya  and\tother  information received by\thim  that  a
\nsituation  has arisen in which the Government of  the  State
\ncannot\tbe carried on in accordance with the  provisions  of
\nthe  Constitution.  He accordingly dismissed the  Government
\nand  dissolved the Assembly.  Before proceeding further,  it
\nmay be mentioned that by an order dated October 12, 1991,  a
\nConstitution Bench of this Court set aside the order of\t the
\nSpeaker dated August 17, 1989.\n<\/p>\n
402. Both  Houses  of Parliament duly met and  approved\t the
\nProclamation.\n<\/p>\n
403. It\t is  a matter of deep regret that  the\tGovernor  of
\nMeghalaya  did not think it his constitutional duty to\tgive
\neffect\tto  the\t orders\t of this Court,\t not  even  after  a
\nspecific  direction to that effect.  He could not have\tbeen
\nunaware of the obligation created by Article 144, viz.,\t the
\nduty  of  all  authorities,  civil  and\t judicial,  in\t the
\nterritory  of India to act in aid of the Supreme  Court\t and
\nits  orders.   By  order  dated\t October  9,  1991,  he\t was
\nspecifically  requested to take into account the  orders  of
\nthis  Court while deciding whether the Government  has\tlost
\nthe confidence of the House and yet he ignored the same\t and
\nreported  to  the President that the Ministry has  lost\t the
\nconfidence  of the House.  We are intrigued by\tthe  strange
\nlogic  of the Governor that obedience to the orders of\tthis
\nCourt  relating\t to the disqualification of members  of\t the
\nHouse is a matter between the Speaker and the Supreme Court.
\nEvidently,  he invoked this strange logic to enable  him  to
\nsay   as he wanted to say or as he was asked to say, as\t the
\ncase  may be  that the Speaker’s decision that the  Ministry
\nhas lost the confidence of the House, is valid and effective
\nat any rate, so far as he is concerned.\t The Governor  ought
\nto  have noted that this Court had stayed the  operation  of
\nthe orders of the Speaker disqualifying the four independent
\nmembers,  which meant that the said four MLAs were  entitled
\nto  participate\t in the proceedings of the Assembly  and  to
\nvote.\tThey  did vote in favour of  the  motion  expressing
\nconfidence  in\tthe Government.\t The Speaker  was,  however,
\nbent upon
\n282<\/span>
\nunseating the Government by means fair or foul and with that
\nview  was  openly  flouting the orders of  this\t Court.\t  He
\nmanaged\t to  declare  that  the\t Government  has  lost\t the
\nconfidence  of the House by excluding the votes of the\tsaid
\nfour members in clear violation of the orders of this Court.
\nIt  is surprising that the Governor chose to  turn  Nelson’s
\neye  upon  the\tmisdeeds of the Speaker and  also  chose  to
\nrefuse\tto take note of the proceedings of the\tmajority  of
\nmembers\t taken\tunder  the  Speakership\t of  another  member
\nelected\t by them.  It is equally curious that  the  Governor
\nchose  to  report  that a situation  has  arisen  where\t the
\nGovernment  of the State cannot be carried on in  accordance
\nwith  the provisions of the Constitution.  The violation  of
\nthe  provisions of the Constitution was by Shri Kyndiah\t and
\nnot  by\t the  Ministry in office and  yet  Article  356\t was
\nresorted  to by the President to dismiss the  Government  on
\nthe  basis  of such a report.  That even such  an  ex  facie
\nunconstitutional Proclamation was approved by both Houses of
\nParliament   shows  up\tthe  inadequacy\t of  the   safeguard
\nenvisaged  in clause (3)  by which provision much store\t was
\nlaid by the counsel appearing for the Union of India as well
\nas those supporting the impugned Proclamations.\n<\/p>\n
404. In\t this  case too, the Proclamation recites  that\t the
\nrequisite  satisfaction was arrived at on the basis  of\t the
\nreport of the Governor and the other information received by
\nthe  President but no such information or material has\tbeen
\nbrought to our notice.\tWe must conclude that there was none
\nand  that  the recital to that effect is a  mere  mechanical
\none.\n<\/p>\n
405. We\t must  say in fairness to  Shri\t Parasaran,  learned
\ncounsel\t appearing  for the Union of India that he  did\t not
\nseek to defend the Proclamation in this case.\n<\/p>\n
406. Accordingly,    we\t   hold\t   the\t  Proclamation\t  as
\nunconstitutional.   But for the fact that since the date  of
\nProclamation, fresh elections have been held to the Assembly
\nand  a\tnew  House has come into existence,  we\t would\thave
\ncertainly  issued the writ and directed the  restoration  of
\nthe  Lyngdoh Ministry to officeand restored the Assembly  as
\nwell.\n<\/p>\n
\t\t\t  NAGALAND\n<\/p>\n
407. Elections\tto  the\t Nagaland  Assembly  were  held\t  in
\nNovember  1987.\t The strength of the Assembly was  60.\t The
\nposition emerging from the election was : Congress (1)\t 35,
\nNaga National Democratic Party\t13 and Independents  7.\t The
\nCongress  (1) Party formed the Government with Shri  Hokishe
\nSema  as  the  Chief  Minister.\t In  August  1988,  a  split
\noccurred  in the ruling party whose strength was 34 at\tthat
\ntime, one member having died.  The particulars of the  split
\nin the party are the following : On July 28, 1988, 13 of the
\n34 MLAs informed the Speaker of the Assembly that they\thave
\ndissociated from the ruling party and have formed a separate
\nparty  called “Congress Ruling Party”.\tThey  requested\t the
\nSpeaker\t for  allotment of separate seats for  them  in\t the
\nAssembly, the session of which was to commence on August 28,
\n1988.\tOn July 30, 1988 the Speaker held that a  split\t had
\noccurred  within  the  meaning of the Xth  Schedule  of\t the
\nConstitution in the ruling party.  Shri Vamuzo was one among
\nthe said 13
\n283<\/span>
\nMLAs. He informed the Governor on July 31, 1988 that he\t has
\nsecured the support of 35 of the 59 members of the  Assembly
\nand was in a position to form the Ministry in the State.  At
\nthis  stage,  the  Chief  Secretary  to\t the  Government  of
\nNagaland  wrote\t to  Shri  Vamuzo on  August  3,  1988\tthat
\naccording  to the information received by him, the group  of
\n13  MLAs  aforesaid were wrongfully confined by\t him.\tShri
\nVamuzo\tdenied the same and invited the Chief  Secretary  to
\ncome  and verify the truth of the allegation from  the\tsaid
\nmembers\t themselves.   The members stated before  the  Chief
\nSecretary  that they were free agents and were not  confined
\nby anyone.  On August 6, 1988 the Governor of Nagaland\tsent
\na  report to the President of India about the  formation  of
\nCongress  Ruling  Party.  He reported that in  the  past  25
\nyears, 11 Governments have been formed and that 13 MLAs\t who
\nhad dissociated themselves from the Congress (1) Party\twere
\nallured with money.  He characterized the said weaning\taway
\nof the 13 members as “incredible lack of political  morality
\nand  complete disregard to the wishes to the  electorate  on
\nthe part of the breakaway Congressmen”.\t He also stated that
\nthe  said  13 persons were kept in forcible  confinement  by
\nShri  Vamuzo and another person and that the story of  split
\nin the party is not true.  He characterized the\t recognition
\naccorded  to the said group of 13 members by the Speaker  as
\nhasty.\t He  also  spoke of  political\t‘horse-trading’\t and
\nmachinations.  He referred to the insurgency in Nagaland and
\nthat indeed some of the members of the Assembly were  having
\ncontacts  with the insurgent groups.  He reported  that\t the
\nstability  of the State may suffer due to the  said  episode
\nand  further  that  if the present affairs  are\t allowed  to
\ncontinue, a serious development may ensue.\n<\/p>\n
408. The Chief Minster, Shri Hokishe Sema, probably  finding
\nthat  he  has  lost  the  majority  support  in\t the  House,
\nsubmitted  his resignation to the Governor  and\t recommended
\nthe imposition of the President’s rule.\t On August 7,  1988,
\nthe  President\tissued the Proclamation\t under\tArticle\t 356
\nassuming  the  functions of the Government of the  State  of
\nNagaland.   The\t Government was dismissed and  the  Assembly
\ndissolved.  The action was challenged by Shri Vamuzo by\t way
\nof a writ petition in the Guwahati High Court being C.R. No.
