Name: Anurag Ghosh

PRN:18010143024

INTERNAL ASSIGNMENT 1

COMPARATIVE PUBLIC LAW

S.R. BOMMAI VS UNION OF INDIA

1994 2 SCR 644: AIR 1994 SC 1918
(1994) 3 SCC 1
FACTS:

1. S.R. BOMMAI was the Chief Minister of Karnataka from August 13,1988 and was
the head of the Legislative members of the majority party Janata Dal Party.
2. The Janata Dal Party had in September 1988, merged with the Lok Dal into a new
party Janata Dal.
3. After the merger of these parties, a legislator of Janata Dal defected from the party
and had submitted a letter allegedly signed by other legislators, stating that they are
withdrawing their support, submitted it to the Governor.
4. As a result of this, on 19 April, the Governor sent a report to the President stating that
there were dissensions and defections in the ruling party.
5. The Governor in his report stated that as majority of legislators had withdrawn the
support, Chief Minister Bommai did not command a majority, and so recommended
that the President must exercise the power under Article 356(1).
6. Few of the legislators whose signed letters were submitted to the Governor, then had
come out and informed that their signatures were taken for support to the government
and that their signatures were obtained by misrepresentation.
7. S.R. Bommai had then informed the same to the Governor and had requested him to
call for a scheduled session to allow him to prove the confidence of his ministry.
8. S.R. Bommai had also sent the same information via Telex message to the President.
9. The Governor however exercising his power had sent another letter to the President
on 20th April, 1989 repeating his earlier request for action under Article 356(1).
10. As a result of this the President had issued a proclamation which was thereafter
approved by the Parliament as required under Article 356(3).
11. After this, his Government could last only till April 21th, 1989.
12. It was observed that inspite of a request by the Chief Minister the then Governor P.
Venkatasubbaiah had not given S.R. Bommai a chance to prove his majority on floor
inspite of Bommai having a majority letter signed by all the legislative members of
the party.
13. Then a Writ petition under Article 226 and 227 was filed by S.R. Bommai in
Karnataka High Court in front of a special bench of 3 judges on April 26th, 1989
challenging the validity of the proclamation and the same was dismissed.1
1
Manu Patra
 14. After their appeal was dismissed in the Karnataka High Court, Bommai had filed an
appeal under Article 32 against the order in the Supreme Court of India.
15. A Bench of nine judges was constituted in Bommai to consider the various issues
arising in this case.

ISSUES:

 Whether the Governor and the President had acted according to the provisions given
in the constitution.
 As the proclamation was issued under Article 356 of the Constitution, whether there is
scope for Judicial review of orders passed by the President of India.
 Whether the Governor was right on his part to overlook Bommai’s claim of having
sufficient majority.
 Whether this case had actually ought any changes in the current situation in India
relating to this Article 356.

RULES OR LAWS RELATED TO THIS CASE:

 Article 72 of the Constitution of India,1949.23

 Article 74 of the Constitution of India,1949.4
 Article 141 of the Constitution of India,1949.5
 Article 123 of the Constitution of India,1949.
 Article 356 of the Constitution of India,1949.
 Article 361 of the Constitution of India,1949.6
 Article 365 of the Constitution of India,1949.7
 Article 368 of the Constitution of India, 1949.8

ANALYSIS:

2
The Constitution of India bare act
3
Power of President
4
Council of Ministers to aid and advise President
5
Law declared by Supreme Court to be binding on all courts
6
Protection of President and Governors and Rajpramukhs
7
Effect of failure to comply with, or to give effect to, directions given by the Union
8
Power of Parliament to amend the Constitution and procedure therefor
In the recent times, it has been clearly evident that the President’s proclamation for
Emergency has always been under scrutiny and questions raised because of the dissolution of
the State Legislature. After going through the case, it could be understood that the then Prime
Minister of India Mr. Charan Singh in the year 1977 had asked the Governors of the
respective State Governments of Himachal Pradesh, Madhya Pradesh, Bihar, Uttar Pradesh,
Orissa, Bihar, Punjab, Rajasthan, Haryana, West Bengal to dissolve the Legislative
Assemblies or by threatening them to dissolve it by exercise of power under Article 356 of
the Constitution of India9. This matter was then taken up by a 7 judges bench of the Supreme
Court in State of Rajasthan vs Union of India10 where the court had dismissed the petition. As
stated by Justice P.N. Bhagwati, “The satisfaction of the president under Article 356 is a
subjective one and cannot be tested by reference to any objective tests or by judicially
discoverable and manageable standards.”11

According to the Sarkaria Commission headed by Justice Ranjit Singh Sarkaria, which was
formed to look into the usage of Article 356(1), which can only be used under extreme
circumstances, so as to prevent the breakdown of constitutional framework. The commission
was strictly against the misuse of this by the political parties for their own benefits and had
said that the duty of the governor is to explore all possible solutions and not to directly ask
for President’s rule. The commission pointed out that the abuse of Article 356 can only be
reduced by reverting to a narrower sense in which it can be both understood and explained.

