Holding

The President's satisfaction under Article 356(1) is judicially reviewable on limited grounds, and a proclamation can be struck down if it is based on no material, irrelevant material, or is mala fide; secularism is a basic feature of the Constitution, and a State government acting against secularism can be dismissed under Article 356.

Summary

This landmark judgment concerns the scope of Article 356 of the Constitution of India, which empowers the President to impose President's Rule in states upon failure of constitutional machinery. The case consolidated challenges to proclamations dissolving legislative assemblies in Karnataka, Meghalaya, Nagaland, Madhya Pradesh, Rajasthan, and Himachal Pradesh. The Supreme Court held that the President's satisfaction under Article 356(1) is subject to judicial review, albeit on limited grounds such as mala fides, irrelevance of material, or absence of material. The Court also ruled that secularism is a basic feature of the Constitution, and that a State government acting against secularism can be dismissed under Article 356. The proclamations in Karnataka, Meghalaya, and Nagaland were held unconstitutional, but no relief was granted because fresh elections had already been held. The proclamations in Madhya Pradesh, Rajasthan, and Himachal Pradesh were upheld as valid, given the material showing the governments' complicity in actions undermining secularism. The judgment also addressed the scope of Article 74(2) regarding the confidentiality of ministerial advice, holding that it does not bar judicial scrutiny of the material on which the advice was based.

Issues considered

Whether the President's satisfaction under Article 356(1) is subject to judicial review and, if so, what is the scope of such review?
What is the meaning of 'a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution'?
Whether secularism is a basic feature of the Constitution and can a State government be dismissed under Article 356 for acting against secularism?
Whether the President can dissolve the Legislative Assembly before the proclamation is approved by both Houses of Parliament?
Whether Article 74(2) bars judicial review of the material on which the President's satisfaction is based?
Whether the Governor is required to conduct a floor test before recommending President's Rule?
Whether the deletion of clause (5) of Article 356 by the 44th Amendment affects the justiciability of the President's satisfaction?

Legislation cited

Constitution of Indias. 142, s. 154, s. 155, s. 156, s. 163, s. 174, s. 226, s. 32, s. 352, s. 355, s. 356, s. 357, s. 360, s. 365, s. 74, s. 77
Indian Evidence Act, 1872s. 106, s. 123
Representation of the Peoples Act, 1951s. 123

Subjects

Article 356President's RuleJudicial ReviewFederalismSecularismBasic StructureConstitutional LawEmergency ProvisionsState GovernmentLegislative AssemblyGovernor's ReportFloor TestArticle 74(2)Evidence Act Section 123

Judgment

I
A S.R. BOMMAI AND ORS.
v.
UNION OF INDIA AND ORS.

MARCH 11, 1994
l
B
[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, J.T.]

Constitution of India, I950: Art. 356-Nature, scope, applicability and
C effect of-President's Rule-Promulgation of in case of failure of constitution-
al machinery in states-Satisfaction ,_~r President' that a situation has arisen
in which the Government of the State cannot be canied on in accordance
with the provisions of the Constitution'-fnterpretation of-'Satisfaction of
PresidentL-'Satisfaction'-Meaning of-Subjective satisfaction of Union
D Council of Ministers-Principles of natural justice-Observance of-Satisfac-
tion must be based on Objective material-Situations where it can be said
that the State Govt. 'cannot' be canied on-Return of any political party at
the centre different from that in power in the State-Not one such situa-
tion-ideology of State Govt. to be consistent with the Constitutiort-Disregard
IE by any State of the basic values and essential features of the Constitu-
tion-Regard to federal structure and Cen~State relatiotr-Need for-Effect
of issuance of the Promulgation and conditions precedent-Dissolution of
Legislative Assembly and Government of the State-.Whether a necessary
consequence-Effect of approval/disapproval of the Promulgation-Revival of
Legislation Assembly-Validation of laws and orders passed during the
~ promulgation-Validity of Promulgatidns issued in respect of Kamataka,
Meghalaya, Nagaland, Madhya Pradesh, Himachal Pradesh and Rajasthan.

Con_stitution of India, I951J-Arts. 356, and 352, 355, 357, 36o-Nature
of Art. 356 in the context of-An emeJ8ency provision to be used in excep-
,
" tional circumstances.

Constitution of India, 1951J-Arts. 356(1) and 154, 155, 156, 163-'0n
receipt of report from Govemor'-Govemor's obligation to make report-Role
of Governors-Floor test-Testing majority support of the ruling party in the
State on the floor of the House-Necessity of-Whether floor test a pre-requi-
• site to sending report by Governor.
644
S.R. BOMMAI v. U.0.l. 645

Constitution of J11dia, 195()--Preamble and Arts. 15, 16, 25, 26, 27, 28, A
30, 51-A, 356-Scope of Preambl&-Secularism-Mea11i11g a11d role
of-Religious tolerance a11d equal treatme11t of all religions-Concept of
positive secularism-Religion vis-a-vis secularism-Secularism is part of the
basic st111cture of the Constitution-Effect of 42nd Amendment.

Constitution of I11dia 1950-Arts. 32, 226 & 35-Proclamation under B
Art.356-Amenable to judicial reviev.-Before or after Parliament's ap-
proval-Not the subjective satisfaction of President but material on which
satisfaction is based open to judicial review on grounds of illegality, malafide,
extraneous considerations, abuse of jJower or fraud on power, irrelevance not
sustainable so long as there is sonte relevant rnaterial-Co1Tections or ade- c
quacy of the ntaterial cannot be gone into on merits-Nor can purely political
questions be reviewed by Court-Doctrine of political thicket-Materials fall-
ing within the expression, 'or otherwise'-Review of

Constitution of India, 1950-Arts. 356, 74(2) & 142 and 32 &
226-Proclan;atio11 under Art. 356-Judicial Reviev.-Bar under Art. D
74(2)-Nature a11d object of-Whether confined to the advice tendered by
Council of Ministers-But material on the basis of which advice was tendered
is subject to judicial reviea-Whether Govt. while justifying its action can
claim privilege under S. 123 of the Evidence Act, 187l-Burden of
Proof-First on the person challenging the Proclamation-Then shifts to E
Union of India.

Constitution of India : Arts. 74 and 77-Scope of

Interpretation of the Constitution : Constitutional schem&-Should be
so construed as to maintain the fundamental balance. p
Constitutional provisions-Language plain and clean-No obvious in-
.>·-
advertento: mission-Filling up the gaps by Courts-Whether could be
resorted to.

Constitutional provisions-Interpretation not to whittle down the G
powers of the States.

Evidence Act, 1872:

S. 123--Privileg&-Action taken under Art. 356 of the Constitution of
India-Government justifying its action-Whether could claim privilege under H
646 SUPREME COURT REPORTS (1994] 2 S.C.R.

A s. 123.
Adniinistrative Law :

Judicial Review-Whether confined to the decision making process only
and not the decision itself mz me1its-Justiciability and fudicial review-Dif-
B ference between.
Words & Phrases :

'Federalisn1' 'Federation' 'federal Jann of Government' 'Secularisni'
'Judicial Review'-Meaning of in the context of the provisions of the Constitu-
C tion of India.

In the present appeals and Transferred cases, the dissolution of the
Legislative Assemblies in Karnataka, Rajasthan, Madhya Pradesh,
Himachal Pradesh, Meghalaya and Nagaland, was challenged.

D The expansion of Ministry in Karnataka (headed by Shri S.R. Bom-
mai of Janata Dal) caused dissatisfaction to some of the aspirants. 20
MLAs later defectedthe part and write to the Governor on April 17, 1989
expressing no confidence in the leadership of Shri Bommai. The Governor
sent a report to the President in April 19, 1989. Subsequently on April 20, ·
1989, 7 out of the 20 MLAs wrote to the Governor that their signatures
E
were obtained by misrepresentation and reaffirmed their support in Sb.
Bommai. On the same day the Cabinet decided to convene the Assembly
on April 27, 1989 to obtain vote of confidence and Shri Bommai met the
Governor and requested him to allow floor test, so that he could prove his
majority and that he was prepared even to advance the date of the session.
F The Governor sent his second report to the President, who exercising his
power under Art. 356 issued proclamation dissolved the Assembly and
assumed the administration of the State of Karnataka. A writ petition was
filed challenging this and the High Court dismissed the writ petition,
against which the present appeal is filed.
G In the elections held in February, 1990, the Bhartiya Jania Party
(BJP) emerged as the majority part in the legislative assemblies of Uttar
Pradesh, Madhya Pradesh, Rajasthan and Himachal Pradesh, and formed
governments in the said States. As per the manifesto of BJP, it was to
construct a temple for Lord Sri Rama at his birth place Ayodhya. On
H December 6, 1992 the disputed Ram Janambhoomi Bahri Masjid structure
S.R. BOMMAI v. U.0.1. 647
was demolished by the Karsewaks gathered at Ayodhya, as a result of A
sustained momentum generated by BJP, Vishva Hindu Parishad,
Rashtriya Swayamsewak Sangh, Bajrang Dal, Shivsena and other or·
ganisations, despite the assurance given to this Court by the State Govern-
ment that the disputed structure would be protected. Though the
Government of U.P. resigned, the President issued a proclamation under
Art. 356 of the Constitution and dissolved the U.P. State Assembly. Loss
B
of precious lives of innoc-ent people and property throughout the country
and the neighbouring countries followed the demolition. The President
exercising the power under Art. 356 issued proclamations, dismissed the
State Governments of Ra.iasth.an, Madhya Pradesh and Himachal Pradesh
and dissolved the legislative assemblies or the States. These proclamations C
are also under challenge before this Court.

In the State of Meghalaya, the then Speaker of the House was elected
as leader of the opposition group and he claimed the support of the
majority of the members in the house and requested the governor to invite D
him to form the government. The Governor requested him to prove his
majority on the floor of the house. 30 members voted for him and 27 voted
against him. Before announcing the result, the Speaker intimated the
house that he had received a complaint against five independent MLAs. in
the ruling Coalition alleging disqualification under the Anti-defection Law
and that he was suspending their right to vote. There was an uproar and E
the session had to be adjourned. The Speaker sent notices to the live
independent MLAs, and later disqualified them, but not on the ground
alleged in the show cause notice.

On Governor's advice, the Chief Minister summoned the session of F
the assembly. The Speaker refused to send the notices of the session to the
live MLAs disqualified by him. He also made arrangements to ensure that
they were not allowed to enter the assembly. Four of the five members
obtained stay orders from this Court against the Speaker's order. Again
the Assembly was summoned to meet on October 8, 1991. The four MLAs.
filed Contempt Petition against the Speaker; and on this Court's orders, G
they were invited to the session, and voted in favour of the motion express-
ing confidence in the Government. Excluding the votes of the said four
.' members, the speaker declared that the Governn1ent had lost the con-
fidence of the House. The Governor reported that a situation had arisen
where the Governn1ent of the State cannot be carried on in accordance with H
) \..

648 SUPREME COURT REPORTS [1994] 2 S.C.R.

A the provisions of the Constitution and the President dismissed the Govern-
ment on the basis of the report. This has been challenged before this Court.

In Nagaland, the Congress(!) party formed the Government in 1987,
with 35 MLAs. In 1988, there wa~ a split and 13 MLAs formed a separate
party called Congress Ruling Party. It claimed the support of 35 MLAs
B and stated its claim to form the Ministry. The Governor sent a report to
the President detailing the horse trading mechanitions and some MLAs
having contact with the insurgents. The Chief Minister resigned and the
Governor recommended imposition or President's Rule. President issued
the proclamation under Art. 356 assuming the functions of the State of
C Nagaland. The dissident leader filed a writ petition challenging the
proclamation. The Judges in the Division Bench differed on the scope of
Art. 74(2) and S.123 of the Evidence Act and the matter was referred to a
third Judge. However, before he could hear the matter, the Union of India
filed Special Leave Petition and this Court granted leave and stayed the
D proceedings of the High Court.

Detailed arguments were advanced on the scope of Articles 356,
especially in the context of related provisions viz. Arts. 354, 355, 357, 360,
154, 155, 159, 163 etc. and the approval of the proclamation by the Parlia-
ment. Arguments were also advanced on the scope and extent of Art. 74(2)
E as also S. 123 of the Evidence Act. Various contentions had been raised on
Preamble to the Constitution, Federal structure of the Constitution, Judi-
cial Review, Centre-State relations, basic structure of the Constitution as
also secularism.

p Disposing uf the matters, this Court
-- ....
HELD : Per Sawant, J. (for himself and Ku/dip Singh, !.)

1.1. The common thread running through the Articles 352 to 360 in
Part XVIII relating to emergency provisions is that the said provisions can
G be invoked only when there is an emergency and the emergency is of the
nature described therein and not of any other kind. The Proclamation of
emergency under Articles 352, 356 and 360 is further dependent on the
satisfaction of the President with regard to the existence of the relevant ,.
conditions-precedent. The duty cast on the Union under Article 355 also
H arises in the min conditions stated therein. (718 C, DJ
649

A
.
1.2. The crucial expressions in Article 356(1) are if the President, "on
the receipt of report from the Governor of a State or otherwise" "is satisfied"
'
that "the situation has arisen in which the Government of the State cannot
be carried on" uin accordance with the provisions of the Constitution". The
conditions precedent to the issuance of the Proclamation, are: (a) that the
President should be satisfied either on the basis of a report from the
Governor of the State or otherwise, (b) that in fact a situation has arisen in
B
which the Government of the State cannot be «.:arried on in accordance with
the provisions of the Constitution. In other words, the President's satisfac-
tion has to be based on objective material. That material may be available
in the report sent to him by the Governor or otherwise or both from the
report and other sources. Further, the objective material so available must C
indicate that the Government of the State cannot be carried on in accord-
ance with the provisions of the Constitution. Thus the existence of' the
objective material showing that the Government of the State cannot be
carried on in accordance with the provisions of the Constitution is a condi·
tion precedent before the President issues the Proclamation. Once such
D
material is shown to exist, the satisfactiCJn of the President based on the
material is not open to question. However, if there is no such objective
• material before the President, or the material before him cannot reasonably
suggest that the Government of the State cannot be carried on in accord·
ance with the provisions of the Constitution, the Proclamation issued is
open to challenge. [718 E·H, 719 A] E

1.3. The objective material before the President must indicate that
the Government of the State "cannot be carried on in accordance with the
provisions of the Constitution". In other words, the provision require that
the material before the President must be sufficient to indicate that unless F
a Proclamation is issued, it is not possible to carry on the affairs of the
State as per the provisions of the Constitution. It is not every situation
arising in the State but a situation which shows that the constitutional
Government has become an impossibility, which alone wi11 entitle the
President to issue the Proclamation. These parameters of the condition
precedent to the issuance of the Proclamation indicate both the extent of G
and the limitations on, the power of the judicial review of the Proclamation
issued. It is not disputed that the Proclamation issued under Article356(1)
is open to judicial review. All that is contended is that the scope of the
.' review is limited. The language of the provisions of the Article contains
', sufficient guidelines on both the scope and the limitations, of the judicial H
,\ .
650 . SUPREME COURT REPORTS [1994] 2 S.C.R.

