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SRBommai -1994

SRBommai -1994

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Published by: tosumitb on Jun 28, 2012
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06/28/2012

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 S.R. Bommai v. Union of India
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Cases Overruled / Reversed:
S.R. Bommai v. U.O.I. MANU/KA/0003/1990; Surnderlal Patwa v. U.O.I. 1993 LLJ 387
Case Note:Constitution - judicial review - Section 51 of Government of India Act, 1935 and Article 365of Constitution of India - judicial review capable of exercise in testing invalidatingproclamation - several States having controversy on ground that proclamation issued are justiciable - provision of Article 365 of Constitution of India is indication that cases fallingwithin its ambit capable of judicial scrutiny by application of objective standards - Courtobserved that constitutional machinery failed to specified existence - Court capable todetermine objective - Court observed that it is reasonable to held that cases falling underArticle 365 justiciable and must be determined by Court.ORDER P.B. Sawant, J.
1. On behalf of Kuldip Singh, J. and himself. Article
has a vital bearing on the democratic parliamentary form of government and the autonomy of the States under the federal Constitutionthat we have adopted. The interpretation of the Article has, therefore, once again engaged theattention of this Court in the background of the removal of the governments and the dissolution of the legislative assemblies in six States with which we are concerned here, on different occasionsand in different situations by the exercise of power under the Article. The crucial question that fallsfor consideration in all these matters is whether the President has unfettered powers to issueProclamation under Article
of the Constitution. The answer to this question depends uponthe answers to the following questions: (a) Is the Proclamation amenable to judicial review? (b) If yes, what is the scope of the judicial review in this respect? and (c) What is the meaning of theexpression "a situation has arisen in which the Government of the State cannot be carried on inaccordance with the provisions of this Constitution" used in Article
?Article 
reads as follows:356, Provisions in case of failure of constitutional machinery in States. - (1) If the President, onreceipt of report from the Governor of a State or otherwise, is satisfied that a situation has arisen inwhich the government of the State cannot be carried on in accordance with the provisions of thisConstitution, the President may by Proclamation-
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MANU/SC/0444/1994, AIR1994SC1918, JT1994(2)SC215, 1994(2)SCALE37, (1994)3SCC1,[1994]2SCR644; [S. Ratnavel Pandian, A. M. Ahmadii, Kuldip Singh Singh, J. S. Verma, P.B.Sawant, K. Ramaswamy, S.C. Agrawal, Yogeshwar Dayal and B.P. Jeevan Reddy Reddy, JJ.]
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(a)assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or any body or authority in the State other thanthe Legislature of the State;(b) declare that the powers of the Legislature of the State shall be exercisable by or under theauthority of Parliament;(c) make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspendingin whole or in part the operation of any provisions of this Constitution relating to any body or authority in the State:Provided that nothing in this clause shall authorise the President to assume to himself any of the powers vested in or exercisable by a High Court, or to suspend in whole or in part the operation of any provision of this Constitution relating to High Courts.(2) Any such Proclamation may be revoked or varied by a subsequent Proclamation.(3) Every Proclamation issued under this article shall be laid before each House of Parliament andshall, except where it is a Proclamation revoking a previous Proclamation, cease to operate at theexpiration of two months unless before the expiration of that period it has been approved byresolutions of both Houses of Parliament:Provided that if any such Proclamation (not being a Proclamation revoking a previousProclamation) is issued at a time when the House of the People is dissolved or the dissolution of the House of the People takes place during the period of two months referred to in this clause, andif a resolution approving the Proclamation has been passed by the Council of States, but noresolution with respect to such Proclamation has been passed by the House of the People before theexpiration of that period, the Proclamation shall cease to operate at the expiration of thirty daysfrom the date on which the House of the People first sits after its reconstitution unless before theexpiration of the said period of thirty days a resolution approving the Proclamation has been also passed by the House of the People.(4) A Proclamation so approved shall, unless revoked, cease to operate on the expiration of a period of six months from the date of issue of the Proclamation:Provided that if and so often as a resolution approving the continuance in force of such aProclamation is passed by both Houses of Parliament, the Proclamation shall, unless revoked,continue in force for a further period of six months from the date on which under this clause itwould otherwise have ceased to operate, but no such Proclamation shall in any case remain in forcefor more than three years:Provided further that if the dissolution of the House of the People takes place during any such period of six months and a resolution approving the continuance in force of such Proclamation has been passed by the Council of States, but no resolution with respect to the continuance in force of such Proclamation has been passed by the House of the People during the said period, the
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Proclamation shall cease to operate at the expiration of thirty days from the date on which theHouse of the People first sits after its reconstitution unless before the expiration of the said periodof thirty days a resolution approving the continuance in force of the Proclamation has been also passed by the House of the People.Provided also that in the case of the Proclamation issued under Clause (1) on the 11th day of May,1987 with respect to the State of Punjab, the reference in the first proviso to this clause to "threeyears" shall be construed as a reference to "five years".(5) Notwithstanding anything contained in Clause (4), a resolution with respect to the continuancein force of a Proclamation approved under Clause (3) for any period beyond the expiration of oneyear from the date of issued of such Proclamation shall not be passed by either House of Parliament unless:(a) a Proclamation of Emergency is in operation, in the whole of India or, as the case may be, inthe whole or any part of the state, at the time of the passing of such resolution, and(b) the Election Commission certifies that the continuance in force of the Proclamation approvedunder Clause (3) during the period specified in such resolution is necessary on account of difficulties in holding general elections to the Legislative Assembly of the State concerned:Provided that nothing in this clause shall apply to the Proclamation issued under Clause (1) on the11th day of May, 1987 with respect to the State of Punjab.2. Before we analyse the provisions of Article
, it is necessary to bear in mind the context inwhich the Article finds place in the Constitution. The Article belongs to the family of Articles
which have been incorporated in Part XVIII dealing with "Emergency Provisions" as thetitle of the said Part specifically declares. Among the preceding Articles, Article
deals withProclamation of emergency. It states that if the President is satisfied that a grave emergency existswhereby the security of India or of any part of the territory thereof is threatened whether by war or external aggression or armed rebellion, he may by Proclamation make a declaration to that effect inrespect of the whole of India or of such part of the territory thereof as may be specified in theProclamation. Explanation to Clause (1) of the said Article states that Proclamation of emergencydeclaring that the security of India or any part of the territory thereof is threatened by war or byexternal aggression or by armed rebellion, may be made before the actual occurrence of war or of any such aggression or rebellion if the President is satisfied that there is imminent danger thereof.Clause (4) of the said Article requires that every Proclamation issued under the said Article shall be laid before each House of Parliament and shall cease to operate at the expiration of one month,unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament. It is not necessary for our purpose to refer to other provisions of the said Article.Article
 refers to the effect of the Proclamation of emergency. It states that while theProclamation of emergency is in operation, executive power of the Union shall extend to the givingof the directions to any State as to the manner in which the executive power thereof is to beexercised. It further states that during the emergency the power of Parliament to make laws withrespect to any matter, shall include power to make laws conferring powers and imposing duties or authorising the conferring of powers and the imposition of duties upon the Union or officers and
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