The commission had a major impact on the judgement being passed by the 9
Judge bench12, wherein the Supreme Court in S.R.Bommai vs Union of India, took the
recommendations of this committee and endorsed it in the present case. The court also held
that if proclamation was made under Article 356 of the Constitution of India 13was justifiable
and that the court is within its powers to look into the reasons given for issue of Proclamation
and to find out if it was wholly extraneous to the formation of the satisfaction.

On the basis of consensus among the judges the following propositions can be enunciated in
relation to Article 356 (1) and the scope of judicial review there under:-

9
https://www.legalcrystal.com/case/655714/state-rajasthan-vs-union-india
10
State of Rajasthan Vs union of India SCC
11
http://www.ijhssi.org/papers/v6(6)/Version-4/B0606040514.pdf
12
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, JJ.
13
https://indiankanoon.org/doc/8019/
(1)The proclamation of President's Rule is subject to judicial review (as provided by 44th
Amendment 1978) on grounds of mala fide Intention;
(2)The proclamation shall be based on relevant material and Centre has to justify the
imposition of President's Rule .The Article 74(2) is not a bar against the scrutiny of the
material on the basis of which the President arrived at his satisfaction.
(3) The court has power to revive dissolved or suspended State government. If proclamation
of President's Rule is found unconstitutional and invalid, it will be open to the Court to
restore the status quo ante to the issuance of the Proclamation and hence to restore the
Legislative Assembly and the Ministry.
(3)The State Assembly can't be dissolved before approval of parliament for imposition of
President's Rule and President can only suspend the Assembly.
(4)The grounds of serious allegations of corruption against Ministry of State and financial
instability are not enough for imposition of President's Rule;
(5)The Government shall be given enough opportunities to correct itself in cases where
directives are issued ; (6)Secularism is the basic feature of our Constitution and any measure
or action taken by State government for security of this feature can't lead to use of
Article356; the power under Article 356 can't be used to sort intra party problems of ruling
party';
(7)If Ministry of State resigns or dismissed or loses majority then Governor can't advise
President to impose President's Rule until enough measures are taken by Governor for
formation an alternative Government;
(8)The SC held that power under Article 356 is an exceptional power and to be used only in
case of exigencies. 14

It can be seen from the judgement that has been passed by the Hon’ble Supreme Court and
the attention received by this judgment regarding importance of matters such as imposition of
Emergency under the provision of the Constitution of India which was according to Dr. B.R.
Ambedkar was to be used sparingly. He wanted it to be the dead letter of the Indian
constitution15 but his views were bypassed and such proclamations were being made very
often, under no valid reasons.

14
http://mitrasias.com/presidents-rule/
15
http://www.legalservicesindia.com/article/2201/Article-44-of-Constitution:-A-Dead-
Letter-to-be-Retrieved.html
Further, you can see that various such proclamations were issued based on the reports of the
Governor and making it more evident that the Governor acts as an agent of the Central
Government which appoints him/her and holds the office on the pleasure of the President and
this was found to be clearly unfair to the states. And we can say that through this judgement
of the Supreme Court, it has been successful in providing a better outlook into this provision
of the Constitution of India to protect the framework of a Secular and a Federal State which is
our basic structure.

THE CURRENT SITUATION IN INDIA

The present situation in India shows that the 'dead-letter' provision - as Dr. Ambedkar
hoped it would be - has become a frequently invoked, not-so-dead Article; it has been
activated more than a hundred times till today. The National Commission to Review the
Working of the Constitution (NCRWC), which was established on February 22, 2000, on the
basis of a joint resolution of the Government of India, Ministry of Law, Justice and Company
Affairs (Department of Legal Affairs), submitted its extensive report in March 2002. In its
analysis, the NCRWC stated that in at least twenty out of the more than one hundred
instances, the invocation of Article 356 might be termed as a misuse. It is difficult to believe
that, during his tenure as the Governor of the State of Uttar Pradesh, Romesh Bhandari made
any real effort to install a popularly elected government or to conduct a constitutionally
mandated floor-test to test the strength of the Legislative Assembly in the State for
identifying a majority party before prompting the application of the Article by the
President. After the fall of the Mayawati Government in the State of Uttar Pradesh, it might
have been justifiable to impose President's Rule. But it was also necessary to hold fresh
elections as soon as possible. The mala fides of the Union Executive in preventing the
assumption of office by an unfavorable political entity became clearly manifest in Governor
Bhandari's actions and the decision of the United Front Government at the Center, to re-
impose President's Rule in Uttar Pradesh. The worst damage may possibly have been done
through the office of the Governor, because the Governor cannot be held responsible for his
or her actions. H. M. Seervai pointed out that the Governor can be removed only by the
President and that the President acts on the advice of the Council of Ministers; hence the
Governor is in office pretty much at the pleasure of the Union Executive. This may act as a
bias whenever the Governor's duty requires him to go against the desires of the Union
Executive. In its report, the NCRWC recommended that the President should appoint or
remove the Governor in consultation with the Chief Minister of the State. This may act as a
restraint on the misuse of power by the Office of the Governor. 16

