S.R. BOMMAI v. UNION OF INDIA AND ORS.

Citation: [1994] 2 S.C.R. 644; 1994 INSC 111

Court: Supreme Court of India

Bench: A.M. AHMADI, S. RATNAVEL PANDIAN, KULDIP SINGH, J.S. VERMA, P.B. SAWANT, K. RAMASWAMY, S.C. AGRAWAL, YOGESHWAR DAYAL, B.P. JEEVAN REDDY

Judgment date: 1994-03-11

Case summary

1994 INSC 111. Supreme Court of India judgment dated 1994-03-11. S.R. BOMMAI v. UNION OF INDIA AND ORS. Read the judgment and case details on LawSphereX.

Judgment text

646 SUPREME COURT REPORTS (1994] 2 S. C. R. I S. R. BOMMAI AND ORS. v. UNION OF INDIA AND ORS. l MARCH 11, 1994 [S. RATNAVEL PANDIAN;A. M .. AHMADI, KULDIP SINGH, J. S. VERMA, P. B. SAWANT, K. RAMASWAMY, S. C. AGRAWAL, YOGESHWAR DAYAL AND B. P. JEEVAN REDDY, J. T. ] Constitution of India, I950: Art. 356-Nature, scope, applicability and effect of-President's Rule-Promulgation of in case of failure of constitutional machinery in states-Satisfaction ,_~r President' that a situation has arisen in which the Government of the State cannot be canied on in accordance with the provisions of the Constitution'-fnterpretation of-'Satisfaction of PresidentL-'Satisfaction'-Meaning of-Subjective satisfaction of Union Council of Ministers-Principles of natural justice-Observance of-Satisfaction must be based on Objective material-Situations where it can be said that the State Govt.

'cannot' be canied on-Return of any political party at the centre different from that in power in the State-Not one such situation-ideology of State Govt. to be consistent with the Constitutiort-Disregard IE by any State of the basic values and essential features of the Constitution-Regard to federal structure and Cen~State relatiotr-Need for-Effect of issuance of the Promulgation and conditions precedent-Dissolution of Legislative Assembly and Government of the State-. Whether a necessary consequence-Effect of approval/disapproval of the Promulgation-Revival of Legislation Assembly-Validation of laws and orders passed during the ~ promulgation-Validity of Promulgatidns issued in respect of Kamataka, Meghalaya, Nagaland, Madhya Pradesh, Himachal Pradesh and Rajasthan. Con_stitution of India, I951J-Arts. 356, and 352, 355, 357, 36o-Nature of Art. 356 in the context of-An emeJ8ency provision to be used in excep- " tional circumstances. , Constitution of India, 1951J-Arts.

356(1) and 154, 155, 156, 163-'0n receipt of report from Govemor'-Govemor's obligation to make report-Role of Governors-Floor test-Testing majority support of the ruling party in the State on the floor of the House-Necessity of-Whether floor test a pre-requi- • site to sending report by Governor. S. R. BOMMAI v. U. 0. l. 645 Constitution of J11dia, 195()--Preamble and Arts. 15, 16, 25, 26, 27, 28, 30, 51-A, 356-Scope of Preambl&-Secularism-Mea11i11g a11d role of-Religious tolerance a11d equal treatme11t of all religions-Concept of positive secularism-Religion vis-a-vis secularism-Secularism is part of the basic st111cture of the Constitution-Effect of 42nd Amendment. Constitution of I11dia 1950-Arts. 32, 226 & 35-Proclamation under Art. 356-Amenable to judicial reviev.

-Before or after Parliament's approval-Not the subjective satisfaction of President but material on which satisfaction is based open to judicial review on grounds of illegality, malafide, extraneous considerations, abuse of jJower or fraud on power, irrelevance not sustainable so long as there is sonte relevant rnaterial-Co1Tections or adequacy of the ntaterial cannot be gone into on merits-Nor can purely political questions be reviewed by Court-Doctrine of political thicket-Materials falling within the expression, 'or otherwise'-Review of Constitution of India, 1950-Arts. 356, 74(2) & 142 and 32 & 226-Proclan;atio11 under Art. 356-Judicial Reviev. -Bar under Art. 74(2)-Nature a11d object of-Whether confined to the advice tendered by Council of Ministers-But material on the basis of which advice was tendered is subject to judicial reviea-Whether Govt. while justifying its action can claim privilege under S.

123 of the Evidence Act, 187l-Burden of Proof-First on the person challenging the Proclamation-Then shifts to Union of India. Constitution of India : Arts. 74 and 77-Scope of Interpretation of the Constitution : Constitutional schem&-Should be so construed as to maintain the fundamental balance. p Constitutional provisions-Language plain and clean-No obvious in- . >·-advertento: mission-Filling up the gaps by Courts-Whether could be resorted to. Constitutional provisions-Interpretation not to whittle down the powers of the States. Evidence Act, 1872: S. 123--Privileg&-Action taken under Art. 356 of the Constitution of India-Government justifying its action-Whether could claim privilege under s. 123. Adniinistrative Law : Judicial Review-Whether confined to the decision making process only and not the decision itself mz me1its-Justiciability and fudicial review-Difference between.

Words & Phrases : 'Federalisn1' 'Federation' 'federal Jann of Government' 'Secularisni' 'Judicial Review'-Meaning of in the context of the provisions of the Constitution of India. In the present appeals and Transferred cases, the dissolution of the Legislative Assemblies in Karnataka, Rajasthan, Madhya Pradesh, Himachal Pradesh, Meghalaya and Nagaland, was challenged. The expansion of Ministry in Karnataka (headed by Shri S. R. Bommai of Janata Dal) caused dissatisfaction to some of the aspirants. 20 MLAs later defectedthe part and write to the Governor on April 17, 1989 expressing no confidence in the leadership of Shri Bommai. The Governor sent a report to the President in April 19, 1989. Subsequently on April 20, · 1989, 7 out of the 20 MLAs wrote to the Governor that their signatures were obtained by misrepresentation and reaffirmed their support in Sb. Bommai.

On the same day the Cabinet decided to convene the Assembly on April 27, 1989 to obtain vote of confidence and Shri Bommai met the Governor and requested him to allow floor test, so that he could prove his majority and that he was prepared even to advance the date of the session. The Governor sent his second report to the President, who exercising his power under Art. 356 issued proclamation dissolved the Assembly and assumed the administration of the State of Karnataka. A writ petition was filed challenging this and the High Court dismissed the writ petition, against which the present appeal is filed. In the elections held in February, 1990, the Bhartiya Jania Party (BJP) emerged as the majority part in the legislative assemblies of Uttar Pradesh, Madhya Pradesh, Rajasthan and Himachal Pradesh, and formed governments in the said States. As per the manifesto of BJP, it was to construct a temple for Lord Sri Rama at his birth place Ayodhya.

On December 6, 1992 the disputed Ram Janambhoomi Bahri Masjid structure S. R. BOMMAI v. U. 0. 1. 647 was demolished by the Karsewaks gathered at Ayodhya, as a result of sustained momentum generated by BJP, Vishva Hindu Parishad, Rashtriya Swayamsewak Sangh, Bajrang Dal, Shivsena and other or· ganisations, despite the assurance given to this Court by the State Government that the disputed structure would be protected. Though the Government of U. P. resigned, the President issued a proclamation under Art. 356 of the Constitution and dissolved the U. P. State Assembly. Loss of precious lives of innoc-ent people and property throughout the country and the neighbouring countries followed the demolition. The President exercising the power under Art. 356 issued proclamations, dismissed the State Governments of Ra. iasth. an, Madhya Pradesh and Himachal Pradesh and dissolved the legislative assemblies or the States. These proclamations are also under challenge before this Court.

In the State of Meghalaya, the then Speaker of the House was elected as leader of the opposition group and he claimed the support of the majority of the members in the house and requested the governor to invite him to form the government. The Governor requested him to prove his majority on the floor of the house. 30 members voted for him and 27 voted against him. Before announcing the result, the Speaker intimated the house that he had received a complaint against five independent MLAs. in the ruling Coalition alleging disqualification under the Anti-defection Law and that he was suspending their right to vote. There was an uproar and the session had to be adjourned. The Speaker sent notices to the live independent MLAs, and later disqualified them, but not on the ground alleged in the show cause notice. On Governor's advice, the Chief Minister summoned the session of the assembly. The Speaker refused to send the notices of the session to the live MLAs disqualified by him.