A review. [719 B-E]

1.4. It is unacceptable that even if the Constitution provides precon- '
ditions for exercise of power by the constitutional authorities, the Courts
cannrit examine whether the pre-conditions have been satisfied. It is equal-
ly unacceptable if the powers are entrusted to a constitutional authority
B for achieving a particular purpose and if the concerned authority under
the guise of attaining the said purpose,, uses the powers to attain an
impermissible object, such use of power cannot be questioned. No
authority been pointed out in support of these propositions. Many pf the
parameters of judicial review developed in the field of administrative law
c are not anti-thetical to the field of constitutional law, and they can equally
apply to the domain covered by the constitutional law. That is also true of
the doctrine of proportionality. [720 B-D]

Barium Chemicals Ltd. & Anr. v. The Company Law Board & Ors.,
[1966) Supp. SCR 311; M.A. Rashid & Ors. v. State of Kera/a, (1975) 2 SCR
D 93; State of Rajasthan & Ors. etc. etc. v. Union of India etc. etc., [1978) 1
SCR 1; Kehar Singh & Anr. etc. v. Union of India & Anr., [1988) Supp. 3
SCR 103 and Mam Ram etc. etc. v. Union of India & Am·., [1981) 1 SCR
1196, relied on. > •
Chief Constable of the North Wales Police v. Evans, (1982) 3 All ER
E 141; Council of Civil Service Unions v. Minister for the Civil Service, (1985)
AC 374 at 408; R. v. Crown Court at Carlisle, exp Marcus- Moore, (1981)
Times, 26 October, DC; R. v. Panel on Takeovers and Mergers, exp Guinness
Pie, (1987) QB 815; Council of Civil Service Unions v. Minister for the Civil
Service, (1985) AC 374 at 414; Puhlhofer v. Hillingdon London Borough
F Council, (1986) AC 484; Leech v. Deputy Governor of Parkhurst Prison,
(1988) AC 533 and Muhammad Shmifv.Federation of Pakistan, PLD (1988)
Lahore 725, referred to.
'
2.1. The exercise of power by the President under Article 356(1) to
issue Proclamation is subject to the judicial review at least to the extent
G of examining whether the conditions precedent to the issuance of the
Proclamation have been satisfied or not. This examination will necessarily
involve the scrutiny as to whether there existed material for the satisfac~
lion of the President that a situation had arisen in which the Government
of the State could not be carried on in accordance with the provisions of , .
H the Constitution. Needless to emphasise that it is not an.y material but •
/{

S.R. BOMMAI v. U.0.1. 651

material which would lead to the conclusion that the Government of the A
State cannot be carried on in accordance with the provisions of the
Constitution which is relevant for the purpose. It has further to be remem-
bered that the Article requires that the President "has to be satisfied" that
the situation in question has arisen. Hence the material in question has to
be such as would induce a reasonable man to come to the conclusion in
question. The expression used in the Article is "if the President........ .is
B
satisfied". It is not the personal whim, \\ish, view or opinion or the ipse
dixit of the President de h01s the material but a legitimate inference drawn

- -.
from the material placed before him which is relevant for the purpose. In
other words, the President has to be convinced of or has to have suflicient
proof of information with regard to or has to be free from doubt or C
uncertainty about the state of things indicating that the situation in
question has arisen. Although, therefore, the sufficiency or otherwise of the
material cannot be questioned, the legitimacy of inference drawn from such
material is certainly open to judicial review. (730 E-H, 731 A·CJ
D
2.2. The power exercised by the President under Article 356(1) is on
the advice of the Council of Ministers tendered under Article 74(1) of the
Constitution. The Council of Ministers under our system would always
belong to one or the other political party. In view of the pluralist
democracy and the federal structure, the party or parties in power (in case
of coalition Government at the Centre and in the States may not be the E
same). Hence there is a need to confine the exercise of power under Article
356(1) strictly to the situation mentioned therein which is a condition
precedent to the said exercise. That is why the framers of the Constitution
have taken pains to specify the situation which alone would enable the
exercise of the said power. The situation is no less than one in which "the F
Government of the State cannot be carried on in accordance with the
provisions of this Constitution". A situation short of the same does not
11
empower the issuance of the Proclamation. The word "cannot emphatical-
ly connotes a situation of impasse. Situation which can be remedied or do
not create an impasse, or do not disable or interfere with the governance
of the State according to the Constitution, would not merit the issuance of G
the proclamation under the Article. A situation contemplated under this
Article is one where the government of the State cannot be carried on "in
accordance with the provisions of the Constitution". The expression indeed
envisages varied situation. Article 365 which is in Part XIX entitled "Mis-
cellaneous", has contemplated one such situation. The failure to comply H
652 SUPREME COURT REPORTS [1994] 2 S.C.R.

A with or to give effect to the directions given by the Union under any or the
provisions of the Constitution, is of course, not the only situation con-
templated by the expression "Government or the State cannot be carried
on in accordance with the provisions or this Constitution' Article 365 is
more in the nature or a deeming provision. However, the situations other
than those mentioned in Article 365 must be such where the governance or
B the State is not possible to be carried on in accordance with the provisions
or the Constitution. [731 D-Fl

2.3 There is no hesitation in concurring broadly with the occasions
illustrated by the Sarkaria Commission on Centre State Relations where •
C the exercise or power under Article 356(1) would be improper and uncalled
for. [737 E]

Constituent Assembly Debates Vol. IX p. 175, 176; Report of Sarkaria
Commission on Centre State relations, paragraphs 6.3, 23, 24, 6.4.01, 6.5.01,
referred to.
D
3.1. The object of Article 74(2) was not to exclude any material or
documents from the scrutiny of the Courts but to provide that an order
issued by or in the name of the President conld not be questioned on the
ground that it was either contrary to the advice tendered by the Ministers
or was issued without obtaining any advice from the Ministers. Its object
E
was only to make the question whether the President had followed the
advice of the Ministers or acted contrary thereto, non-justiciable. What
advice, if any, was tendered by the Ministers to the President was thus to
be beyond the scrntiny of the Court. (737 H, 738 A-Bl

F 3.2. This is not to say that the rule of exclusion laid down in Section
123 of the Indian Evidence Act is given a go-bye. However, it only em-
phasises that the said rule can be invoked in appropriate cases. (738 G] • _.

3.3. Although Article 74(2) bars judicial review so far as the advice
given by the Minis~ers is concerned, it does not bar scrutiny of the material
G on tbe basis of which the advice is given. The Courts are not interested in
either the advice given by the Ministers to the President or the reasons for
such advice. The Courts are, however, justified in probing as to whether
there was any material on the basis of which the advice ~1 as given, and
whether it was relevant for such advice and the President could have acted ..,, •
H on it. Hence, when the Courts undertake an enquiry into the existence of
'(

S.R. BOMMAI v. U.0.1. 653

such moterial, the prohibition contained in Article 74(2) does not negate A
their right to know about the factual existence of any such material. This
' is not to say that the Union Government cannot raise the plea of privilege
under Section 123 of the Evidence Act. As and when such privilege against
disclosure is claimed, the Courts will examine such claim within the
parameters of the said section on its merits. [738 G, H; 739 A-BJ
B
3.4. Since further the Prodamation issued under Article 356(1) is
required by Clause (3) of that Article to be laid before each House of
Parliament and ceases to operate on the expiration of two months unless
it has been approved by resolutions by both the Houses of Parliament
before the expiration of that period, it. is evident that the c1uestion as to C
whether a Proclamation should or should not have been made, has to be
discussed on the floor of each House and the two Houses would be entitled
to go into the material on the basis of which the Council of Ministers had
tendered the advice to the President for issuance of the Proclamation.
Hence the secrecy claimed in respect of the Material in question cannot D
remain inviolable, and the plea of non-disclosure of the material can
hardly be pressed. When the Proclamation is challenged by making out a
prima facie case with regard to its invalidity, the burden would be on the
-• Union Government to satisfy that there exists material which showed that
the Government could not be carried on in accordance with the provisions
of the Constitutim;. Since such material would be exclusively within the E
knowledge of the Union Government, in view of the provisions of Section
106 of the Evidence Act, the burden of proving the existence of such
material would be on the Union Government. (739 E-H, 740 A]

3.5. As regards the question whether the validity of the Proclamation F
issued under Article 356(1) can be challenged even after it has been
approved by both Houses of Parliament under clause (3) of Article 356,
there is no reason to make a distinction between the Proclamation so
approved and a legislation enacted by the Parliament. If the Proclamation
is invalid, it does not stand validated merely because it is approved of by
the Parliament. The grounds for challenging the validity of the Proclama- G
tion may be different from those challenging the validity of a legislation.
However, that does not make any difference to the vulnerability of the
Proclamation on the limited grounds available. (740 B-C]
. --~ .....
3.6. The deletion of clause (5) of Article 356, as it stood prior to its H
654 SUPREME COURT REPORTS [1994] 2 S.C.R.

A deletion by the Constitution (44th Amendment) Act in 1978, has made no
change in the legal position that the satisfaction of the President under
clause (1) of Article 356, was always judicially reviewable. On the other
hand, the deletion of the clause has reinforced the earlier legal position,
viz., that notwithstanding the existence of clause (5), the satisfaction of the
President under clause (1) was judicially reviewable and the judicial review
B
was not barred on account of the presence of the clause. [741 DJ

Shamsher Singh & Anr. v. State of Punjab, [1975) 1 SCR 814; State of
U.P. v. Raj Narain, [1975] 3 SCR 333 at 360; A.K Roy v. Union of India,
[1982) 2 SCR272 at 297; Kilwto Hallahan v. Zachil/hu & Ors., [1992) Supp.
C 2 SCC 651at707-710; Union of India v.Jyoti Prakash Mittar, [1971] 3 SCR
483 and Union of India v. Tulsi Ram Patel, [1985) Supp. 2 SCR 131,
referred to.

R. v. H.M. Treasury exp. Sme/dey, [1975] QB 657, referred to.

D Prof. H.W.R. Wade in "Administratvie Law" -6th Edition, referred to.

4.1. It will be an inexcusable error to examine the provisions of Article
356 from a pure legalistic angle and interpret their meaning only through
jurisdictional technicalities. The Constitution is essentially a political
document and provisions such as Article 356 have a potentiality to unsettle
E and subvert the entire constitution scheme. The exercise of powers vested
under such provisions needs, therefore, to be circumscribed to maintain the
fundamental constitutional balance lest the Constitution is defaced and
destroyed. This can be achieved even without bending much less breaking
the normal mies of interpretation, if the interpretation is alive to the other '
F equally important prov1sions of the Constitution and its bearing on them.
Democracy and federalism are the essential features of our Constitution
and are part of its basic structure. Any interpretation that may placed on
Article 356 must, therefore, help to preserve and not subver their fabric. The
power vested de jure in the President but de facto in the Council of Ministers
under Article 356 has all the latent capacity to emasculate the two basic
G features of the Constitution and hence it is necessary to scrutinise the
material on the basis of which the advice is given and the President forms
his satisfaction more closely and circumspectly. This can be done by the '•
Courts while confining themselves to the acknowledged parameters of the
judicial review as discussed above viz., illegality, irrationality and ma/a
H fides. Such scrutiny of the material will also be withi11 the judicially dis·
S.R. BOMMAI v. u.o.r. 655

coverable and manageable standards. [742 F-H; 743 A-CJ A
•
4.2. States have an independent constitutional existence and they
have as important a role to play in the political, social, educational and
cultural life to the people as the Union. They are neither satellites nor
agents of the Centre. The fact that during emergency and in certain other
eventualities their powers are overriden or invaded by the, Centre is not B
destructive of the essential federal nature of our Constitution. The in-
vasion of power in such circumstances is not a normal feature of the
Consdtution. They are exceptions and have to be resorted to only oc-
casionally to meet the exigencies of the special situations. The exceptions
are not a rule. (746 E-G] C

4.3. So long as the States are not mere administrative units but in
their own right constitutional potentates with the same paraphernalia as
the Union, and with independent Legislature and the Executive constituted
by the same process as the Union, whatever the bias in favour of the D
Centre, it cannot be said that merely because (and assuming it is correct)
the Constitution is labelled unitary or quasi-federal or a mixture of federal
and unitary structure, the President has unrestricted power of issuing
Proclamations under Article 356(1). If the Presidential powers under the
said provision are subject to judicial review within the limits discussed
above, those limitations will have to be applied strictly while scrutinising E
the concerned the material. (747 A-CJ

4.4. In a representative democracy in a populous country like ours
when legislatures of the States are dissolved pursuant to the power used
under Article 356(1) of the Constitution and the elections are proposed to F
be held, it involves for the public exchequer an enormous expenditure and
consequently taxes the public. The machinery and the resources of the St~te
are diverted from other useful work. The expenses of contesting elections.
which even othenrise are heavy and unaffordable for common man are
multiplied. Frequent elections; consequent upon unjustified use of Article
356(1) has thus a potentially dangerous consequence of negating the very G
democratic principle by making the election-contest the exclusive preserve
of the affiuent. What is further, the frequent dissolution of the Legislature,
has the tendency to create disenchantment in the people with the process of
election and thus with the democratic way oflife itself. The history warns us
that the frustration with democracy has often in the past, led to an invita- H
)'\

656 SUPREME COURT REPORTS [1994] 2 S.C.R.

A lion to fascism and dictatorship of one form or the other. [747 D-F]
•
4.5. Tne participation of the people in the governance is a sine qua
non of democracy. The democratic way of life began by direct participation
of the people in the day to day affairs of the society. With the growth of
population and the expansion of the territorial boundaries of the State, '
B representative democracy replaced direct democracy and people gradually
surrendered more and more of their rights of direct participation, It their
representatives. Notwithstanding the surrender of the requisite powers, in
matters which are retained, the powers are jealously guarded and rightly
so. If it is true to say that in democracy, people are sovereign and all power
c belongs primarily to the people, the retention of such power by the people
and the anxiety to exercise them is legitimate. The normal rule being the
self-governance, according to the wishes expressed by the people, the
occcsions to interfere with the self- governance should both be rare and
demonstrably compelling. (747 H, 748 A·CJ

D
4.6. Our Society is, among other things, multi-lingual, multi-ethnic
and multi-cultural. Prior to independence, political promises were made
that the States will be formed on linguistic basis and the ethnic and
cultural identities will not only be protected but promoted. It is in keeping
with the said promises, that the States eventually have come to be or-
E ganised broadly on linguistic, ethnic and cultural basis. The people in
every State desire to fulfil their own aspirations through self-governance
within the framework of the Constitution. Hence interference with the
self-governance also amounts to the betrayal of the people and unwar-
ranted interference. The betrayal of the democratic aspirations of the
F people is a negation of the democratic principle which runs through our
Constitution. (748 D-F]

4.7. Under our political and electoral system, political parties may
operate at the State and national level or exclusively at the State level.
There may be different political parties in different States and at the
G national leveJ. Consequently, situations may arise, as indeed they have,
when the ;iolitical parties in power in various States and at the Centre may
be different. It may also happen • as has happened till date • that through
political bargaining, adjustment and understanding, a State-level party
may agree to elect candidates of a national level party to the Parliament
H and vice versa. This mosaic of variegated pattern of political life is paten-
S.R. BOMMAI v. U.0.1. 657

tially inherent in a pluralist multi-party democracy like ours. Hence the A
temptation or the political party or parties in power (in a coalition Govern-
ment) to destabilise or sack the Government in the State not run by the
same political party or parties is not rare and in fact the experience or the
working or Article 356(1) since the inception or the Constitution, shows
that the State Governments have been sacked and the legislative as-
semblies dissolved on irrelevant, objectionable and unsound grounds. So
B
for the power under the provision has been used on more than 90 occasions
and the almost all cases against governments run by political parties in
opposition. Ir the fabric or pluralism and pluralist democracy and the
• unity and integrity or the country are to be preserved, judiciary in the
circumstances is the only institution which can act as the saviour or the C
system and of the nation. (748 G-H, 749 A-D]

4.8. It cannot be said that if the ruling party in the States suffers an
overwhelming defeat in the elections to the Lok Sabha - however complete
the defeat may be it will be a ground for the issue of the Proclamation
under Article 356(1). (749 E] D
j
4.9. The federal principle, social pluralism and pluralist democracy
which form the basic structure of our Constitution demand that the
judicial review of the Proclamation issued under Article 356(1) is not only
an imperative necessity but is a stringent duty and the exercise of power E
under the said provision is confined strictly for the purpose and to the
circumstances mentioned therein and for none else. It also requires that
the material on the basis of which the power is exercised is scrutinised
circumspectly. (750 F-G]

State of Rajas than etc. etc. v. Union of India, (1978] 1 SCR 1, referred F
to.

Constituent Assembly Debates, Vol. IX p. 177 referred to.

5.1. The removal of the MinistJ11 orthe dissolution of the Legislative
Assembly is not automatic consequence of the issuance or the Proclamation. G
The exercise of the powers under sub-clauses (a), (b) and (c) of Article
356(1) may also co-exist with a mere suspension of the political Executive
and the Legislature or the State. Sub-clause (c) or Article 356(1) makes it
clear. It 5{1t~ks or incidental and consequential provisions to give effect to
the objects or the proclamation including suspension in whole or part of the H
658 SUPREME COURT REPORTS [1994] 2 S.C.R.

