Merits of individual cases:

Presentation notes:
G- introduction and facts 
H- state wise facts and issues 
- Karnataka:
• March,1985- Elections held for Karnataka State Assembly. 139 out of total 225 seats were
secured by the Janata Dal. Congress emerged as the next largest party by by winning 66
seats.
• R.H. Hegde, elected leader of Janata dal became the chief minister but resigned on
August 12, 1988, SR Bommai was the then elected leader of the Janata Dal and became
the chief minister.
• February 1989- Strength of Janata dal reduced to 111. However, two days later, Minister
K.R. Molakery of the Janata Dal submitted his resignation letter to the Governor, along
with that of 19 other legislators. The Governor wrote to the President stating that the
Bommai Government had lost its majority, and the President should now exercise powers
under Article 356(1). 
• The president, forgoing a vote of confidence in the assembly, issued a proclamation and
the Bommai government was dissolved.  
• The following week, a writ petition was filed, but was dismissed by the Karnataka high
court. 
• The case then went to the Supreme Court on appeal. Along with the case of dismissed
Karnataka State Assembly, were also the cases from Meghalaya, Nagaland, Madhya
Pradesh, Himachal Pradesh and Rajasthan challenging Presidential proclamations
under article 356 of the Constitution]

- Meghalaya :
• In the  middle of political upheaval, the speaker of the house refused to count
the votes of 4 MLAs, on the grounds of them having breached anti defection
laws. Even after the 4 MLAs had received an order form the court which
called upon the speaker to let them into the house, he did not adhere to it. 
• The speaker then called for a motion of confidence for the ruling government
and a motion of no confidence for the speaker was raised. 
• Again the speaker refused to count the 4 MLAs, whose votes would have
proved the current governments confidence, and passed the no confidence
motion against the speaker. 
• The MLAs approached the Supreme Court, which directed the speaker to
count their votes, but he still refused to do so, and the president soon after
issued a proclamation claiming that he was satisfied by the governor’s report
that a situation had arisen where the government was not adhering to the
constitution.
• The proclamation was approved by both houses. 
- Nagaland:

- On 7 August 1988, the president issued the proclamation on the basis of the Governor
Report and dismissed the Government of Nagaland thus dissolving the Legislative
assembly. Vamuzo, leader of the opposition party, challenged the va lidity of the
Proclamation in Gauhati High Court. A Division Bench comprising the Chief Justice
and Hansaria, J. heard the petition. The Bench differed on the effect and operation of
Article 74 (Constitution of India)(2) and hence the matter was referred to the third
Judge. But before the third learned judge could hear the matter, the Union of India led
 by Rajiv Gandhi's Congress Party moved this Court for grant of special leave which
was granted and the proceedings in the High Court were stayed
- MP HP Rajasthan

Following the Babri Masjid demolition, the law and order situation deteriorated quickly in
various states in India.
-On December 15, 1992, the President issued 3 separate proclamations to based on his
satisfaction form reports of Governors of all 3 states and otherwise received information. 
o -The court ruled that it lacks the political astuteness to judge what would happen
following the extraordinary events of December 6, 1992, such matters were better
off left to the president and his COM. Thus the challenges to the proclamations in
these 3 states would not hold.

Main issue:
1. Whether the President has unfettered powers to issue the Proclamation under article
356(1) of the constitution.
Ancillary issues:
1. Whether the judicial review of the reasons which led to the issuance of the
proclamation stands barred?
2. Whether the Legislature dissolved by the Presidents proclamation can be revived if
the president proclamation is set aside.
3. 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
Article 356(3).
4. Whether, notwithstanding the fact that a situation has arisen where there is a
breakdown of the constitutional machinery in the State, it is always necessary to
resort to the power of issuing Proclamation under Article 356(1)
5. What is the nature and effect of the action to be taken by the President pursuant to
the Proclamation issued by him?
6. Whether the court will be justified in granting interim relief and what would the
nature of such relief and at what stage it may be granted
7. Whether principles of administrative law would be applicable to test the validity of
the President’s Proclamation.