He also made arrangements to ensure that they were not allowed to enter the assembly. Four of the five members obtained stay orders from this Court against the Speaker's order. Again the Assembly was summoned to meet on October 8, 1991. The four MLAs. filed Contempt Petition against the Speaker; and on this Court's orders, they were invited to the session, and voted in favour of the motion expressing confidence in the Government. Excluding the votes of the said four . ' members, the speaker declared that the Governn1ent had lost the confidence of the House. The Governor reported that a situation had arisen where the Governn1ent of the State cannot be carried on in accordance with ) \.. the provisions of the Constitution and the President dismissed the Government on the basis of the report. This has been challenged before this Court. In Nagaland, the Congress(! ) party formed the Government in 1987, with 35 MLAs.

In 1988, there wa~ a split and 13 MLAs formed a separate party called Congress Ruling Party. It claimed the support of 35 MLAs and stated its claim to form the Ministry. The Governor sent a report to the President detailing the horse trading mechanitions and some MLAs having contact with the insurgents. The Chief Minister resigned and the Governor recommended imposition or President's Rule. President issued the proclamation under Art. 356 assuming the functions of the State of Nagaland. The dissident leader filed a writ petition challenging the proclamation. The Judges in the Division Bench differed on the scope of Art. 74(2) and S. 123 of the Evidence Act and the matter was referred to a third Judge. However, before he could hear the matter, the Union of India filed Special Leave Petition and this Court granted leave and stayed the proceedings of the High Court. Detailed arguments were advanced on the scope of Articles 356, especially in the context of related provisions viz. Arts.

354, 355, 357, 360, 154, 155, 159, 163 etc. and the approval of the proclamation by the Parliament. Arguments were also advanced on the scope and extent of Art. 74(2) as also S. 123 of the Evidence Act. Various contentions had been raised on Preamble to the Constitution, Federal structure of the Constitution, Judicial Review, Centre-State relations, basic structure of the Constitution as also secularism. p Disposing uf the matters, this Court -- .... HELD : Per Sawant, J. (for himself and Ku/dip Singh, !. ) 1. 1. The common thread running through the Articles 352 to 360 in Part XVIII relating to emergency provisions is that the said provisions can be invoked only when there is an emergency and the emergency is of the nature described therein and not of any other kind. The Proclamation of emergency under Articles 352, 356 and 360 is further dependent on the , . satisfaction of the President with regard to the existence of the relevant conditions-precedent.

The duty cast on the Union under Article 355 also arises in the min conditions stated therein. (718 C, DJ 1. 2. The crucial expressions in Article 356(1) are if the President, "on the receipt of report from the Governor of a State or otherwise" "is satisfied" . ' that "the situation has arisen in which the Government of the State cannot be carried on" uin accordance with the provisions of the Constitution". The conditions precedent to the issuance of the Proclamation, are: (a) that the President should be satisfied either on the basis of a report from the Governor of the State or otherwise, (b) that in fact a situation has arisen in which the Government of the State cannot be «. :arried on in accordance with the provisions of the Constitution. In other words, the President's satisfaction has to be based on objective material. That material may be available in the report sent to him by the Governor or otherwise or both from the report and other sources.

Further, the objective material so available must indicate that the Government of the State cannot be carried on in accordance with the provisions of the Constitution. Thus the existence of' the objective material showing that the Government of the State cannot be carried on in accordance with the provisions of the Constitution is a condi· tion precedent before the President issues the Proclamation. Once such material is shown to exist, the satisfactiCJn of the President based on the material is not open to question. However, if there is no such objective material before the President, or the material before him cannot reasonably • suggest that the Government of the State cannot be carried on in accord· ance with the provisions of the Constitution, the Proclamation issued is open to challenge. [718 E·H, 719 A] 1. 3. The objective material before the President must indicate that the Government of the State "cannot be carried on in accordance with the provisions of the Constitution".

In other words, the provision require that the material before the President must be sufficient to indicate that unless a Proclamation is issued, it is not possible to carry on the affairs of the State as per the provisions of the Constitution. It is not every situation arising in the State but a situation which shows that the constitutional Government has become an impossibility, which alone wi11 entitle the President to issue the Proclamation. These parameters of the condition precedent to the issuance of the Proclamation indicate both the extent of and the limitations on, the power of the judicial review of the Proclamation issued. It is not disputed that the Proclamation issued under Article356(1) is open to judicial review. All that is contended is that the scope of the . ' review is limited. The language of the provisions of the Article contains , sufficient guidelines on both the scope and the limitations, of the judicial ' , \ . review. [719 B-E] 1. 4.

It is unacceptable that even if the Constitution provides precon- ' ditions for exercise of power by the constitutional authorities, the Courts cannrit examine whether the pre-conditions have been satisfied. It is equally unacceptable if the powers are entrusted to a constitutional authority for achieving a particular purpose and if the concerned authority under the guise of attaining the said purpose,, uses the powers to attain an impermissible object, such use of power cannot be questioned. No authority been pointed out in support of these propositions. Many pf the parameters of judicial review developed in the field of administrative law are not anti-thetical to the field of constitutional law, and they can equally apply to the domain covered by the constitutional law. That is also true of the doctrine of proportionality. [720 B-D] Barium Chemicals Ltd. & Anr. v. The Company Law Board & Ors. , [1966) Supp. SCR 311; M. A. Rashid & Ors. v.

State of Kera/a, (1975) 2 SCR 93; State of Rajasthan & Ors. etc. etc. v. Union of India etc. etc. , [1978) 1 SCR 1; Kehar Singh & Anr. etc. v. Union of India & Anr. , [1988) Supp. 3 SCR 103 and Mam Ram etc. etc. v. Union of India & Am·. , [1981) 1 SCR 1196, relied on. > • Chief Constable of the North Wales Police v. Evans, (1982) 3 All ER 141; Council of Civil Service Unions v. Minister for the Civil Service, (1985) AC 374 at 408; R. v. Crown Court at Carlisle, exp Marcus- Moore, (1981) Times, 26 October, DC; R. v. Panel on Takeovers and Mergers, exp Guinness Pie, (1987) QB 815; Council of Civil Service Unions v. Minister for the Civil Service, (1985) AC 374 at 414; Puhlhofer v. Hillingdon London Borough Council, (1986) AC 484; Leech v. Deputy Governor of Parkhurst Prison, (1988) AC 533 and Muhammad Shmifv. Federation of Pakistan, PLD (1988) Lahore 725, referred to. ' 2. 1.

The exercise of power by the President under Article 356(1) to issue Proclamation is subject to the judicial review at least to the extent of examining whether the conditions precedent to the issuance of the Proclamation have been satisfied or not. This examination will necessarily involve the scrutiny as to whether there existed material for the satisfac~ lion of the President that a situation had arisen in which the Government of the State could not be carried on in accordance with the provisions of , . the Constitution. Needless to emphasise that it is not an. y material but • /{ S. R. BOMMAI v. U. 0. 1. 651 material which would lead to the conclusion that the Government of the State cannot be carried on in accordance with the provisions of the Constitution which is relevant for the purpose. It has further to be remembered that the Article requires that the President "has to be satisfied" that the situation in question has arisen.

Hence the material in question has to be such as would induce a reasonable man to come to the conclusion in question. The expression used in the Article is "if the President........ . is satisfied". It is not the personal whim, \\ish, view or opinion or the ipse dixit of the President de h01s the material but a legitimate inference drawn from the material placed before him which is relevant for the purpose. In -. other words, the President has to be convinced of or has to have suflicient proof of information with regard to or has to be free from doubt or uncertainty about the state of things indicating that the situation in question has arisen. Although, therefore, the sufficiency or otherwise of the material cannot be questioned, the legitimacy of inference drawn from such material is certainly open to judicial review. (730 E-H, 731 A·CJ 2. 2.