·A operation or any provision or the Constitution relating to any body or
authority in the State. It has to be noted that unlike sub-clause (a), it does
not exclude the Legislature of the State. Sub clause (b) only speaks of
exercise or the powers of the Legislature of the State by or under the
authority of the Parliament. What is further, the assumption of only some
of the functions orthe Government and the powers orthe Governor or of any
B body or authority in the State other than the Legislature of the State under
sub-clause (a), is also conceivable with the retention of the other functions
and powers with the Government or the State and the Governor or any body
or authority in the State. The language of sub-clause (a) is very clear on the
subject. Where there is a bicameral Legislature, the Upper House, i.e., the
C Legislative Council cannot be dissolved. Yet under sub-clause (b) of Article
356(1) its powers are exercisable by or under the authority of Parliament.
The word used there is "Legislature" and not "Legislative Assembly". Legis-
lature includes both the Lower House and the Upper House, i.e., the Legis-
lative Assembly and the Legislative Council. It has also to be noted that
D when the powers of the Legislature of the State are declared to be exer-
cisable by or under the authority of the Parliament under Article 356(l)(b),
it is competent for Parliament under Article 357, to confer on the President
the power of such Legislature to make laws and to authorise the President
to delegate the powers so conferred, to any other authority to be specified by
him. The authority so chosen may be the Union or officers and authorities
E thereof. Legally, therefore, it is permissible under Article 356(1), firstly,
only to suspend the political executive or any body or authority in the State
and also the Legislature of the State and not to remove or dissolve them.
Secondly, it is also permissible for the President to assume only some orthe
functions of the political executive or of any body or authority or the State
F other than the Legislature while neither suspending nor removing them.
The Caci that some of these exercises have not been resorted to in practice
so far, does not militate against the legal position which emerges from the
clear language of Article 356(1). [751 H; 752 A-H; 753 A-BJ

5.2. Once the issuance of the Proclamation is held valid, the scrutiny
G of the kind and degree of power used under the Proclamation, falls in a
narrower compass. There is every risk and fear of the Court undertaking
upon itself the task of evaluating with fine scales and through its own
lenses the comparative merits of one rather than the other measure. The
Court will thus travel unwittingly into the political arena and subject itself
H more readily to the charges of encroaching upon policy-making. The
S.R. BOMMAI v. U.0.1. 659

'political thicket" objection sticks more easily in such circumstances. A
. Although, therefore, on the language or Article 356(1), it is legal to hold
that the President may exercise only some or the powers given to him, in
practice it may not always be easy to demonstrate the excessive use or the
power. (753 E-F]

5.3. In addition to warning, the President will always have the power B
to issue the necessary directives. Except in situations where urgent steps
are imperative and exercise of the drastic power under the Article cannot
brook delay, the President should use all other measures to restore the
constitutional machinery in the State. The Sarkaria Commission has also
made recommendations in that behalf in paragraphs 6.8.01 to 6.8.04 or its c
Report, and the said recommendations are endorsed. (754 E-F]

6.1. The Parliament can only approve or disapprove or the removal
or the Council or Ministers and the dissolution or the Legislative Assembly
under clause (3) or Article 356, if such action is taken by the President. D
The question then arises is whether the Council or Ministers and the
Legislative Assembly can be restored by the Court when it declares the
Proclamation invalid. There is no reason why the Council of Ministers and
the Legislative Assembly should not stand restored as a consequence or
the invalidation or the Proclamation, the same being the normal legal effect
or the invalid action. In the context or the relevant constitutional E
provisions and in view of the power of judicial review vested in the Court,
such a consequence is also a necessary constitutional fall-out. Unless such
result is read, the power or judicial review vested in the judiciary is
rendered nugatory and meaningless. To hold otherwise is also tantamount
to holding that the Proclamation issued under Article 356(1) is beyond the F
scope or judicial review. For when the validity or the Proclamation is
challenged, the Court will be powerless to give relier and would always be
met with the fait accompli. Article 356 would then have to be read as an
exception to judicial review. Such an interpretation is neither possible nor
permissible. Hence the necessary consequence or the invalidation or the
Proclamation would be the restoration or the Ministry as well as the G
Legislative Assembly, in the State. (755 D-H]

..... 6.2. As regards cases where the Proclamation is held valid but is not
approved by either or both Houses or Parliament, the consequence or the
same would be the same as where the proclamation is revoked sub- H
660 SUPREME COURT REPORTS [1994] 2 S.C.R

A sequently or is not laid before each House or the Parliament before the
expiration or two months or where it is revoked arter its approval by the
Parliament or ceases to operate on the expiration or a period or six months
from the date or its issue, or or the rurther permissible period under clause
(4) or Article 356. It does not, however, appear from the provisions or
Article 356 or any other provision or the Constitution, that mere non-ap-
B proval of a valid Proclamation by the Parliament or its revocation or
cessation, will have the effect either or restoring the Council or Ministers
or the Legislative Assembly. The inevitable consequence in such a situation
is fresh elections and the constitution or the new Legislative Assembly and
the Ministry in the State. The law made in exercise or the power or the
C Legislature or the State by Parliament or the President or any other
authority during the period the valid Proclamation subsists before it is
revoked or disapproved, or before it expires, is protected by clause (2) or
Article 357. [756 D-G]

6.3. It is necessary to interpret clauses (1) and (3) or Article 356
D harmoniously since the provisions of clause (3) aI"P obviously meant to be a
check by the Parliament (which also consist or members from the concerned
States) on the powers of the President under clause (1). The check would
become meaningless and rendered ineffective if the President takes irre-
versible actions while exercising his powers under sub- clauses (a), (b) and
E (c) or Clause (1) of the said Article. The dissolution of the Assembly by
exercising the powers of the Governor under Article 174 (2) (b) will be one
such irreversible action. Hence, it will have to be held that in no case, the
President shall exercise the Governor's power of dissolving the Legislative
Assembly till at least both the Houses or Parliament have approved of the
Proclamation issued by him under Clause (1) of the said Article. The
F
dissolution of the assembly prior to the approval of the Proclamation by the
Parliament under clause (3) of the said Article will be per se invalid. The
President. may however, have the power of suspending the Legislature under
sub-clause (c) of clause (1) of the said Article. [756 H, 757 A-C]

G 6.4. The President has no power to dissolve the Legislative Assembly
of the State by using his power under sub- clause (a) of clause (1) of Article
356 till the Proclamation is approved by both the Houses of Parliament
under clause (3) of the said Article. He may have power only to suspend the
Legislative Assembly under sub-clause (c) of clause (1) of the said Article.
H Secondly, the Court may invalidate the Proclamation whether it is approved
...
S.R. BOMMAI v. U.0.1. 661

by the Parliament or not. The necessary consequence of the invalidation of A
• the Proclamation \\-'ould be to restore the status quo ante and, therefore, to
restorethe Council of Ministers and the Legislative Assembly as they stood
on the date of the issuance of the Proclamation. The actions taken including
the laws made during the interregnum may or may not be validated either
by the Court or by the Parliament or by the State Legislature. It may,
however, be made clear that it is for the Court to mould the relief to meet
B
the requirements of ~he situation. It is not bound in all cases to grant the
relief of restoration of the Legislative Assembly and the Ministry. The
question of relief to be granted in a particular case pertains to the discre-
tionary jurisdfction of the Court. [757 D-F]

6.5. The Court in appr,,priate cases will not only he justified in
c
preventing holding of fresh elections hut would be duty-hound to do so by
granting suitable interim relief to make effective the constitutional remedy
of judicial review and to prevent the emasculation of the Constitution.
[758 D]
D
Mian Munianiniad Nalvaz Shalif v. President of Pukistun and Ors.,
[1993] PLD SC 473, referred to.

KARNATAKA:

7.1. The High Court had committed an error in ignoring the most E
relevant fact that in view of the conflicting letters of the seven legislators,
it was improper on the part of the Governor to have arrogated to himself
the task of holding, firstly, that the earlier niaeteen letters were genuine
and were written by the said legislators of their free will and volition. He
had not even cared to interview the said legislatcrs, but had merely got
the authenticity of the signatures verified through tl;e Legislature F
Secretariat. He also took upon himself the task of deciding that the seven
out of the nineteen legislators had written the subsequent letters on
accotint of the pressure from the Chief Minister and not out of their free

. will. Again he had not cared even to interview the said legislators. It is
not known from where the Governor got the information that there was G
horse~trading going on between the legislators. Even assuming that it was
so, the correct and the proper course for him t.o adopt was to await the
test on the floor of the House which test the chief Minister had willingly
undertaken to go through on any day that the Governor chose. In fact, the
State Cabinet had itself taken an initiative to convene the meeting of the
Assembly on 27.4.89, i.e., only a week ahead of the date on which the H
662 SUPREME COURT REPORTS [1994] 2 S.C.R.

A Governor chose to send his report to the President. Lastly, what is
important to note in connection \\ith this episode is that the Governor at
no time asked the Chief Minister even to produce the legislators before
hin1 W'ho \\'ere supporting the Chief ~·linister, if the Governor thought that
the situation posed such grave threat to the gove1·nance of the State that
he could not await the result of the floor-test in the House. (761 A-Fl
B
7.2. This is a case where all cannons of propriety were thrown to wind
and the uncJue haste made by the Governor in inviting the President to
issue the proclamation under Article 356 (1) clearly smacked of ma/a fides.
The Proclamation issued by the President on the basis of the said report
C of the Governor and in the circumstances so obtaining, therefore, equally
suffered from niala fides. A duly constituted Ministry was dismissed on the
basis of material which was neither tested nor allowed to be tested and was
no more than the ipse dixit of the Governor. 111e action of the Governor
was more objectionable since as a high constitutional functionary, he was
expected to conduct himself more fairly, cautiously and circumspectly.
D Instead, it appears that the Governor was in a hurry to dismiss the
Ministry and dissolve the Assembly. The Proclamation having been based
on the said report and so-called other information which is not disclosed,
was therefore liable to be struck down. (761 F-H, 762 A]

E 73. It is necessary to stress that in all cases where the support to
the Ministry is claimed to have been withdrawn by some Legislators, the
proper course for testing the strength of the Ministry is holding the test
on the floor of tlie House. That alone is the constitutionally ordaint~d
forum for seeking openly and objectively the claims and counter-claims in
that behalf. The assessment of the strength of the Ministry in not a matter
F
of private opinion of any individual, be he the Governor or the President.
It is capable of being demonstrated and ascertained publicly in the House.
Hence when such demonstration is possible, it is not open to bypass it and
instead depend upon the subjective satisfaction of the Governor or the
President such private assessment is an anathema to the democratic
G principle, apart from being open to serious objections of personal 111ala
fides. It is possible that on some rare occasions, the floor· test may he
impossible, although it is difficult to envisage such situation. Even assunt-
ing that there arises one, it should be obligatory on the Governor in such y •

circumstances, to state in writing, the reasons for not holding the floortest. . '
H The High Court was, therefore, wrong in holding that the floor test was
S.R.BOMMAI 1•. U.0.1. 663

A

-
neither cornpulsory nor obligatory or that it \\'as not a pre-requisite to
sending the report to the President recommending action under Article
, 356 (1). [762 B-E]

7.4. The High Court was further wrong in taking the view that the
facts stated in the Governor's report were not irrelevant when the Gover-
B
nor \lithout ascertaining: either fron1 the Chief Minister or from the seven
MLAS \l'hether their retraction was genuine or not, proceeded to give his
unverified opinion in the matter. What was further forgotten by the High
Court was that assuming that the support was withdrawn to the Ministry
by the 19 MLAs, it was incumbent upon the Governor to ascertain whether
any other Ministry could be formed. The question of personal bona fides c
of the Governor is irrelevant in such matters. What is to be ascertained is
whether the Governor had proceeded legally and explored all possibilities,
of ensuring a constitutional government in the State before reporting that
the constitutional machinery had broken down. Even if this meant install-
ing the Government belonging to a minority party, the Governor was duty D
bound to opt for it so long as the Government could enjoy the confidence

.. of the House. It is also obvious that beyond the report of the Governor,
there was no other material before the President before he issued the
Proclamation. Since the "facts" stated by the Governor in his report, as
pointed out above contained his own opinion based on unascertained E
material, in the circumstances, they could hardly be said to form an
objective material on which the President could have acted. The Proclama-
lion issued was, therefore invalid. [762 F-H; 763 A-CJ

MEGHALAYA:
F
8. The unflattering episode shows in unmistakable terms. the
Governor's unnecessary anxiety to dismiss the Ministry and dissolve the
Assembly and also his failure as a constitutional functionary to realise the
binding legal consequences of and give effect to the orders of this Court.
What is worse, the Union Council of Ministers also chose to give advice to G
the President to issue the Proclamation on the material in question. It is
not necessary to comment upon the validity of the proclamation any
further save and except to observe that prima facie, the material before the
... ~-
President was not only irrational but motivated by factual and legal ma/a
fides. The Proclamation was, therefore, invalid. [766 E-G] H
664 SUPREME COURT REPORTS fl994/ 2 S.C.R.

A NA GALA ND:

9. On !he facts of this case also the Governor shoulrl have allowed Shri
Vamuzo to test his strength on the floor of the House. This was particularly
so because the Chief Minister, Shri Serna had already submitted his resig·
nation to the (;overnor. This is notwithstanding the fact that the Governor
B in his report had stated that during: the preceding 25 years, no less than 11
Governments had been forn1ed and according tn his information, the Con·
gress-1 MLAs were allured by the monetary benefits and that amounted to
incredible lack of political morality and complete disregard of the wishes of
!he electorate. It has to be emphasised here that although the Tenth
c Schedule was added to the Constitution to prevent political bargaining and
defections, it did not prohibit the formation of another political party if it
was backed by no less than 1/3rd members of the existing legislature party.
Since no opportunity was given to Shri Vamuzo to prove his strength on the
floor of the House as claimed by him and to form the Ministry, the
D Proclamation issued was cnconstitutional. [768 B-E]

Afadhya Pradesh, Rajasthan & Hiniachal Pradesh in the context of
Secularisn1:

10.1. The Proclamations dated 15th December, 1992 and the actions
E taken by the President removing the Ministry and dissolving the Legisla-
tive Assemblies in the States of Madhya Pradesh, Rajasthan and Himachal
Pradesh pursant to the said Proclamations are not unconstitutional.
[789 GI
10.2. Articles 14, 15, 16, 26, 30 and 44 by implication prohibit the
F establishment of a theocratic State and prevent the State either identil)'ing
itself with or favouring any particular religion or religious sect or
denomination. The State is enjoined to accord equal treatment to all
religions and religious sects and denominations. [783 D]

10.3. One thing which .prominently emerges from our Constitution is
G that whatever the attitude of the State towards the religions, religious sects
and denominations, religion cannot he mixed with any secular activity oftlhe
State. In fact, the encroachment of religion into secular activities is strictly
prohibited. This is evident from the provisions of the Constitution. The
State's tolerance of religion or religions does not make it either a religious
H or a theocratic State. When the State allows citizens to practise and profess
S.R. BOMMAI v. U.0.1. 665

their religions, it does not either explicitly or implicitly allow them to A
introduce religion into non-religious and secular activities of the State. The
freedom and tolerance of religion is only to the extent of' permitting pursuit
of spiritual life which is different from the secular life. The latter falls in the
exclusive domain of the affairs of the State. This is also clear from Sub-sec-
tion (3) of Section 123 of the Representation of the Peoples Act, 1951 which
prohibits an appeal by a candidate or his agent or by any other person with
B
the consent of the candidate or his election agent to vote or refrain from
voting for any person on the ground of his religion, race, caste, community
or language or the use of or appeal to religious symbols Sub-Section (3A) of
the same section prohibits the promote or attempt to promote feelings of
enmity and hatred between different classes of the citizens of India on the C
grounds of religion, race, caste, community or language a candidate or his
agent or any other person with the consent of a candidate or his election
agent for the furtherance of the prospects of the election of that candidate
or for prejudicially affecting the election of any candidate. A breach of the
provisions of the said sub-sections (3) and (3A) are deemed to be corrupt D
practices within the meaning of the said section. [785 D-H, 786 A]

10.4. Reading sub-sections (3) and (3A) of Section 123 together, it is
clear that appealing to any religion or seeking votes in the name of any
religion is prohibited by the two provisions. To read otherwise is to subvert
the intent and purpose of the said provisions. [786 CJ E

10.5. The BJP manifesto on the basis of which the elections were
contested and pursuant to which elections the three Ministries came to
power stated that the party is committed to build Shri Ram Mandir at
Janmasthan by relocating superimposed Bahri structure with due respect. F
Leaders of the BJP had consistently made speeches thereafter to the same
_.,.__ - effect. Some of the Chief Ministers and Ministers belonged to RSS which
was a banned organisation at the relevant time. The Ministers in the
Ministries concerned exhorted people to join kar se\'·a in Ayodhya on 6th
December, 1992. One MLAs belonging to the ruling BJP in Himachal
Pradesh made a public statement that he had actually participated in the G
destruction of the mosque. Ministers had given public send-off to the kar
sevaks and had also welcomed them on their return after the destruction
of the moS<1ue. The implementation of the policy pursuant to the ban of
the RSS was to be executed by the I\finisters who \\''ere themselves members
of the said organisation. At least in two States, viz., Madhya Pradesh & H
666 SUPREME COURT REPORTS [1994] 2 S.C.R.

A Rajasthan there were atrocities against the Muslims and loss of lives and
destruction of property. [786 E-H; 787 A-CJ

11J.6. Religious tolerance and equal treatment of all religious groups
and protection of their life and property and of the places of their worship
are an essential part of secularism enshrined in our Constitution. We have
B accepted the said goal not only because it is our historical legacy and a
need of our national unity and integrity but also as a creed of universal
brotherhood and humanism. It is our cardinal faith. Any profession and
action which go counter to the aforesaid creed are a prima facie proof of
the conduct in defiance of the provisions of our Constitution. If, therefore,
c the President had acted on the aforesaid "credentials" of the Ministries in
these States which had unforeseen and imponderable cascading conse-
quences, it can hardly be argued that there was no material before him to
come to the conclusion that the Governments in the three States could n1[)f
be carried on in accordance with the provisions of the Constitution. The
consequences of such professions and acts which are evidently against the
D provisions of the Constitution cannot be measured only by what happens
in praesentie. A reasonable prognosis of events to come and of their
multifarious effects to follow can always be made on the basis of the evenits
occurring, and if such prognosis had led to the conclusion that in the
circumstances, the Governments of the States could not be carried on in
E accordance with the provisions of the Constitution, the inference could
hardly be faulted. Therefore, the President had enough material in the
form of the aforesaid professions and acts of the responsible section in the
political set up of the three States including the Ministries to form his
satisfaction that the Governments of the three States could not be carried
on in accordance with the provisions of the Constitution. Hence the
F Proclamations issued in respect of these three States could not be said to
be invalid. [787 C-H]

MC. Setalvad, (Patel Memorial Lectures · 1965 on Secularism);
referred to.
G
Relief:

11. Though the Proclamations issued in respect of Karnataka,
Meghalaya and Nagaland are held unconstitutional no relief could be
granted in view of the fact that fresh elections have since taken place and
H the new Legislative Assemblies and Ministries have been constituted in
S.R. BOMMAI v. U.0.l. 667

these three States. However, it is declared that all actions which might have A
been taken during the period the proclamation operated are valid.

