NATIONAL LAW UNIVERSITY, JODHPUR

(Winter session- January-May 2020)

CONSTITUTIONAL GOVERNANCE ASSIGNMENT CA-3

S.R. BOMMAI AND JUDICIAL REVIEW

Submitted by: Submitted

to:
Ria Mehta (1741) Mrs. Sayantani
Bagchi
B.B.A. L.L.B (Hons.) Faculty of
law
(2nd SEMESTER)
 TABLE OF CONTENTS

Index of authorities--------------------------------------------------------------------------------------iii
Acknowledgement---------------------------------------------------------------------------------------iv
Chapter 1---------------------------------------------------------------------------------------------------5
Backdrop and History---------------------------------------------------------------------------------5
Facts in brief--------------------------------------------------------------------------------------------5
Chapter 2---------------------------------------------------------------------------------------------------6
Issues----------------------------------------------------------------------------------------------------6
Arguments in brief-------------------------------------------------------------------------------------6
Chapter 3---------------------------------------------------------------------------------------------------7
Summary of the Judgement---------------------------------------------------------------------------7
Chapter 4---------------------------------------------------------------------------------------------------8
Analysis and Conclusion------------------------------------------------------------------------------8

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 INDEX OF AUTHORITIES
Cases
K.K. Aboo v. Union of India, AIR 1965 ker 299-----------------------------------------------------5
S.R. Bommai v. Union of India, AIR 1994 SC 1918: (1994) 3 SCC 1----------------------------6
Sapru Jayakar Motilal C.R. Das v. Union of India, AIR 1999 pat. 221---------------------------8
State of Rajasthan v. Union of India, AIR 1977 SC 1361----------------------------------------5, 7
Constitutional Provisions
Article 356, The Constitution of India, 1949----------------------------------------------------------5
Books
M.P. Jain, Indian Constitutional Law, 7th Edition, pg no. 724--------------------------------------5
M.P. Jain, Indian Constitutional Law, 7th Edition, pg no. 725--------------------------------------6

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 ACKNOWLEDGEMENT

The completion and success of this assignment could happen only because of the steadfast
support given by Mrs. Sayantani Bagchi, Faculty of Law, National Law University, Jodhpur.
I would like to take this opportunity to thank her for her words of guidance and constructive
feedback.

Last, but not the least, I would like to thank my parents and my batch mates who constantly
raised our morale so that I could finish this project with satisfaction to the fullest of my
capabilities even in these times of quarantine.

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 CHAPTER 1
BACKDROP AND HISTORY
1
Article 356 of the Constitution of India states the Provisions in case of failure of
constitutional machinery in States, the President on receipt of a report from the Governor of
the State and if he is satisfied about the same, can declare President’ rule and scrap
government of the state. The forefathers and the chief architect of the Constitution-Dr. B.R.
Ambedkar assured that this article will be used in rarest of rare cases but it is clearly the most
misused article among all the others. It has been employed over 120 times by the centre till
now. A stride of important supreme court judgements followed, beginning from 1965 2 where
court rejected the contention that the action of president of malafide, then in 1967 in Haryana
because of the large scale defections in the Assembly from one party to another. Another case
type in 1976, when D.M.K. Ministry in Tamil Nadu was dismissed. Even the Janata Party
that came to power after congress was badly routed due to the emergency imposed in 1975
misused the powers granted under this article leading to the infamous case of Rajasthan v.
India3. Finally, in 1989 when Shri S.R. Bommai’s government was dissolved and president’s
rule installed, he filed a writ petition in the Supreme Court [“SC”] against the arbitrary action
taken place by the centre. This was a landmark judgement overturning the judgements of a
number of High Courts [“HC”].

FACTS IN BRIEF
The Janata Dal government led by Shri S.R. Bommai in Karnataka during 1989 saw the
problem of a number of members defecting and then president’s rule was proclaimed after the
governor without giving them the opportunity to do the floor test reported the president so
and it put under article 356(1).

The Karnataka HC ruled in favour of the central government and also stated that 356(1) was
wholly out of the pole of judicial scrutiny. Also the HC said that there was neither obligation
nor compulsion to conduct a floor test before sending the report to the president 4. This case
was appealed in the SC by Mr. S.R. Bommai.

1
Article 356, The Constitution of India, 1949
2
K.K. Aboo v. Union of India, AIR 1965 ker 299
3
State of Rajasthan v. Union of India, AIR 1977 SC 1361
4
M.P. Jain, Indian Constitutional Law, 7th Edition, pg no. 724

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Meanwhile there was proclamation of president’s rule in other states as well viz. Meghalaya,
Nagpur, Madhya Pradesh, Himachal Pradesh and Rajasthan. In the latter three due to the
Babri Masjid dispute. It was merely on the basis of worsening of the law and order situation
in the wake of the Ayodhya incident and no inference could be drawn that the constitutional
machinery had failed in the states.