The power exercised by the President under Article 356(1) is on the advice of the Council of Ministers tendered under Article 74(1) of the Constitution. The Council of Ministers under our system would always belong to one or the other political party. In view of the pluralist democracy and the federal structure, the party or parties in power (in case of coalition Government at the Centre and in the States may not be the same). Hence there is a need to confine the exercise of power under Article 356(1) strictly to the situation mentioned therein which is a condition precedent to the said exercise. That is why the framers of the Constitution have taken pains to specify the situation which alone would enable the exercise of the said power. The situation is no less than one in which "the Government of the State cannot be carried on in accordance with the provisions of this Constitution". A situation short of the same does not 11 empower the issuance of the Proclamation.

The word "cannot emphatically connotes a situation of impasse. Situation which can be remedied or do not create an impasse, or do not disable or interfere with the governance of the State according to the Constitution, would not merit the issuance of the proclamation under the Article. A situation contemplated under this Article is one where the government of the State cannot be carried on "in accordance with the provisions of the Constitution". The expression indeed envisages varied situation. Article 365 which is in Part XIX entitled "Miscellaneous", has contemplated one such situation. The failure to comply with or to give effect to the directions given by the Union under any or the provisions of the Constitution, is of course, not the only situation contemplated by the expression "Government or the State cannot be carried on in accordance with the provisions or this Constitution' Article 365 is more in the nature or a deeming provision.

However, the situations other than those mentioned in Article 365 must be such where the governance or the State is not possible to be carried on in accordance with the provisions or the Constitution. [731 D-Fl 2. 3 There is no hesitation in concurring broadly with the occasions illustrated by the Sarkaria Commission on Centre State Relations where • the exercise or power under Article 356(1) would be improper and uncalled for. [737 E] Constituent Assembly Debates Vol. IX p. 175, 176; Report of Sarkaria Commission on Centre State relations, paragraphs 6. 3, 23, 24, 6. 4. 01, 6. 5. 01, referred to. 3. 1. The object of Article 74(2) was not to exclude any material or documents from the scrutiny of the Courts but to provide that an order issued by or in the name of the President conld not be questioned on the ground that it was either contrary to the advice tendered by the Ministers or was issued without obtaining any advice from the Ministers.

Its object was only to make the question whether the President had followed the advice of the Ministers or acted contrary thereto, non-justiciable. What advice, if any, was tendered by the Ministers to the President was thus to be beyond the scrntiny of the Court. (737 H, 738 A-Bl 3. 2. This is not to say that the rule of exclusion laid down in Section 123 of the Indian Evidence Act is given a go-bye. However, it only emphasises that the said rule can be invoked in appropriate cases. (738 G] • _. 3. 3. Although Article 74(2) bars judicial review so far as the advice given by the Minis~ers is concerned, it does not bar scrutiny of the material on tbe basis of which the advice is given. The Courts are not interested in either the advice given by the Ministers to the President or the reasons for such advice.

The Courts are, however, justified in probing as to whether there was any material on the basis of which the advice ~1 as given, and whether it was relevant for such advice and the President could have acted .. ,, • on it. Hence, when the Courts undertake an enquiry into the existence of '( S. R. BOMMAI v. U. 0. 1. 653 such moterial, the prohibition contained in Article 74(2) does not negate their right to know about the factual existence of any such material. This ' is not to say that the Union Government cannot raise the plea of privilege under Section 123 of the Evidence Act. As and when such privilege against disclosure is claimed, the Courts will examine such claim within the parameters of the said section on its merits. [738 G, H; 739 A-BJ 3. 4.

Since further the Prodamation issued under Article 356(1) is required by Clause (3) of that Article to be laid before each House of Parliament and ceases to operate on the expiration of two months unless it has been approved by resolutions by both the Houses of Parliament before the expiration of that period, it. is evident that the c1uestion as to whether a Proclamation should or should not have been made, has to be discussed on the floor of each House and the two Houses would be entitled to go into the material on the basis of which the Council of Ministers had tendered the advice to the President for issuance of the Proclamation. Hence the secrecy claimed in respect of the Material in question cannot remain inviolable, and the plea of non-disclosure of the material can hardly be pressed.

When the Proclamation is challenged by making out a prima facie case with regard to its invalidity, the burden would be on the -• Union Government to satisfy that there exists material which showed that the Government could not be carried on in accordance with the provisions of the Constitutim;. Since such material would be exclusively within the knowledge of the Union Government, in view of the provisions of Section 106 of the Evidence Act, the burden of proving the existence of such material would be on the Union Government. (739 E-H, 740 A] 3. 5. As regards the question whether the validity of the Proclamation issued under Article 356(1) can be challenged even after it has been approved by both Houses of Parliament under clause (3) of Article 356, there is no reason to make a distinction between the Proclamation so approved and a legislation enacted by the Parliament. If the Proclamation is invalid, it does not stand validated merely because it is approved of by the Parliament.

The grounds for challenging the validity of the Proclamation may be different from those challenging the validity of a legislation. However, that does not make any difference to the vulnerability of the Proclamation on the limited grounds available. (740 B-C] . --~ ..... 3. 6. The deletion of clause (5) of Article 356, as it stood prior to its [1994] 2 S. C. R. deletion by the Constitution (44th Amendment) Act in 1978, has made no change in the legal position that the satisfaction of the President under clause (1) of Article 356, was always judicially reviewable. On the other hand, the deletion of the clause has reinforced the earlier legal position, viz. , that notwithstanding the existence of clause (5), the satisfaction of the President under clause (1) was judicially reviewable and the judicial review was not barred on account of the presence of the clause. [741 DJ Shamsher Singh & Anr. v. State of Punjab, [1975) 1 SCR 814; State of U. P. v. Raj Narain, [1975] 3 SCR 333 at 360; A.

K Roy v. Union of India, [1982) 2 SCR272 at 297; Kilwto Hallahan v. Zachil/hu & Ors. , [1992) Supp. 2 SCC 651at707-710; Union of India v. Jyoti Prakash Mittar, [1971] 3 SCR 483 and Union of India v. Tulsi Ram Patel, [1985) Supp. 2 SCR 131, referred to. R. v. H. M. Treasury exp. Sme/dey, [1975] QB 657, referred to. Prof. H. W. R. Wade in "Administratvie Law" -6th Edition, referred to. 4. 1. It will be an inexcusable error to examine the provisions of Article 356 from a pure legalistic angle and interpret their meaning only through jurisdictional technicalities. The Constitution is essentially a political document and provisions such as Article 356 have a potentiality to unsettle and subvert the entire constitution scheme. The exercise of powers vested under such provisions needs, therefore, to be circumscribed to maintain the fundamental constitutional balance lest the Constitution is defaced and destroyed.

This can be achieved even without bending much less breaking the normal mies of interpretation, if the interpretation is alive to the other ' equally important prov1sions of the Constitution and its bearing on them. Democracy and federalism are the essential features of our Constitution and are part of its basic structure. Any interpretation that may placed on Article 356 must, therefore, help to preserve and not subver their fabric. The power vested de jure in the President but de facto in the Council of Ministers under Article 356 has all the latent capacity to emasculate the two basic features of the Constitution and hence it is necessary to scrutinise the material on the basis of which the advice is given and the President forms his satisfaction more closely and circumspectly. This can be done by the '• Courts while confining themselves to the acknowledged parameters of the judicial review as discussed above viz. , illegality, irrationality and ma/a fides.

Such scrutiny of the material will also be withi11 the judicially dis· S. R. BOMMAI v. u. o. r. 655 coverable and manageable standards. [742 F-H; 743 A-CJ • 4. 2. States have an independent constitutional existence and they have as important a role to play in the political, social, educational and cultural life to the people as the Union. They are neither satellites nor agents of the Centre. The fact that during emergency and in certain other eventualities their powers are overriden or invaded by the, Centre is not destructive of the essential federal nature of our Constitution. The invasion of power in such circumstances is not a normal feature of the Consdtution. They are exceptions and have to be resorted to only occasionally to meet the exigencies of the special situations. The exceptions are not a rule. (746 E-G] 4. 3.

So long as the States are not mere administrative units but in their own right constitutional potentates with the same paraphernalia as the Union, and with independent Legislature and the Executive constituted by the same process as the Union, whatever the bias in favour of the Centre, it cannot be said that merely because (and assuming it is correct) the Constitution is labelled unitary or quasi-federal or a mixture of federal and unitary structure, the President has unrestricted power of issuing Proclamations under Article 356(1). If the Presidential powers under the said provision are subject to judicial review within the limits discussed above, those limitations will have to be applied strictly while scrutinising the concerned the material. (747 A-CJ 4. 4.

