ASSIGNMENT

CONSTITUTIONAL LAW - I
CONTRIBUTION OF S.R BOMMAI CASE IN
SIGNIFICANT CHANGE OF INVOKING ARTICLE 356
OF THE CONSTUTUTION
SUBMITTED BY:

PRIYA SINGH

B.A. LL. B (Hons.)

3rd SEMESTER

ENROLMENT NUMBER: 1020171860

SUBMITTED TO:

MR. SANTOSH KUMAR

 ACKNOWLEDGEMENT

Every project big or small is successfully largely due to the efforts of a number of
wonderful people who have always given their valuable advice or lent a helping hand.
I sincerely appreciate the inspiration, support and guidance of all those people who
have been instrumental in making this project a success.

I, Priya Singh, the student of Himachal Pradesh National Law University, B.A. LL.B.
third semester, am extremely grateful to HPNLU for the confidence bestowed in me
and entrusting my assignment of CONSTITUTIONAL LAW- I.

I also extend my gratitude to my project guide Dr. Santosh Kumar who assisted me in
compiling the project. I would also like to thank all the faculty members of HPNLU
for their critical advice and guidance without which this project would not have been
possible.

Last but not the least, I place a deep sense of gratitude to my family members and my
friends who have been constant source of inspiration during the preparation of this
project.
 FACTS
S.R. Bommai was the Chief Minister of the Janata Dal government in Karnataka
between August 13, 1988 and April 21, 1989. His government was dismissed on April
21, 1989 under Article 356 of the Constitution and President’s Rule was imposed, in
what was then a mostly common mode to keep Opposition parties at bay. The
dismissal was on grounds that the Bommai government had lost majority following
large-scale defections engineered by several party leaders of the day. Then Governor
P. Venkatasubbaiah refused to give Bommai an opportunity to test his majority in the
Assembly despite the latter presenting him with a copy of the resolution passed by the
Janata Dal Legislature Party.

ISSUES
The first and most important question which the Supreme Court had to determine was
whether the Presidential Proclamation under Article 356 was justiciable and if so to
what extent.

The second contention was whether the President has unfettered powers to issue
Proclamation under Article 356(1) of the Constitution.

It was contended that since the Proclamation under Article 356[1] would be issued by
the President on the advice of the Council of Ministers given under Article 74(1) of
the Constitution and since Clause [2] of the said Article bars inquiry into the question
whether any, and if so, what advice was tendered by Ministers to the
President, judicial review of the reasons which led to the issuance of the Proclamation
also stands barred. 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).

It was also contended that whether any relief’s can be granted when the validity of
proclamation is challenged and whether the court can grant an interim stay against
holding the fresh election.

Whether a president can dissolve the legislature without having obtained the approval
of both the Houses of the Legislature. It was contended that Secularism being a basic
feature of the Constitution, a State government can be dismissed if it is guilty of
nonsecular acts.

JUDGEMENT
Bommai went to court against the Governor’s decision to recommend President’s
Rule. First he moved the Karnataka High Court, which dismissed his writ petition.
Then he moved the Supreme Court.

On March 11, 1994 a nine judge constitutional bench of Supreme Court issued the
historic order, which in a way put an end to the arbitrary dismissal of state
governments under Article 356 by spelling out restrictions.
The verdict concluded that the power of the President to dismiss a State government is
not absolute. The verdict said the President should exercise the power only after his
proclamation (imposing his/her rule) is approved by both Houses of Parliament. Till
then, the Court said, the President can only suspend the Legislative Assembly by
suspending the provisions of Constitution relating to the Legislative Assembly. "The
dissolution of Legislative Assembly is not a matter of course. It should be resorted to
only where it is found necessary for achieving the purposes of the Proclamation," the
Court said.1