\n1414  of  1988.\t The writ petition was heard by\t a  Division
\nBench comprising the Chief Justice and Hansaria, J. Both the
\nlearned Judges agreed that the validity of the\tProclamation
\ncan be examined by the court and that the Proclamation under
\nArticle\t 356 is not immune from judicial scrutiny.   But  on
\nthe  question of the effect and operation of Article  74(2),
\nthey  differed.\t The learned Chief Justice held\t “the  Union
\ncannot be compelled to tender any information to this  Court
\ncovered\t by Article 74 of the Constitution relevant  to\t the
\ndissolution of the Nagaland Assembly.  I am also of the view
\nthat  the  Union of India can legally  claim  all  documents
\nrelevant  to  the dissolution of the  Nagaland\tAssembly  as
\nprivileged  documents and a ‘class’ documents under  Section
\n123 of the Evidence Act.  Therefore, the objection that\t the
\ncourts\tdo not have powers to call for the information\tfrom
\nthe  President\tof  India in view of Article  74(2)  of\t the
\nConstitution  is sustained.  Since the Nagaland\t Legislative
\nAssembly is
\n284<\/span>
\ndissolved by the two Houses of Parliament, no relief can  be
\ngranted in the circumstances of this case”.  Accordingly, he
\nproposed  to  dismiss  the  writ  petition.   Hansaria,\t J.,
\nhowever, took a contrary view.\tThe learned Judge held\tthat
\nthe  material which formed part of ‘other  information’\t but
\nhas  not been produced before the court, does not form\tpart
\nof  the advice tendered by the Council of Ministers  to\t the
\nPresident.   The  court is, therefore, entitled to  see\t the
\nsaid  material and for that purpose the Union of India\tmust
\nbe  given  ten\tdays’  time for\t producing  the\t same.\t If,
\nhowever,  they\tdecline to do so, the court  would  have  no
\nalternative  but  to act upon the present material  and\t the
\nUnion of India will have to take the consequences of such  a
\ncourse.\t The learned Judge did not propose to dispose of the
\nwrit  petition but to wait for ten days and  then  pronounce
\nthe  final  orders.   In  view of  the\tsaid  difference  of
\nopinion,  the  matter  was referred to a  third\t Judge,\t but
\nbefore\tthe third Judge could hear the matter, the Union  of
\nIndia moved this Court for grant of special leave.   Special
\nleave  was  granted and the proceedings in  the\t High  Court
\nstayed.\n<\/p>\n
409. We have discussed the effect and scope of Article 74(2)
\nelsewhere.   In\t the light of the same, the  view  taken  by
\nHansaria, J. (as he then was) must be held to be the correct
\none  and  not the view taken by the learned  Chief  Justice.
\nThis special leave petition is accordingly disposed of\twith
\nthe above direction.  Inasmuch as fresh elections have since
\nbeen  held, the High Court may consider the advisability  of
\nproceeding with the matter at this point of time.
\n MADHYA PRADESH, RAJASTHAN AND HIMACHAL PRADESH\n<\/p>\n
410. In the elections held in February 1990, the BJP emerged
\nas  the majority party in the Assemblies of  Uttar  Pradesh,
\nMadhya\tPradesh, Rajasthan and Himachal Pradesh\t and  formed
\nthe Government therein.\n<\/p>\n
411. On\t December 6, 1992, the Ram Janmabhoomi-Babri  Masjid
\nstructure  (disputed  structure) was demolished by  the\t kar
\nsevaks who had gathered there in response to appeals by\t the
\nBJP,   VHP,   Bajrang  Dal,  Shiv  Sena\t  and\tsome   other
\norganisations.\n<\/p>\n
412. Following\tthe  demolition at Ayodhya  on\tDecember  6,
\n1992,  the  Government of Uttar Pradesh\t resigned.   It\t was
\ndismissed  by  the President and  the  Legislative  Assembly
\ndissolved by a Proclamation under Article 356 issued on\t the
\nsame  day.   The Proclamation does not refer either  to\t the
\nreport\tof the Governor nor does it say that  the  President
\nhad received any information otherwise.\t Be that as it\tmay,
\nthe  validity  of the said Proclamation not being  in  issue
\nbefore us, we need not express any opinion in that behalf.\n<\/p>\n
413. The  demolition  of  the disputed\tmosque\thad  serious
\nrepercussions\tall  over  the\tcountry\t as  also  in\tsome
\nneighbouring countries.\t A number of temples were reportedly
\ndemolished  there.   Serious disturbance to  law  and  order
\noccurred  in  various  parts of\t the  country  resulting  in
\nconsiderable loss of lives and property.  By an order  dated
\nDecember 10, 1992 issued under Section 3(1) of the  Unlawful
\nActivities (Prevention) Act, 1967 (37 of 1967),
\n285<\/span>
\nthe  Government\t of India banned  several  alleged  communal
\norganisations including RSS, VHP and Bajrang Dal.\n<\/p>\n
\t\t\t\t MADHYA PRADESH\n<\/p>\n
414. On\t December  8, 1992, the Governor of  Madhya  Pradesh
\nsent  a\t report\t to  the President  setting  out  the  “fast
\ndeteriorating  law and order situation in the State  in\t the
\nwake of widespread acts of violence, arson and looting”.  He
\nobserved  in  his  report that “the lack  of  faith  in\t the
\nability\t of the State Government to stem the tide  primarily
\nbecause\t of  the  political leadership’s  overt\t and  covert
\nsupport\t to  the associate communal  organisations  seem  to
\npoint  out  that there is breakdown  of\t the  administrative
\nmachinery  of the State”.  He .Followed it up  with  another
\nreport\ton December 10, 1992 wherein he mentioned about\t the
\nviolence spreading to hitherto peaceful areas.\tOn  December
\n13,  1992, he sent his third report enclosing the  photocopy
\nof  a  letter received from the Executive  Director,  Bharat
\nHeavy Electricals Limited (BHEL), Bhopal dated December\t 11,
\n1992.\tThe  said letter, said the Governor,  indicated\t the
\n“abject\t faiure\t of the law and order machinery\t to  provide
\nsafety and security to life and property in the areas in and
\naround\tBHEL  factory”.\t  The  letter  also  spoke  of\t“the
\npressure  brought on the administration to  accommodate\t the
\nso-called  kar\tsevaks in BHEL area”.  The  Governor  termed
\nthem as extremely serious developments that deserve a  high-
\nlevel probe.  The third report further stated that “with the
\nreported  statement  of the Chief Minister Shri\t Sunder\t Lal
\nPatwa  that  the  decision of banning the RSS  and  VHP\t was
\nunfortunate, the State Government’s credibility to sincerely
\nimplement  the Center’s direction in the matter is  under  a
\ncloud  …  there is a question mark as to how\tBJP  leaders
\nlike  Shri Patwa who swore by the values and  traditions  of
\nthe RSS will be able to implement the ban both in letter and
\nspirit. The VHP’s decision to observe December 13 as  ‘Black
\nDay’  all  over the country to protest\tagainst\t the  above-
\nmentioned  ban\tand  its decision to  observe  protest\tweek
\nagainst\t these\t‘heinous laws’ from December 14\t to  20\t are
\nmoves  fraught\twith  danger, particularly  in\tthe  present
\ncontext”.  The Governor recommended that  “considering\tthis
\nand looked in the background of the RSS, etc., contemplating
\non  a  fresh strategy to chalk out its future plan  and\t the
\npossibility of the leaders of the banned organisations going
\nunderground  taking  advantage of the soft reaction  of\t the
\nAdministration\thave  reasons  to be  convinced\t that  there
\nshould not be any further delay in imposition of President’s
\nrule according to Article 356 of the Constitution of India”.\n<\/p>\n
     HIMACHAL PRADESH\n<\/p>\n
     415. The Governor of Himachal Pradesh sent a report  on
\nDecember  15, 1992 wherein he stated inter alia : “There  is
\nno  dispute  on the point that the Chief  Minister  and\t his
\ncabinet had instigated the kar sevaks from Himachal  Pradesh
\nto participate in the kar seva on December 6, 1992. Some  of
\nthe  Ministers expressed their desire even openly,  provided
\nthe  party high command permitted to do so. Consequently,  a
\nlarge\tnumber\tof  kar\t sevaks\t including  some  BJP\tMLAs
\nparticipated in the kar seva from Himachal
\n286<\/span>
\nPradesh.   A  member of the Vidhan Sabha  publicly  admitted
\nthat  he  had participated in the demolition  of  the  Babri
\nMasjid\t(Indian Express dated December 15, 1992,  Chandigarh
\nEdition).   Though Shri Shanta Kumar met me on December\t 13,
\n1992  and had informed me that he desired to  implement\t the
\nban  orders imposed by the Government of India on  RSS,\t VHP
\nand three other organisations and that he has already issued
\ndirections  in\tthis  regard but since\tthe  Chief  Minister
\nhimself\t is  a\tmember of RSS, therefore, he  is  not  in  a
\nposition   to  implement  these\t directions   honestly\t and
\neffectively.   Most  of the people of the  State  also\tfeel
\nalike.\t…  As a matter of fact, when\tthe  Chief  Minister
\nhimself and some of the colleagues are members of the banned
\nRSS,  then  it\tis  not\t possible  for\tthe   administrative
\nmachinery  to  implement the ban honestly,  especially\twhen
\nsome  of  the Ministers are openly criticising\tthe  ban  on
\nthese  communal organisations.” He,  therefore,\t recommended
\nimposition of the President’s rule.\n<\/p>\n
RAJASTHAN\n<\/p>\n
416. The  report of the Governor of Rajasthan,\trecommending
\nimposition  of\tthe President’s rule, stated  the  following
\nfacts  : The Government of Rajasthan has played ‘an  obvious
\nrole’ in the Ayodhya episode.  The BJP has control over RSS,
\nVHP and Bajrang Dal which are now banned by the Centre.\t The
\nsaid  ban is not being implemented at all.  Indeed,  one  of
\nthe Ministers had resigned and along with 22 MLAs and 15,500
\nBJP  workers had participated in the kar seva at Ayodhya  on
\nDecember  12,  1992.  They were given a royal send  off\t and
\nwhen they returned, they were given a similar royal  welcome
\nby  the influential people in the political  set-up  running
\nthe  Government.   The law and order has been very  bad\t for
\nmore  than  a week, the dominant character being  the  anti-
\nminority  on  whom largely atrocities have  been  committed.