Per Jeeven Reddy, J. (for himself and Agrawal, J.) -

(in broad agreement with Sawant, J. on secularism and in agreement
with the conclusions on Judicial Review, Art. 74(2), approval of the Proclama- B
tion by both the Houses of Parliament before dissolving the Legislative As-
sembly by the President, by using the powers of the Governor under Art. 174(2)
(b) read with Art. 356(1) (a), and moulding of relief):
• - THE FEDERAL NATURE OF THE CONSTITUTION:
c
1. A review of the provisions of Constitution shows unmistakably that
while creating a federation, the founding fathers wished to establish a
strong centre. In the light of the past history of this sub-continent, this was
probably a natural and necessary decision. A land as varied as India is, a
strong centre is perhaps a necessity. This bias towards centre is reflected in· D
the distribution of legislative heads between the Centre and States. All the
more important heads of Legislation are placed in List-I. Even among the
legislaOve heads mentioned in List-II, several of them, e.g., Entries 2, 13, 17,
23, 24, 26, 27, 32, 33, 50, 57 and 63 are either limited by or made subject to
certain Entries in List-I to some or the ·other extent. Even in the concurrent
list (List-III), the Parliamentary enactment,is given the primacy, irrespec- E
tive of the fact whether such enactment is earlier or later in point of time to
a State enactment on the same subject-matter. Residuary powers are with
the Centre. By the 42and Amendment, quite a few of the Entries in List-II
were omitted and/or transferred to other lists. Above all, Articlo3 empowers
the Parliament to form new State out of existing State either by merger or F

... division as also to increase, diminish or alter the boundaries of the States.
In the process, existing States may disappear and new ones may come into
existence. As a result of the Reorganisation of State Act, 1956, fourteen
Statt>o; and six Uni9n Territories came into existence in the place of twenty
seven States and one area. Even the names of the States can be changed by
the Parliament unilaterally. The only requirement, in all this process, being G
the one prescribed in the proviso to Article 3, viz., ascertainment of the
views of the Legislatures of the affected States. There is single citizenship,
unlike U.S.A. The judicial organ, one of the three organs of the State, is one
l ~ and single for the entire country - again unlike U.S.A., where they are
Federal judiciary and State judiciary separately. Articles 249 to 252 further H
668 SUPREME COURT REPORTS [1994] 2 S.C.R.

A demonstrate the primacy of Parliament If the Rajya Sabha passes a resolu-
tion by 2/3rd majority that in the national interest, Parliament should make
laws "1th respect to any matter in List-II, Parliament can do so (Article
249), no doubt, for a limited period. During the operation of a proclamation
of emergency, Parliament can make laws mth respect to any matter in
List-II (Article 250). Similarly, the Parliament has power to make laws for
B
giving effect to International Agreements (Article 253). So far as the finan·
ces are concerned, the States ab'llin appear to have been placed in a less
favourable position an aspect which has attracted a good amount of
criticism at the hands of the States and the proponents of the Slates'
autonomy. Several taxes are collected by the Centre and made over, either -.
c partly or fully, to the States. Suffice it to say that Centre has been made far
more powerful vis-a-vis the States. Correspondingly, several obligations too
are placed upon the Centre including the one in Article 355 • the duty to
protect every State against external aggression and internal disturbance.
Indeed, this very Article confers greater power upon the Centre in the name
D of casting an obligation upon it, viz., "to ensure that the Government of every
State is carried on in accordance with the provisions of this Constitution 11
•
'
It is both a responsibility and a power. [796 D-H, 797 A-El

1.2. The fact that under the scheme of our Constitution greater
power is conferred upon the Centre vis-a-vis the Stat.es does not mean that
E States are mere appendages of the Centre. Within the sphere allotted to
them, States are supreme. The Centre cannot tamper mth their powers.
More particularly, the Courts should not adopt an approach, an inter-
pretation, which has the effect of or tends to have the effect of whittling
down the powers reserved to the States. !t is a matter of common
knowledge that over the last several decades, the trend the world o•ver is
F
towards strenb'1hening of Central Governments - be it the result of advan-
ces in technologicaliscientific fields or othermse, and that even in U.S.A.
the Centre has become far more powerful notmthstanding the obvious bias
in that Constitution in favour of the States. "All this must put the Court
on guard against any conscious whittling do,.,;. of the powers ·or the States.
G Let it be said that the federalism in the Indian Constitution is not a matter
of administrative convenience but one of principle ~ the outcome of our
own historical process and a recognition of the ground realities. It is
e<JUally necessary to emphasise that Courts should be careful not to upset
the delicately crafted constitutional scheme by a process of interpretation. > I

H [797 F -H, 798 A·D]
..
S.R. BOMMAI v. U.0.1. 669

The Automobile Transpolt (Rajasthan) Ltd. v. The State of Rajasthan A
& Ors., (1963] 1 S.C.R. 491, Berubari Union and Exchange of Enclaves -
Reference under Article 143, [1960] 3 S.C.R. 250 and State of West Bengal
v. Union of India, (1964] 1 S.C.R. 371, relied on.

(M. C. Setalvad: Tagore Law Lech1res "Union and State relations under
the Indian Constitution" (published by Eastern law House, Calcutta, 1974) B
referred to.
I
An analysis of Altic/c 356:

2.1. The power conferred by Article 356 is a conditioned power; it is
' not an absolute power to be exercised in the discretion of the President. c
\
• The condition is the formation of satisfaction - subjective, on doubt - that
a situation of the type contemplated by the clause has arisen. This satis-
faction may be formed on the basis of the report of the Governor or on
the basis of other information received by him or both. The existence of
relevant material is a pre-condition to tile formation of satisfaction. The D
use of the word 11may 11 indicates not only a discretion but an obligation to
consider the advisability and necessity of the action. lt also involves an
ob/igatii:Jn to consider which of the several steps specified in sub-clauses (a),
(b) and (c) should be taken and to what extent. The dissolution of the
Legislative Assembly - assuming that it is permissible - is not a matter of E
course. It should be resorted to only when it is necessary for achieving the
purposes of the proclamation. The exercise of the power is made subject
to approval of the both Houses of Parliament. Clause (3) is both a check
on the power and a safeguard against abuse of power. [800 E-G]

2.2. Clause (1) uses the words "is satisfied", which indicates a more F
definite state of mind than is indicated by the expressions "is of the
opinion" or "has reasons to believe". Since it is a case of subjective satis-
faction, question of observing the principles of natural justice does not and
cannot arise. Having regard to the nature of the power and the situation
in which it is supposed to be exercised, principles of natural justice cannot G
be imported into the clause. it is evident that the satisfaction has to be
formed by the President fairly, on a consideration of the report of the
Governor and/or other material, if any, placed before him. Of course, the
President under our Constitution being, what may be called, a constitu-
. -' tional President obliged to act upon the aid and advice of the council of
ministers (which aid and advice is binding upon him by virtue of clause H
670 SUPREME COURT REPORTS [1994] 2 S.C.R.

A (1) of Article 74), the satisfaction referred to in Article 356 (1) really means
the satisfaction of the Union Council of Ministers with the Prime Minister
at its head. [801 C-E]

2.3. Clause (1) requires the President to be satisfied that a situation
11 1
has arisen in which the government of the State cannot' be carried on "in
B accordance with the "provisions of this Constitution". The words "cannot"
emphasise the type of situation contemplated by the clause. These words
read with the title of the Article "provisions in case of failure of constitu-
tional machinery in States" emphasise the nature of the situation con-
templated. [801 F]
c
2.4. The words "provisions of this Constitution" mean what they say.
The said words cannot be limited or confined to a particular chapter in
the Constitution or to a particular set of Articles. While construing a
constitutional provision, such a limitation ought not to be ordinarily
D inferred unless the context does clearly so require. The provisions of the
Constitution include the chapter relating to fundamental rights, the chap-
ter relating to directive principles of the state policy as also the preamble
to the Constitution. [801 G-H; 802 A]

2.5. The satisfaction of the President referred to in clause (l) may
E be formed either on the receipt of the report (s) of the Governor or
otherwise. The Governor of a State is appointed by the President under
Article 155. He is indeed a part of the government of the State. The
executive power of the State is vested in him and is exercised lily him
directly or through officers subordinate to him in accordance with the
F provisions of the Constitution (Article 154). All executive action of the
government of a State is expressed to be taken in the name of the Governor,
except a few functions which he is required to exercise in his discretion.
He has to exercise his powers with the aid and advice of the council of
ministers with the Chief Minister at its head (Article 163). He takes the
oath prescribed by Article 159, to preserve, protect and defend the Con-
G stitution and the laws to the best of his ability . It is this obligation which
requires him to report to the President tht commissions and omissions of
the government of his State which according to him are creating or have
created a situation where the government of the State cannot be carried
on in accordance with the provisions of the Constitution. In fact, it would
H be a case of his reporting against his omi government but this n1ay be a
S.R. BOMMAI v. U.0.1. 671

case of his wearing two hats, one as the head of the State government and A
, the other as the holder of an independent constitutional office whose duty
it is lo preserve, protect and defend the Constitution. (802 E-H, 803 A]

2.6. Since the Governor cannot himself take any action of the nature
contemplated by Article 356 (1), he reports the matter to the President and
it is for the President to be satisfied - whether on the basis of the said B
report or on the basis of any other information which he may receive
otlterwise - that situation of the nature contemplated by Article 356 (1) has
arisen. It is then and only then that he can issue the proclamation. Once
"< "
the proclamation under Article 356 (1) is issued or simultaneously with it,
the President can take any or all the actions specified in clauses (a), (b) C
and (c). [803 A-BJ

Barium Chemicals v. Company Law Board, (1966] Suppl. S.C.R. 311;
Keshavananda Bharti v. State of Kera/a, (1973] Suppl. S.C.R. 1 and Sham-
sher Singh v. State of Punjab, [1975] 1 S.C.R. 814, relied on.
D
Power of the President to dissolve Legislative Assembly of the State :

3.1. Clause (1) of Art. 356(1) does empower the President to dissolve
the Legislative Assembly. This view is also supported by the decision in
State of Rajasthan besides the fact that over the last forty-four years, the
said power has never been questioned. The power to dissolve the Legisla-
E
tive Assembly is implicit in sub-clause(a) or clause(l) though there is no
such thing as dissolution of the 'Legislature or the Stat.e' where it consists
of two Houses. It must also be recognised that in certain situations,
dissolution of Legislative Assembly may be found to be necessary for
achieving the purposes of the proclamation. Power there is. Its exercise is F
a different matter. The existence of power does not mean that dissolution
of Legislative Assembly should either be treated as obligatory or should
invariably be ordered whenever a Government or the State is dismissed. It
should be a matter for the President to consider, taking into consideration
all the relevant facts and circumstances, whether the Legislative Assembly G
should also be dissolved or not. If he thinks that it should be dissolved, it
would be appropriate, indeed highly desirabe, that he states the reasons
for such extraordinary step in the order itseir. [806 F-H; 807 A-Bl

3.2. Unless approved by both House of Parliament, me proclamation
lapses at the end of two months and earlier if it is disapproved or declined H
672 SUPREME COURT REPORTS [1994] 2 S.C.R.

A to be·approved by both the Houses of Parliament, as explained hereinafter.
Having regard to the incongruity of the Executive (even though Union
Executive) dissolving the Legislature (even if of a State), it would be
consistent with the scheme and spirit of the Constitution • particularly in
the absence of a specific provision in the Constitution expressly expower·
ing the President to do so • to hold that this power of dissolution can be
B exercised by the President only after both Houses of Parliament approve
the proclamation and not before such approval. Once the Parliament
places its seal of approval on the proclamation, further steps as may be
found necessary to achieve the purposes of the proclamation, i.e. dissolu- . ,-
tion of Legislative Assembly, can be ordered. Until the approval, he can
C only keep the Assembly under suspended animation but shall not dissolve
it. [807 D·GI

3.3. While no writ petition shall be entertained by any court before
the actual issuance of proclamation under clause(l), it shall be open to a
High Court or Supreme Court to entertain a writ petition questioning the
D proclamation if it is satisfied that the writ petition raises arguable ques·
lions with respect to the validity of the proclamation. The court woulld be
entitled to entertain such a writ petition even before the approval or the
proclamation by the Parliament • as also after such approval. In an
appropriate case and if the situation demands, the High Court/Supreme
-
E Court can also stay the dissolution or the Assembly but not in such a
manner as to allow the Assembly to continue beyond its original term . But
in every such case where such an order is passed the High Court/Supreme
court shall have to dispose or the matter within two to three months. Not
disposing of the writ petition while granting such an interim order would
create several complications because the life or the proclamation does not
F exceed six months even after the approval by parliament and in any event
the proclamation cannot survive beyond one year except in the situation
contemplated by clause (5) which is, of course, an exceptional situatiion.
[807 H, 808 A·C]

3.4. Clause (3) or Art. 356 uses the words 'approved by resolutions
G or both Houses of Parliament". The word "approval' means affirmatioin or
the action by higher or superior authority. In other words, the action of
the President bas to be approved by the Parliament. The expression
'approval" has an intrinsic meaning which cannot be ignored. Disapproval
or non-approval means the Houses of Parliament are saying that the,
H President's action was not justified or warranted and that it shall no
S.R. BOMMAl v. U.0.l. 673

longer continue. In such a case, the proclamation lapses, i.e., ceases to be A
in operation at the end of rn·o months · the necessacy· consequence of which
is the status quo ante revives. To say tat notwithstanding the disapproval
or non·approval, the status quo ante does not revive is to rob the concept
of approval of its content and meaning. Such a view renders the check
provided by clause (3) ineffective and of no significance whatsoever. It
would indeed mean supremacy of the Executive nver the ParHament. The
B
dismissal of a government under sub-clause(a) of clause(l) cannot also be
equated to the physical death of a living being. There is no irrevocability
"' _ about it. It is capable of being revived and it revives. Legislative Assembly
which may have kept in suspended animation also springs back to life. So
far as the validity of the acts done, orders passed and laws, if any, made C
during the period of operation of the proclamation is concerned, they
would remain uneffected inasmuch as the disapproval or non- approval
does not render the proclamation invalid with retrospective effect. It may
be recalled that the power under Article 356(1) is the power vested in the
President subject no doubt to approval within two months. The non-ap- D
proval means that the proclamation ceases to be in operation at the expiry
of two months. (808 G-H; 809 A-El

3.5. Even in case the proclamation is approved by the Parliament it
would be open to the court to restore the State Government to its office in
ease it strikes down the proclamation as unconstitutional. If this power E
were not conceded to the court, the very power of judicial review would be
rendered nugatory and the entire exercise meaningless. If the court cannot
grant the relief Dowing from the invalidation of the proclamation, it may
as well decline to entertain the challenge to the proclamation altogether.
For, there is no point in the court entertaining the challenge, examining F
it, calling upon the Union Government to produce the material on the basis
_... · - of which the requisite satisfaction was formed and yet not give the relief.
Such. a course is inconceivable. (809 F-H; 810 A]

3.6. It would be within the power of the court to say that the acts and
orders made and laws enacted by Parliament or under its authority during G
the period the proclamation was in operation, are saved. Indeed, it should
say so in the interests of general public and to avoid all kinds of complica-
tions, leaving it to government and the Legislature of the State concerned
to rectify, modify or repeal them, if they so choose. The theory of factum
velet may also be available to save the acts, orders and things done by the H
674 SUPREME COURT REPORTS (1994] 2 S.C.R.

A President or under his authority during the said period. [810 B-c]
State of Rajasthan & Ors. etc. etc. v. Union of India, [1978] 1 SCR 1,
referred to.

3.7. Under !he Government of India Act, 1935, the Governor-General
B and the governor were not constitutional heads of State as under the
Constitution. They exercised real power in their own right. Only a few
powers were entrusted to the elected governments and even those could be
taken away (by in Governor- General at the Centre and the Governor in
• r
the provinces) as and when they were satisfied that a situation has arisen
where the government at the centre or of the province cannot be carried
c on in accordance with the provision of the said Act. Under Article 356, the
position is entirely different. The power can be exercised only against the
States and that too by the President and not by the Governor. The entire
constitutional philosophy is different.. Therefore, merely because the same
words "all or any" in Sections 93 and 45 of the Government of India Act
D occur in Article 356(1) the same meaning cannot be attributed to them
mechanically ignoring all other factors. [811 C-F]

4.1. Since the commencement of the Constitution, the President has
invoked Article 356 on as many as ninety or more occasions. Instead of
remaining a 'dead-letter', it has proved to be the 'death-letter' of scores of
E State Governments and Legislative Assemblies. The Sarkaria Commission
which was appointed to look into and report on Centre-State relations
considered inter alia the manner in which the power has been exercised
over the years and made certain recommendations designed to prevent its
misuse. Since the Commission was headed by a distinguished Judge of this
F Court and also because it made its report after an elaborate and exhaus-
tive study of all relevant aspects, its opinions are certainly entitled to great
weight notwithstanding the fact that the report has not been accepted so
far by the Government of India. [811 G-H, 812 A, Bl

4.2. The recommendations of Sarkaria Commission on Centre-State
G Relation in regard to Article 356 are evidently the outcome of the opinion
formed by the Commission that more often than not, the power under
Article 356 has been invoked improperly. It is not to express any opinion
whether. this impression of the Commission in justified or not. It is not
possible to review all the ninety cases in which the said power has been
H invoked and to say in which cases it was invoked properly and in which
S.R. BOMMAI v. U.0.1. 675

cases, not. Having regard to the constitutional scheme obtaining under our A
Constitution, the said recommendations do merit serious consideration.
[815 F, GJ
Sarkaria Conunission Report on Centre-State Relation, paragraphs
6.3.23, 6.4.01, 6.5.01 and 6.8, referred to.
B
Rajamannar Committee report. Ch. IX, referred to.