In a representative democracy in a populous country like ours when legislatures of the States are dissolved pursuant to the power used under Article 356(1) of the Constitution and the elections are proposed to be held, it involves for the public exchequer an enormous expenditure and consequently taxes the public. The machinery and the resources of the St~te are diverted from other useful work. The expenses of contesting elections. which even othenrise are heavy and unaffordable for common man are multiplied. Frequent elections; consequent upon unjustified use of Article 356(1) has thus a potentially dangerous consequence of negating the very democratic principle by making the election-contest the exclusive preserve of the affiuent. What is further, the frequent dissolution of the Legislature, has the tendency to create disenchantment in the people with the process of election and thus with the democratic way oflife itself.

The history warns us that the frustration with democracy has often in the past, led to an invita- )'\ lion to fascism and dictatorship of one form or the other. [747 D-F] • 4. 5. Tne participation of the people in the governance is a sine qua non of democracy. The democratic way of life began by direct participation of the people in the day to day affairs of the society. With the growth of population and the expansion of the territorial boundaries of the State, ' representative democracy replaced direct democracy and people gradually surrendered more and more of their rights of direct participation, It their representatives. Notwithstanding the surrender of the requisite powers, in matters which are retained, the powers are jealously guarded and rightly so. If it is true to say that in democracy, people are sovereign and all power belongs primarily to the people, the retention of such power by the people and the anxiety to exercise them is legitimate.

The normal rule being the self-governance, according to the wishes expressed by the people, the occcsions to interfere with the self- governance should both be rare and demonstrably compelling. (747 H, 748 A·CJ 4. 6. Our Society is, among other things, multi-lingual, multi-ethnic and multi-cultural. Prior to independence, political promises were made that the States will be formed on linguistic basis and the ethnic and cultural identities will not only be protected but promoted. It is in keeping with the said promises, that the States eventually have come to be organised broadly on linguistic, ethnic and cultural basis. The people in every State desire to fulfil their own aspirations through self-governance within the framework of the Constitution. Hence interference with the self-governance also amounts to the betrayal of the people and unwarranted interference.

The betrayal of the democratic aspirations of the people is a negation of the democratic principle which runs through our Constitution. (748 D-F] 4. 7. Under our political and electoral system, political parties may operate at the State and national level or exclusively at the State level. There may be different political parties in different States and at the national leveJ. Consequently, situations may arise, as indeed they have, when the ;iolitical parties in power in various States and at the Centre may be different. It may also happen • as has happened till date • that through political bargaining, adjustment and understanding, a State-level party may agree to elect candidates of a national level party to the Parliament and vice versa. This mosaic of variegated pattern of political life is paten- S. R. BOMMAI v. U. 0. 1. 657 tially inherent in a pluralist multi-party democracy like ours.

Hence the temptation or the political party or parties in power (in a coalition Government) to destabilise or sack the Government in the State not run by the same political party or parties is not rare and in fact the experience or the working or Article 356(1) since the inception or the Constitution, shows that the State Governments have been sacked and the legislative assemblies dissolved on irrelevant, objectionable and unsound grounds. So for the power under the provision has been used on more than 90 occasions and the almost all cases against governments run by political parties in opposition. Ir the fabric or pluralism and pluralist democracy and the • unity and integrity or the country are to be preserved, judiciary in the circumstances is the only institution which can act as the saviour or the system and of the nation. (748 G-H, 749 A-D] 4. 8.

It cannot be said that if the ruling party in the States suffers an overwhelming defeat in the elections to the Lok Sabha - however complete the defeat may be it will be a ground for the issue of the Proclamation under Article 356(1). (749 E] j 4. 9. The federal principle, social pluralism and pluralist democracy which form the basic structure of our Constitution demand that the judicial review of the Proclamation issued under Article 356(1) is not only an imperative necessity but is a stringent duty and the exercise of power under the said provision is confined strictly for the purpose and to the circumstances mentioned therein and for none else. It also requires that the material on the basis of which the power is exercised is scrutinised circumspectly. (750 F-G] State of Rajas than etc. etc. v. Union of India, (1978] 1 SCR 1, referred to. Constituent Assembly Debates, Vol. IX p. 177 referred to. 5. 1.

The removal of the MinistJ11 orthe dissolution of the Legislative Assembly is not automatic consequence of the issuance or the Proclamation. The exercise of the powers under sub-clauses (a), (b) and (c) of Article 356(1) may also co-exist with a mere suspension of the political Executive and the Legislature or the State. Sub-clause (c) or Article 356(1) makes it clear. It 5{1t~ks or incidental and consequential provisions to give effect to the objects or the proclamation including suspension in whole or part of the · operation or any provision or the Constitution relating to any body or authority in the State. It has to be noted that unlike sub-clause (a), it does not exclude the Legislature of the State. Sub clause (b) only speaks of exercise or the powers of the Legislature of the State by or under the authority of the Parliament.

What is further, the assumption of only some of the functions orthe Government and the powers orthe Governor or of any body or authority in the State other than the Legislature of the State under sub-clause (a), is also conceivable with the retention of the other functions and powers with the Government or the State and the Governor or any body or authority in the State. The language of sub-clause (a) is very clear on the subject. Where there is a bicameral Legislature, the Upper House, i. e. , the Legislative Council cannot be dissolved. Yet under sub-clause (b) of Article 356(1) its powers are exercisable by or under the authority of Parliament. The word used there is "Legislature" and not "Legislative Assembly". Legislature includes both the Lower House and the Upper House, i. e. , the Legislative Assembly and the Legislative Council.

It has also to be noted that when the powers of the Legislature of the State are declared to be exer-cisable by or under the authority of the Parliament under Article 356(l)(b), it is competent for Parliament under Article 357, to confer on the President the power of such Legislature to make laws and to authorise the President to delegate the powers so conferred, to any other authority to be specified by him. The authority so chosen may be the Union or officers and authorities thereof. Legally, therefore, it is permissible under Article 356(1), firstly, only to suspend the political executive or any body or authority in the State and also the Legislature of the State and not to remove or dissolve them. Secondly, it is also permissible for the President to assume only some orthe functions of the political executive or of any body or authority or the State other than the Legislature while neither suspending nor removing them.

The Caci that some of these exercises have not been resorted to in practice so far, does not militate against the legal position which emerges from the clear language of Article 356(1). [751 H; 752 A-H; 753 A-BJ 5. 2. Once the issuance of the Proclamation is held valid, the scrutiny of the kind and degree of power used under the Proclamation, falls in a narrower compass. There is every risk and fear of the Court undertaking upon itself the task of evaluating with fine scales and through its own lenses the comparative merits of one rather than the other measure. The Court will thus travel unwittingly into the political arena and subject itself more readily to the charges of encroaching upon policy-making. The S. R. BOMMAI v. U. 0. 1. 659 'political thicket" objection sticks more easily in such circumstances. ..

Although, therefore, on the language or Article 356(1), it is legal to hold that the President may exercise only some or the powers given to him, in practice it may not always be easy to demonstrate the excessive use or the power. (753 E-F] 5. 3. In addition to warning, the President will always have the power to issue the necessary directives. Except in situations where urgent steps are imperative and exercise of the drastic power under the Article cannot brook delay, the President should use all other measures to restore the constitutional machinery in the State. The Sarkaria Commission has also made recommendations in that behalf in paragraphs 6. 8. 01 to 6. 8. 04 or its Report, and the said recommendations are endorsed. (754 E-F] 6. 1. The Parliament can only approve or disapprove or the removal or the Council or Ministers and the dissolution or the Legislative Assembly under clause (3) or Article 356, if such action is taken by the President.