Another example of misuse of Article 356 was the imposition of President's Rule in the State
of Gujarat from September1996 to October 1996, following the incidents of violence
indulged in by members of the Gujarat Legislative Assembly. Soli Sorabjee pointed out that
violence within the Assembly cannot be treated as an instance of failure of the constitutional
machinery; it would otherwise become very easy for malicious legislators to dissolve a duly
elected legislative body by creating pandemonium in the Assembly and thereby prompting
improper invocation of Article 356. The correct procedure to be followed in such a situation
is to pass suitable legislation for disqualifying the guilty legislators.

CASE OF ARUNACHAL PRADESH (2016)17

The fact of the case of Nabam Rebia vs Deputy Speaker and others was that Nabam Tuki
won election in 2011. With full majority of 47 seats out of 60 seats. His brother was elected
as speaker. Chief Minister dropped his Health Minister Kalikho Pul by reshuffling the cabinet
in 2014. Then Kalikho Pul had charged the Congress Government with financial
mismanagement n NDRF and SDRF relief funds. He was expelled from party citing anti-
party activities. Kalikho Pul met with BJP leaders and 21 MLAs of congress rebelled against
their party. So, BJP had now 21 ex congress MLAs +2 Independent MLAs +11 MLAs
including the Deputy Speaker. The congress speaker disqualifies the 14 rebels on basis of 10th
schedule of anti-defection law. The congress then gave notice for disqualification of the
Deputy Speaker. Governor then summoned the assembly without the consultation of the
incumbent government under Article 174(1) and had already sent a message fr removal of
speaker being first priority of assembly. He then advanced the assembly session one month
prior from actual date of commencement where 33 MLAs unanimously voted Kalikho Pul s
the next Chief Minister of Arunachal Pradesh. The congress rebel was appointed as the
deputy speaker who then quashed the order of disqualifying the 14 rebel MLAs. Then the
Guwahati High court stayed the Governors order till February 1 and also the disqualification
of the 14 rebel MLAs till next hearing.

16
https://www.scribd.com/document/256017575/Abuse-of-Article-356
17
Nabam Rebia vs Deputy Speaker& ors SCC
A number of petitions led this case to the Supreme Court of India. This case was then
referred to the Constitutional Bench and were asked to debate matters on speaker and
Governor. The Supreme Court stated saying this is “censoring the Governor for Humiliating
the elected government of the day”. the Supreme Court then restored the Tuki Government
and declared all the decisions of the Governor unconstitutional that had first led to imposition
of president’s rule in the state and later formation of a new Government led by the ruling
party’s breakaway faction.

This led to curb the undemocratic, authoritarian trend through the 1970’s and 1980’s when
the centre used the Article 356 to topple elected state governments in the Bommai case. This
timely intervention of the judiciary made the imposition of Article 356. President’s rule,
contingent on a Constitutional Breakdown, subject to judicial review. The Supreme Court
here again proved a worthy foil to executive excess once again. This historic judgement will
check the centre’s tendency to abuse Governor’s powers and Presidents Rule to topple
opposition State Governments.

Although the court here while restoring the previous government, held that he assembly was
not completely dissolved, but only suspended until both houses of parliament approved
President’s rule. It had also demanded a floor test to ascertain majority thus reinstating the
sanctity of the Floor test. Although the court had ordered the Governor to respond as to why
he had recommended presidents rule, but later after realising that it has made a mistake as the
governor has complete immunity and is not answerable to court for acts done under his
official capacity.