\nThe administration could not function effectively under\t the
\npresent\t political  set-up.  He expressed  the\tapprehension
\nthat   it  would  be  extremely\t difficult  to\texpect\t the
\nadministration\tto function objectively, effectively and  in
\naccordance  with  the rule of law and that a  situation\t has
\narisen\tin  which  the Government of  the  State  cannot  be
\ncarried\t on  in\t accordance  with  the\tprovisions  of\t the
\nConstitution.\n<\/p>\n
417. On\t December  15,\t1992,  the  President  issued  three
\nProclamations dismissing all the three Governments in Madhya
\nPradesh, Rajasthan and Himachal Pradesh and dissolving their
\nLegislative  Assemblies.   The action was  purported  to  be
\ntaken on the basis of the reports of the Governors concerned
\nas well as on the basis of other information received.\t The
\nvalidity of the Proclamations was challenged immediately  by
\nfiling\twrit petitions in the appropriate High Courts.\t The
\nMadhya\tPradesh\t High  Court  allowed  the  same  which\t  is
\nchallenged by the Union of India in Civil Appeal Nos.  1692,
\n1692-A\tto 1692-C of 1993.  The writ petitions\trelating  to
\nRajasthan and Himachal Pradesh were withdrawn to this  Court
\nand  are  numbered  as Transferred Case No. 9  of  1993\t and
\nTransferred Case No. 8 of 1993 respectively.\n<\/p>\n
287<\/span><\/p>\n
418. The  petitioners  challenged the Proclamation  as\tmala
\nfide, vitiated by extraneous considerations and an  instance
\nof  political vendetta.\t It is submitted that  incidents  of
\ndisturbance  to\t law and order cannot attract  action  under
\nArticle\t 356.  In any event, in Himachal Pradesh, there\t was
\nnot  a\tsingle\tinstance.  All the  three  Governments\twere
\nfaithfully implementing all the Central and State laws.\t The
\nimpugned  Proclamations, it is submitted, are the result  of
\ninternal differences among the leaders of the Congress Party
\nand are not supportable in law.\n<\/p>\n
419. It\t is  submitted\tby  the\t learned  counsel  for\t the
\npetitioners  that the imposition of the President’s rule  in
\nthe States of Madhya Pradesh, Rajasthan and Himachal Pradesh
\nwas  mala  fide, based on no satisfaction and was  purely  a
\npolitical act.\tMere fact that communal disturbances  and\/or
\ninstances  of arson and looting took place is no ground\t for
\nimposing the President’s rule.\tIndeed, such incidents\ttook
\nplace  in  several  Congress (1)ruled  States  as  well\t  in
\nparticular,  in the State of Maharashtra  on a\tmuch  larger
\nscale  and  yet\t no  action  was  taken\t to  displace  those
\nGovernments  whereas  action  was  taken  only\tagainst\t BJP
\nGovernments.   It  is pointed out that so  far\tas  Himachal
\nPradesh is concerned, there were no communal disturbances at
\nall.   There  was no law and order problem worth  the  name.
\nEven  the  Governor’s  report  did not\tspeak  of  any\tsuch
\nincidents.  The Governments of Madhya Pradesh, Rajasthan and
\nHimachal  Pradesh, it is argued, cannot be held\t responsible
\nfor what happened at Ayodhya on December 6, 1992.  For\tthat
\nincident,  the\tGovernment  of Uttar  Pradesh  had  resigned
\nowning\tresponsibility therefor and it was dismissed.\tThat
\nis not under challenge.\t But the Governments of these  three
\nStates\twere in no way connected with the said incident\t and
\ncould  not  have  been\tdismissed on  account  of  the\tsaid
\nincident.   It\tis also pointed out that  according  to\t the
\nreport\tof  the\t Governor of  Himachal\tPradesh,  the  Chief
\nMinister met him and indicated clearly that he was  desirous
\nof  and was implementing the ban and that some arrests\twere
\nalso made.  In such a situation, there was no reason for the
\nGovernor  to believe, or to report, that the Chief  Minister
\nis  not\t sincere or keen to implement the ban  on  the\tsaid
\norganisations.\t As  a matter of fact,\tthe  Tribunal  under
\nUnlawful Activities (Prevention) Act, 1967, has declared the
\nban on RSS as illegal and accordingly the ban has since been
\nrevoked.  The non-implementation of an illegal ban cannot be
\nmade  the basis of action under Article 356.  Assuming\tthat
\nthere  was such an inaction or refusal, it cannot be made  a
\nground\t for  dismissing  the  State  Government   and\t for
\ndissolving the Assembly.  The Union Government has also\t not
\ndisclosed what other material\/information they had  received
\non  the\t basis of which the President had  acted,  though  a
\nrecital\t to that effect has been made in the  Proclamations.
\nThe  action  taken by the President cannot be  justified  by
\nproducing the material gathered later.\tThe respondents must
\ndisclose the information that was before the President\twhen
\nhe  issued the impugned Proclamations.\tThe White Paper\t now
\nplaced before the Court was not in existence on December 15,
\n1992.\tThe manifestos issued by the BJP from time  to\ttime
\ncannot constitute the information referred to in the
\n288<\/span>
\nProclamations  not, in any event, legally relevant material.
\nThe  counter filed by the Union of India in  Madhya  Pradesh
\nHigh Court in M.P. No. 237 of 1993 (Sunderlal Patwa v. Union
\nof  India62)  does  not\t refer\tto  or\tdisclose  the  other
\ninformation received by the President.\tEven in the counters
\nfiled  in  writ\t petitions  questioning\t the   Proclamations
\nrelating to Himachal Pradesh and Rajasthan, no such material
\nis  disclosed.\tIt was the duty of the Union  Government  to
\nhave  disclosed to the Court the  material\/information\tupon
\nwhich the requisite satisfaction was formed, more so because
\nthe  Proclamations  themselves\tdo not\trefer  to  any\tsuch
\nmaterial.   Since  they\t have failed to do  so,\t an  adverse
\ninference  should be drawn against them.  Article 74(2),  it
\nis argued, does not and cannot relieve the Union of India of
\nthis  obligation.  The power and remedy of judicial  review,
\nit is argued, cannot be rendered ineffective with  reference
\nto Article 74(2).\n<\/p>\n
420. A counter-affidavit was filed by the Union of India  in
\nthe  writ  petition filed in the Madhya Pradesh\t High  Court
\nquestioning  the  Proclamation with respect to\tthat  State.