G- Sawant’s opinion 

H- Reddy and Pandia’s opinion 

- An analysis of clause 1, which states that ‘a situation has Aries in which the
government of the state cannot be carried on in accordance with the provisions
of the constitution’, yields that:
1. If the president is satisfied
2. On receipt of report from the governor, or otherwise
3. The president may by proclamation:
 i. Assume to himself, all or any of the functions of the
government of the state or all or any powers of the governors or
any other body or authority in the state, except the legislature.
ii. Declare that the powers of the legislature of the state shall be
exercised by the parliament or under its authority
iii. Make such incidental or consequential provisions as appear to
him to be necessary for giving effect to the objects of the
proclamation including provisions for suspending in whole or
in part the operation of any provisions of this constitution
relating to any body or authority in the state. (Para 279)
 Power conferred by Article 356 is a conditioned power, not an absolute power. (Para
280)
 The condition is the formation of satisfaction that a situation of the type contemplated
by the article has arisen. (Para 280)
 This satisfaction is to be based on a report by the governor or received ‘otherwise’.
Thus making the existence of relevant material a precondition to the formation of
satisfaction. The use of the word ‘may’ also indicates an obligation not just a
discretion. (Para 280)

 On the federal nature of the constitution:

- ‘The expression ‘federal form of government has no meaning’ (para 274)
- Broadly indicates a division of powers between the centre and the state. In
india, however, there is a bias for the centre. Can be seen in the 3 lists, and the
first few articles of the constitution. (Para 275)
- This however does not mean that the states are mere appendages of the centre.
States are supreme in their own sphere of control. (para 276)
 On power of the president to dissolve legislative assemblies:
- 2 points of view under Clause 1
1. View 1 supported by State of Rajasthan v Union of India: power of the
decision to dissolve assemblies is implicit in sub-clause (a) bc the
president assumes the role of governor, and under article 174(2)(b), the
governor has the power to dissolve assemblies based on advice from
his COM. (Para 285)
 2. View two argues that the president has no such powers to dismiss the
assembly.
 The judges in this case, however, agree with the first view, that the power to dissolve
a state assembly is implicit in the Article, however it is not obligatory, and if the
president does believe that it is necessary, he should state reasons for doing so.
 Clause 3 answers the question as to when this power to dissolve assemblies is to be
used. It states that once the resolution of proclamation has passed through both the
Houses of Parliament, only then can the president deem it necessary to dissolve the
government of a state, and not before. Until then, the president can only suspend the
assembly. (Para 289)
 Diff view from judgement in state of Rajasthan case. That judgement held that a
government which may have been dissolved does not revive after the expiration of the
two month period provided by the Article. Here the word approved put the condition
that the president’s action must be ratified or rejected by the Houses of Parliament. If
they not rejected, then the status quo is revived and the government will get revived.
(Para 290)

 Article 356 in Action:

- According to the Sarkaria Commission:
1. Article 356 provides remedy for the situation where there has been an
actual breakdown of the constitutional machinery of the state.
2. That constitutional machinery may fail in various instances i.e.:
i. Political crises
ii. Internal subversion
iii. Fiscal breakdown
iv. Non-compliance with the constitution.
3. It’s recommendations:
i. Should be used very sparingly, only if no other alternatives are
available.
ii. Warning should be issued to the errant state.
iii. In case of external aggression or internal disturbances, all
existing alternatives should be exhausted
 iv. Every proclamation should be placed before each house of the
parliament before 2 months as contemplated in the article.
v. State assemblies should not be dissolved before the
proclamation has been laid before the parliament.
vi. Facts and grounds on which the proclamation was issued
should made an integral part of the proclamation. (All above in
para 299)
 The constitution of India and the concept of secularism:
- ‘Secularism is more than a passive attitude of religious tolerance. It is a
positive concept of equal treatment of all religions.’ (Para 305)
- It is a constitutional goal and a basic feature of the constitution.
- In short, in the affairs of the state, religion is irrelevant. It is strictly a personal
affair. (Para 307)
- If any party fights elections on the basis of a campaign which erodes the idea
of secularism, it would be deemed unconstitutional. (Para 310)
 Article 74(2) (minister to advice the president)
- Article 74 was not intended to grant immunity to the president’s actions. It is
for his council of ministers to justify his actions.The court will not ask what
deliberation or discussion took place between the president and his ministers,
but will look at the just what the material were that were put in front of the
president, and whether it was relevant or not in the president deriving his
satisfaction under article 356. (Para 323)
 Article 356 and judicial review:
- The power under 356(1) is a conditioned power, and the court can decide
whether the condition has been fulfilled or not. (Para 330)
- Controversy regarding the scope of judicial review pertains to its scope, reach
and extent.
- No uniform rule, should be based on facts of each case.
- Analysis of decision in State of Rajasthan. Case: (para 346)
1. Broad consensus that the court can interfere if it is satisfied that the
power has been exercised mala fide or on wholly extraneous or
irrelevant grounds. (Para 347). Not one single judged ruled that a
 proclamation was protected from judicial review, even the now
removed clause 5 was there to bar judicial review
- “What ultimately determines the scope of judicial review is the facts and
circumstances of each case.” Para (376)
 Article 356 — is it confined only to cases where the state government fails or
refuses to abide by the directions issued by the central govt.?
- Article 256 not applicable here bc it merely states that executive power of
every state shall be so exercised. As to ensure compliance with laws made by
the parliament. (Para. 383)
- Article 257 says that executive power of every state shall be so exercised so as
to not impede the executive power of the union. Completely separate from
article 356. (para 383)

- Issue wise:
o Main issue:
 Whether the President has unfettered powers to issue the Proclamation
under article 356(1) of the constitution.
- Nature and scope of power under 356 (1)
o Jeevan Reddy and Agarwal (Pandian concurring)
 It is a conditioned power, not up to the absolute discretion of the president.
 The condition is satisfaction.
 Power is not only of the president, but of his council of ministers and PM
 President has an obligation to consider their advise.
 Art 356 not just for any emergency
 Emergency in art 352 qualitatively diff than in 356
 Breakdown of constitutional machinery is not a situation of emergency
 356 is a measure to protect the Constitution only
 It is not each and every non-compliance with the constitution but one where
the govt itself cannot be carried on.
o Pandian
 Power only to be used when president is completely satisfied

o Ancillary issues:
Whether the judicial review of the reasons which led to the issuance of
the proclamation stands barred?
o Jeevan Reddy
 Conditioned power, condition of satisfaction can be examined
 No uniform rule, depends case to case
 If proclamation mala fide, it should be struck down.
 Court will not go into the adequacy of the material on which satisfaction was
based
 Article 74 is only to protect secrecy b/w president and COM
 Does not give immunity to ministers
 Section 123 of evidence is not relevant to ascertain scope of Article 72
 Section 123 states no information should be given from unpublished records
  Court will only see what material was provided

 Whether the Legislature dissolved by the Presidents proclamation can be

revived if the president proclamation is set aside.

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 Article 356(3).
o Jeevan reddy:
 No petition to be entertained before actual issuance of proclamation
 However open to HC/SC to entertain a writ questioning the proclamation if
they are satisfied that the writ raises arguable questions
 Can do this before or even after parliamentary approval
 Can stay dissolution of assembly, but not beyond the original term

 Whether, notwithstanding the fact that a situation has arisen where

there is a breakdown of the constitutional machinery in the State, it is
always necessary to resort to the power of issuing Proclamation under
Article 356(1)
o Reddy:
 Dissolution can be held only after approval
 Can only suspend
 Status quo will be revived,