The question then arises is whether the Council or Ministers and the Legislative Assembly can be restored by the Court when it declares the Proclamation invalid. There is no reason why the Council of Ministers and the Legislative Assembly should not stand restored as a consequence or the invalidation or the Proclamation, the same being the normal legal effect or the invalid action. In the context or the relevant constitutional provisions and in view of the power of judicial review vested in the Court, such a consequence is also a necessary constitutional fall-out. Unless such result is read, the power or judicial review vested in the judiciary is rendered nugatory and meaningless. To hold otherwise is also tantamount to holding that the Proclamation issued under Article 356(1) is beyond the scope or judicial review. For when the validity or the Proclamation is challenged, the Court will be powerless to give relier and would always be met with the fait accompli.

Article 356 would then have to be read as an exception to judicial review. Such an interpretation is neither possible nor permissible. Hence the necessary consequence or the invalidation or the Proclamation would be the restoration or the Ministry as well as the Legislative Assembly, in the State. (755 D-H] 6. 2. As regards cases where the Proclamation is held valid but is not ..... approved by either or both Houses or Parliament, the consequence or the same would be the same as where the proclamation is revoked sub-sequently or is not laid before each House or the Parliament before the expiration or two months or where it is revoked arter its approval by the Parliament or ceases to operate on the expiration or a period or six months from the date or its issue, or or the rurther permissible period under clause ( 4) or Article 356.

It does not, however, appear from the provisions or Article 356 or any other provision or the Constitution, that mere non-approval of a valid Proclamation by the Parliament or its revocation or cessation, will have the effect either or restoring the Council or Ministers or the Legislative Assembly. The inevitable consequence in such a situation is fresh elections and the constitution or the new Legislative Assembly and the Ministry in the State. The law made in exercise or the power or the Legislature or the State by Parliament or the President or any other authority during the period the valid Proclamation subsists before it is revoked or disapproved, or before it expires, is protected by clause (2) or Article 357. [756 D-G] 6. 3.

It is necessary to interpret clauses (1) and (3) or Article 356 harmoniously since the provisions of clause (3) aI"P obviously meant to be a check by the Parliament (which also consist or members from the concerned States) on the powers of the President under clause (1). The check would become meaningless and rendered ineffective if the President takes irreversible actions while exercising his powers under sub- clauses (a), (b) and (c) or Clause (1) of the said Article. The dissolution of the Assembly by exercising the powers of the Governor under Article 174 (2) (b) will be one such irreversible action. Hence, it will have to be held that in no case, the President shall exercise the Governor's power of dissolving the Legislative Assembly till at least both the Houses or Parliament have approved of the Proclamation issued by him under Clause (1) of the said Article.

The dissolution of the assembly prior to the approval of the Proclamation by the Parliament under clause (3) of the said Article will be per se invalid. The President. may however, have the power of suspending the Legislature under sub-clause (c) of clause (1) of the said Article. [756 H, 757 A-C] 6. 4. The President has no power to dissolve the Legislative Assembly of the State by using his power under sub- clause (a) of clause (1) of Article 356 till the Proclamation is approved by both the Houses of Parliament under clause (3) of the said Article. He may have power only to suspend the Legislative Assembly under sub-clause (c) of clause (1) of the said Article. Secondly, the Court may invalidate the Proclamation whether it is approved ... S. R. BOMMAI v. U. 0. 1. 661 by the Parliament or not.

The necessary consequence of the invalidation of • the Proclamation \\-'ould be to restore the status quo ante and, therefore, to restorethe Council of Ministers and the Legislative Assembly as they stood on the date of the issuance of the Proclamation. The actions taken including the laws made during the interregnum may or may not be validated either by the Court or by the Parliament or by the State Legislature. It may, however, be made clear that it is for the Court to mould the relief to meet the requirements of ~he situation. It is not bound in all cases to grant the relief of restoration of the Legislative Assembly and the Ministry. The question of relief to be granted in a particular case pertains to the discretionary jurisdfction of the Court. [757 D-F] 6. 5.

The Court in appr,,priate cases will not only he justified in preventing holding of fresh elections hut would be duty-hound to do so by granting suitable interim relief to make effective the constitutional remedy of judicial review and to prevent the emasculation of the Constitution. [758 D] Mian Munianiniad Nalvaz Shalif v. President of Pukistun and Ors. , [1993] PLD SC 473, referred to. KARNATAKA: 7. 1. The High Court had committed an error in ignoring the most relevant fact that in view of the conflicting letters of the seven legislators, it was improper on the part of the Governor to have arrogated to himself the task of holding, firstly, that the earlier niaeteen letters were genuine and were written by the said legislators of their free will and volition. He had not even cared to interview the said legislatcrs, but had merely got the authenticity of the signatures verified through tl;e Legislature Secretariat.

He also took upon himself the task of deciding that the seven out of the nineteen legislators had written the subsequent letters on accotint of the pressure from the Chief Minister and not out of their free will. Again he had not cared even to interview the said legislators. It is . not known from where the Governor got the information that there was horse~trading going on between the legislators. Even assuming that it was so, the correct and the proper course for him t. o adopt was to await the test on the floor of the House which test the chief Minister had willingly undertaken to go through on any day that the Governor chose. In fact, the State Cabinet had itself taken an initiative to convene the meeting of the Assembly on 27. 4. 89, i. e. , only a week ahead of the date on which the Governor chose to send his report to the President.

Lastly, what is important to note in connection \\ith this episode is that the Governor at no time asked the Chief Minister even to produce the legislators before hin1 W'ho \\'ere supporting the Chief ~·linister, if the Governor thought that the situation posed such grave threat to the gove1·nance of the State that he could not await the result of the floor-test in the House. (761 A-Fl 7. 2. This is a case where all cannons of propriety were thrown to wind and the uncJue haste made by the Governor in inviting the President to issue the proclamation under Article 356 (1) clearly smacked of ma/a fides. The Proclamation issued by the President on the basis of the said report of the Governor and in the circumstances so obtaining, therefore, equally suffered from niala fides. A duly constituted Ministry was dismissed on the basis of material which was neither tested nor allowed to be tested and was no more than the ipse dixit of the Governor.

111e action of the Governor was more objectionable since as a high constitutional functionary, he was expected to conduct himself more fairly, cautiously and circumspectly. Instead, it appears that the Governor was in a hurry to dismiss the Ministry and dissolve the Assembly. The Proclamation having been based on the said report and so-called other information which is not disclosed, was therefore liable to be struck down. (761 F-H, 762 A] 73. It is necessary to stress that in all cases where the support to the Ministry is claimed to have been withdrawn by some Legislators, the proper course for testing the strength of the Ministry is holding the test on the floor of tlie House. That alone is the constitutionally ordaint~d forum for seeking openly and objectively the claims and counter-claims in that behalf. The assessment of the strength of the Ministry in not a matter of private opinion of any individual, be he the Governor or the President.

It is capable of being demonstrated and ascertained publicly in the House. Hence when such demonstration is possible, it is not open to bypass it and instead depend upon the subjective satisfaction of the Governor or the President such private assessment is an anathema to the democratic principle, apart from being open to serious objections of personal 111ala fides. It is possible that on some rare occasions, the floor· test may he impossible, although it is difficult to envisage such situation. Even assunt-ing that there arises one, it should be obligatory on the Governor in such y . circumstances, to state in writing, the reasons for not holding the floortest. The High Court was, therefore, wrong in holding that the floor test was S. R. BOMMAI 1•. U. 0. 1. 663 neither cornpulsory nor obligatory or that it \\'as not a pre-requisite to sending the report to the President recommending action under Article , 356 (1). [762 B-E] 7. 4.

The High Court was further wrong in taking the view that the facts stated in the Governor's report were not irrelevant when the Governor \lithout ascertaining: either fron1 the Chief Minister or from the seven MLAS \l'hether their retraction was genuine or not, proceeded to give his unverified opinion in the matter. What was further forgotten by the High Court was that assuming that the support was withdrawn to the Ministry by the 19 MLAs, it was incumbent upon the Governor to ascertain whether any other Ministry could be formed. The question of personal bona fides of the Governor is irrelevant in such matters. What is to be ascertained is whether the Governor had proceeded legally and explored all possibilities, of ensuring a constitutional government in the State before reporting that the constitutional machinery had broken down.