\nApart  from the legal contentions, the following  facts\t are
\nstated therein :\n<\/p>\n
421. The  reports of the Governor disclosed that  the  State
\nGovernment had miserably failed to protect the citizens\t and
\nproperty of the State against internal disturbance.  On\t the
\nbasis  of  the\tsaid  reports,\tthe  President\tformed\t the
\nrequisite satisfaction.\n<\/p>\n
422. The  circumstances in the State of M.P. were  different
\nfrom  several other States where too serious disturbance  to
\nlaw  and order took place.  There is no\t comparison  between
\nboth situations.  “Besides Bhopal, overall situation in\t the
\nState of M.P. was such that there were sufficient and cogent
\nreasons\t to  be satisfied that the Government in  the  State
\ncould not be carried on in accordance with the provisions of
\nthe  Constitution.  It is denied that there was no  law\t and
\norder  situation in the State”.\t The Governor’s reports\t are
\nbased  upon  relevant material and are made  bona  fide\t and
\nafter due verification.\n<\/p>\n
423. The allegations made against Shri Arjun Singh, Minister
\nfor  Human Resource Development are baseless.  The  decision
\nwas  a collective decision of the Council of Ministers.\t  No
\ncomparison with regard to the State of affairs in the  State
\nof  Madhya Pradesh can be made with those of  other  States.
\nThe  Governor  of Madhya Pradesh having\t reported  that\t the
\nconstitutional\tmachinery in the State had broken down,\t the
\nProclamation   of   President’s\t rule\tis   justified\t and
\nconstitutional.\n<\/p>\n
424.  In  the counter-affidavit filed in the  writ  petition
\n(Transferred  Case  No.\t 8 of 1993)  relating  to  Himachal-
\nPradesh, the very same objections as are put forward in\t the
\ncounter-affidavit filed in the Madhya Pradesh case have been
\nreiterated.  In the para-wise replies, it is stated that the
\nevents\tof  December 6, 1992 were not the handiwork  of\t few
\npersons\t but  that “the public attitude\t and  statements  of
\nvarious\t groups and political parties including BJP  led  to
\nthe  destruction  of the structure in  question\t and  caused
\ngreat  damage to the very secular fabric of the country\t and
\ncreated communal
\n62 M.P. No. 237 of 1993<\/span>
\n289<\/span>
\n discord  and  disharmony  all over  the  country  including
\nHimachal  Pradesh”.  It is stated that the repercussions  of
\nthe  event  cannot  be judged by  comparing  the  number  of
\npersons killed in different States.  It is asserted that the
\nCouncil\t of  Ministers and the President “had  a  wealth  of
\nmaterial  available  to them in the present case  which\t are
\nrelevant to the satisfaction formed under Article 356.\tThey
\nwere also aware of the serious damage to communal amity\t and
\nharmony which has been caused in the State of Madhya Pradesh
\namong\tothers.\t   They\t were\textremely   concerned\twith
\nrepercussions  which events at Ayodhya might still  have  in
\nthe States and the ways and means to bring back normalcy not
\nonly in the law and order situation but also communal  amity
\nand  harmony which had so badly damaged as a result  of\t the
\nactivities,  attitude and stand of inter alia the  party  in
\npower  in the State”.  It is also stated that, according  to
\nthe  definite  information available to\t the  Government  of
\nIndia, members of the RSS were not only present on the\tspot
\nat  Ayodhya but actually participated in the demolition\t and
\nthat  they  were  responsible  for  promotion  of   communal
\ndisharmony.   It is for this reason that it was banned.\t  It
\nis also asserted that the action was taken by the  President
\nnot only on the basis of the report of the Governor but also
\non the basis of other information received by him.\n<\/p>\n
425. In\t the  counter-affidavit filed in the  writ  petition
\nrelating to Rajasthan (Transferred Case No. 9 of 1993) it is
\nstated\tthat  after  the demolition  of\t December  6,  1992,
\nviolence started in various parts of the country leading  to
\nloss  of life and property.  It is asserted that it  is\t not
\npossible to assess the law and order situation in  different
\nStates only on the basis of casualty figures.  The situation
\nin each State has to be assessed differently.  The  averment
\nof the petitioner that the State Government implemented\t the
\nban on RSS properly is denied.\tThere is no requirement that
\nthe  report  of\t the Governor should  be  addressed  to\t the
\nPresident.  It can also be addressed to the Prime  Minister.
\nBesides\t the report of the Governor, other  information\t was
\nalso  available\t on  which  the\t President  had\t formed\t his
\nsatisfaction.\tThe correctness, adequacy or sufficiency  of
\nthe  material  contained  in the Governor’s  report  is\t not
\njusticiable  and  cannot  be gone into by  the\tcourt.\t The
\nallegations of mala fide, capricious and arbitrary  exercise
\nof power are denied.  No irrelevant material was taken\tinto
\nconsideration by the President and hence, it is averred, the
\nsatisfaction of the President is not judicially reviewable.\n<\/p>\n
426. The  learned  counsel  for Union  of  India  and  other
\ncounsel supporting the impugned Proclamations put their case
\nthus  : the main plank and the primary programme of BJP\t was
\nthe construction of a Ram temple at the very site where\t the
\nBabri  Masjid stood.  The party openly proclaimed that\tthey
\nwill  remove  relocate, as they called it  the Babri  Masjid
\nstructure  since  according  to them the  Babri\t Masjid\t was
\nsuperimposed  on  an existing Ram temple by  Emperor  Babur.
\nThe  party came to power in all the four States on the\tsaid
\nplank and since then had been working towards the said goal.
\nIt  is the one single goal of all the leaders of BJP,  their
\nMinisters,  Legislators and all cadres.\t For  this  purpose,
\nthey have been repeatedly
\n290<\/span>
\ngathering  kar sevaks from all corners at Ayodhya from\ttime
\nto  time.   In the days immediately  preceding\tDecember  6,
\n1992,  their leaders have been inciting and exhorting  their
\nfollowers to demolish the Babri Masjid and to build a temple
\nthere.\t The Ministers in Madhya Pradesh,  Himachal  Pradesh
\nand Rajasthan took active part in organising and despatching
\nkar  sevaks to Ayodhya.\t When the kar sevaks  returned\tfrom
\nAyodhya after demolishing the Masjid, they were welcomed  as
\nheroes\tby  those very persons.\t Many of the  Ministers\t and
\nChief  Ministers  were members of RSS  and  were  protesting
\nagainst\t the  ban  on it.  They\t could\tnot,  therefore,  be
\ntrusted\t  to   enforce\t the   ban,   notwithstanding\t the
\nprotestations to the contrary by some of them.\n<\/p>\n
427. The manifesto issued by the BJP on the eve of  May\/June
\n1991 midterm poll states that the BJP “seeks the restoration
\nof  Ram\t Janmabhoomi in Ayodhya only by way  of\t a  symbolic
\nrighting of historic wrongs, so that the old unhappy chapter
\nof   acrimony\tcould  be  ended,  and\ta   Grand   National
\nReconciliation\teffected”.  At another place under the\thead
\n“Sri  Ram  Mandir at Janmasthan”,  the\tfollowing  statement
\noccurs\t:  “BJP\t firmly believes that  construction  of\t Ram
\nMandir\tat Janmasthan is a symbol of the vindication of\t our
\ncultural heritage and national self-respect.  For BJP it  is
\npurely\ta  national issue and it will not allow\t any  vested
\ninterests  to  give  it a  sectarian  and  communal  colour.
\nHence,\tthe  party is committed to build Sri Ram  Mandir  at
\nJanmasthan  by relocating superimposed Babri structure\twith
\ndue respect.” Standing by themselves, it is true, the  above
\nstatements  may\t not  mean  that  the  programme   envisaged
\nunlawful  or forcible demolition of the disputed  structure.