 What is the nature and effect of the action to be taken by the President
pursuant to the Proclamation issued by him?
o Reddy
 Even though the proclamation acts as legislation, as it needs to be passed by
both houses of the parliament, it will not be classified as a legislation.
 Moreover, Article 356 and its sub-clauses allow the President to take on the
role of the Governor of the state, or any other body as he would deem fit.
 Whether the court will be justified in granting interim relief and what
would the nature of such relief and at what stage it may be granted
o Reddy
 Yes, the court can stay the dissolution of an assembly, but not for so long, as
to allow the government to continue beyond its original term.
 Whether principles of administrative law would be applicable to test the
validity of the President’s Proclamation.
o Reddy:
 Cannot be applied

G- Ramaswamy  and Verma’s opinion 

H-Ahmadi’s opinion 
- Largely in agreement with conclusions of K. Ramaswamy
- On federal character of the constitution:
 o True concept of federalism (para 13)
o “Political contrivance for a body of states which desire union but not unity.
o Absence of expressions like ‘federal’, ‘federation’ and the powers of the
parliament Inder Articles 2 & 3, concept of a singular citizenship, prove
beyond doubt that India is a quasi federal country. (Para 24)
- On Secularism under the Constitution:
o Adoption of articles 25, 26, 27
o Removal of separate electorates other than SC/ST (Para 28)
o Article 25 & 26 give a right to practice religion freely.
o In agreement with Sawant, Ramaswamy and Reddy that secularism is a basic
feature of the constitution. (Para 29)
- On Judicial review and Justiciability:
o Possibility of diff govts at state and centre cannot be ruled out.
o Merely because a the government in centre is not at power at state level, it is
not a valid enough reason under Article 356(1) to hold that a situation has
arisen in which the government of the state cannot be carried on in accordance
to the constitution.
o Such exercise of power maybe would be clearly mala fide. The decision of the
Supreme Court in State of Rajasthan v Union of India, to the extent it is
inconsistent with the above discussion does not lay down the law correctly.
Para 31)
o On Article 74 (2)
 Argues that Article 74(2) is no bar to the production of all the material
on which ministerial advice was based for the dissolution of a govt.
(para 33)
 A president can issue a proclamation under 356 only based on a report
from the governor, or ‘otherwise’ that a situation has arisen where the
government cannot tread the line of the constitution. (Para 35)
  The test laid down in Barium Chemical Ltd. V Company law board1
for adjusting the validity of administrative actions will also have no
application. (Para 35)
 ‘The very nature of things which would govern the decision making
under Article 356, its is difficult to hold that the decision of the
president is justiciable.” Para (35)
 “The court cannot interdict the use of the constitutional power
conferred on the president underArticle 356 unless the same is shown
to malafide.” (Para 35)
 Unless a strong and cogent prima facie case is made out, the president
cannot be called upon to answer for his decision.
- Here, Ahmadi agrees with Ramaswamy, and Verma, when he says that no quia timet
action would be permissible in such case bc of limited ground for review
- The limited ground for review is only when the action is mala fide or ultra vires on
Article 356 itself. (Para 35).
- Applying the test above, Ahmadi rules that proclamations issued in M.P., Himachal
Pradesh, Rajasthan and Karnataka are not justiciable.
- Ahmadi is in agreement with the final order proposed by Verma and Ramaswamy.
- Agrees to the view on secularism by all the three judges.
- Also indicates areas of agreement and disagreement with views expressed by Sawant
and Reddy. I
-