The Constitution of India and the Concept of secularism:

5.1. While Article 25 or the Constitution guarantees to all its people
freedom or religion, Articles 14, 15 and 16 enjoin upon the State to treat all C
its people equally irrespective of their religion, caste, faith or belief. While
the citizens of this country are free to profess, practice and propagate such
religion, faith or belief as they choose, so far as the State is concerned, i.e.,
from the point of view of the State, the religions, faith or belief of a person
is immaterial. To it, all are equal and all are entitled to be treated equally.
Equal treatment is not possible if the State were to prefer or promote a D
particular religion, race or caste, which necessarily mCans a less favourable
treatment of all other religions, races and castes. The Constitutional
promises of social justice, liberty or belief, faith or worship and equality of
status and of opportunity cannot be attained unless the State eschews the
religion, faith or belief of a person from its consideration altogether while E
dealing with him, his rights, his duties and his entitlements. Secularism is
thus more than a passive attitude of religious tolerance. It is a positive concept
of equal treatment of all religions. This attitude is described by some as one
of neutrality towards religion or as one of benevolent neutrality. This may
be a concept evolved by western liberal thought or it may be, as some say, an
abiding faith with the Indian people at all points of time. That is not F
material. What is material is that it is a constitution goal and a basic
feature of the Cor.,<titution. [817 F-H; 818 A, BJ

5.2. Any step inconsi"tent with the said constitutional policy is, in
plain words, unconstitutional. This does not, mean that the State has no say G
whatsoever in matters of religion. Laws can be made regulating the secular
affairs of Temples, Mosques and other places of worship and mutts. The
power of the Parliament to reforms and rationalise the personal laws is
unquestioned. The command of Article 44 is yet to be realised. [818 C, DJ

5.3. In the affairs of the State (in its widest connotation) religion is H
676 SUPREME COURT REPORTS [1994] 2 S.C.R.

A irrelevant; it is strictly a personal affair. In this sense and in this behalf, our
Constitution is broadly in agreement with the U.S. Constitution, the First
Amendment whereof declares that "Congress shall make no laws respecting
an establishment of religion or prohibiting the free exercise thereof..... "
(generally referred to as the "establishment clause"). Perhaps, this is an
echo of the doctrine of separation of Church and State; may be it is the
B modern political thought which seeks to separate religion from the State - it
matters very little. In this view of the matter, it is absolutely erroneous to
11 1
say that secularism is a vacuous word' or a "phantom concept". Our
founding fathers read this concept into our Constitution not because it was
fashionable to do so, but because it was an imperative in the Indian context.
C It is true that India was divided on the basis of religion and that areas
having majority muslim population were constituted into a new entity -
Pakistan - which immediately proceeded to proclaim itself as an Islamic
Republic, but it is equally a fact that even after partition, India contained a
sizeable population of minorities. They comprised not less than 10 to 12%
D of the population. Inspired by Indian tradition of tolerance and fraternity,
for whose sake, the greatest son of Modern India, Mahatma Gandhi, laid
dowo his life and seeking to redeem the promise of religious neutrality held
forth by the Congress party, the founding fathers proceeded to create a
state, secular in its outlook and egalitarian in its action. They could not
have countenanced the idea of treating the minorities as second-class
E citizens. On the contrary, the dominant thinking appears to be that the
majority community, Hindus, must be secular and thereby help the
minorities to become secular. For, it is the majority community alone that
can provide the sense of security to others. The significance of the 42nd
(Amendment) Act lies in the fact that it formalised the pre-existing situa-
F tion. It put the matter beyond any doubt, leaving no room for any controver-
sy. In such a situation, the debate whether th~ Preamble to the Constitution
is included within the words 'the provisions of the Constitution" is really
unnecessary. Preamble is a key to the understanding of the relevant
provisions of the Constitution. The 42nd (Amendment) Act has furnished
the key in unmistakable terms. (820 E-H, 821 A-DI
\-
G
5.4. One cannot conceive of a democratic form of government without
the political parties. They are part of the political system and constitution-
al_ scheme. May, they are integral to the governance of a democratic society.
If the Constitution requires the State to be Secular in thought and action, .'
H the same requirement attaches to political parties as well. The Constitu-
S.R. BOMMAI v. U.0.1. 677

lion does not recognise, it does not permit, mixing religion and State A
power. Both must be kept apart. That is the constitutional injunction. ·
None can say otherwise so long as this Constitution governs this country.
Introducing religion into politics is to introduce an impermissible element
into body politic and an imbalance in our constitutional system. If a
political party espousing a particular religion comes to power, that religion B
tends to become, in practice, the official religion. All other religions come
to acquire a secondary status, at any rate, a less favourable position. This
would be plainly antithetical to Articles 14 to 16, 25 and the entire con·
stitutional scheme adumbrated hereinabove. Under our Constitution, no
party or organisation can simultaneously be a political and a religious
party. It has to be either. Same would be the position, if a party or C
organisation acts and/or behaves by word or mouth, print or in any other
manner to bring about the said effect, it would equally be guilty of an act
of unconstitutionality. It would have no right to function as a political
party. The fact that a party may be entitled to go to people seeking a
mandate for a drastic amendment of tbe Constitution or its replacement D
by another Constitution is wholly irrelevant in the context. The Constitu·
tion does not provide for such a course • that it does not provide for its
own demise. [821 G·H, 822 A·D]

S.S. Consistent with the constitutional philosophy, sub• section (3)
of Section 123 the Representation of Peoples Act, 1951 treats an appeal to E
the electorate to vote on the basis of religion, race, caste or community of
the candidate or the use of religious symbols as a corrupt practice. Even
a single instance of such a nature is enough to vitiate the election of the
candidate. Similarly, sub-section (3·A) of Section 123 provides that promo·
tion of, or attempt to promote, feelings of enmity or hatred between F
different classes of citizens of India on grounds of religion, race, caste,
community or language by a candidate or his agent etc. for the furtherance
of the prospects of the election of that candidate is equally a corrupt
practice. Section 29-A provides for registration of associations and bodies
, as political parties with the Election Commission. Every party contesting
elections and seeking to have a uniform symbol for all its candidates has G
to apply for registration. While making such application, the association
or body has to affirm its faith and allegiance to "the principles of socialism,
secularism and democracy" among others. [822 E-G]

Keshavananda Bharti v. State of Kerala,[1973] Supp~. SCR 1; Indira H
678 SUPREME COURT REPORTS [1994] 2 S.C.R.

A N. Gandhi v. Raj Narain, (1975] 2 S.C.C. 159 and S.P. Mittal v. Union of
India, (1983] 1 S.C.R. 729, relied on.

M.C. Setalved (Patel Memo1ial Lectures - 1965); Gajendragadkar, !.,
11
Seniinar on Secularis1n; Its lnzplications for La1v and life in lndia and
11
);

Upendra Baxi: The Stn1ggle for the Re-definition of Secularism in India -
B published in Social Action Vol. 44 - January March 1994, referred to.

6.1. Article 74(2) - Its meaning and scope:
The idea behind clause (2) of Art. 72 is that the Court is not to enquire -
it is not concerned with ·whether any advice was tendered by any Minister
c or Council of Ministers to the President, and if so, what was that advice.
That is a matter between the President and his Council of Ministers. What
advice was tendered, whether it was required to be reconsidered, w·hat
advice was tendered after reconsideration, if any, what was the opinion of
the President, whether the advice was changed pursuant to further discus-
D sion, if any, and how the ultimate decision was arrived at, are all matters
between the President and his Council of Ministers. They are beyond the
ken of the Court. The Court is not to go into it. It is enough that there is
an order/act of the President in appropriate form. It will take it as the
order/act of the President. It is concerned only with the validity of the order
and legality of the proceedings or action taken by the President in exercise
E of his functions and not with what happened in the inner councils of the
President and his Ministers. No one can challenge such decision or action
on the ground that it is not in accordance with the advice tendered by the
Ministers or that it is based on no advice. If, in a given case, the President
acts without, or contrary to, the advice tendered to him, it may be a case
F warranting his impeachment, but so far as the Court is concerned, it is
the act of the President. No opinion needs to be expressed as to what would
be the position if in the unlikely event of the Council of Ministers itself
questioning the action of the President as being taken without, or contrary,
to their advice. [826 H, 827 A-DJ

G 6.2. Clause (2) of Article 74, understood in its proper perspective, is
confined to a limited aspect. It protect and preserves the secrecy of the
deliberations between the President and his Council of Ministers. In fact,
clause (2) is a reproduction of sub-section (4) of Section 10 of the Govern·
ment of India Act, 1935. (The Government of India Act did not contain a
H provision corresponding to Article 74(1) as it stood before or after the
S.R. BOMMAI v. U.0.l. 679

Amendments). The scope of clause (2) should not be extended beyond its A
legitimate field. In any event, it cannot be read or understood as conferring
an immunity upon the council of ministers or the Minister/Ministry con-
cerned to explain, defend and justify the orders and acts of the President
done in exercise of his functions. The limited provision contained in Article
74(2) cannot override the basic provisions in the Constitution relating to
judicial review. If and when any action taken by the President in exercise
B
of his functions is questioned in a Court of Law, it is for the Council of
Ministers to justify the same, since the action or order of the President is
pres.urned to have been taken in accordance with Article 74(1). As to which
Minister or which official of which Ministry comes forward to defend the
order/action is for them to decide and for the Court to be satisfied about C
it. Where, of course, the act/order questioned is one pertaining to the
executive power to the Government of India, the position is much simpler.
It does not represent the act/order of the President done/taken in exercise
of his functions and hence there is no occasion for any aid or advice by
the Ministers to him. It is the act/order of Government of India, though D
expressed in the name of the President. It is for the concerned Minister or
Ministry, to whom the function is allocated under the Rules of Business
.. to defend and justify such action/order. [827 E-G, 828 A-CJ

6.3. Section 123 of the Evidence Act is in no 1nanner relevant in
ascertaining the meaning and scope of Article 74(2). Its field and purpose is E
altogether different and distinct. Evidence Act is a pre-Constitution enact-
ment. Section 123 enacts a rule of English Common Law that no one shall
be permitted to give evidence derived from unpublished official records
relating to affairs of State except with the permission of the concerned head
of the department. It does not prevent the head of department permitting it F
or the head of the department himself giving evidence on that basis. Article
74(2) and Section 123 cover different and distinct areas. It may happen that
while justifying the Government's action in Court, the Minister or the
concerned official may claim a privilege under Section 123. If and when such
privilege is claimed, it will be decided on its own merits in accordance with
the provisions of that Section. But, Article 74(2) does not and cannot mean G
that the Government of India need not justify the action taken by the
President in the exercise of his functions because of the provision contained
therein. No such immunity was intended - or is provided - by the clause. If
the act nr order of the President is questioned in a Court of Law, it is for the
Council of Ministers to justify it by disclosing the material which formed H
.
680 SUPREME COURT REPORTS (1994] 2 S.C.R.

A the basis of the act/order. The court will not ask whether such material
formed part of the advice tendered to the President or whether that material
was placed before the President. The Court will not also ask what advice was
tendered to the President, what deliberations. or discussions took place
between the President and his Ministers and how was the ultimate decision
B arrived at. The Court will only see what was the material on the basis of
which the requisite satisfaction is formed and whether it is relevant to the
action under Article 356(1). The court will not go into the correctness of the
material or its adequacy. Even if the court were to come to a different
conclusion on the said material, it would not interfere since the Article
speaks of satisfaction of the President and not that of the court. The said
C obligation cannot be evaded by seeking refuge under Article 74(2). The
material placed before the President by the Minister/Com1cil of Ministers
does not thereby become part of advice. Advice is what is based upon the
said material. Material is not advice. The material may be placed before the
President to acquaint him - and if tieed be to satisfy him - that the advice
D being tendered to him is the proper one. But it cannot mean that such
material, by dint of being placed before the President in support of the
advice, becomes advice itself. One can understand if the advice is tendered
in writing; in such a case that writing is the advice and is covered by the
protection provided by Article 74(2). But it is difficult to appreciate how
does the supporting material becomes part of advice. The respondents
E cannot say that whatever the President sees. or whatever is !llaced before
the President becomes prohibited material and cannot be seen or sum-
moned by the court. Article 74(2) must be interpreted and understood in the
context of entire constitutional system. Undue emphasis and expansion of
its parameters would engulfvaluable constitutional guarantees.
F [828 D·H; 829 A-GI
Ramjawvya Kapoor v. State of Punjab, A.l.R. (1955) S.C. 549 and
Shamsher Singh v. State of Punjab, [1975] S.C.R. 814, rellied on.

State of Rajasthan v. Union of India, [1978] 1 SCR 1, differed from.

G Article 356 and Judicial Review:

7.1 Since it is not disputed by the counsel for the Union oflndia and
other respondents that the proclamation under Article 356 is amenable to
judicial review, it is not necessary to dilate on that aspect. The power under
H Article 356(1) is a conditional power. In exercise of the power of judicial
S.R. BOMMAI v. U.0.1. 681

review, the court is entitled to examine whether t.Jie 'Condition has been A
satisfied or- not. In what circumstances the court would interfere is a
different matter but the amenability of the action to judicial review is
beyond dispute. (834 D, E)

7.2. Regarding the scope and reach of judicial review, it must be said
at the very outset that there is not, and there cannot be, a uniform rule B
applicable to all cases. It is bound to vary depending upon the subject-
matter, nature of the right and various other factors. (835 A)

7.3. Having regard to the form of government we have adopted, the
power is really that of the Union Council of Ministers with the Prime C
Minister at its head. In a sense, it is not really a power but an obligation
cast upon the President in the interest of preservation of constitutional
government in the States. It is not a power conceived to preserve or
promote the interests of the political party to power at the Centre for the
time being nor is it supposed to be a _weapon with which to strike your
political opponent. The very enormity of this power - undoing the will of D
the people of a State by dismissing the duly constituted government and
dissolving the duly elected Legislative Assembly - must itself act as a
warning against its frequent use or misuse, as the case may be. Every
rilisuse of this power has its consequences which may not be evident
immediately but surface in a vicious form a few years later. (858 C-G) E
7 .4. Whenever a proclamation under Article 356 is questioned, the
court will no doubt start with the presumption that it was validly issued
but it will not and it should not hesitate to interfere if the invalidity or
unconstitutionality of the proclamation is clearly made out. Refusal to
interfere in such a case would amount to abdication of the duty cast upon F
the court - Supreme Court and High Courts - by the Constitution.
(858 H; 859 A)
7.5. It is necessary to affirm that the proclamation under Article
356(1) is not immune from judicial review, though the parameters thereof G
may vary from an ordinary.case of subjective satisfaction. Without trying to
be exhaustive, it can be stated that if a proclamation is found to be malafide
or is found to be based wholly on extraneous and/or irrelevant grounds, it is
liable to be struck down, as indicated by a majority of learned Judges in the
State of Rajasthan. This holding must be read along with the opinion ex-
pressed herein on the meaning and scope of Article 74(2) and the further H
682 SUPREME COURT REPORTS [1994] 2 S.C.R.