\nThe said statements are also capable of being understood  as
\nmeaning that the party proposed to vindicate their stand  in
\ncourts\tthat  the  disputed structure was in  fact  the\t Ram
\nJanmasthan  which  was forcibly converted into a  mosque  by
\nEmperor\t Babur and that only thereafter they  will  relocate
\nthe said structure and build Ram temple at that site.\tBut,
\nsays  the  counsel, if we read the above statements  in\t the
\nlight  of the speeches and acts of the leaders of  the\tBJP,
\nreferred  to in the White Paper issued by the Government  of
\nIndia,\tthere would hardly be any room for  such  beneficial
\ninterpretation.\t The “White Paper on Ayodhya” issued by\t the
\nGovernment  of\tIndia  in  February  1993,  establishes\t the
\ncomplicity  of\tthe  Bhartiya Janata Party as  such  in\t the
\ndemolition of the disputed structure and its aftermath.\n<\/p>\n
428. According\tto the statement of the Union Home  Minister
\nmade  in  Rajya\t Sabha on December  21,\t 1992,\tthe  counsel
\npointed out, “all these kar sevaks, when they returned, were
\nreceived by the Chief Ministers and Ministers”.\n<\/p>\n
429. The  counsel  for the respondents argued  further\tthat
\nwhat  happened on December 6, 1992 did not happen in a\tday.
\nIt was the culmination of a sustained campaign carried on by
\nthe  BJP  and other allied organisations over the  last\t few
\nyears.\t  They\thad  been  actively  campaigning   for\t the
\nconstruction  of Ram Temple at the disputed site.  They\t had
\nbeen  speaking\tof relocating the disputed  structure  which
\nonly  meant that they wanted the disputed structure  removed
\nand  a\tRam  temple constructed in  that  very\tplace.\t The
\nseveral\t speeches  of the leaders of BJP  and  other  allied
\nparties, referred to in
\n291<\/span>
\n the  White  Paper,  do clearly\t establish  the\t said  fact.
\nIndeed,\t in  the manifesto issued by the BJP  in  connection
\nwith  the  1993 General Elections, there is not\t a  word  of
\nregret\tas  to what happened on December 6,  1992.   On\t the
\ncontrary,  the following statement occurs under the  heading
\n“Ayodhya”\n<\/p>\n
\t\t\t\t “Ayodhya
\n\t      In their actions and utterances, the forces of
\n\t      pseudo-secularism\t  convey  the\tunmistakable
\n\t      impression of a deep repugnance for all things
\n\t      Hindu.   Indeed,\tin their minds\t‘Hindu’\t has
\n\t      come  to be associated with  ‘communal’.\t The
\n\t      controversy over the Ram Janmabhoomi temple in
\n\t      Ayodhya  is  a powerful illustration  of\tthis
\n\t      phenomenon.  For them ‘Sahmat’ is secular\t and
\n\t      ‘Saffron’ communal.  Although the facts of the
\n\t      dispute are well-known, certain features merit
\n\t      repetition.   First,  it was  always  apparent
\n\t      that  a vast majority of Hindus  were  totally
\n\t      committed\t to  the  construction\tof  a  grand
\n\t      temple  for Lord Rama at the site\t where\tpuja
\n\t      has been performed uninterruptedly since\t1948
\n\t      and  where besides, no namaz has been  offered
\n\t      since 1936.  The structure built by the Moghul
\n\t      Emperor  Babur was viewed by the Hindus  as  a
\n\t      symbol of national humiliation.
\n\t      Second, the election of 1991 in Uttar  Pradesh
\n\t      centred  on  the Ayodhya dispute.\t  It  was  a
\n\t      virtual referendum on Ram Janmabhoomi and\t the
\n\t      BJP   with  its  promise\tto  facilitate\t the
\n\t      construction   of\t the  Ram  Temple  won\t the
\n\t      election.\t  However,  this  mandate  did\t not
\n\t      prevent the Congress and other  pseudo-secular
\n\t      parties\tfrom   wilfully\t  obstructing\t the
\n\t      initiatives  of the Uttar Pradesh\t Government.
\n\t      Everything, from administrative subterfuge  to
\n\t      judicial\tdelay, was used by the opponents  of
\n\t      the temple to prevent the BJP Government\tfrom
\n\t      fulfilling its promise to the electorate.
\n\t      On  December 6, 1992 kar sevaks from all\tover
\n\t      India  assembled\tin  Ayodhya  to\t begin\t the
\n\t      reconstruction of the Rama Temple at the\tsite
\n\t      adjoining\t the garbha griha.  Matters took  an
\n\t      unexpected   turn\t  when,\t  angered   by\t the
\n\t      obstructive  tactics  of\tthe  Narasimha\t Rao
\n\t      Government,  inordinate  judicial\t delays\t and
\n\t      pseudo-secularist taunts, the kar sevaks\ttook
\n\t      matters  into their own hands, demolished\t the
\n\t      disputed structure and constructed a makeshift
\n\t      temple for Lord Rama at the garbha griha.
\n\t      Owning  responsibility  for its  inability  to
\n\t      prevent  the  demolition, the  BJP  Government
\n\t      headed  by  Shri Kalyan  Singh  submitted\t its
\n\t      resignation.  A disoriented Central Government
\n\t      was   not\t content  with\tthe  imposition\t  of
\n\t      President’s   rule  in  Uttar   Pradesh.\t  In
\n\t      violation\t of  democratic\t norms,\t the  Centre
\n\t      dismissed\t the BJP Governments  in  Rajasthan,
\n\t      Madhya Pradesh and Himachal Pradesh.  Further,
\n\t      it  banned  the Rashtriya\t Swayamsevak  Sangh,
\n\t      Vishwa Hindu Parishad and Bajrang Dal.
\n\t      Worst of all, in collusion with other rootless
\n\t      forces  the  Government  unleashed  a  vicious
\n\t      propaganda  offensive aimed at belittling\t the
\n\t      Hindus.\tThe  kar sevaks were  denigrated  as
\n\t      fascists, lumpens and vandals, and December 6,
\n\t      was   described\tas   a\t ‘national   shame’.
\n\t      Recently, the CBI has
\n\t      292<\/span>
\n\t      filed charge-sheets against leaders of the BJP
\n\t      and the Vishwa Hindu Parishad with the purpose
\n\t      of projecting them as criminals.
\n\t      This  relentless\tonslaught  of  the   pseudo-
\n\t      secular forces against the people of India had
\n\t      very  serious consequences.  For a  start,  it
\n\t      created  a  wide emotional  gulf\tbetween\t the
\n\t      rulers and the people.  Ayodhya was a  popular
\n\t      indictment of the spurious politics of double-
\n\t      standards.   Far from recognising it as  such,
\n\t      the  Congress and other anti-BJP parties\tused
\n\t      it  as a pretext for furthering the  cause  of
\n\t      unprincipled minorityism.\n<\/p><\/blockquote>\n
\t      It  is  this  minorityism\t that  prevents\t the
\n\t      Congress, Janata Dal, Samajvadi Party and\t the
\n\t      Communist\t Parties  from coming  out  with  an
\n\t      unambiguous declaration of intent on  Ayodhya.
\n\t      Thus   BJP   is  the  only  party\t  which\t  is
\n\t      categorical in its assurance to facilitate the
\n\t      construction of the Rama Temple at the site of
\n\t      the  erstwhile Babri structure.  That is\twhat
\n\t      the people desire.”\n<\/p><\/blockquote>\n
430. The counsel further pointed out the significance of the
\ntotal  inaction\t on the part of the top leaders of  the\t BJP
\npresent\t near the disputed structure at Ayodhya on  December
\n6,  1992.   They  took\tno  steps  whatsoever  to  stop\t the
\ndemolition.   The  kar sevaks had gathered  there  at  their
\ninstance.   They  had appealed to the kar sevaks  to  gather
\nthere from all comers of the country.  Some of these leaders
\nhad been speaking of demolition of the disputed structure to
\nenable\tthe construction of Ram Temple at that\tvery  place.