Even if this meant installing the Government belonging to a minority party, the Governor was duty bound to opt for it so long as the Government could enjoy the confidence of the House. It is also obvious that beyond the report of the Governor, there was no other material before the President before he issued the . Proclamation. Since the "facts" stated by the Governor in his report, as pointed out above contained his own opinion based on unascertained material, in the circumstances, they could hardly be said to form an objective material on which the President could have acted. The Proclama-lion issued was, therefore invalid. [762 F-H; 763 A-CJ MEGHALAYA: 8. The unflattering episode shows in unmistakable terms. the Governor's unnecessary anxiety to dismiss the Ministry and dissolve the Assembly and also his failure as a constitutional functionary to realise the binding legal consequences of and give effect to the orders of this Court.

What is worse, the Union Council of Ministers also chose to give advice to the President to issue the Proclamation on the material in question. It is not necessary to comment upon the validity of the proclamation any further save and except to observe that prima facie, the material before the President was not only irrational but motivated by factual and legal ma/a ... ~-fides. The Proclamation was, therefore, invalid. [766 E-G] NA GALA ND: 9. On ! he facts of this case also the Governor shoulrl have allowed Shri Vamuzo to test his strength on the floor of the House. This was particularly so because the Chief Minister, Shri Serna had already submitted his resig· nation to the (;overnor.

This is notwithstanding the fact that the Governor in his report had stated that during: the preceding 25 years, no less than 11 Governments had been forn1ed and according tn his information, the Con· gress-1 MLAs were allured by the monetary benefits and that amounted to incredible lack of political morality and complete disregard of the wishes of ! he electorate. It has to be emphasised here that although the Tenth Schedule was added to the Constitution to prevent political bargaining and defections, it did not prohibit the formation of another political party if it was backed by no less than 1/3rd members of the existing legislature party. Since no opportunity was given to Shri Vamuzo to prove his strength on the floor of the House as claimed by him and to form the Ministry, the Proclamation issued was cnconstitutional. [768 B-E] Afadhya Pradesh, Rajasthan & Hiniachal Pradesh in the context of Secularisn1: 10. 1.

The Proclamations dated 15th December, 1992 and the actions taken by the President removing the Ministry and dissolving the Legislative Assemblies in the States of Madhya Pradesh, Rajasthan and Himachal Pradesh pursant to the said Proclamations are not unconstitutional. [789 GI 10. 2. Articles 14, 15, 16, 26, 30 and 44 by implication prohibit the establishment of a theocratic State and prevent the State either identil)'ing itself with or favouring any particular religion or religious sect or denomination. The State is enjoined to accord equal treatment to all religions and religious sects and denominations. [783 D] 10. 3. One thing which . prominently emerges from our Constitution is that whatever the attitude of the State towards the religions, religious sects and denominations, religion cannot he mixed with any secular activity oftlhe State. In fact, the encroachment of religion into secular activities is strictly prohibited. This is evident from the provisions of the Constitution.

The State's tolerance of religion or religions does not make it either a religious or a theocratic State. When the State allows citizens to practise and profess S. R. BOMMAI v. U. 0. 1. 665 their religions, it does not either explicitly or implicitly allow them to introduce religion into non-religious and secular activities of the State. The freedom and tolerance of religion is only to the extent of' permitting pursuit of spiritual life which is different from the secular life. The latter falls in the exclusive domain of the affairs of the State.

This is also clear from Sub-section (3) of Section 123 of the Representation of the Peoples Act, 1951 which prohibits an appeal by a candidate or his agent or by any other person with the consent of the candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of or appeal to religious symbols Sub-Section (3A) of the same section prohibits the promote or attempt to promote feelings of enmity and hatred between different classes of the citizens of India on the grounds of religion, race, caste, community or language a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate. A breach of the provisions of the said sub-sections (3) and (3A) are deemed to be corrupt practices within the meaning of the said section.

[785 D-H, 786 A] 10. 4. Reading sub-sections (3) and (3A) of Section 123 together, it is clear that appealing to any religion or seeking votes in the name of any religion is prohibited by the two provisions. To read otherwise is to subvert the intent and purpose of the said provisions. [786 CJ 10. 5. The BJP manifesto on the basis of which the elections were contested and pursuant to which elections the three Ministries came to power stated that the party is committed to build Shri Ram Mandir at Janmasthan by relocating superimposed Bahri structure with due respect. Leaders of the BJP had consistently made speeches thereafter to the same _. ,. __ - effect. Some of the Chief Ministers and Ministers belonged to RSS which was a banned organisation at the relevant time. The Ministers in the Ministries concerned exhorted people to join kar se\'·a in Ayodhya on 6th December, 1992.

One MLAs belonging to the ruling BJP in Himachal Pradesh made a public statement that he had actually participated in the destruction of the mosque. Ministers had given public send-off to the kar sevaks and had also welcomed them on their return after the destruction of the moS<1ue. The implementation of the policy pursuant to the ban of the RSS was to be executed by the I\finisters who \\''ere themselves members of the said organisation. At least in two States, viz. , Madhya Pradesh & Rajasthan there were atrocities against the Muslims and loss of lives and destruction of property. [786 E-H; 787 A-CJ 11J. 6. Religious tolerance and equal treatment of all religious groups and protection of their life and property and of the places of their worship are an essential part of secularism enshrined in our Constitution.

We have accepted the said goal not only because it is our historical legacy and a need of our national unity and integrity but also as a creed of universal brotherhood and humanism. It is our cardinal faith. Any profession and action which go counter to the aforesaid creed are a prima facie proof of the conduct in defiance of the provisions of our Constitution. If, therefore, the President had acted on the aforesaid "credentials" of the Ministries in these States which had unforeseen and imponderable cascading consequences, it can hardly be argued that there was no material before him to come to the conclusion that the Governments in the three States could n1[)f be carried on in accordance with the provisions of the Constitution. The consequences of such professions and acts which are evidently against the provisions of the Constitution cannot be measured only by what happens in praesentie.

A reasonable prognosis of events to come and of their multifarious effects to follow can always be made on the basis of the evenits occurring, and if such prognosis had led to the conclusion that in the circumstances, the Governments of the States could not be carried on in accordance with the provisions of the Constitution, the inference could hardly be faulted. Therefore, the President had enough material in the form of the aforesaid professions and acts of the responsible section in the political set up of the three States including the Ministries to form his satisfaction that the Governments of the three States could not be carried on in accordance with the provisions of the Constitution. Hence the Proclamations issued in respect of these three States could not be said to be invalid. [787 C-H] MC. Setalvad, (Patel Memorial Lectures · 1965 on Secularism); referred to. Relief: 11.

Though the Proclamations issued in respect of Karnataka, Meghalaya and Nagaland are held unconstitutional no relief could be granted in view of the fact that fresh elections have since taken place and the new Legislative Assemblies and Ministries have been constituted in S. R. BOMMAI v. U. 0. l. 667 these three States. However, it is declared that all actions which might have been taken during the period the proclamation operated are valid. Per Jeeven Reddy, J. (for himself and Agrawal, J. ) - (in broad agreement with Sawant, J. on secularism and in agreement with the conclusions on Judicial Review, Art. 74(2), approval of the Proclamation by both the Houses of Parliament before dissolving the Legislative Assembly by the President, by using the powers of the Governor under Art. 174(2) (b) read with Art. 356(1) (a), and moulding of relief): • - THE FEDERAL NATURE OF THE CONSTITUTION: 1.

A review of the provisions of Constitution shows unmistakably that while creating a federation, the founding fathers wished to establish a strong centre. In the light of the past history of this sub-continent, this was probably a natural and necessary decision. A land as varied as India is, a strong centre is perhaps a necessity. This bias towards centre is reflected in· the distribution of legislative heads between the Centre and States. All the more important heads of Legislation are placed in List-I. Even among the legislaOve heads mentioned in List-II, several of them, e. g. , Entries 2, 13, 17, 23, 24, 26, 27, 32, 33, 50, 57 and 63 are either limited by or made subject to certain Entries in List-I to some or the ·other extent. Even in the concurrent list (List-III), the Parliamentary enactment,is given the primacy, irrespective of the fact whether such enactment is earlier or later in point of time to a State enactment on the same subject-matter.