The Supreme Court has held that the power of the President under Art. 356 is a
Constitutional power, it is not an absolute power. The existence of 'material* is a
pre-condition to form the 'satisfaction' to impose the President's Rule. The Supreme
Court further held that the criterion of proving majority or otherwise will be the 'floor
of the house'. The principle of 'Judicial Review' has been made applicable to the
action taken by the President while making use of Article 356. To check the 'misuse'
and 'abuse' of the Article 356, it is desirable that the recommendations of different
Commissions, i.e., Administrative Reforms Commission (ARC), Sarkaria
Commission (Commission on Centre-State Relations), National Commission to
Review the Working of the Constitution (NCRWC), Standing Committee of
Inter-State Council (ISC), and the Judicial Guidelines with regard to the suspension or

1
Bommia’s case a significant, (Jan 15, 2018 9:30 pm)
https://www.thehindu.com/news/national/what-is-the-sr-bommai-case-and-why-is-it-quoted-often/article23929119.
ece
dissolution of State Assemblies and imposing President's Rule, provided by the
Supreme Court in Bommai's case, are accepted and incorporated in the Constitutional
provisions contained in Article 356.

The Supreme Court has laid down the certain Judicial Guidelines with regard to the
suspension or dissolution of State Assemblies and imposition of President's Rule.
These are: Presidential proclamation dissolving a State Legislative Assembly is
subject to 'Judicial review'. If a State Government works against secularism.
President's Rule can be imposed. No wholesale dismissal of opposition Ruled States
Governments when a new, political party assumes power at the Centre. If President's
Rule is imposed only on political considerations the Court can even restore the
Assembly. Imposition of President's Rule and dissolution of State Assembly cannot be
done together. State Assembly can be dissolved only after Parliament approves
Central Rule. The Supreme Court or a High Court can compel the Union Government
to disclose 'material' on whose basis President's Rule is imposed on a State. The
power of the President under Art. 356 is 'a constitutional power', it is not 'an absolute
power'. The existence of material is a pre-condition to form the 'satisfaction' to impose
the President's Rule.

CASES ON ARTICLE 356

K.K. Aboo V. Union of India2

This was the first case challenged in the Kerala High Court on the point of
Proclamation issued by the President of India. In this case the resignation of the
ministry caused a breakdown of the Constitutional Government in the State of Kerala;
the President dissolved the Legislative Assembly and assumed the executive powers
of the State to himself by a Proclamation dated 10-9-1964, which was approved by
Parliament by a Resolution on 30-9-1964. A general election was held thereafter, in
February and March 1965, for the purpose of constituting a new Legislative Assembly
in the State; but no party was able to secure a working majority of seats in the
legislature. The new legislature had never been summoned under Article 174(1) of the
Constitution, therefore the elected members could not be sworn in. After consultation

2
AIR (1965) Ker. 229.
with leaders of various parties, the Governor submitted his Report to the President on
the possibility of the formation of the Government in the State. On 24-3-1965, the
Vice-President, who was then discharging the functions of the President in the latter’s
absence out of India, revoked the Proclamation of 10-9-1964 and issued a fresh
Proclamation under Article 356 and dissolved the newly constituted Legislative
Assembly of the State. On behalf of K.K. Aboo, it was first of all argued that the
Governor could not recommend the imposition of Presidential Rule when the State
was already under the President's rule. Secondly, that the Assembly could only be
dissolved after it was assembled. This would have given the Assembly an opportunity
to consider the situation. The third argument was that the Court and Parliament should
consider the validity of the Presidential Proclamation. The last argument was that the
Governor had acted ‘mala fide. The Court refused to go into the Constitutionality of
the Proclamation. Speaking for the Court, M. Madhavan Nair, J. held that the remedy
lay with Parliament and not with the Court. He observed: When the matter comes up
before it, it is open to Parliament to withhold approval. If Parliament, in its supreme
wisdom, is not impressed with the Constitutionality, the legality or even the propriety
of the Proclamation it will not give its approval to it.