\nEven assuming that the assault on the disputed structure was
\na  sudden move on the part of some kar sevaks, it is not  as
\nif  the\t demolition took place in a couple of  minutes.\t  It
\nmust  have certainly taken a few hours.\t If the BJP  leaders
\npresent there really wanted to prevent it, they should\thave
\nappealed  to  the  people  and ought  to  have\ttaken  other
\neffective  steps to prevent the kar sevaks from\t demolishing
\nthe structure.\tThere is no allegation anywhere in the\twrit
\npetition or other material placed before the court that they
\never  did so.  If one reads the aforesaid statements in\t the
\nmanifestos of 1991 and 1993 in the light of the above facts,
\nit would be clear, says the counsel, that the demolition  of
\nthe  disputed  structure was the outcome  of  the  speeches,
\nprogramme  and the several campaigns including\tRath  Yatras
\nundertaken  by\tthe  leaders  of the  BJP.   It\t is  neither
\npossible  nor  realistic to dissociate\tthe  Governments  of
\nMadhya Pradesh, Rajasthan and Himachal Pradesh from the acts
\nand  deeds  of\ttheir  party.  It  is  one  party  with\t one
\nprogramme.  Kar sevaks were sent by and welcomed back by the
\nMinisters and legislators (belonging to BJP) of these  three
\nStates\tas  well.  Thereby they expressed  and\tdemonstrated
\ntheir  approval of the deed done by the kar sevaks.   It  is
\nstated\tin the report of the Himachal Pradesh Governor\tthat
\nthe Chief Minister himself was a member of the RSS.  In\t the
\nreport of the Governor of Madhya Pradesh also, it is  stated
\nthat  the  Chief Minister and other Ministers swore  by\t the
\nvalues and traditions of the RSS.  The reports also indicate
\nthat  these Governments actively participated in  organising
\nand despatching the kar sevaks to Ayodhya and welcomed\tthem
\nand praised when they came back after doing the deed.  Thus,
\na  common thread runs through all the four  BJP\t Governments
\nand  binds them together, say the counsel.  All\t these\tfour
\nGovernments had
\n293<\/span>
\n launched  upon\t a course of action in tandem with  top\t BJP
\nleaders,  which\t led to the demolition.\t Their\tactions\t and
\ndeeds  were contrary to the provisions of the  Constitution.
\nThe  manifestos\t of the party on the basis  of\twhich  these
\nGovernments  came to power coupled with their  speeches\t and
\nactions\t clearly  demonstrate a commonness,  an\t inseparable
\nunity\tof   action  between  the  party  and\tthese\tfour
\nGovernments.   The  very manifestos and their  programme  of
\naction\twere such as to hurt the religious feelings  of\t the
\nMuslim community.  They negated the secular concept, a basic
\nfeature of our Constitution.  The demolition of the disputed
\nstructure was no ordinary event.  The disputed structure had
\nbecome\tthe focal point, the bone of contention between\t two
\nreligious  communities.\t The process which resulted  in\t the
\ndemolition  and the manner of in which it  was\tperpetrated,
\ndealt  a serious blow to the communal harmony and  peace  in
\nthe country.  It had adverse international repercussions  as
\nwell.  A number of Hindu temples were demolished in Pakistan
\nand Bangladesh in reprisal of the demolition at Ayodhya.  It
\nwas difficult in this situation to ask the minorities in the
\nfour  States  to have any faith in the neutrality  of  these
\nfour administrations.  It was absolutely necessary, say\t the
\ncounsel,  to  recreate\tthe feeling of\tsecurity  among\t the
\nMuslims.   They\t required to be assured of  the\t safety\t and
\nsecurity of their person and property.\tIt was not  possible
\nwith the BJP Governments in power.  They had to go.\n<\/p>\n
431.The\t learned  counsel  for\tthe  respondents   submitted
\nfurther\t that the RSS was banned on December 10, 1992.\t The
\nChief Ministers of Himachal Pradesh and Madhya Pradesh\twere
\nsaid  to  be  the members of the RSS  and  adhering  to\t its
\ntenets.\t  In  such circumstances, the  respective  Governors
\nwere of the opinion that the said Chief Ministers cannot  be
\nexpected to, or relied upon to, implement the ban sincerely.
\nIt  cannot  be\tsaid  to be  an\t unreasonable  or  unfounded
\nopinion.   It  was  also  necessary to\tcreate\ta  sense  of
\nconfidence  in the people in general and in the\t minorities,
\nin particular, that the Governments would be acting promptly
\nand  sternly  to  prevent  communal  incidents.\t   Following
\nDecember 6 incident, there were reports of destruction of  a
\nlarge  number of temples in the adjoining countries.   These
\nreports, it was apprehended, may add fuel to the fire.\t The
\nsituation  was deteriorating.  What happened on\t December  6
\nwas  no\t ordinary event.  It had touched the psyche  of\t the
\nminority  community.  The entire nation was put in  turmoil.
\nAllowing a party which had consciously and actively  brought
\nabout such a situation to continue in office in these  three
\nStates\twould  not  have helped in restoring  the  faith  of
\npeople in general and of the minorities in particular in the
\nresolve of the Central Government to abide by and  implement
\nthe  constitutional  values of equality,  peace\t and  public
\norder.\t It is no answer to say that disturbance took  place
\non  a much larger scale in certain States ruled by  Congress
\n(1) Party (in particular in Maharashtra) and that no  action
\nwas   taken   against  those   Governments.    Stating\t the
\nproposition  in such simplistic terms is neither  acceptable
\nnor  realistic.\t  One  should look at the  totality  of\t the
\npicture, say the counsel, and not to the isolated  incidents
\nwhich took place either before or after the demolition.\t  It
\nis not even a question of punishing the Governments for what
\nhappened on December 6, 1992.  The real question
\n294<\/span>
\nwas  who created this turmoil in the life of the nation\t and
\nwho  put the nation’s soul in torment.\tThe  immediate\tneed
\nwas  the  restoration  of the faith of\tthe  people  in\t the
\nimpartiality   of   the\t administration,  in   the   secular
\ncredentials  of the nation and to ensure not only  that\t the
\nban  on\t the alleged communal organisations  is\t effectively
\nimplemented but also to ensure that the administration\tacts
\npromptly  and impartially in maintaining the law and  order.
\nThe  Central Government, submitted the counsel,\t acted\twith
\nthis  perception and it cannot be said either that the\tsaid
\naction was outside the purview of Article 356 or that it was
\nmala  fide  or\tthat  there was no  material  on  which\t the
\nPresident  could be reasonably satisfied that the  dismissal
\nof these State Governments was indeed called for,  submitted
\nthe   learned\tcounsel\t for  Union  of\t India\t and   other
\nrespondents.\n<\/p>\n
432. With a view to demonstrate his submission that judicial
\napproach and judicial processes are not appropriate to judge
\nthe various situations calling for action under Article 356,
\nShri  Parasaran\t gave  the following scenario  :  The  Union
\nCouncil\t of Ministers was apprehensive of the safety of\t the
\ndisputed  structure  once  the BJP came to  power  in  Uttar
\nPradesh.   It was repeatedly reminding the State  Government
\nin that behalf.\t All the time, the State Government and\t its
\nChief  Minister\t were  assuring\t the  Union  of\t India,\t the
\nNational  Integration  Council and even the  Supreme  Court,
\nthrough statements, affidavits and representations that\t the
\nState Government was committed to the safety of the disputed
\nstructure and that it would ensure that no harm comes to it.
\nThe  Central Government was sceptical of  these\t assurances.
\nBut suppose it had taken action under Article 356, dismissed
\nthe Government of Uttar Pradesh some time prior to  December
\n6,  1992  on the ground that it did not have  any  faith  in
\nthose assurances, the court could well have found fault with
\nthe  action.   The court would have said that there  was  no
\nbasis  for  their  apprehension when  the  State  Government
\nitself\trepresented  by the Chief Minister  and\t other\thigh
\nofficials  was\trepeatedly assuring everyone  including\t the
\nSupreme\t Court that they will protect the structure.   There
\nwas no reason not to believe them and that the action  taken
\nunder  Article 356 is, therefore, unjustified,\tbeing  based
\nupon  mere  suspicion.\t But,  in  the\tevent,\tthe  Central
\nGovernment  did not take action and the\t disputed  structure
\nwas demolished with enormous consequences and repercussions.
\nThis  only  shows, says Shri Parasaran, that  these  matters
\ncannot\tbe  weighed  in\t golden\t scales\t and  that  judicial
\napproach and assumptions are ill-suited to such situations.\n<\/p>\n
433. Having  given our earnest consideration to the  matter,
\nwe  are\t of the opinion that the situation  which  arose  in
\nthese States consequent upon the demolition of the  disputed
\nstructure  is one which cannot be assessed properly  by\t the
\ncourt.\tShri Parasaran is right in his submission that\twhat
\nhappened on December 6, 1992 was no ordinary event, that  it
\nwas  the outcome of a sustained campaign carried out over  a
\nnumber\tof years throughout the country and that it was\t the
\nresult of the speeches, acts and deeds of several leaders of
\nBJP   and  other  organisations.   The\tevent  had   serious
\nrepercussions  not  only within the country but\t outside  as
\nwell.  It put
\n295<\/span>
\n in  doubt the very secular credentials of this\t nation\t and
\nits  Government\t and those credentials had to  be  redeemed.