Residuary powers are with the Centre. By the 42and Amendment, quite a few of the Entries in List-II were omitted and/or transferred to other lists. Above all, Articlo3 empowers the Parliament to form new State out of existing State either by merger or division as also to increase, diminish or alter the boundaries of the States. ... In the process, existing States may disappear and new ones may come into existence. As a result of the Reorganisation of State Act, 1956, fourteen Statt>o; and six Uni9n Territories came into existence in the place of twenty seven States and one area. Even the names of the States can be changed by the Parliament unilaterally. The only requirement, in all this process, being the one prescribed in the proviso to Article 3, viz. , ascertainment of the views of the Legislatures of the affected States. There is single citizenship, unlike U. S. A.

The judicial organ, one of the three organs of the State, is one l ~ and single for the entire country - again unlike U. S. A. , where they are Federal judiciary and State judiciary separately. Articles 249 to 252 further [1994] 2 S. C. R. demonstrate the primacy of Parliament If the Rajya Sabha passes a resolution by 2/3rd majority that in the national interest, Parliament should make laws "1th respect to any matter in List-II, Parliament can do so (Article 249), no doubt, for a limited period. During the operation of a proclamation of emergency, Parliament can make laws mth respect to any matter in List-II (Article 250). Similarly, the Parliament has power to make laws for giving effect to International Agreements (Article 253). So far as the finan· ces are concerned, the States ab'llin appear to have been placed in a less favourable position an aspect which has attracted a good amount of criticism at the hands of the States and the proponents of the Slates' autonomy.

Several taxes are collected by the Centre and made over, either - . partly or fully, to the States. Suffice it to say that Centre has been made far more powerful vis-a-vis the States. Correspondingly, several obligations too are placed upon the Centre including the one in Article 355 • the duty to protect every State against external aggression and internal disturbance. Indeed, this very Article confers greater power upon the Centre in the name of casting an obligation upon it, viz. , "to ensure that the Government of every 11 ' State is carried on in accordance with the provisions of this Constitution • It is both a responsibility and a power. [796 D-H, 797 A-El 1. 2. The fact that under the scheme of our Constitution greater power is conferred upon the Centre vis-a-vis the Stat. es does not mean that States are mere appendages of the Centre. Within the sphere allotted to them, States are supreme. The Centre cannot tamper mth their powers.

More particularly, the Courts should not adopt an approach, an interpretation, which has the effect of or tends to have the effect of whittling down the powers reserved to the States. ! t is a matter of common knowledge that over the last several decades, the trend the world o•ver is towards strenb'1hening of Central Governments - be it the result of advances in technologicaliscientific fields or othermse, and that even in U. S. A. the Centre has become far more powerful notmthstanding the obvious bias in that Constitution in favour of the States. "All this must put the Court on guard against any conscious whittling do,. ,;. of the powers ·or the States. Let it be said that the federalism in the Indian Constitution is not a matter of administrative convenience but one of principle ~ the outcome of our own historical process and a recognition of the ground realities.

It is e<JUally necessary to emphasise that Courts should be careful not to upset the delicately crafted constitutional scheme by a process of interpretation. > I [797 F -H, 798 A·D] .. S. R. BOMMAI v. U. 0. 1. 669 The Automobile Transpolt (Rajasthan) Ltd. v. The State of Rajasthan & Ors. , (1963] 1 S. C. R. 491, Berubari Union and Exchange of Enclaves - Reference under Article 143, [1960] 3 S. C. R. 250 and State of West Bengal v. Union of India, (1964] 1 S. C. R. 371, relied on. (M. C. Setalvad: Tagore Law Lech1res "Union and State relations under the Indian Constitution" (published by Eastern law House, Calcutta, 1974) referred to. I An analysis of Altic/c 356: 2. 1. The power conferred by Article 356 is a conditioned power; it is ' not an absolute power to be exercised in the discretion of the President. \ The condition is the formation of satisfaction - subjective, on doubt - that • a situation of the type contemplated by the clause has arisen.

This satisfaction may be formed on the basis of the report of the Governor or on the basis of other information received by him or both. The existence of relevant material is a pre-condition to tile formation of satisfaction. The 11 11 use of the word may indicates not only a discretion but an obligation to consider the advisability and necessity of the action. lt also involves an ob/igatii:Jn to consider which of the several steps specified in sub-clauses (a), (b) and (c) should be taken and to what extent. The dissolution of the Legislative Assembly - assuming that it is permissible - is not a matter of course. It should be resorted to only when it is necessary for achieving the purposes of the proclamation. The exercise of the power is made subject to approval of the both Houses of Parliament. Clause (3) is both a check on the power and a safeguard against abuse of power. [800 E-G] 2. 2.

Clause (1) uses the words "is satisfied", which indicates a more definite state of mind than is indicated by the expressions "is of the opinion" or "has reasons to believe". Since it is a case of subjective satisfaction, question of observing the principles of natural justice does not and cannot arise. Having regard to the nature of the power and the situation in which it is supposed to be exercised, principles of natural justice cannot be imported into the clause. it is evident that the satisfaction has to be formed by the President fairly, on a consideration of the report of the Governor and/or other material, if any, placed before him. Of course, the President under our Constitution being, what may be called, a constitu- .

- ' tional President obliged to act upon the aid and advice of the council of ministers (which aid and advice is binding upon him by virtue of clause (1) of Article 74), the satisfaction referred to in Article 356 (1) really means the satisfaction of the Union Council of Ministers with the Prime Minister at its head. [801 C-E] 2. 3. Clause (1) requires the President to be satisfied that a situation 11 1 has arisen in which the government of the State cannot' be carried on "in accordance with the "provisions of this Constitution". The words "cannot" emphasise the type of situation contemplated by the clause. These words read with the title of the Article "provisions in case of failure of constitutional machinery in States" emphasise the nature of the situation contemplated. [801 F] 2. 4. The words "provisions of this Constitution" mean what they say. The said words cannot be limited or confined to a particular chapter in the Constitution or to a particular set of Articles.

While construing a constitutional provision, such a limitation ought not to be ordinarily inferred unless the context does clearly so require. The provisions of the Constitution include the chapter relating to fundamental rights, the chapter relating to directive principles of the state policy as also the preamble to the Constitution. [801 G-H; 802 A] 2. 5. The satisfaction of the President referred to in clause (l) may be formed either on the receipt of the report (s) of the Governor or otherwise. The Governor of a State is appointed by the President under Article 155. He is indeed a part of the government of the State. The executive power of the State is vested in him and is exercised lily him directly or through officers subordinate to him in accordance with the provisions of the Constitution (Article 154).

All executive action of the government of a State is expressed to be taken in the name of the Governor, except a few functions which he is required to exercise in his discretion. He has to exercise his powers with the aid and advice of the council of ministers with the Chief Minister at its head (Article 163). He takes the oath prescribed by Article 159, to preserve, protect and defend the Constitution and the laws to the best of his ability . It is this obligation which requires him to report to the President tht commissions and omissions of the government of his State which according to him are creating or have created a situation where the government of the State cannot be carried on in accordance with the provisions of the Constitution. In fact, it would be a case of his reporting against his omi government but this n1ay be a S. R. BOMMAI v. U. 0. 1.

671 case of his wearing two hats, one as the head of the State government and , the other as the holder of an independent constitutional office whose duty it is lo preserve, protect and defend the Constitution. (802 E-H, 803 A] 2. 6. Since the Governor cannot himself take any action of the nature contemplated by Article 356 (1), he reports the matter to the President and it is for the President to be satisfied - whether on the basis of the said report or on the basis of any other information which he may receive otlterwise - that situation of the nature contemplated by Article 356 (1) has arisen. It is then and only then that he can issue the proclamation. Once "< " the proclamation under Article 356 (1) is issued or simultaneously with it, the President can take any or all the actions specified in clauses (a), (b) and (c). [803 A-BJ Barium Chemicals v. Company Law Board, (1966] Suppl. S. C. R. 311; Keshavananda Bharti v. State of Kera/a, (1973] Suppl. S. C. R. 1 and Shamsher Singh v.