Rao Birender Singh V. Union of India3

Chief Minister of Haryana Rao Birender Singh challenged the action of the Centre
through a writ petition, but the High Court dismissed the petition for the following
reasons:
(1) The Court cannot go into the validity or legality or propriety of the Proclamation
because the President had issued the same in pursuance of his Constitutional powers
under Article 356 (1) which is not an executive action of the Union, and the President
himself is not amenable to the jurisdiction of the Court in view of Art. 361(1).
(2) The consideration of the Proclamation has been specifically vested by the
Constitution in Parliament and this excludes the jurisdiction of the Courts.
(3) Regarding the argument of 'mala fides' against the Home Minister, the Court held
that it could not enquire into the advice given by him to the President in view of Art.
74(2).
(4) The conclusions reached by the Governor in his Report to the President cannot be

3
2 AIR (1968) P. and H. 441
questioned in the Court as those are matters for the consideration of the President and
Parliament. The Court has no jurisdiction to require disclosure of material in the basis
of the President's satisfaction.

Jyotirmoy Rose V. Union of India4

In 'Jyotirmoy Bose V. Union of India', the Calcutta High Court rejected a writ petition
challenging the President's Proclamation issued on March 19, 1970, under Art. 356. It
was argued inter alia that in making the Proclamation, the President should have acted
in his discretion and not on ministerial advice. Rejecting this plea, the Court
emphasised that in the matter of making a Proclamation under Art. 356, the President
acts as a Constitutional Head and must act as advised by the Council of Ministers. "To
say that the power given under Art. 356 is a discretionary power to the President, is
wholly misconceived."

Gokulananda Roy v. Tarapada Mukharjee5

In another case, 'Gokulananda Roy V. Tarapada Mukharjee', the Calcutta High Court
held that, Para “18. The validity or legality of the incidental and consequential
provisions contemplated by Article 356(1 )(c) is not justiciable because that is a
matter entirely for the satisfaction of the President. The Court further ruled that the
Governor’s Report could not be questioned because the President acted in his
satisfaction.

Bijayananda V. President of India6

Bijayananda and his colleagues in the Pragti Party challenged the President's
Proclamation in the Orissa High Court. The High Court rejected the challenge but in
the process enunciated certain very important propositions in relation to Art. 356. The
Court ruled that in sending his Report to the President under Art. 356, the Governor is
to act directly and not with the aid and advice of the Council of Ministers. Whether
the Governor's Report is mala fide or based on any 'extraneous' facts, cannot be
questioned in a Court of law. It is not justifiable as against the Governor because of
the protection and immunity under Art. 361 (1). In exercising powers under Art. 356,

4
AIR 1971 Cal 122.
5
AIR (1973) Cal. 233
6
AIR (1974) Ori. 52.
the President is to act with the aid and advice of his Council of Ministers.

State of Rajasthan V. Union of India7

The State of Rajasthan (along with several other States) filed an original suit in the
Supreme Court against the Union of India under The Supreme Court, however,
dismissed the suit unanimously. The broad position adopted by the Court was that it
could not interfere with the Centre's exercise of power under Art. 356 merely on the
ground that it embraced 'Political and executive policy and expediency unless some
Constitutional Provision was being infringed. Art. 74 (2) disables the Court from
inquiring into the very existence or nature or contents of ministerial advice to the
President. Art. 356 (5) makes it impossible for the Court to question the President's
'satisfaction' on any ground unless and until resort to Art. 356 in a particular situation
is shown to be so grossly perverse and unreasonable as to constitute patent misuse of
this provision or an excess of power on admitted facts.