\nThe  situation\thad  many  dimensions,\tsocial,\t  religious,
\npolitical and international.  Rarely do such occasions arise
\nin the life of a nation.  The situation was an extraordinary
\none;  its repercussions could not be foretold at that  time.
\nNobody\tcould  say with definiteness what would\t happen\t and
\nwhere?\t The situation was not only unpredictable, it was  a
\nfast-evolving  one.  The communal situation was\t tense.\t  It
\ncould explode anywhere at any time.  On the material  placed
\nbefore us, including the reports of the Governors, we cannot
\nsay  that the President had no relevant material before\t him
\non  the basis of which he could form the  satisfaction\tthat
\nthe  BJP  Governments  of  Madhya  Pradesh,  Rajasthan\t and
\nHimachal  Pradesh  cannot  dissociate  themselves  from\t the
\naction\tand  its consequences and  that\t these\tGovernments,
\ncontrolled  by one and the same party, whose leading  lights
\nwere actively campaigning for the demolition of the disputed
\nstructure, cannot be dissociated from the acts and deeds  of
\nthe  leaders of BJP.  In the then prevailing situation,\t the
\nUnion\tof  India  thought  it\tnecessary  to  ban   certain
\norganisations including RSS and here were Governments  which
\nwere  headed  by  persons  who\t“swore\tby  the\t values\t and
\ntraditions  of\tthe RSS” and were giving “overt\t and  covert
\nsupport to the associate communal Organisation” (vide report
\nof  the\t Governor  of  Madhya  Pradesh).   The\tGovernor  of
\nHimachal  Pradesh reported that “the Chief Minister  himself
\nis  a  member of RSS”.\tThe Governor of\t Rajasthan  reported
\nthat  the ban on RSS and other organisations was  not  being
\nimplemented  because of the intimate connection between\t the
\nmembers\t of the Government and those organisations ++.\t The
\nthree Governors also spoke of the part played by the members
\nof  the\t Government in sending and welcoming  back  the\t kar
\nsevaks.\t   They\t also  expressed  the  opinion\tthat   these
\nGovernments  cannot  be expected, in the  circumstances,  to
\nfunction  objectively  and impartially in dealing  with\t the
\nemerging law and order situation, which had all the  ominous
\nmakings\t of a communal conflagration.  If the President\t was
\nsatisfied  that\t the faith of these BJP Governments  in\t the
\nconcept\t of secularism was suspect in view of the  acts\t and
\nconduct of the party controlling these Governments and\tthat
\nin  the\t volatile situation that developed pursuant  to\t the
\ndemolition, the Government of these States cannot be carried
\non in accordance with the provisions of the Constitution, we
\nare not able to say that there was no relevant material upon
\nwhich he could be so satisfied.\t The several facts stated in
\nthe counter-affidavits and the material placed before us  by
\nthe  Union  of\tIndia cannot be said  to  be  irrelevant  or
\nextraneous to the purpose for which the power under  Article
\n356  is to be exercised.  As pointed out by us supra  (under
\nthe  heading  ‘Judicial\t Review’)  we  cannot  question\t the
\ncorrectness  of the material produced and that even if\tpart
\nof it is not relevant to the action, we cannot interfere  so
\nlong  as  there\t is some relevant material  to\tsustain\t the
\naction.\t   If\tthe  President\twas   satisfied\t  that\t the
\nGovernments, which have already acted contrary to one of the
\nbasic features of the
\n++ The fact that the ban was held to be unsustainable  later
\non by the appropriate Tribunal is not relevant while judging
\nthe   situation\t  obtaining  in\t the  days   following\t the
\ndemolition.\n<\/p>\n
296<\/span><\/p>\n
Constitution,  viz., secularism, cannot be trusted to do  so
\nin  future, it is not possible to say that in the  situation
\nthen obtaining, he was not justified in believing so.\tThis
\nis  precisely the type of situation, which the court  cannot
\njudge  for  lack of judicially\tmanageable  standards.\t The
\ncourt would be well advised to leave such complex issues  to
\nthe  President\tand the Union Council of Ministers  to\tdeal
\nwith.\tIt  was\t a situation  full  of\tmany  imponderables,
\nnuances, implications and intricacies.\tThere were too\tmany
\nifs and buts which are not susceptible of judicial scrutiny.
\nIt  is not correct to depict the said Proclamations  as\t the
\noutcome\t of  political vendetta by the\tpolitical  party  in
\npower  at  the Centre against the other political  party  in
\npower  in  some\t States.   Probably  in\t such  matters,\t the
\nultimate arbiter is the people.\t The appeal should be to the
\npeople\t and  to  people  alone.   The\tchallenge   to\t the
\nProclamation  relating to these three States is,  therefore,
\nliable to fail.\n<\/p>\n
434. We may summarise our conclusions now:\n<\/p>\n
\t      (1)   Article 356 of the Constitution  confers
\n\t      a\t power\tupon the President to  be  exercised
\n\t      only  where he is satisfied that\ta  situation
\n\t      has  arisen  where the Government of  a  State
\n\t      cannot  be carried on in accordance  with\t the
\n\t      provisions  of  the Constitution.\t  Under\t our
\n\t      Constitution, the power is really that of\t the
\n\t      Union  Council  of Ministers  with  the  Prime
\n\t      Minister\t at  its  head.\t  The\tsatisfaction
\n\t      contemplated  by the article is subjective  in
\n\t      nature.\n<\/p><\/blockquote>\n
\t      (2)   The power conferred by Article 356\tupon
\n\t      the  President is a conditioned power.  It  is
\n\t      not  an  absolute\t power.\t  The  existence  of
\n\t      material\twhich may comprise of or include the
\n\t      report(s) of the Governor\t is a pre-condition.
\n\t      The  satisfaction must be formed\ton  relevant
\n\t      material.\t The recommendations of the Sarkaria
\n\t      Commission  with\trespect to the\texercise  of
\n\t      power  under  Article  356  do  merit  serious
\n\t      consideration at the hands of all concerned.
\n\t      (3)   Though  the power of dissolving  of\t the
\n\t      Legislative   Assembly  can  be  said  to\t  be
\n\t      implicit in clause (1) of Article 356, it must
\n\t      be   held,  having  regard  to   the   overall
\n\t      constitutional scheme that the President shall
\n\t      exercise\tit  only after the  Proclamation  is
\n\t      approved\tby both Houses of  Parliament  under
\n\t      clause   (3)  and\t not  before.\tUntil\tsuch
\n\t      approval,\t the President can only suspend\t the
\n\t      Legislative   Assembly   by   suspending\t the
\n\t      provisions  of  Constitution relating  to\t the
\n\t      Legislative  Assembly under sub-clause (c)  of
\n\t      clause  (1).  The dissolution  of\t Legislative
\n\t      Assembly is not a matter of course.  It should
\n\t      be   resorted  to\t only  where  it  is   found
\n\t      necessary\t for achieving the purposes  of\t the
\n\t      Proclamation.\n<\/p><\/blockquote>\n
\t      (4)   The Proclamation under clause (1) can be
\n\t      issued  only where the situation\tcontemplated
\n\t      by  the clause arises.  In such  a  situation,
\n\t      the  Government has to go.  There is  no\troom
\n\t      for  holding that the President can take\tover
\n\t      some of the functions and powers of the  State
\n\t      Government while keeping the State  Government
\n\t      in office.  There cannot be two Governments in
\n\t      one sphere.\n<\/p><\/blockquote>\n
\t      297<\/span><\/p>\n
\t      (5)(a)\t Clause\t  (3)  of  Article  356\t  is
\n\t      conceived\t as  a\tcheck on the  power  of\t the
\n\t      President\t and  also as  a  safeguard  against
\n\t      abuse.   In  case both  Houses  of  Parliament
\n\t      disapprove or do not approve the Proclamation,
\n\t      the Proclamation lapses at the end of the two-
\n\t      month  period.   In such\ta  case,  Government
\n\t      which was dismissed revives.  The\t Legislative
\n\t      Assembly,\t  which\t may  have  been   kept\t  in
\n\t      suspended\t animation gets reactivated.   Since
\n\t      the   Proclamation   lapses    and   is\t not
\n\t      retrospectively  invalidated  the\t acts  done,
\n\t      orders made and laws passed during the  period
\n\t      of  two months do not become illegal or  void.