judgment matrix - H: Majority opinions 

G- minority opinions

1
n Barium Chemicals Ltd. v. Company Law Board17 the Secretary of the Company Law Board issued an order
under Section 237(b) of the Companies Act, 1956 appointing inspectors to investigate the affairs of a company.
Section 237(b) of the Act authorised such an appointment to investigate the affairs of a company "if, in the
opinion of the Central Government" there were circumstances suggesting (a) that the business of the company
was being conducted with the intent to defraud its creditors, members, or any other person; (b) that the
persons concerned in the formation of the company or the management of its affairs had been guilty of fraud
or misconduct towards the company or towards any of its members; (c) that the members of the company had
not given out all the information with respect to its affairs. The Supreme Court held that before the discretion
conferred by Section 237(b) of the Companies Act can be exercised, there must exist circumstances which in
the opinion of the authority suggest the grounds set out in the statut
Decision per case:
The apex Court declared, by a majority of 5:4, as unconstitutional the imposition of President's Rule
in Nagaland {1988), Kamataka (1989) and Meghalaya (1991). But the Court unanimously upheld the
dismissal of the BJP state governments of Madhya Pradesh, Rajasthan and Himachal Pradesh in
December 1992- because their activities were inconsistent with secular character of
the Constitution.
Held:
- Ahmadi:
o Proclamations of M.P., H.P, Rajasthan & Karnataka are not justiciable.
o Not necessary to issue any order for Meghalaya as fresh elections have taken place.
- Verma:
o Only Meghalaya case is justiciable.
o No alteration to the decision in State of Rajasthan case, except to the extent indicated.
- Sawant & Kuldeep:
o Karnataka:
 Undue haste made by the governor, clearly mala fide
 High court was wrong in hold that the floor test was not compulsory
 Governor’s bona fide is irrelevant, question to be ascertained is whether he
explored all other possibilities before the proclamation.
o Meghalaya:
 Governor failed to give effect to order of the SC
 Mala fide clear
o Nagaland:
 Governor should’ve allowed a floor test
 Mala fide clear
o MP, HP, Rajasthan:
 If a prognosis of current events deems that the government could possibly not
hold adhere to constitutional values, then quia timet action would be allowed.
 Governor saw situation was getting worse, proclamation upheld.
- Ramaswamy:
o MP, HP, Rajasthan
 Allowed bc it was based on violation of secular features of constitution.
 Also allowed Meghalaya
- Jeevan Reddy and Agarwal (Pandian concurring)
o Karnataka:
 Proclamation not valid.
 Mala fide clear.
 Floor test should have been conducted
o Meghalaya
 Proclamation was unconstitutional
o Nagaland:
 Fresh elections, held, no need for a judgement
o MP, HP, Rajasthan:
 Same as Ramaswamy
Analysis of Article 356 (1):
- Nature and scope of power under 356 (1)
o Jeevan Reddy and Agarwal (Pandian concurring)
 It is a conditioned power, not up to the absolute discretion of the president.
 The condition is satisfaction.
 Power is not only of the president, but of his council of ministers and PM
 President has an obligation to consider their advise.