A circumstance that clause (5) which expressly barred the jurisdiction of the
courts to examine the validity of the proclamation has been deleted by the
44the Amendment to the Constitution. In other words, the truth or correct- .
ness of the material cannot be questioned by the court nor will it go into the
adequacy of the material. It will also not substitute its opinion for that of the
President. Even if some of the material on which the action is taken is found
B to be irrelevant, the court would still not interfere so long as there is some
relevant material sustaining the action. Theground ofmalafide takes in inter
alia s:tuation where the proclamation is found to be a clear case of abuse of
power, or what is sometimes called fraud on power· cases where this power
is invoked for achieving oblique ends. This is indeed merely an elaboration
C of the said ground. The Meghalaya case demonstrates that the types of
cases calling for interference cannot either be closed or specified exhaus-
tively. It is a case, as will be elaborated a little latter, where the Government
recommended the dismissal of the government and dissolution of the As-
sembly in clear disregard of the orders of this court. Instead of carrying out
D the orders of this court, as he ought to have, he recommended the dismissal
of the government on the ground that it has lost the majority support, when
in fact he should have held following this court's orders that it did not. His
action can he termed as a clear case ofmalafide as well. Thata proclamation
was issued acting upon such a report is no less objectionable. (860 B-H]

E 7.6. The court must be conscious while examining the validity of the
proclamation that it is a power vested in the highest constitutional func-
tionary of the Nation. The court will not lightly presume abuse or misuse.
The court could, as it should, tread wearily, making allowance for the fact
that the President and the Union Council of Ministers are the best judges
F of the situation, that they alone are in possession of information and
material -sensitive in nature sometimes · and that the Constitution has
trusted their judgment in the matter. But all this does not mean that the
President and the Union Council of Ministers are the final arbiters m the
matter or that their 'opinion is conclusive. The very fact that the founding
fathers have chosen to provide for approval of the proclamation by the
G Parliament is itself a proof of the fact that the opinion or satisfaction of
the President (which always means the Union Council of Ministers with
the Prime Minister at its head) is not final or conclusive. It is well-known
that in the parliamentary form of government, where the party in power
commands a majority in the Parliament more often that not, approval of
H Parliament by a simple majority is not difficult to obtain. Probably, it is
..
'
S.R. BOMMAI r. U.O.L 683

for this reason that the check created by clause (3) or Article 356 has not A
]Jroved to be as effective in practice as it ought to have been. The very fact,
that even in cases like Meghalaya and Karnataka, both Houses of Parlia-
ment approved the proclamations shows the enervation of this check. Even
the proponents of the finality of the decision of the President in this matter
could not but concede that the said check has not proved to be an effective
one. Nor could they say with any conviction that judicial review is excluded
B
in this behalf. If judicial review is not excluded in matters of pardon and
remission of sentence under Article 72 - a seemingly absolute and uncon-

.. ditional power - it is difficult to see on what principle can it be said that
it is excluded in the case of a conditional power like the one under Article
356. [816 A-FJ C

7.7. Of course judicial process has certain inherent lhnitations. It is
suited more for adjudication of disputes rather than for administering the
country. The task of governance is the job of the Executive. The Executive
is supposed to know how to ad1ninister the country, while the function of D
the judiciary is limited to ensure that the government is carried on in
accordance with the Constitution and the Laws. Judiciary accords, as it
should, due weight to the opinion of the Executive in such matters but that
is not to say, it defers to the opinion of Executive altogether. What
ultimately determines the scope of judicial review is the facts and cir-
cumstances of the given case. [861 G, H; 862-A) E

7.8. It cannot be said that inasmuch as the proclamation under
clause (1) has been approved by both Houses of Parliament as con-
templated by clause (3), the proclamation under Art. 356 assumes the
character of legislation and that it can be struck down only on grounds on F
·which a legislation can be struck down. Every act of Parliament does not
.>- ... amount to and does not result in Legislation, though legislation is its main
function. Parliament performs many other functions, e.g., election of'
Speaker and Deputy Speaker, vote of confidence/no-confidence in the
Ministry, motion of thanks to the President after. the address by the G
President and so on. One of such functions is the approval of the
proclamation under clause (3). Such approval can by no stretch of im-
agination be called 'Legislation'. It is not processed or passed as a Bill nor
is it presented to the President for his assent. Its legal character is wholly
different. It is a constitutional function, a check upon the exercise of power
under clause (1). It is a safeguard conceived in the interest of ensuring H
j

684 SUPREME COURT REPORTS [1994] 2 S.C.R.

A proper exercise of power under clause (1). It is another matter that in
practice the check has not proved effective. But that may not be so in future
or for all times to come. Be that as it may, it is certainly not legislation
nor legislative in character. (862 B-F]

7.9. The deletion of clause (5) in Art. 356 is certainly significant in
B the sense that the express bar created in the way of judicial review has
since been removed consciously and deliberately in exercise of the con-
stituent power of the Parliament. The cloud cast by the clause on the power
of judicial review has been lifted. [863 B]

C 7.10. Merely because a person challenges the validity of the proclama-
tion, the Court would not as a matter of course call upon the Union of India
to produce the material/information on the basis of which the President
formed the requisite satisfaction. The Court must be satisfied, prirna facie,
on the basis of the averments n1ade by the petitioner and the material, if any,
D produced by him that it is a tit case where the Union of India should be
called upon to produce the material/information on the basis of which the
President formed the requisite satisfaction. It is then that the Union of
India comes under a duty to disclose the same. Since the material/informa·
tion on which the satisfaction was formed is available to, and known to, only
the Union of India, it is for it to tell the Court what that material/informa-
E tion was. They are matters within the special knowledge of the Union of
India. In such a case, only the Union of India can be called upon to satisfy
the Court that there was relevant material/information before the President
on the basis of which he had acted. It may be that, in a given case, the
material/information may be such that the Union of India may feel it
F necessary to claim the privilege provided by Section 123 of the Indian
Evidence Act. As and when such claim is made, it is obvious, it will be dea~t
with according to law. If in a given case the proclamation contains the ,.. -~
reasons, with adequate specificity, for which the proclamation was issued,
the Court may have to be satisfied before calling upon the Union of India lo
produce the material/information that the reasons given in the proclama-
G tion are prima facie irrelevant to the formation of the requisite satisfaction
and/or that it is a fit case where the Union of India must yet be called upon
to place the material/information on the basis of which it had formed the
satisfaction. The Union of India may perhaps be well advised to follow the
practice of stating the reasons and the grounds upon which the requisite
H satisfaction is founded. [863 D-H, 864 A-CJ
S.R. BOMMAI v. U.0.1. 685

State of Rajasthan v. Union of India, [1978] 1 SCR 1, relied on. A

Bhagat Singh v. King Emperor, A.l.R. (1931) P.C. 111; Federation of
Pakistan v. Mohd. Saifullah Khan, P.L.D. (1989) S.C. 166; Stephen Kalong
Ningken v. Government of Malaysia, (1970) A.C. 379; Ke/tar Singh & Anr. v.
Union of India, [1988) Suppl. 3 S.C.R. 1102; Marn Ram v. Union of India,
[1981J 1 S.C.R. 1196; Barium Chemicals v. Company Law Board, [1966] B
Suppl. SCR 311 and King Emperor v. Benoari Lal Sharma & Ors., (1944)
72 I.A. 57 (P.C.), referred to.

~ ~ Khaja Ahmed Tariq Rahim v. The Federation of Pakistan, P.L.D.
(1992) S.C. 646 and Mirza Mohd. Nawaz Sharief v. The President of Pakistan, C
reported in P.L.D. (1993) S.C. 473, referred to.

"Jusdciability and the control of discretionary Power" by Prof. D. G. T.
Williams, referred to.

ARTICLE 356 - IS IT CONFINED ONLY TO CASES WHERE THE D
STATE GOVERNMENT FAILS OR REFUSES TO ABIDE BY THE
DIRECTIONS ISSUED BY THE CENTRAL GOVERNMENT?

8.1. Article 256 merely states that the executive power of every State
shall be so exercised as to ensure compliance with the laws made by the
parliament whether existing or to be made in future. It is stated therein E
that the executive power of the Union shall extend to giving of such
directions to a State as may appear to the Government of India to be
necessary for the said purpose. This Article is confined to proper and due
implementation of the parliamentary enactments and the power to give
directions for that purpose. Article 257 says that executive power of every F
State shall be so exercised as not to impede or prejudice the exercise of
_.l -- the executive power of the Union; for ensuring the same; the Union
Government is empowered to give appropriate directions. Clauses (2), (3)
and (4) illustrate and elaborate the power contained in clause (1). Article
365, which which incidentally does not occur in Part XVIII, but in Part
XIX (Miscellaneous) merely says that where any Sate has failed to comply G
with or give effect to any directions given by the Union of India in exercise
of its executive power under any of the provisions of the Constitution, it
shall be lawful for the President to hold that a situation has arisen in which
the Government of the State cannot be carried on in accordance with the
provisions of the Constitution. The article merely sets out the instance in H
686 SUPREME COURT REPORTS (1994] 2 S.C.R.

A which the President may hold that the Government of the State cannot be
carried on in accordance "ith the provisions of the Constitution. It cannot
be read as exhaustive of the situation where the President may form the
said satisfaction. Suffice it to say that the directions given must be lawful
and their disobedience must give rise to a situation contemplated by
Article 356(1). [865 H, 866 A·D]
B
8.2. Article 365 merely says that in case of failure to comply with the
dl"ections given, "it shall be lawful" for the President to hold that the
requisite type of situation (contemplated by Article 356(1) has arisen. It is
not as if each and every failure ipso facto gives rise to the requisite
C situation. The President has to judge in each case whether it has so arisen.
Article 365 says it is permissible for him to say so in such a case. The
discretion is still there and has to be exercised fairly. [866 D, E]

Merits of individual cases:

D Kamataka:

9.1. A Special Bench of three-Judges of the High Court heard the
writ petition and dismissed the same on the following reasoning: (869 A-BJ

(1) The proclamation under Article 356(1) is not immune from
E judicial scrutiny. The court can examine whether the satisfaction has been
formed on wholly extraneous materials and whether there is a rational
nexus between the material and the satisfaction. (869 BJ

(2) In Article 356, the President means the Union council of mini·
sters. The satisfaction referred to therein is subjective satisfaction. This
F satisfaction has no doubt to be formed on a consideration of all the facts
and circumstances. [869 CJ

(3) The two reports of the Governor conveyed to the President
essential and relevant facts which were relevant for the purpose of Article
G 356. The facts stated in the Governor's report cannot be stated to be
irrelevant. They are perfectly relevant. [869 DJ

(4) Where the Governor's "personal bonafides" are not questioned,
his satisfaction that no other partly is in a position to form the government
has to be accepted as true and is based upon a reasonable assessment of
H all the relevant facts. (869 E]
.'
'

S.R. BOMMAI 1•. U.0.1. 687

(5) Recourse to floor test was neither compulsory nor obligatory. It A
was not a pre-requisite to sending up a report recom1nending action under
Article 356(1). (869 Fl

(6) The introduction of Xth Schedule to the Constitution has not
affected in any manner the content of the power under Article 356.
[869 F, G]
B
(7) Since the proclamation has to be issued on the satisfaction of the
Union council of ministers, the Governor's report cannot be faulted on the
ground of legal malafides. [869 G]

(8) Applying the test indicated in the State of Rajasthan v. Union of C
India, the court must hold, on the basis of material disclosed, that the
subjective satisfaction arrived at by the President is conclusive and cannot
be faulted. TI1e proclamation, therefore, is unobjectionable. [R69 H; 870 A]

9.2. It is difficult to agree with the High Court except on points (l) and D
(2). To begin with, the question of 'personal bonafides' of Governor is really
irrelevant. The observation under point (7) is equally misplaced is true that
action under Article 356 is taken on the basis of satisfaction of the Union
Council of Ministers but on that score it cannot be said that 'legal maJafides'
of the Governor is irrelevant. When the Article speaks of satisfaction being
formed on the basis of the Governor's report, the legal malafide;; if any, of E
the Governor cannot be said to be irrelevant. The Governor's report may
not be conclusive but its relevance is undeniable. Action under Article 356
can be based only and exclusively upon such report. Governor is a very high
constitutional functionary. He is supposed to act fairly and honestly consis-
tent with his oath. He is actually reporting against his own government. It F
is for this reason that Article 356 places such implicit faith in his report. If,
however, in a given case his report is vitiated by legal 1nalafieds, it is bound
to vitiate the President's action as well. Regarding the other points made in
the judgment of the High Court, the High Court went wrong in law in
approving and upholding the Governor's report and the action of the G
President under Article 356. The Governor's report is vitiated by more than
one assumption totally unsustainable in law. The Constitution does not
create an obligation that the political party forming the ministry should
necessarily have a majority in the Ugislature. Minority governments are
not unknown. \Vhat is necessary is that the government should enjoy the
-·
r confidence of the House. This aspect does not appear to have been kept in H
688 SUPREME COURT REPORTS (1994] 2 S.C.R.

A mind by the Governor. Secondly and more importantly, whether the Council
of Ministers has lost the confidence of the House is not a matter to be ,
determined by the Governor or for that matter anywhere else except the
floor of the House. The principle of democracy underlying our Constitution
necessarily means that any such question should be decided on the floor of
the House. The House is the place where the democracy is in action. It is not
B for the Governor to determine the said question on his own or on his own
verification. This is not a matter within his subjective satisfaction. It is an
objective fact capable of being established on the floor of the House.
[870 B-G]

c 9.3. Exceptional and rare situations may arise where because of all
peniading atmosphere of violence or other extraordinary reasons, it may
not be possible for the members of the Assembly to express their opinion
freely. But no such situation had arisen here. No one suggested that any
such violent atmosphere was obtaining at the relevant time. [870 A, BJ

D
9.4. The High Court erred in holding that the floor test is not
obligatory. If only one keeps in mind the democratic principle underlying
the Constitution and the fact that it is the legislative assembly that repre-
sents the will of the people - and not the Governor - the position would be
clear beyond any doubt. In this case, it may be remembered that the council
E of ministers not only decided on April 20, 1989 to convene the Assembly on
27th of that very month i.e., within seven days, but also offered to pre-pone
the Assembly if the Governor so desired. It is painful to not that the
Governor did not choose to act upon the said offer. Indeed, it was his duty to
summon the Assembly and call upon the Chief Minister to establish that he

...
F enjoyed the confidence of the House. Not only did he not do it but when the
Council of Ministers offered to do the same, he demurred and chose instead
~·-
to submit the report to the President. In the circumstances, it cannot be said
that the Governor's report contained, or was based upon, relevant material.
There could be no question of the Governor making an assessment of his
own. The loss of confidence of the House was an objective fact, which could
G have been demonstrated, one way or the other, on the floor of the House.
Wherever a doubt arises whether the Council of Ministers has lost the
confidence of the House, the only way of testing it is on the floor of the House
except in an extraordinary situation where because of all-pervasive violence,
the Governor comes to the conclusion - and records the same in his report
H - that for the reasons mentioned by him, a free vote is not possible in the
S.R. BOMMAI v. U.0.1. 689

... House. This is confined to a situation where the incumbent Chief Minister
is alleged to have lost the majority support or the confidence of the House.
A

It is not relevant to a situation arising after a general election where the
Governor has to invite the leader of the party commanding majority in the
House or the single largest party/group to form the government. There is no
need to express any opinion regarding such a situation. [872 B-H]
B
9.5. The High Court was in error in holding that enactment/addition
of Xth Schedule to the Constitution has not made any difference. The very
object of the Xth Schedule is to prevent and discourage 'floor-crossing'
and defections, which at one time had assumed alarming proportions.
Whatever may be his personal predilictions, a legislator elected on the C
ticket of a party is bound to support that party in case of a division or
vote of confidence in the House, unless he is prepared to forgo his mem.
bership of the House. The Xth Schedule was designed precisely to counter-
act 'horse-trading'. Except in the case of a split, a legislator has to support
bis party willy-nilly. This is the difference between the position obtaining D
prior to and after the Xth Schedule. Prior to the said Amendment, a
legislator could shift his loyalty from one party to the other any number
of times without imperilling his membership of the House-it was as if he
had a property in the office. [873 A-Cl

9.6. Though the proclamation recites that the President's satisfac- E
tion was based also on "other information ~eceived , the counter·affidavit
11

of the Union of India does not indicate or state that any other informa-
tion/material was available to the President or the Union Council of
Ministers other than the report of the Governor - much less disclose it. In
the circumstances, it is held that there was no other information before F
the President except the report of the Governor and that the word "and
other information received by me" were put in the proclamation mechani-
cally. The Governor's report and the 'facts' stated therein appear to be the
only basis of dismissing the government. and dissolving the Assembly
under Article 356(1). The proclamation must, therefore, be held to be not
warranted by Article 356. It is outside its purview. It cannot be said, in the G
circumstances, that the President (or the Union Council of Ministers) was
'satisfied' that the government of the State cannot be carried on in accord-
ance with the provisions of the Constitution. The action was malafied and
unconstitutional. The proclamation is accordingly liable to be struck down.
It could be struck down but for the fact that the elections have since been H
690 SUPREME COURT REPORTS [1994] 2 S.C.R.