State of Punjab, [1975] 1 S. C. R. 814, relied on. Power of the President to dissolve Legislative Assembly of the State : 3. 1. Clause (1) of Art. 356(1) does empower the President to dissolve the Legislative Assembly. This view is also supported by the decision in State of Rajasthan besides the fact that over the last forty-four years, the said power has never been questioned. The power to dissolve the Legislative Assembly is implicit in sub-clause(a) or clause(l) though there is no such thing as dissolution of the 'Legislature or the Stat. e' where it consists of two Houses. It must also be recognised that in certain situations, dissolution of Legislative Assembly may be found to be necessary for achieving the purposes of the proclamation. Power there is. Its exercise is a different matter.

The existence of power does not mean that dissolution of Legislative Assembly should either be treated as obligatory or should invariably be ordered whenever a Government or the State is dismissed. It should be a matter for the President to consider, taking into consideration all the relevant facts and circumstances, whether the Legislative Assembly should also be dissolved or not. If he thinks that it should be dissolved, it would be appropriate, indeed highly desirabe, that he states the reasons for such extraordinary step in the order itseir. [806 F-H; 807 A-Bl 3. 2. Unless approved by both House of Parliament, me proclamation lapses at the end of two months and earlier if it is disapproved or declined to be·approved by both the Houses of Parliament, as explained hereinafter.

Having regard to the incongruity of the Executive (even though Union Executive) dissolving the Legislature (even if of a State), it would be consistent with the scheme and spirit of the Constitution • particularly in the absence of a specific provision in the Constitution expressly expower· ing the President to do so • to hold that this power of dissolution can be exercised by the President only after both Houses of Parliament approve the proclamation and not before such approval. Once the Parliament places its seal of approval on the proclamation, further steps as may be found necessary to achieve the purposes of the proclamation, i. e. dissolu- . ,-tion of Legislative Assembly, can be ordered. Until the approval, he can only keep the Assembly under suspended animation but shall not dissolve it. [807 D·GI 3. 3.

While no writ petition shall be entertained by any court before the actual issuance of proclamation under clause(l), it shall be open to a High Court or Supreme Court to entertain a writ petition questioning the proclamation if it is satisfied that the writ petition raises arguable ques· lions with respect to the validity of the proclamation. The court woulld be entitled to entertain such a writ petition even before the approval or the -proclamation by the Parliament • as also after such approval. In an appropriate case and if the situation demands, the High Court/Supreme Court can also stay the dissolution or the Assembly but not in such a manner as to allow the Assembly to continue beyond its original term .. But in every such case where such an order is passed the High Court/Supreme court shall have to dispose or the matter within two to three months.

Not disposing of the writ petition while granting such an interim order would create several complications because the life or the proclamation does not exceed six months even after the approval by parliament and in any event the proclamation cannot survive beyond one year except in the situation contemplated by clause (5) which is, of course, an exceptional situatiion. [807 H, 808 A·C] 3. 4. Clause (3) or Art. 356 uses the words 'approved by resolutions or both Houses of Parliament". The word "approval' means affirmatioin or the action by higher or superior authority. In other words, the action of the President bas to be approved by the Parliament. The expression 'approval" has an intrinsic meaning which cannot be ignored. Disapproval or non-approval means the Houses of Parliament are saying that the, President's action was not justified or warranted and that it shall no S. R. BOMMAl v. U. 0. l. 673 longer continue. In such a case, the proclamation lapses, i. e.

, ceases to be in operation at the end of rn·o months · the necessacy· consequence of which is the status quo ante revives. To say tat notwithstanding the disapproval or non·approval, the status quo ante does not revive is to rob the concept of approval of its content and meaning. Such a view renders the check provided by clause (3) ineffective and of no significance whatsoever. It would indeed mean supremacy of the Executive nver the ParHament. The dismissal of a government under sub-clause(a) of clause(l) cannot also be equated to the physical death of a living being. There is no irrevocability "' _ about it. It is capable of being revived and it revives. Legislative Assembly which may have kept in suspended animation also springs back to life.

So far as the validity of the acts done, orders passed and laws, if any, made during the period of operation of the proclamation is concerned, they would remain uneffected inasmuch as the disapproval or non- approval does not render the proclamation invalid with retrospective effect. It may be recalled that the power under Article 356(1) is the power vested in the President subject no doubt to approval within two months. The non-approval means that the proclamation ceases to be in operation at the expiry of two months. (808 G-H; 809 A-El 3. 5. Even in case the proclamation is approved by the Parliament it would be open to the court to restore the State Government to its office in ease it strikes down the proclamation as unconstitutional. If this power were not conceded to the court, the very power of judicial review would be rendered nugatory and the entire exercise meaningless.

If the court cannot grant the relief Dowing from the invalidation of the proclamation, it may as well decline to entertain the challenge to the proclamation altogether. For, there is no point in the court entertaining the challenge, examining it, calling upon the Union Government to produce the material on the basis _... · - of which the requisite satisfaction was formed and yet not give the relief. Such. a course is inconceivable. (809 F-H; 810 A] 3. 6. It would be within the power of the court to say that the acts and orders made and laws enacted by Parliament or under its authority during the period the proclamation was in operation, are saved. Indeed, it should say so in the interests of general public and to avoid all kinds of complications, leaving it to government and the Legislature of the State concerned to rectify, modify or repeal them, if they so choose.

The theory of factum velet may also be available to save the acts, orders and things done by the President or under his authority during the said period. [810 B-c] State of Rajasthan & Ors. etc. etc. v. Union of India, [1978] 1 SCR 1, referred to. 3. 7. Under ! he Government of India Act, 1935, the Governor-General and the governor were not constitutional heads of State as under the Constitution. They exercised real power in their own right. Only a few powers were entrusted to the elected governments and even those could be taken away (by in Governor- General at the Centre and the Governor in • r the provinces) as and when they were satisfied that a situation has arisen where the government at the centre or of the province cannot be carried on in accordance with the provision of the said Act. Under Article 356, the position is entirely different. The power can be exercised only against the States and that too by the President and not by the Governor.

The entire constitutional philosophy is different.. Therefore, merely because the same words "all or any" in Sections 93 and 45 of the Government of India Act occur in Article 356(1) the same meaning cannot be attributed to them mechanically ignoring all other factors. [811 C-F] 4. 1. Since the commencement of the Constitution, the President has invoked Article 356 on as many as ninety or more occasions. Instead of remaining a 'dead-letter', it has proved to be the 'death-letter' of scores of State Governments and Legislative Assemblies. The Sarkaria Commission which was appointed to look into and report on Centre-State relations considered inter alia the manner in which the power has been exercised over the years and made certain recommendations designed to prevent its misuse.

Since the Commission was headed by a distinguished Judge of this Court and also because it made its report after an elaborate and exhaustive study of all relevant aspects, its opinions are certainly entitled to great weight notwithstanding the fact that the report has not been accepted so far by the Government of India. [811 G-H, 812 A, Bl 4. 2. The recommendations of Sarkaria Commission on Centre-State Relation in regard to Article 356 are evidently the outcome of the opinion formed by the Commission that more often than not, the power under Article 356 has been invoked improperly. It is not to express any opinion whether. this impression of the Commission in justified or not. It is not possible to review all the ninety cases in which the said power has been invoked and to say in which cases it was invoked properly and in which S. R. BOMMAI v. U. 0. 1. 675 cases, not.

Having regard to the constitutional scheme obtaining under our Constitution, the said recommendations do merit serious consideration. [815 F, GJ Sarkaria Conunission Report on Centre-State Relation, paragraphs 6. 3. 23, 6. 4. 01, 6. 5. 01 and 6. 8, referred to. Rajamannar Committee report. Ch. IX, referred to. The Constitution of India and the Concept of secularism: 5. 1. While Article 25 or the Constitution guarantees to all its people freedom or religion, Articles 14, 15 and 16 enjoin upon the State to treat all its people equally irrespective of their religion, caste, faith or belief. While the citizens of this country are free to profess, practice and propagate such religion, faith or belief as they choose, so far as the State is concerned, i. e. , from the point of view of the State, the religions, faith or belief of a person is immaterial. To it, all are equal and all are entitled to be treated equally.

Equal treatment is not possible if the State were to prefer or promote a particular religion, race or caste, which necessarily mCans a less favourable treatment of all other religions, races and castes. The Constitutional promises of social justice, liberty or belief, faith or worship and equality of status and of opportunity cannot be attained unless the State eschews the religion, faith or belief of a person from its consideration altogether while dealing with him, his rights, his d

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