A bench of nine supreme court judges was formed in the Bommai judgement 5. Some adopted
passive view towards judicial review of the presidential proclamation whereas others adopted
somewhat activist stance.6

CHAPTER 2
ISSUES
“Power corrupts and absolute power corrupts absolutely”
The parliament without any boundation kept abusing the power granted to it under article
356(1) for almost 5 decades. The rules laid down in this particular judgement contributed a
lot to curbing the power of the centre to take arbitrary decisions. The idea of federalism
suffered immensely and the state government barely had any security to rule. Also by giving
the power to review the decision to judiciary further enhanced the system of check and
balance thereby promoting the ideals of democracy in the country.

ARGUMENTS IN BRIEF
I. Arbitrary power granted to the centre which was immorally used under article 356(1)
for a long time.
II. Undermining the essential idea of federalism in the country. No independence given
to the state governments.
III. Strained relationship between state governments and the governors.
IV. Greater role of, reviewing the decision of proclamation of emergency, given to the
judiciary.

5
S.R. Bommai v. Union of India, AIR 1994 SC 1918: (1994) 3 SCC 1
6
M.P. Jain, Indian Constitutional Law, 7th Edition, pg no. 725

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 CHAPTER 3
SUMMARY OF THE JUDGEMENT
By the time the case came to the supreme court, Article 356(5) which had put a ban on
judicial review on proclamation under Article 356 had been repealed 7. Following were
propositions given by the judges in relation to Article 356(1) and the scope of judicial review:
-

1) The president shall act on the advice Council of Ministers in this respect. (Article
74(3))
2) The test of whether a party still has the majority has to take place on the floor of the
house and not in the chambers of the governor. The decision of the Karnataka HC was
reversed by the SC.
3) To check the validity: - it should be based on some material, that material should be
relevant, and whether it was in malafide exercise of the power or was based on
irrelevant and extraneous grounds.
4) The material presented before the president should be such as to induce a reasonable
person to come to the conclusion in the question. Therefore, it shall not be the
absolute power of the president rather the material submitted by the governor that is
the deciding factor.
5) If a case comes up against the validity of such proclamation, then it is the centre that
shall prove that the relevant facts existed.
6) Dissolution of the house is not a compulsion rather should be used only when
required.
7) Article 356(3) provides a check on the powers granted under article 356(1). If the
proclamation is not approved within two months by both the houses of parliament, it
will automatically lapse. Therefore, the dissolution ought to take place after the
proclamation is attained from parliament under article 356(3). Till then it stands
suspended. Here the court reversed the decision in Rajasthan v. Union of India 8, the
dissolution can only take place after.
8) If approved by the parliament, the dissolved state government cannot be revived even
after six months.
9) If the proclamation is dismissed by the court, then the state government revives.

7
Supra note 3
8
Supra note 3

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 CHAPTER 4
ANALYSIS AND CONCLUSION
After the Bommai case, there has been considerable improvement in the arbitrary
implementation of the President’s Rule on the basis of the report given by Governor. This
judgement was a giant step in strengthening centre-state relations and the federal structure of
the government. It acted as a positive catalyst in the strengthening of the federal structure and
its guidelines gave broad dimensions to Article 356 serving its very purpose in later cases.
This decision is also considered a judicial activism on the part of the SC and takes forward
the dream of forefathers, for the provision being used in rarest of rare case. Even though the
decision attempted to remove the ordeals related to this provision, there have still been cases
of blatant misuse of power by the centre with the only difference that now we have the
provision of judicial review and can approach the judiciary in cases of unreasonable
encroachment by the centre. The judgement in a way is blessing in disguise for the state
governments ruling in the terror of the central government. The four cases of the misuse of
power even after the judgment showing dogged attitude of those hungry for power are the
Bihar Legislative Case (2005), The U.P. Legislative case (1999), The Arunachal Pradesh
Assembly Legislative Case (2016), The Uttrakhand Assembly Case (2016). But the judicial
intervention has helped immensely for example in the 2005 Bihar Legislative case was
challenged directly before the SC under article 32 9 and it was held that the “narrow minimal
area of judicial review as advocated in state of Rajasthan case is no longer the law of the land
in view of its extension in Bommai case.” Further amendment in fool proofing the judgement
can remove all the shortcomings and substantially curb abuse of power.

9
Sapru Jayakar Motilal C.R. Das v. Union of India, AIR 1999 pat. 221

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