A.K. Roy v. Union of India8

In A.K. Roy V. Union of India a Constitution Bench of the Supreme Court observed
that Rajasthan case is often cited as an authority for the proposition that the Court
ought not to enter the “political thicket”. It has to be borne in mind that at the time
when the case was decided, Article 356 contained Clause (5) which was inserted by
the Thirty-Eighth Amendment by which the 'satisfaction' of the President mentioned
in Clause (1) was made final and conclusive and that satisfaction was not open to be
questioned in any Court on any ground. Clause (5) has been deleted by the
Forty-Fourth Amendment and therefore any observation made in Rajasthan case on
the basis of that Clause cannot any longer hold good. It is arguable that the
Forty-Fourth Constitution (Amendment) Act leaves no doubt that 'judicial review' is
not totally excluded in regard to the question relating to the President's satisfaction.
After Rajasthan case, the question of 'judicial review' of Presidential Proclamation
under Article 356 arose for consideration in the Gauhati and Karnataka High Courts.
The President’s Rule was imposed in Nagaland on 7-8-1988 when the eight months
old Congress Ministry headed by Hokisha Sema was reduced to a minority due to

7
AIR (1977) SC 1361.
8
AIR (1982) 1 SCC 271: SCC (Cri.) 152.
defections.
There was a difference of opinion between Chief Justice Raghaur and Justice
Hansaria. The former held that the Union of India cannot be compelled to tender any
information to the Court because of Article 74(2) of the Constitution. On the other
hand, Justice Hansaria held that as the 'material’ which formed part of “other
information” was not before the Court and as the same did not form part of the advice
tendered by the Council of Ministers under Article 74(1), the Union of India should be
given an opportunity to disclose the information to the Court. Justice Hansaria ruled
that if the Union of India fails to give the 'other information' the Court would have no
alternative but to decide the matter on the basis of the matter placed before it. The
Supreme Court in 'A.K. Roy' case ordered to restore the dismissed ministry as also the
dissolved Assembly. The judgment of the Madhya Pradesh High Court has been a
'significant milestone in legal history' since it is the first case where the Court struck
down a Presidential Proclamation as unconstitutional.

Cases after the judgement of SR Bommai

Sunderlal Patwa V. Union of India9

After the demolition of Babri Masjid at Ayodhya on 6-12- 1992, the President’s Rule
was imposed in U.P., M.P., H.P. and Rajasthan. The imposition of President’s Rule in
M.P., H.P. and Rajasthan was challenged in the respective High Courts. The Madhya
Pradesh High Court departed from the earlier decisions and held that the Presidential
Proclamation can be challenged in a Court of law.
The Court held that after the Forty-fourth Amendment of the Constitution, Clause (5)
of Article 356 has been repealed resulting in enlarging the scope of 'judicial review'.
Therefore, the Presidential Proclamation is open to 'judicial review' on the ground of
irrationality, illegality, impropriety or 'mala fide' or in short, on the ground of abuse of
power. The Court in the instant case pointed out that sudden outbreak of riot resulting
in failure on the part of the State Government to maintain public order does not justify
the President’s Rule in the State. The power can be used only in an extreme difficult
situation viz. where there is an actual and imminent breakdown of the Constitutional
machinery, as distinguished from failure to observe a particular provision of the

9
AIR (1993) MP 214 Jab. L.J 387 (F.B.)
Constitution or worsening of law and order situation. Since Article 356 of the
Constitution authorises serious inroads into the principles of federation. As regards the
'other information' the Court Stated that the Union Cabinet cannot claim privilege.

Jagdambika Pal v. Union of India10

In Uttar Pradesh in 1998 when Governor Romesh Bhandari, being of the view that
Chief Minister Kalyan Singh Ministry had lost majority in the Assembly dismissed
him without giving him opportunity to prove his majority on the floor of the House
and appointed Shri Jagdambika Pal as the Chief Minister which was challenged by
Shri Kalyan Singh before the High Court which by an interim order put Shri Kalyan
again position as Chief Minister. This order was challenged by Shri Jagdambika Pal
before the Supreme Court which directed a "composite floor test" to be held between
the contending parties which resulted in Shri Kalyan Singh securing majority.
Accordingly, the impugned interim order of the High Court was made absolute.