CONCLUSION:
In most of the occasions it may have been seen that the Presidents rule was imposed on the
request of the Governor of that particular state. As we go through the role of the Governors,
we need to first go back to 1950-1994 where you will find that most of the cases related to
the governor are controversial which directly created concern and dissatisfaction in the minds
of the States. Although the Governors are appointed by the President, they are still termed as
the agent of Centre Government who indirectly performs the duties of the central government
in the state which is mostly found unfair to the states.
In 1988, few recommendations were put forward by the Sarkaria Commission on Article 356
but were not binding. Only after this case of Bommai, the Supreme Court had endorsed the
recommendations of the Sarkaria Commission. The Supreme Court had then created a legally
binding norm and guideline through its judicial pronouncement. Therefore, we can say that
this case helped in strengthening the Centre-State ties and the federal structure of the
Government.
The Article 356 of the Constitution confers a power upon the President to be exercised only
where he is satisfied that a situation has arisen where the Government of a State cannot be
carried on in accordance with the provisions of the Constitution. Under our Constitution, the
power is really that of the Union Council of Ministers with the Prime Minister at its head.
The satisfaction contemplated by the article is subjective in nature. The power conferred by
Article 356 upon the President is a conditioned power. It is not an absolute power. The
existence of material which may comprise of or include the report(s) of the Governor is a pre-
condition. The satisfaction must be formed on relevant material. The recommendations of the
Sarkaria Commission with respect to the exercise of power under Article 356 do merit serious
consideration at the hands of all concerned. (3) Though the power of dissolving of the
Legislative Assembly can be said to be implicit in clause (1) of Article 356, it must be held,
having regard to the overall constitutional scheme that the President shall exercise it only
after the Proclamation is approved by both Houses of Parliament under clause (3) and not
before. Until such approval, the President can only suspend the Legislative Assembly by
suspending the provisions of Constitution relating to the Legislative Assembly under sub-
clause (c) of clause (1). 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 Proclamation under clause (1) can be issued only where the situation
contemplated by the clause arises. In such a situation, the Government has to go. There is no
room for holding that the President can take over some of the functions and powers of the
State Government while keeping the State Government in office. There cannot be two
Governments in one sphere. Clause (3) of Article 356 is conceived as a check on the power of
the President and also as a safeguard against abuse. In case both Houses of Parliament
disapprove or do not approve the Proclamation, the Proclamation lapses at the end of the two-
month period. In such a case, Government which was dismissed revives. The Legislative
Assembly, which may have been kept in suspended animation gets reactivated. Since the
Proclamation lapses and is not retrospectively invalidated the acts done, orders made and
laws passed during the period of two months do not become illegal or void. They are,
however, subject to review, repeal or modification by the Government/Legislative Assembly
or other competent authority. However, if the Proclamation is approved by both the Houses
within two months, the Government (which was dismissed) does not revive on the expiry of
period of Proclamation or on its revocation. Similarly, if the Legislative Assembly has been
dissolved after the approval under clause (3), the Legislative Assembly does not revive on the
expiry of the period of Proclamation or on its revocation. Article 74(2) merely bars an
enquiry into the question whether any, and if so, what advice was tendered by the Ministers
to the President. It does not bar the court from calling upon the Union Council of Ministers
(Union of India) to disclose to the court the material upon which the President had formed the
requisite satisfaction. The material on the basis of which advice was tendered does not
become part of the advice. Even if the material is looked into by or shown to the President, it
does not partake the character of advice. Article 74(2) and Section 123 of the Evidence Act
cover different fields. It may happen that while defending the Proclamation, the Minister or
the official concerned may claim the privilege under Article 123. If and when such privilege
is claimed, it will be decided on its own merits in accordance with the provisions of Article
123. The Proclamation under Article 356(1) is not immune from judicial review. The
Supreme Court or the High Court can strike down the Proclamation if it is found to be mala
fide or based on wholly irrelevant or extraneous grounds. The deletion of clause (5) [which
was introduced by 38th Amended Act by the 44th Amended Act, removes the cloud on the
reviewability of the action. When called upon, the Union of India has to produce the material
on the basis of which action was taken. It cannot refuse to do so, if it seeks to defend the
action. The court will not go into the correctness of the material or its adequacy. Its enquiry is
limited to see whether the material was relevant to the action. Even if part of the material is
irrelevant, the court cannot interfere so long as there is some material which is relevant to the
action taken. If the court strikes down the Proclamation, it has the power to restore the
dismissed Government to office and revive and reactivate the Legislative Assembly wherever
it may have been dissolved or kept under suspension. In such a case, the court has the power
to declare that acts done, orders passed and laws made during the period the Proclamation
was in force shall remain unaffected and be treated as valid. Such declaration, however, shall
not preclude the Government/Legislative Assembly or other competent authority to review,
repeal or modify such acts, orders and laws. The Constitution of India has created a
federation but with a bias in favour of the Centre. Within the sphere allotted to the States,
they are supreme. Secularism is one of the basic features of the Constitution. While freedom
of religion is guaranteed to all persons in India, from the point of view of the State, the
religion, faith or belief of a person is immaterial. To the State, all are equal and are entitled to
be treated equally. In matters of State, religion has no place. No political party can
simultaneously be a religious party. Politics and religion cannot be mixed. Any State
Government which pursues unsecular policies or unsecular course of action acts contrary to
the constitutional mandate and renders itself amenable to action under Article 356.