\n\t      They  are, however, subject to review,  repeal
\n\t      or modification by the  Government\/Legislative
\n\t      Assembly or other competent authority.\n<\/p><\/blockquote>\n
\t      (b)   However, if the Proclamation is approved
\n\t      by  both\tthe Houses within  two\tmonths,\t the
\n\t      Government  (which  was  dismissed)  does\t not
\n\t      revive on the expiry of period of Proclamation
\n\t      or  on  its  revocation.\t Similarly,  if\t the
\n\t      Legislative Assembly has been dissolved  after
\n\t      the approval under clause (3), the Legislative
\n\t      Assembly does not revive on the expiry of\t the
\n\t      period of Proclamation or on its revocation.
\n\t      (6)   Article  74(2)  merely bars\t an  enquiry
\n\t      into the question whether any, and if so, what
\n\t      advice  was tendered by the Ministers  to\t the
\n\t      President.   It  does not bar the\t court\tfrom
\n\t      calling  upon the Union Council  of
\n\t      Ministers (Union of India) to disclose to\t the
\n\t      court  the material upon which  the  President
\n\t      had  formed the requisite\t satisfaction.\t The
\n\t      material\ton  the basis of  which\t advice\t was
\n\t      tendered\tdoes not become part of the  advice.
\n\t      Even  if\tthe material is looked\tinto  by  or
\n\t      shown  to the President, it does\tnot  partake
\n\t      the  character of advice.\t Article  74(2)\t and
\n\t      Section\t123  of\t the  Evidence\t Act   cover
\n\t      different\t fields.  It may happen\t that  while
\n\t      defending\t the Proclamation, the\tMinister  or
\n\t      the official concerned may claim the privilege
\n\t      under Section 123.  If and when such privilege
\n\t      is  claimed,  it will be decided\ton  its\t own
\n\t      merits  in accordance with the  provisions  of
\n\t      Section 123.\n<\/p><\/blockquote>\n
\t      (7)   The Proclamation under Article 356(1) is
\n\t      not immune from judicial review.\tThe  Supreme
\n\t      Court  or the High Court can strike  down\t the
\n\t      Proclamation if it is found to be mala fide or
\n\t      based  on\t wholly\t irrelevant  or\t  extraneous
\n\t      grounds.\t The deletion of clause\t (5)  [which
\n\t      was introduced by 38th (Amendment) Act] by the
\n\t      44th (Amendment) Act, removes the cloud on the
\n\t      reviewability  of\t the  action.\tWhen  called
\n\t      upon,  the Union of India has to\tproduce\t the
\n\t      material\ton  the basis of  which\t action\t was
\n\t      taken.  It cannot refuse to do so, if it seeks
\n\t      to  defend the action.  The court will not  go
\n\t      into  the correctness of the material  or\t its
\n\t      adequacy.\t  Its  enquiry\tis  limited  to\t see
\n\t      whether  the  material  was  relevant  to\t the
\n\t      action.  Even if part of
\n\t      298<\/span>
\n\t      the  material is irrelevant, the court  cannot
\n\t      interfere\t so long as there is  some  material
\n\t      which is relevant to the action taken.
\n\t      (8)   If\t the   court   strikes\t down\t the
\n\t      Proclamation, it has the power to restore\t the
\n\t      dismissed Government to office and revive\t and
\n\t      reactivate  the Legislative Assembly  wherever
\n\t      it  may  have  been dissolved  or\t kept  under
\n\t      suspension.  In such a case, the court has the
\n\t      power to declare that acts done, orders passed
\n\t      and   laws   made\t during\t  the\tperiod\t the
\n\t      Proclamation   was  in  force   shall   remain
\n\t      unaffected  and  be treated  as  valid.\tSuch
\n\t      declaration,  however, shall not preclude\t the
\n\t      Government\/Legislative   Assembly\t  or   other
\n\t      competent\t authority  to\treview,\t repeal\t  or
\n\t      modify such acts, orders and laws.
\n\t      (9)   The Constitution of India has created  a
\n\t      federation  but with a bias in favour  of\t the
\n\t      Centre.\tWithin\tthe sphere allotted  to\t the
\n\t      States, they are supreme.\n<\/p><\/blockquote>\n
\t      (10)  Secularism is one of the basic  features
\n\t      of   the\tConstitution.\tWhile\tfreedom\t  of
\n\t      religion\tis  guaranteed\tto  all\t persons  in
\n\t      India,  from the point of view of\t the  State,
\n\t      the  religion, faith or belief of a person  is
\n\t      immaterial.   To the State, all are equal\t and
\n\t      are  entitled  to\t be  treated  equally.\t  In
\n\t      matters  of State, religion has no place.\t  No
\n\t      political\t  party\t can  simultaneously  be   a
\n\t      religious party.\tPolitics and religion cannot
\n\t      be mixed.\t Any State Government which  pursues
\n\t      unsecular\t policies  or  unsecular  course  of
\n\t      action  acts  contrary to\t the  constitutional
\n\t      mandate and renders itself amenable to  action
\n\t      under Article 356.\n<\/p><\/blockquote>\n
\t      (11)  The Proclamation dated April 21, 1989 in
\n\t      respect of Karnataka (Civil Appeal No. 3645 of
\n\t      1989)  and the Proclamation dated October\t 11,
\n\t      1991 in respect of Meghalaya (Transferred Case
\n\t      Nos.  5 and 7 of 1992) are  unconstitutional).
\n\t      But  for\tthe fact that fresh  elections\thave
\n\t      since taken place in both the States  and\t new
\n\t      Legislative  Assemblies and  Governments\thave
\n\t      come  into existence  we would  have  formally
\n\t      struck down the Proclamations and directed the
\n\t      revival  and  restoration\t of  the  respective
\n\t      Governments  and Legislative Assemblies.\t The
\n\t      Civil Appeal No. 3645 of 1989 and\t Transferred
\n\t      Cases  Nos.  5  and  7  of  1992\tare  allowed
\n\t      accordingly.  Civil Appeal Nos. 193 and 194 of
\n\t      1989  relating to Nagaland are disposed of  in
\n\t      terms  of the opinion expressed by us  on\t the
\n\t      meaning  and purport of Article 74(2)  of\t the
\n\t      Constitution.\n<\/p><\/blockquote>\n
\t      (12)  The Proclamations dated January 15, 1993
\n\t      in  respect of Madhya Pradesh,  Rajasthan\t and
\n\t      Himachal\tPradesh\t concerned in  Civil  Appeal
\n\t      Nos. 1692,1692-A to 1692-C of 1993,  4627-4630
\n\t      of  1993, Transferred Case (C) No. 9  of\t1993
\n\t      and   Transferred\t  Case\t No.   8   of\t1993
\n\t      respectively  are not  unconstitutional.\t The
\n\t      Civil Appeals are allowed and the judgment  of
\n\t      the High Court of Madhya Pradesh in
\n\t      299<\/span>
\n\t      M.P.  (C) No. 237 of 1993 is set\taside.\t The
\n\t      transferred cases are dismissed.\n<\/p><\/blockquote>\n
435. In\t the  light  of the reasons  given  and\t conclusions
\nrecorded  hereinabove, we find ourselves in  agreement\twith
\nthe  conclusions  1,  2 and 4 to 7 in the  judgment  of\t our
\nlearned\t Brother Sawant, J. delivered on behalf\t of  himself
\nand  Kuldip  Singh, J. We are also in broad  agreement\twith
\nconclusion 8 in the said judgment.\n<\/p>\n
436. No orders on interlocutory applications.\n<\/p>\n
437. There shall be no order as to costs in these matters.\n<\/p>\n
304<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India S.R. Bommai vs Union Of India on 11 March, 1994 Equivalent citations: 1994 AIR 1918, 1994 SCC (3) 1 Author: K Singh Bench: Pandian, S.R. (J), Ahmadi, A.M. (J) (J), Verma, J.S. (J) Sawant, P.B., Ramaswamy, K. & Agrawal, S.C. (J), Yogeshwar Dayal Reddy, B.P. (J) PETITIONER: S.R. BOMMAI Vs. RESPONDENT: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-39798","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nS.R. 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