Sarbananda Sonowal V. Union of India11

The Supreme Court for the first time got an opportunity to interpret the word
"aggression" used in Art. 355 in Sarbananda Sonowal V. Union of India. In the instant
case, the petitioner challenged the Constitutional validity of Illegal Migrants
(Determination by Tribunals) Act, 1983', briefly known as IMAT Act; which was
applicable only to the State of Assam for detection and deportation of Bangladesh
Nationals who have illegally entered into India, as violative of Art. 14 of the
Constitution. The Court said that the word "aggression" is not to be confined only
with "war". Though war would be included within the ambit and scope of the word
'aggression' but it comprises many other acts which cannot be termed as war.
According to the traditional International Law, "war is a contest between two or more
States through their armed forces, for the purpose of overpowering each other and
imposing conditions of peace as the victor pleases." But with the passage of time, the
nature of war has considerably changed. Modern war may involve not merely the
armed forces of belligerent States but their entire population".12

10
AIR (1999) 9, SCC 95
11
AIR (2005)SC 2920
12
ibid
Rameshwar Prasad v. Union of India13
In 'Rameshwar Prasad V. Union of India', a five Jude Bench of the Supreme Court
held that the Presidential Proclamation dissolving State Assembly was
unconstitutional and based on extraneous and irrelevant grounds. The Court said that
the Governor misled the Centre in recommending the dissolution of the State
Assembly and the Union Council of Ministers should have verified before accepting it
as gospel truth. The Governor acted in "undue haste" in sending his Report and his
full motive was to prevent JD (U) from staking claim to form a Government after a
fractured Assembly polls verdict.14 The Court said that the Governor's Report
contained "fanciful assumptions" which could be "destructive to democracy". The
drastic and extreme action under Article 356 cannot be justified on mere personal
opinion of the Governor30. The Court further said that the it cannot remain a silent
spectator watching the subversion of the Constitution. The Council of Minister should
have verified the facts Stated in the Report of the Governor before hurriedly accepting
it as a 'gospel truth' as to what the Governor Stated.15 It was claimed by the Governor
that he recommended dissolution on the ground that in view of media Report a
political party was trying to gain majority by engineering defections and "this was a
serious threat to Democracy. On this, the Court held that this was a matter which can
be solved under the Tenth Schedule and not relevant at the time when the Governor
had to send Report to the Centre. That was fully an unconstitutional Act, the Court
declared. The issue of defection has to be dealt in accordance with the law as no such
power is given to a Governor.

ARTICLE 356 A CONTROVERSIAL PROVISION

Article 356 is a unique and extraordinary provision of the Constitution of India. The
power contained in this Article is both extraordinary and arbitrary. There has been
persistent demand to repeal or scrap or to amend appropriately this most
controversial and undemocratic Article. When the Constitution was being framed
and the Constituent Assembly was discussing the need to incorporate Article 356 in
the Constitution, Stout opposition to it was put forth by some members. This Article

13
AIR (2006) 2 SSC - 1.
14
ibid
15
ibid
 was most keenly discussed and debated in the Constituent Assembly. The founding
fathers of the Constitution apprehended that if and when Article 356 would be
'misused', it would not only violate the federal character of the polity envisaged by
them but also make a mockery of the democratic principles. It was, however, hoped
by Dr. B.R. Ambedkar that the occasions for invoking the provisions contained in
this Article would be very rare and they would remain a dead letter. However, the
constitutional practice shows that this Article has been invoked one hundred and
twenty times during the last six decades. As a result, it is now a subject of
controversy and with every invocation of Article 356 the controversy scales new
heights.

The progenitors of the Constitution were also alive to the fact that several regions of
our country had no experience of Parliamentary form of Government, and as such
failure or 'break down of the Constitutional Machinery' could never be Ruled out as
an impossibility. Thus, the founding fathers of the Constitution thought that the
President must have some powers to deal with such a situation which may pose threat
to the unity and integrity of the country and to ensure that the Government of every
State is carried on in accordance with the provisions of the Constitution.
A discussion on the scope of Article 356 should begin with Article 355, which has a
great bearing on Article 356 of the Constitution of India. The power conferred on the
Union under Article 355 is purposive- the purpose is to ensure that the Government of
a State is carried on in accordance with the provisions of the Constitution. To make
the power of the Union effective, Article 356 enables the President to impose what is
known as the President's Rule. Thus, it is clear from Article 355 that it is not an
independent source of power for interference in the functioning of the State
Government but is in the nature of justification for the measures to be adopted under
Articles 356 and 357.