- Arts 356&352, 355, 357, 360 — other emergency provisions — meaning of ‘emergency’
o Sawant and Singh:
 The above provisions can only be invoked if there is an emergency as
described by the provisions
 Article 355 refers to 3 situations:
1. External aggression
2. Internal disturbance
3. Non-compliance to constitutional values
 Article 356 refers only to the 3rd type
 Internal disturbance cannot be short of armed rebellion
o Jeevan Reddy and Agarwal
 Emergency in art 352 qualitatively diff than in 356
 Breakdown of constitutional machinery is not a situation of emergency
 356 is a measure to protect the Constitution only
- Art 356 & 154, 155, 159, 163 — ‘on receipt from the governor’ — Gov’s obligation to
make report — report to be made on advice from COM
o Ramaswamy
 Dual role of governor, constitutional head of state and holder of independent
constitutional holder
 Report is foundation to reach the president’s conclusion, so it must furnish
material with clarity
o Reddy and Agarwal (Pandian concurring)
 Satisfaction can be formed from gov’s report or otherwise
- Art 356 — Gov’s report — floor test — is it a requisite?
o Sawant
 Assessing majority is not a question of personal assessment
 Constitution has ordained a forum through floor test, it must be done.
o Ramaswamy:
 Floor test not necessary, there can be hore-trading going on
 Gov should be left free to decide on his own
o Jeevan and Agarwal:
 Floor test is only way of testing govt majority
 An extremely violent situation is only instance where it can be skipped & it
must be mentioned in the report.
- ‘Govt of state cannot be carried on’ — meaning of ‘cannot’
o Sawant and Kuldeep
 ‘Cannot’ connotes a situation of impasse
 Includes legal inability as well as physical
o Ramaswamy:
 Only means a situation where a govt cannot be carried on in accordance with
the consti.
o Jeevan Reddy and Agarwal (Pandian concurring)
 It is not each and every non-compliance with the constitution but one where
the govt itself cannot be carried on.
 - Situations where govt cannot be carried on — ideology of govt should be consistent w
the constitution
o Ahmadi:
 Merely bc there’s different parties at state & centre is no reason to issue
proclamation
 Overrules the decision of State of Rajasthan case on this point to the extent it
is inconsistent
o Sawant and Singh:
 Outline one such situation
 ‘When state govt does follow rules of the union in following constitutional
values’
 Not the only situation
 Don’t accept the view that no matter how bad a centre govt loses in lok sabha
elections, it will be a ground to issue proclamation.
 State that Rajasthan case doesn’t take such a view
o Ramaswamy
 Gives instances where it can be allowed
1. Large scale breakdown of law and order
2. Gross mismanagement of public affairs
3. Corruption or abuse of power
4. Danger to national integrity
5. Subversion of the constitution
o Reddy and Agarwal:
 It would be more appropriate to deal with the situation on a case to case basis
- Art 356 — ‘meaning of otherwise’
o Ahmadi:
 The meaning of it is of wide import, cannot be limited principles of evidence
in courts
o Ramaswamy:
 Means other channels of information from which the president gets his
information
- Conditions precedent to issuing proclamation:
o Sawant and Singh
 Conditions are :
 President should be satisfied on gov’s report or otherwise received
info
 A situation has arisen where govt of state canot adhere to
constitutional values
o Ramaswamy:
 Satisfaction based on the governor’s report
o Reddy, Agarwal and. Pandian concurring
 Satisfaction of the president is subjective
 Since it is a case of subjective decision, natural justice principles do not apply
Federalism:

o Ahmadi:
 Essence of a federation is existence of states and a union and demarcation of
power between them
 Preamble makes it clear that legal sovereignty is with ppl of india, political is
with union and states.
 Indian not entirely federal, state can encroach upon states, not the same in US
 Quasi- federal
o Sawant and Kuldip:
  States are sovereign in the fields left to them
 States neither satellite nor agents of centre

o Ramaswamy:
 Federal state is a political convenience intended to reconcile national unity
and integrity with maintenance of state’s rights
 Essence of federalism is distribution of power between the union among its
co-ordained bodies.
 Each of these bodies is organised and controlled by the state.
 Powers so distributed that it can be exercised by each, making it their own
sovereign
o Reddy and Agarwal:
 No fixed meaning of federalism.
 Federalism in india with a bias for the centre. But doesn’t mean that states
aren’t mere appendages.
- Power under Art 356 to be used sparingly:
o Pandian
 Power only to be used when president is completely satisfied
o Sawant and Singh:
 Article 356 should be used as a last measure.
 President should use all other measure first.
o Ramaswamy:
 Overuse of Art 356 would make people lose faith in democracy
 Art 356 must be used in circumspection and in a non partisan manner
Secularism:
- Politics cannot be mixed w religion
o Ahmadi:
 Although added later in the constitution, secularism is a part of constitutional
philosophy
 Term not defined bc it has an elastic definition
 In agreement with Ramaswamy, reddy and Sawant that it is a basic feature of
the Constitution
o Sawant and Singh (Pandian Concurring)
 Provisions of constitution prohibit theocratic state
 Prevent the state from aligning with a sect or religion
 Freedom and tolerance is only to the extent of permitting pursuit which is
different from secular life
 Secular life includes domain of affairs of state, i.e. religion and politics
o Ramaswamy:
 Indian secularism is not anti god
 Positive secularism separates religious faith personal to man and limits it to
material and temporal aspects of human life.
 Moves around the state and its institution and therefore it is political in
nature.
 Religion is a matter of personal belief and worship etc
 Secularism operates not he temporal aspect of the state activity in dealing
with ppl of diff religions
 Secularism is not the antithesis of religions devoutness
 State is aloof of religion
 Proclamation based on faulting of secular guidelines cannot be faulted.
 Such a proclamation cannot be adjudicated by the court
 Agrees with reddy and Sawant

o Reddy and Agarwal:

  Secularism is more than a passive attitude of religions tolerance
 Positive concept of equal treatment of all religions
 If any party fights elections on religious bases it would be deemed
unconstitutional
Judicial Review:
- Administrative law — Judicial Review — Review of the process, not the decision itself:
o Ahmadi:
 Amenable to judicial review
 Limited scope of judicial review
 Administrative law principles cannot be used, bc it would be difficult to
ascertain the reasons for the president conclusion as compared to reasons
behind the conclusions of executive
 Difficult to hold the decision of the president himself justiciable
 To do so would be to enter the political thicket
 Only can be done if the reason is shown to be mala fide
o Verma and Dayal
 Only cases which permit application of totally objective standards of why
constitutional machinery has failed are amenable to judicial review —
principle stated by lord Brightman in Puhlhofer case
 If there is any significant area where satisfaction of the president is dependent
on imponderables, these cases will not be justiciable
 Opinion formed in such cases by judges would be a political opinion, and
cannot be justiciable
 Therefore only remedy for such cases is a subsequent electoral verdict or
parliamentary correction
o Sawant and Singh:
 Amenable to judicial review to extent of whether the conditions have been
satisfied or not.
 Examination will involve whether there existed material for the president to
rely on
 Sufficiency of material cannot be questioned, but whether a reasonable man
would come to the same conclusions as the president can be examined
o Ramaswamy:
 Amenable to judicial review
 Satisfaction is subjective, but it must be based on relevant facts, this
satisfaction is based on political judgement and cannot be examined by the
court.
 The decision of proclamation can be tested on grounds of mala fide or high
irrationality
 Cannot be tested on the ground that the material which enabled him to reach
the satisfaction was no sufficient or inadequate
 Judicial review separate from justiciability
 Power of judicial review is constituent power, and cannot be
abdicated by the judicial process of interpretation
 Justiciability of the president’s decision is one of exercise of the
power by the court hedged by self imposed judicial restraint
 Judicial review is not concerned with the merits of the decision but with the
decision making process
 When the court is in dilemma it should adopt self restraint
o Reddy and Agarwal:
 Conditioned power, condition of satisfaction can be examined
 No uniform rule, depends case to case
 If proclamation mala fide, it should be struck down.
 Governor’s report is also relevant, his mala fide cannot be ignored
  Proclamation is not legislation
 It is a constitutional function.
 Court will not go into the adequacy of the material on which satisfaction was
based
- Administrative law — doctrine of proportionality
o Ahmadi:
 Tests laid down in barium chemicals and other admin law cases cannot be
used here
o Verma and Dayal:
 Admin law can’t be used
o Ramaswamy:
 Admin law cannot be applied
o Reddy and Agarwal :
 Can’t be applied
o Sawant :
 Can be applied
- Bar by article 74(2)
o Ahmadi:
 No bar to production of material on which advice was based
o Verma and Dayal:
 No bar to materials
 Don’t agree here with State of Rajasthan case
o Sawant and Singh (Pandian Concurring)
 No bar to factual material
o Ramaswamy:
 Article 74 creates bar of enquiry and not a claim for privilege for decision in
the exercise of the jurisdiction whether, and if so, what advice was given by
the COM to the president
 Only applicable where the president goes to COM for advice
 The advice itself would not available, but material relating to that advice will
be
o Jeevan Reddy:
 Article 74 is only to protect secrecy b/w president and COM
 Does not give immunity to ministers
 Section 123 of evidence is not relevant to ascertain scope of Article 72
 Section 123 states no information should be given from unpublished records
 Court will only see what material was provided