A held to the Legislative Assembly of the State and a new House has come
into being. The issuance of a writ at this juncture would be a futile one. > ,
But for the said fact, restoring the dismissed government to office and
reactivating the dissolved Assembly could have certainly be considered. In
any event, the judgment of Karnataka High Court is set aside. [873 D-H)

B Meghalaya:

9.7. It is a matter of deep regret that the Governor of Meghalaya did
not think it his constitutional duty to give effect to the orders of this Court,
not even after a specific direction to that effect. He could not have been
/
'
C unaware of the obligation created by Article 144, viz., the duty of all
authorities, civil and judicial, in the territory of India to act in aid of the
Supreme Court and its orders. By order dated October 9, 1991, he was
specifically requested to take into account the orders of this Court while
deciding whether the government has lost the confidence of the House and
D yet he ignored the same and reported to the President that the Ministry
has lost the confidence of the House. One is intrigued by the strange logic
of the Governor that obedience to the orders of this Court relating to the
disqualification of members of the House is a matter between the Speaker
and the Supreme Court. Evidently, he invoked this strange logic to enable
him to say - as he wanted to say or as he was asked to say, as the case may
E be - that the Speaker's decision that the Ministry has lost the confidence
of the House, is valid and effective - at any rate, so far as he is concerned.
The Governor ought to have noted that his Court had stayed the operation
of the orders of the Speaker disqualifying the four independent members,
which meant that the said four MLAs were entitled to participate in the
F proceedings of the Assembly and to vote. They did vote in favour of the
motion expressing confidence in the government. The Speaker was, how-
ever, bent upon unseating the government by means fair or foul and with
that view was openly flouting the orders of this Court. He managed to
declare that the government has lost the confidence of the House by
excluding the votes of the said four members in clear violation of the
G orders of this Court. It is surprising that the Governor chose to turn
Nelson's eye upon the misdeeds of the Speaker and also chose to refuse to
take note of the proceedings of the majority of members taken under the
S11eakership of another member elected by them. It is equally curious that
the Governor chose to report that a situation has arisen where the govern-
H men! of the State cannot be carried on in accordance with the provision
- .
S.R. BOMMAI v_ U.O.L 691

of the Constitution. The violation of the provisions of the Constitution was A
by Sri Kyndiah and not by the Ministry in office and yet Article 356 was
resorted to by the President to dismiss the government on the basis of such
a report. That even such an e.x-facie unconstitutional proclamation was
approved by both Houses of Parliament shows up the inadequacy of the
safeguard envisaged in clause (3). [876 G, H; 877 A-Fl
B
9.8. In this case too, the proclamation recites that the requisite
satisfaction was arrived at on the basis of the report of the Governor and
the other information received by the President but no such information
or material has been brought to the notice of this Court. Therefore it must
be concluded that there was none and that. the recital to that effect is a c
mere mechanical one. Accordingly, the proclamation is held unconstitu-
tional. But for the fact that since the date of proclamation, fresh elections
have been held to the Assembly and a new House has come into existence,
certainly a writ could have been issued with a direction for restoration of
the Lyngdoh Ministry to office and the Assembly could have also been
restored. [877 G; 878 A, B] D

Nagaland:

9.9. In the light of the discussion Art. 74(2) the ·view taken by Han-
saria, J. of the High Court of Gauhati (as he then was) must be held to be
E
the correct one and not the view taken by the Chief Justice. In as much as
fresh elections have since been held, the High Court may consider the
advisability of proceeding with the matter at this point of time. [880 CJ

Madhya Pradesh, Rajasthan and Himachal Pradesh:
F
9.10. The situation which arose in these three States consequent
upon the demolition of the disputed structure is one which cannot be
assessed properly by the court. What happened on 6th December, 1922 was
no ordinary event, that it was the outcome of a sustained campaign carried
out over a number of years throughout the country and that it was the
result of the speeches, acts and deeds of several leaders of BJ.P. and other G
organisations. The event had serious repurcussions not only within the
country but outside as well. It put in doubt the very secular credentials of
this nation and its government - and those credentials had to be redeemed.
The situation had many dimensions, social, religious, political and intera
national. Rarely do such occasions arise in the life of a nation. The H
,. ·.

692 SUPREME COURT REPORTS [1994] 2 S.C.R.

A situation was an extraordinary one; its repercussions could not be foretold
at that time. Nobody could say with definiteness what would happen and
where. The situation was not only unpredictable, it was a fast-evolving one.
The communal situation was tense. It could explode anywhere at any time.
On the basis of the material made available it cannot be said that the
President has no relevant material before him on the basis of which he
B could form the satisfaction that the BJ.P. government of Madhya Pradesh,
Rajasthan and Himachal Pradesh cannot dissociate themselves from the
action and its consequences and that these governments, controlled by one
and the same party, whose leading lights were actively campaigning for the
demolition of the disputed structure, cannot be dissociated from the acts
c and deeds of the leaders of BJ.P. In the then prevailing situation, the
Union of India thought it necessary to ban certain organisations including
R.S.S. and here were governments which were headed by persons who
"swore by the values and traditions of the R.S.S." and were giving "overt
and covert support to the associate communal organisations" (vide report
D of the Governor of Madhya Pradesh). The Governor of Himachal Pradesh
reported that "the Chief Minister himself is a member of R.S.S.". The
Governor of Rajasthan reported that the ban on R.S.S. and other organisa-
tions was not being implemented because of the intimate connection be-
tween the members of the government and those organisations. The three
Governors also spoke of the part played by the members of the government
E in sending and welcoming back the kar sevaks. They also expressed the
opinion that these governments cannot be expected, in the circumstances,
to function objectively and impartially in dealing with the emerging law
and order situation, which had all the ominous makings of a communal
conflagration. If the President was satisfied that the faith of these BJ.P.
F governments in the concept of secularism was suspect in view of the acts
and conduct of the party controlling these governments and that in the
volatile situation that developed pursuant to the demolition, the govern-
ment of these States cannot be carried on in accordance with the
provisions of the Constitution, it cannot be said that there was no relevant
material upon which he could be so satisfied. The several facts stated in
G the counter affidavits and the material placed before this Court by the
Union of India the Union of India cannot be said to be irrelevant or
extraneous to the purpose for which the power under Article 356 is to be
exercised. [893 D-H, 894 A-El

H 9.11. The correctness of the material produced cannot be questioned
S.R. BOMMAI v. U.0.l. 693

and that even if part of it is not relevant to the action, there could be no A
interfere so long as there is some relevant material to sustain the action. If
the President was satisfied that the governments, which have already acted
contrary to one of the basic features of the Constitution, viz., secularism,
cannot be trusted to do so in future, it is not possible to say that in the
situation then obtaining, he was not justified in believing so. This is precise ..
B
ly the type of situation, which the court cannot judge for lack of jndicially
manageable standards. The court would be well advised to leave such
complex issues to the President and the Union Council of Ministers to deal
with. It was a situation full of many imponderables, nuances, implications
and intricacies. There were too many ifs and hut's which are not susceptible
of judicial scrutiny. It is not correct to depict the said proclamations as the c
outcome of political vendetta by the political party in power at the centre
against the other political party in power in some States. Probably in such
matters, the ultimate arbiter is the people. The appeal should be to the
people and to people alone. The challenge to the proclamation relating to
these three States is, therefore, liable to fail. [894 E-H]
D
"President's Rule in the States'~ by Sri Rajiv Dhavan and published
under the auspices of the Indian Law Institute, New Delhi, referred to.

Per Pandian, J. (Concurring with the reasoning and conclusions of Jeevan
Reddy, !. and giving brief opinion on the powers of the President to issue E
proclamations under Article 356(1):

1.1. The framers of the Constitution met and were engaged for
months together with the formidable task of drafting the Constitution on
the subject of Centre- State relationship that would solve all the problems p
pertaining thereto and frame a system which would enure for a long time
to come. During the debates and deliberations, the issues that seemed to
crop up at every point was the States' rights vis-a-vis the Central rights.
Some of the members seem to have expressed their conRicting opinions
and different reasonings and sentiments on every issue influenced and
inspired by the political ideology to which they were wedded. The two spinal G
issues before the Constituent Assembly were (1) what powers were to be
taken away from the States; and (2) how could a national supreme
Government be formed without completely eviscerting the power of the
State. Those favouring the formation of a strong Central Government
insisted that the said Government should enjoy supreme power while H
!"'

694 SUPREME COURT REPORTS [1994] 2 S.C.R.

A others supporting Stales' rights expostulated that view. The two sides took
turns making their representations but finally realising that all might be
lost, they reached a compromise that resolved the dead lock on the key
issue and consequently the present form of Government, more federal in
structure, came into being instead of a unitary Government. [998 C-F]

B 1.2. It is an undeniable fact that the Constitution of India was
ordained and established by the people of India for themselves for their
own governance and not for the governance of individual States. Resul-
tantly, the Constitution acts directly on the people by means of power
communicated directly from the people. [998 G, HJ
c 13. The power under Article 356 should be used very sparingly and
only when President is fully satisfied that a situation has arisen where the
Government of the State cannot be carried on in accordance with the
provisions of the Constitution. Otherwise, the frequent use of this power
and its exercise are likely to disturb the Constitutional balance. Further if
D the proclamation is freely made, then the Chief Minister of every State who
has to discharge his constitutional functions will be in perpetnal 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
E and achieving the desired target in the interest of the State. [999 H, 1000 A]

Administrative Reforms Commission Report 1969; Rajmannar Com-
mittee Report 1969 and Sarkaria Commission Report 1987, referred to.

Per Ramaswamy, J:
F
1. Federalism envisaged in the Constitution of India is a basic
featnre in which the Union of India is permanent within the territorial
limits set in Article 1 of the Constitution and is indestructible. The state
is the creature of the Constitution and the law made by Articles 2 to 4 with

G
no territorial integrity but a permanent entity with its boundaries alterable •
by a law made by the Parliament. Neither the relative importance of the
legislative entries in Schedule VII, List I and II of the Constitution, nor
the fiscal control by the Union per se are decisive to conclude that the
Constitution is unitary. The respective legislative powers are traceable to
Articles 245 to 254 of the Constitution. The state qua the Constitution is
• •
·H federal in structure and independent in the exercise of legislative and
""
S.R. BOMMAI v. U.0.1. 695

executive power. However, being the creature of the Constitution the State A
has no right to secede or claim sovereignity. Qua the union, State is quasi-
federal. Both are coordinating institutions and ought to exercise their
respective powers with adjustment, understanding and accommodation to
render socio-economic and political justice to the people, to preserve and
elongate the constitutional goals including secularism. [964 D-G]
B
The Be1ubari Union and Exchange of Enclave reference under Arlic/e
143 of the Constitution of India, [1960) 3 SCR 250; State of West Bengal v.
Union of India, [1964) 1 SCR 321; State of Kamataka v. Union of India,
[1978) 2 SCR 1; State of West Bengal v. Union of India, [1964] 1 SCR 371
and Shamsher Singh v. Union of India, [1975) 1 SCR 814, relied on. c
Union and States Relations under the Constitution Tagore Law Lectures
by M.C. Seta/wad page JO, referred to.

2. The preamble of the Constitution is au integral part of the
Constitution. Democratic form of Government, federal structure, unity D
and integrity of the nation, secularism, social justice and judicial review
are basic features of the constitution. [964 H; 965 A)

3. The office of the Governor is a vital link and a channel of impartial
and the objective communication of the working of the Constitution by the
State Government to the President of India. He is to ensure protection and
E
sustainence of the Constitutional process of the working of the Constitu-
lion in the State playing an impartial role. As head of the executive he
should truthfully with high degree of constitutional responsibility inform
the President that a situation has arisen in which the constitutional
machinery has failed and the State cannot be carried on in accordance F
with the provisions of the Constitution with necessary factual details in a
non-partisan attitude. [965 A-CJ

4.1. The Union of India shall protect the State Government and as
corollary under Article 356 it is enjoined that the Government of every
state should be carried on in accordance with the provisions of the Con· G
stitution. On receipt of a report from the Governor or otherwise the
President (Council of Ministers) on being satisfied that a situation has
arisen in which the Government of a State cannot be carried on in
~
' accordance with the provisions of the constitution, is empowered to issue
proclamation under Article 356(1) and impose President's rule in the State H
6% SUPREME COURT REP OR TS [1994] 2 S.C.R.

A in the manner laid down in Clauses (a) to (c) of Article 356(1) of the
Constitution. (965 C-E)

4.2. The exercise of the power under Article 36 is an extra-ordinary
one and need to be used sparingly when the situation contemplated by
Article 356 warrants to maintain democratic from of Government has to
B prevent paralysing of the political process. Single or individual act or acts
of violation of the Constitution for good, bad or indifferent administration
does not necessarily constitute failure of the constitutional machinery or
characterises that a situation has arisen in which the Government of the
State cannot be carried on in accordance with the provisions of the
C Constitution. The exercise of power under Art. 356 should under no
circumstance be for a political gair to the pany in power in the Union Govt.
It should be used sparingly and with circumspection that the Govt. of the
State function with responsibility in accordance with the provisions of the
Constitution. (965 E-G)
D
5.1. Rule of law has been chosen as an instrument of social adjust-
ment and resolution of conflicting social problems to integrate diverse
sections of the society professing multi-religious faiths, creed, caste or
region fostering among them fraternity, transcending social, religious,
linguistic or regional barriers. Citizenship is either by birth or by domicile
E and not as a member of religion, caste, sect, region or language.
Secularism has both positive and negative contents. The Constitution
struck a balance between temporal parts confining it to the person profess-
ing a particular religious faith or belief and allows him to practice, profess
and propagate his religion, subject to public order, morality and health.
F The positive part of secularism has been entrusted to the State to regulate
by law or by an executive order. The State is prohibited to patronise any
particular religion as State religion and is enjoined to observe neutrality.
The State strikes a balance to ensure an atmosphere of full faith and
confidence among its people to realise full growth of personality and to
make him a rational being on secular lines, to improve individual excel-
G lence, regional growth, progress and natio.nal integrity. Religion being
susceptible to the individuals or groups of people professing a particular
religion, antagonistic to another religion or groups of persons professing
different religion, brings inevitable social or religious frictions. If religion
is allowed to over-play, social disunity is bound to erupt leading to national
H disintegration. (965 H, 966 A-DI
S.R. BOMMAI v. U.0.1. 697

5.2. Secularism is a part of the basic features of the Constitution. A
Political parties, group of persons or individual who would seek to in-
Ouence electoral process with a view to come to political power, should
abide by the Constitution and the laws including secularism, sovereignty
integrity of the nation. They/he should not mix religion with politics.
Religious tolerance and fraternity are basic features and postulates of the
Constitution as a scheme for national integration and sectional or
B
religious unity. Programmes or principles evolved by political parties
based on religion amounts to recognising religion as a part of the political
governauce with the Constitution expressly prohibited it. It violates the
basic features of the Constitution. Positive secularism negates such a
policy and any action in furtherance thereof would be violative of the basic c
features of the Constitution. Any act done by a political party or the
Government of the State run by that party in furtherance of its programme
or policy would also be in violation of the Constitution and the law. When
the President receives a report from a Governor or othenvise had such
information that the Government of the State is not being carried on in D
accordance with the provisions of the Constitution, the President is en-
titled to consider such report and reach his satisfaction in accordance with
law. [966 D-H)

Ziyauddin Burhamuddin Bukhari v. Brijmohan Ramdass Mehra &
Ors., [1975) Suppl. SCR 281; Ratilal Pannachand Gandhi v. State of Bom- E
bay, [1954) SCR 1035; Commissioner of Madras v. Sri Lakshmindra Thirtha
Swamiar, [1954) SCR 100 1005; Keshavanand Bharti's case [1973) suppl. 1
SCR 1; Indira Gandhi v. Raj Narain, [1976] 2 SCR 347; S. Veerapadran
Chettiar v. E. V. Ramaswami Naicker & Ors., [1959] SCR 1211; Shubnath
Deogram v. Ramnarain Prasad, [1960] 1 SCR 933; S. Harcharan Singh v. S. F
Sajjan Singh, [1985] SCR 159 and Sri Mullapudi Venkata Krishna Rao v. Sri
Vedula Suryanarayana, [1993] 2 Scale 170, relied on.

6.1. A person who challenges the presidential proclamation must
prove strongprinia facie case that the presidential proclamation is uncon- G
stitutional or invalid and not in accordance with law. On the Court's
satisfying that the strong prima facie case has been made out and it is a
High Court, it should record reasons before issuing "discovery order nisi",
summoning the records from the Union of India. The Government is
entitled to claim privilege under Section 123 of the Indian Evidence Act
and also the claim under Article 74(2) of the Constitution. The Court is H
698 SUPREME COURT REPORTS [1994] 2 S.C.R.