CONTRIBUTION OF THE BOMMAI’S CASE

The case put an end to the arbitrary dismissal of State governments by a hostile
Central government. And the verdict also categorically ruled that the floor of the
Assembly is the only forum that should test the majority of the government of the day,
and not the subjective opinion of the Governor, who is often referred to as the agent of
the Central government. "The Chief Minister of every State who has to discharge his
constitutional functions will be in perpetual fear of the axe of Proclamation falling on
him because he will not be sure whether he will remain in power or not and
consequently he has to stand up every time from his seat without properly discharging
his constitutional obligations and achieving the desired target in the interest of the
State," the Court said.16
The President exercises his power under Art. 356
(1) on the advice of the council of ministers to which, in effect, the power really
belongs though it may be formally vested in the President.
2) The question whether the incumbent State Chief Minister has lost his majority
support in the Assembly has to be decided not in the Governor's chamber but 'on the
floor of the House'.
3) The Governor should explore the possibility of installing an alternative ministry,
when the erstwhile ministry loses support in the house.
4) The validity of the Proclamation issued under Art. 356 (1), is justiciable on such
grounds as: whether it was issued on the basis of any material at all, or whether the
material was relevant, or whether the Proclamation was issued in the mala fide
exercise of the power, or was based wholly on extraneous and/or irrelevant ground.
5) There should be material before the President indicating that the Government of
the State cannot be carried on in accordance with the Constitution. The 'material' in
question before the President should be such as would induce a reasonable man to
come to the conclusion in question.
6) When a prima facie case is made out against the validity of the Proclamation, it is
for the Central Government to prove that the relevant material did in fact exist. Such
material may 165 be the Report of the Governor or any other material.
7) The dissolution of the Legislative Assembly in the State is not automatic
consequence of the issuance of the Proclamation. The dissolution of the assembly is
also not a must in every case. It should be done only when it is found to be necessary
for achieving the purposes of the Proclamation.
8) The provisions in Art. 356(3) are intended to be a check on the powers of the
President under Art. 356(1). If the Proclamation is not approved within two months by
the two Houses of Parliament, it automatically lapses. This means that the President

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Nov,15 2018 2:00 p.m
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ought not to take any irreversible action till the Proclamation is approved by the
Houses of Parliament. Therefore, the State Assembly ought not to be dissolved. The
dissolution of the Assembly prior to the approval of the Proclamation by the
Parliament under Art. 356(3) will be per se invalid. The State Legislative Assembly
should be kept in suspended animation in the meantime. Once the Parliament has put
its seal of approval on the Proclamation, the State Assembly can then be dissolved.
The Assembly which was suspended will revive and get reactivated if the
Proclamation is not approved by Parliament.

CONCLUSION

It is evident from the study that article 356 which was incorporated in the
Constitution for a noble cause of ensuring the governance I the state according to the
provision of the constitution has been frequently misuseed by the parties at the centre
to achieve their political ends. The hope and expectations of DR. Ambedkar that this
provision would remain a dead letter are belied and the apprehension of many others
have been proved true. The union government has not adopted a uniform pattern in
accepting the causes and circumstances which may warrant the invocation of Article
356. Art 356 to be applied only in case of breakdown of constitutional machinery not
administrative machinery. The expression ‘breakdown of the constitutional
machinery’ has been liberally used by the parties at the centre at their pleasure taking
undue advantage of the vagueness of this expression. A recent case of Fali Nariman
case was also decided on the guidelines laid down by the supreme court in Bommai’s
case.