- Onus to be on UOI to produce material information — i

o Ahmadi:
 The executive can only be called upon if there is a prima facie strong and
cogent case
 Agrees with Ramaswamy
o Sawant and Kuldeep:
 Burden would be on union govt to satisfy that there exists material which
proves govt could not adhere to constitutional values
o Ramaswamy:
 A person who challenges the proclamation must give a prima facie strong and
cogent case
o Reddy and Agarwal:
 Same as others
  If a proclamation covers the reasons for it being issued, the court must first be
satisfied that those reasons are irrelevant before asking the union for other
material.
- Validity of proclamation can be challenged before parliamentary approval — courts
power to grant interim relief — applicability of rule of no quia timet action
o Verma and Dayal:
 No quia timet action (to grant injunction before damage is done) can be
permissible in such cases as there is limited scope of judicial review,
 electoral verdict being the ultimate check, courts can grant substantive relief
only if the issue remains live in cases which are justiciable
o Sawant & Singh:
 Grant of interim relief depends on various factors such as expeditious ness
with which the court is moved, the prima facie case
 The least interim relief to be granted is with holding fresh elections
o Reddy
 No petition to be entertained before actual issuance of proclamation
 However open to HC/SC to entertain a writ questioning the proclamation if
they are satisfied that the writ raises arguable questions
 Can do this before or even after parliamentary approval
 Can stay dissolution of assembly, but not beyond the original term
- Judicial review after approval by parliament:
o Ahmadi:
 Parliamentary approval does not hinder judicial review
o Sawant and kuldeep:
 Can be challenged even after approval
 If proclamation is invalid, parliamentary approval would not make it valid.
o Reddy:
 Can entertain before or even after

- Judicial review v Justiciability:

o Ramaswamy:
 Power of judicial review goes to the authority of the court, though in
exercising in the power, the court in an appropriate case may decline to
exercise the power as not being justiciable
 Judiciary has to decide the source extent and limitations of its power

Effects of issuance if subsequently invalidated:

- Dissolution of legislative assembly — stage when dissolution can be restored to
o Sawant:
 Dissolution is not an automatic consequence of issuance of proclamation
 This is effected by the president, if he exercises power of the governor under
article 164 and 174
 It is up to the president to decide which powers under (a) (b) or (c) clause he
will take up.
 When there is a bicameral legislature, the upper house cannot be dissolved,
the legislative council.
 Although both come under legislature, and the president has power to
dissolve it, only the assembly will be dissolved and president will take the
role of the council.
  It is permissible only to suspend the legislature and not dissolve them, Sub
clause c of art 356
 President can also take up any body of authority or executive with
suspending or removing them
o Pandian:
 Clause 1 and 3 of 356 to be read together
 If not, then dissolving of assembly will be made irreversible, the check by
parliament would be fruitless
 In no case can the president dissolve an assembly before approval by the
parliament, only can suspend it
o Reddy:
 Dissolution can be held only after approval
 Can only suspend
o Ramaswamy (dissenting)
 A convention that on issuance of proclamation, president assumes roles of
government and assembly is dissolved
- When parliament disapproves — non approval will not have the effect of re-instituting
govt., elections will happen (acc to Sawant, Singh, Pandian) — status quo will be
restored — according to Reddy and Agarwal
o Sawant (Pandian concurring)
 Legal consequence of proclamation:
 Invalid, yet approved by both houses
1. Actions of president will be illegal
2. Govt wont be dissolved
 Invalid and not approved
1. Action of president will be illegal
2. Govt wont be dissolved
 if proclamation is held invalid, the court can restore status quo
 Valid but not approved
1. Not have the effect of restoring assembly
o Reddy:
 The word approval in clause three is an obligation
 It cannot be ignored, disapproval means parliament doesn’t agree
 The status quo will be revived after two months, when the proclamation
becomes inactive.
 If proclamation is approved before two months, the govt does not revive on
expiry of proclamation
 If court rejects proclamation, it can revive govt
o Ramaswamy:
 No express provision to revive govt
 Stay of elections should also not be granted bc it creates constitutional crises