A to consider the records in camera before taking any further steps in the
matter. Article 74(2) is not a barrier for judicial review. It only places
limitation to examine whether any advice and if so what advice was
tendered by the Council or Ministers to the President. Article 74(2)
receives only this limited protective cannopy from disclosure, but the
material on the basis or which the advice was tendered by the Council of
B Ministers is subject to judicial scrutiny. (967 A·C]

6.2. The Union or India, when discovery order nisi is issued by this
Court, wouid act in aid or the Court under Article 142(2) and is enjoined
to produce the material, the foundation for action under Art. 356. As held
C earlier before calling upon the Union to produce the material, the Court
must first find strongprima facie case and when the records are produced
they are to be considered in camera. (967 D, E]

6.3. Judicial review is a basic feature of the Constitution. This
Court/High Courts have constitutional duty and responsibility to exercise
D judicial review as centinal quevive. Judicial review is not concerned with the
n1erits of the decision, but with the manner in which the decision was taken.
The exercise of the power under Article356 is a constitutional exercise of the
power, the normal subjective satisfaction of an acJninistrative decision on
objective basis applied by the Courts to administrative decisions by subor·
E dinate officers or quasi judicial or subordinate legislation does not apply to
the decision of the President under Article 356. (967 E-G]

6.4. Judicial review must be distinguished from the justiciability by
the Court. The two concepts are not synon)mous. The power of judicial
review is a constituent power and cannot be abdicated by judicial process
F or interpretation. However, justiciability of the decision taken by the
President is one or exercise of the power by the Court hedged by self-im-
posed judicial restraint. It is a cardinal principle of our Constitution that
no-one, howsoever hefty can claim to be the sole judge of the power given
under the Constitution. Its actions are within the confines of the powers
G given by the Constitution. (967 G, H; 968 A]

6.5. This Court as final orbiter in interpreting the Constitution,
declares what the law is higher judiciary has been assigned a delicate task
to determine what powers the Constitution has conferred on each branch
or the Government and whether the actions of that branch transgress such
..
H limitations, it is the duty and responsibility or this court High Courts to
S.R. BOMMAI v. U.O.l. 699

lay down the law. It is the constitutional duty to uphold the constitutional A
values and to enforce the constitutional limitations as the ultimate inter-
preter to the Constitution. The judicial review, therefore, extends to ex-
amine the constitutionality of the proclamation issued by the President
under Article 356. It is a delicate task, though loaded with political
over-tones, to be exercised with circumspection and great care. In diciding
finally the validity of the proclamation, there cannot be any hard and fast
B
rule or fixed set of rules or principles as to when the President's satisfac-
tion is justiciable and valid. [968 B-D)

6.6. Justiciability is not a legal concept with a fixed content, nor is it
susceptible of scientific verification. Its use is the result of many pressures c
or variagated reasons. Justiciability may be looked at from the point of
view of common sense limitation. Judicial review may be avoided on
questions of purely political nature, though pure legal questions com-
ouOaged by the political questions are always justiciable. The Courts must
have judicially manageable standards to decide a particular controversy. D
Justiciability on a subjective satisfaction conferred in the widest terms to
the political co- ordinate executive branch created by the constitutional
scheme itself is one of the considerations to be kept in view in exercising
judicial review. There is an initial presumption that the acts have been
regularly performed by the President. [968 E-F]
E
6.7. The proviso to Article 74(1) re-enforces that on the advice
tendered by the Council of Ministers to the President, the latter actively
applies his mind and reaches the satisfaction that a situation has arisen in
which the Government of the State cannot be carried on in accordance with
the provisions of the Constitution. The word "otherwise enlarges the width F
and ambit of satisfaction reached by the President. In son1e cases such
satisfaction lacks judicially manageable standards for resolution. The
abuse of the power by high constitutional functionaries cannot be assun1ed,
but must be strictly proved. It also cannot be assumed that the Presidential
proclamation was lightly issued. The exercise of discretionary satisfaction
may depend on diverse varied and variagated circumstances. The constitu- G
ti on confided exercise of the power under Article 356 in the highest executive
of the land, the President of India aided and advised by the Council of
Ministers at its head by the Prime Minister. The Prime Minister and his
Council of Ministers are collectively and individually responsible to the
Parliament and accountable to the people. Confidence reposed on the H
700 SUPREME COURT REPORTS [1994] 2 S.C.R.

A highest executive itself is a circumstance to be kept in view in adjudging
whether the satisfaction reached by the President is vitiated by law. It is
impermissible to attribute bad faith or personal ma/a fides to the President
in the face of constitutional prohibition of answerability by Article 361. But
if the proof of ma/a fide abuse of power is available, appropriate remedy
would be available in the Constitution under Article 61. [968 G,.H, 969 A·CJ
B
6.8. The decision can be tested on the ground of legal ma/a fides, or
high irrationality in the exercise of the discretion to issue presidential
proclamation. Therefore, the satisfaction reached by the President for
issuing the proclamation under Article 356 must be tested only on those
C grounds of unconstitutionality, but not on the grounds that the material
which enabled him to reach the satisfaction was not sufficient or inade·
quate. The traditional parameters of judicial review, therefore, cannot be
extended to the area of exceptional and extra-ordinary powers exercisrd
under Article 356. The doctrine of proportionality cannot be extended to
the power exercised under Article 356. The ultimate appeal over the action
D of the President is to the electorate and judicial self-restraint is called in
aid, in which event the faith of the people in the efficacy of the judicial
review would be strengthened and the judicial remedy becomes meaningful.
[969 IJ..F]
R.K Jain v. Union of India, [1993] 4 SCC 119, relied on.
E
State of Rajasthan v. Union of India, [1978] 1 SCR l; Baker v. Ca",
[1962] 27 L. Ed. 2nd 663 and Gi//egan v. Morgan, [1973] 37 L.Ed. 2nd 407,
referred to.

F 7. Under Article 356 as soon as the proclamation was issued, under
sub-clause(3) of Article 356, the President shall seek its approval from
both Houses of Parliament within two months from the date of its issue
unless it is revoked in the meanwhile. A consistent constitutional conven-
tion has been established that on issuing the proclamation the President
on his assumption of the function.i of the Government of the State directs
G the Governor to exercise all the executive functions of the Government of
the State with the aid and advice of the appointed Advisors. He declares
that the power of the Legislature or the State shall be exercisable by or
under the authority of the Parliament and makes incidental and conse-
quential provisions necessary to give effect to the object of proclamation
H by suspending whole or any part of the operation of any provision of the
S.R.BOMMAI V. U.O.I. 701

Constitution relating to anybody or authority of the State which includes A
dissolution of the Legislative Assembly and removal or the State Govern-
ment. The Parliament exercises the legislative power thereon under Article
357 and in turn it confers on the president the powers relating to entries
in List II of the VII Schedule. The Governor of the State with the aid and
advice of the advisors exercise the executive functions on behalf of the
President. The convention attained the status of law. This consistent law B
has been operating without any constitutional hiatus. Granting of stay of
operation or presidential proclamation creates constitutional and ad-
ministrative hiatus and incongruity. The Union and the State simul-
taneously cannot operate the legislative and executive powers in List II or
Schedule VII of the Constitution. Thereby the simultaneous bicameral C
functions by the Union and the State is an anthema to the democratic
principle and constitutional scheme. It would lead to incongruity and
incompatability. (969 G-H, 970 A·D]

Supreme Coun Advocates Oil Record Associatio1t and Ors. v. U1tio1t of D
India, JT (1993) 5 SC 479, relied on.

Prof. Bork : "Neutral principles and Some First Anzendments
Problems'~ 47 Ind. Law Journal. 1971 Edn.; Rep v. Ved, (1982) Yale Law
Journal, 1920 at 1949 and 1973; Bennion on statutory interpretation, p. 721;
Sir W. Ivon Jennings in his "Law and the Constitution (fifih edition); K.C. E
Wheare in his book "Modem Constitution", 1967 edition, referred to.

8. There is no express provision in the Constitution to revive the
Assembly dissolved under the presidential proclamation or to reinduct the
removed Government of the State. In interpreting the Constitution on the p
working of the democratic institutions set up under the Constitution, it is
impermissible to fill the gaps or to give directions to revive the dissolved
assembly and to reinduct the dismissed Government of the State into
office. Equnlly stay cannot be granted of the operation of the presidential
proclamation till both Houses or Parliament approve the presidential
proclamation. The suspension without dissolution of the legislative As- G
sembly of the State also creates functional disharmony leading to constitu-
tional crisis. The grant of stay of elections to the legislative assembly,
occassioned pursuant to the presidential proclamation, also creates con~
stitutional crisis. Therefore, the courts should not issue such directions
leaving it to the Parliament to amend the Constitution if need be. [970 E-F] H
.r '
702 SUPREME COURT REPORTS [1994] 2 S.C.R.

A M.P. Ponnuswami v. Returning Officer, Namakkal Constituency,
[1952] SCR 218; Lakshmi Charan Sen v. A.KM. Hassan Azzaman, [1985)
Suppl. SCR 493, relied on.

American Jurisprudence 2d Series, Vol. 73; Craies on Statute Law, 7th
Edition; State of Tasmania v. The Commonwealth of Australia and State of
B Victoria, (1904] 1 CLR 329, 358-591; Encyclopedia of the American Judicial
System; Modes of Constitutional Interpretation by Craig R. Ducan, 1978
Edition p. 125 and Frankfurter J. Opinion of in Dennis v. United States,
341 US 494, 525, [1951], referred to.

c 9. The floor test, may be one consideration which the Governor may
keep in view. But whether or not to resort to it would depend on prevailing
situation. The possibility of horse trading also to be kept in view having
regard to the prevailing political situation. It is not possible to formulate
or comprehend a set of rules for the exercise of the power by the Governor
D to conduct floor test. The Governor should be left free to deal with the
situation according to his best judgment keeping in view the Constitution
and the conventions of the parliamentary system of Government. Though
Sarkaria Commission and Rajamannar Commission headed by two dis-
tinguished judges of this land, recommended floor test, it could only mean
that that is consideration which must cross the mind of the Governor. It
E would be suffice to say that the Governor should be alive to the situation
but he would be the sole Judge on the question whether or not conditions
are conducive to resort to floor test. [970 G, H; 971 A, BJ

10. The satisfaction reached by the President in issuing presidential
F proclamation and dissolving the legislative assemblies of Madhya
Pradesh, Rajasthan and Himachal Pradesh cannot be faulted as it was
based on the fact of violation of the secular features of the Constitution
which itself is a ground to hold that a situation has arisen in which the
Government of the concerned State cannot be carried on in accordance
with the provisions of the Constitution. Therefore, the satisfaction cannot
G be said to be unwarranted. The dissolution of the Meghalaya Assembly
though unmlnerable to attack as unconstitutional, it has become infruc-
tuous due to subsequent elections and the newly elected state legislature
and the Government of the State of Meghalaya are functioning thereafter.
Therefore, no futile writs could be issued as the court does not act in vain.
H (971 C-EJ
S.R. BOMMAI v. U.0.1. 703

Per Verma, J. (for himself and Yogeshwar Daya, J. - expressing a different A
opinion on justiciability)

1.1. There is no dispute that the proclamation issued under Article
356 is subject to judicial review. The debate is confined essentially to the
, scope of judicial review or the area of justiciability in that sphere. The
area of justiciability is narrow in view of the nature of that power and the B
wide discretion which inheres its exercise. This indication appears also
from the requirement of approval of the proclamation by the Parliament
which is a check provided in the Constitution of scrutiny by political
process of the decision taken by the Executive. The people's verdict in the
election which follow is intended to be the ultimate check. [972 B-C]
c
1.2. The deeming provision in Article 365 is an indication that cases
falling within its ambit are capable of judicial scrutiny by application of
objective standards. The facts which attract the legal fiction that the
constitution31 machinery has failed are specified and their existence is
capable of objective determination. It is, therefore, reasonable to hold that D
the cases falling under Article 365 are justiciable. [973 H, 974 A)

K Ashok Reddy v. 71ie Government of India and ors., JT (1994) 1 S.C.
401, relied on.

Puhlhofer and Anr. v. Hillingdon London Borough Council, (1986) E
Appeal Cases 484, referred to.

Craig's Administrative Law (Second Edition); Council of Civil Service
Unions and Others v. Minister for the Civil Service, (1985) A.C. 374
(G.C.H.Q.); De Smith's Judicial Review of Administration Action, referred
~ F
2. The expression 'or otherwise' in Article 356 indicates the wide
range of the materials which may be taken into account for the formation
of opinion by the· President. Obviously, the materials could consist of
several imponderables including some matter which is not strictly legal
evidence, the credibility and authenticity of which is incapable of being G
tested in law courts. The ultimate opinion formed in such cases, would be
mostly a subjective political judgment. There are no judicially manageable
standards for scrutnising such materials and resolving such a controversy.
By its very nature such controversy cannot be justiciable. It would appear
that all such cases are, therefore, not justiciable. Only cases which permit H
.r'
704 SUPREME COURT REPORTS [1994] 2 S,CR.

A a_pplication of totally objective standard for deciding whether the constitu·
tional machinery has failed, are amenable to judicial review and the
remaining cases wherein there is any significant area of subjective satis-
faction dependent on some imponderables or inferences are not justiciable
because there are no judicially manageable standards for resolving that
controversy; and those cases are subject only to political scrutiny and
B
corredion for whatever its value in the existing political scenario. This
appears to be the constitutional scheme. [974 B·F]

The Barium Chemicals Ltd and Anr. v. The Company Law Board and
Ors" [1966) Supp. SCR 3113 and State of Rajasthan & Ors. Etc, Etc, v. ,. .
c Union of India etc. etc, [1978) 1 SCR 1, referred to.

3. Article 74(2) is no bar to production of the materials on which the
ministrial advice is based, for ascertaining whether the case falls within
the justiciable area and acting on it when the controversy, is foundjustici·
able, but that is subject to the claim of privilege under Section 123 of the
D Evidence Act, 1872. TI1is is considered at length in the opinion of Sawant,
J. It is not possible to concur with the different view on this point taken
in State of Rajasthan case, even though the decision does not require any
reconsideration on the aspect of area of justiciability and the grounds of
invalidity indicated therein. No quia timet action would be permissible in
E such cases in view of the limited scope of judicial review; and electoral
verdict being the ultimate check, courts can grant substantive relief only
if the issue remains live in cases which are justiciable. Mere parliamentary
approval does not have the effect of excluding judicial review to the extent
permissible. [974 F; 975 A, B, C, Fl

F Kihoto Hol/ohan v. Zachillhi and Ors., [1992] Supp. SCC 651; Sarojini
Ramaswami (Mrs.) v. Union of India & Ors" [1992) 4 SCC 506, relied on.

State of Rajasthan & Ors. v. Union of India etc. etc., [1978] 1 SCR 1,
referred to.

G 4. Thus only the Meghalaya case is justiciable and that proclamation
was invalid while those relating to Madhya Pradesh, Himachal Pradesh,
Rajas than and Karuataka are not justiciable. There is rightly no challange
to the proclamation relating to Uttar Pradesh. However, in view of the
subsequent elections held in Meghalaya, that is no longer a live issue and,
,
H therefore, there is no occassion to grant any substantial relief even in that
S.R. BOMMAI v. U.0.1. 705

case. [976 G, HJ A
Per Ahmadi, J. (Largely in agreenient 1-vith Ra111aswa1nJ', J. and in agrcen1ent
with the final order proposed by Vem1a and Ran1as1-va1ny, 11.; also in agree-
ntent with Sawant, Ran1asa•an1y and Jeevan Reddy, JJ. on sccula1isn1:

I.I. Federalism is a concept which unites separate States into a Union B
llHhout sacrficing their own fundamental political integrity. Separate
States, therefore, desire to unite so that all the Member-States may share in
formulation of the basic policies applicable to all and participate in the
execution of decisions made in pursuance of such basic policies. Thus the
essence of a federation is the existence of the Union and the Slates and the
distribution of power between them. Federalism, therefore, essentially im-
c
plies demarcation of powers in a Federal compact. [979 D, E]

1.2. Our founding fathei·s did not deem it wise to shake the basic
structure of Government and in distributing the legislative functions they,
by and large, followed the pattern of the Government of India Act, 1935. D
Some of the subjects of common interest were, however, transferred to the
Union List, thereby enlarging the powers of the Union to enable speedy
and planned economic development of the nation. The scheme for the
distribution of powers between the Union and the States was largely
maintained except that some of the subjects of common interest were
E
transferred from the Provincial List lo the Union Lisi thereby strengthen-
ing the administrative control of the Union .. [981 C-E)

1.3. A strong Central Government may not find it difficult to secure
the requisite majority as well as ratification by one··half of the legislatures
if one goes by past experience. These limitations taken together indicate F
that the Constitution of India cannot be said to be truly federal in char-
. ~

acter. [983 C, DJ

1.4. Thus the Indian Constitution has, in it not only features of a
pregmatic federalism which while distributing legislative powers and in-
dicating the spheres of Governmental powers of State and Central Govern- G
ments, is overlaid by strongly 'unitary' features, particularly exhibited by
lodging in Parliament the residuary legislative powers, and in the Central
Government the executive powers of appointing certain constitutional
functionaries including High Court and Supreme Court Judges and issu-
ing appropriate directions to the State Governments and even displacing H
706 SUPREME COURT REPORTS [1994] 2 S.C.R.

A the State Legislatures and the Governments in emergency sitnations, vide
Articles 352 to 360 or the Constitution. [984 H; 985 A, BJ

1.5.The concept or citizenship assumes some importance in a redera-
tion because in a country which recognises dual citizenship, the individual
would owe allegiance both to the rederal Government as well as the State •
B Government but a country recognising a single citizenship does not race
complications arising from dual citizenship and by necessary implication
negatives the concept or State sovereignty. [987 BJ
~· '
1.6. The significant absence or the expressions like •rederal' or
C •rederation' in the constitutional vocabulary, the Parliament's powers
under Articles 2 and 3 the extra-ordinary powers conrerred to meet emer-
gency situation, the residuary powers conrerred by Article 248 read with
Entry 97 in List I of the VII Schedule on the Union, the power to amend
the Constitution, the power to issue directions to States, the concept of a
single citizenship, the set up or an integrated judiciary, etc. etc. have led
D constitutional experts to doubt the appropriateness of the appellation
'federal' to the India Constitution. (987 C-D]

1.7. In the United States, the sovereign States enjoy their own
separate existence which cannot be impaired; indestructible States having
E constituted an indestructible Union. In India, on the contrary, Parliament
can by Jaw form a new State, alter the size of an existing State, alter the
name of an existing State, etc., and even curtail the power, both executive
and Jegislati.e, by amending the Constitution. That is why the Constitution
of India is differently described, more appropriately as 'quasi-federal'
because it is a mixture of the federal and unitary elements, leaning more
F towards the latter. (987 F, GI

State of West Bengal v. Union of India, [1964) 1 SCR 371; Union of
India v. H.S. Dhillon, AIR (1972) SC 1061 = (1972) 2 SCR 33; State of
Rajasthan v. Union of India, A.l.R. (1977) S.C. 1361 = (1978) 1 SCR 1 and
G The State of Kamataka v. Union of India, A.1.R. (1978) S.C. 68 = (1978) 2
S.C.R. 1, relied on.

M. Karunanidhi v.Union of India, A.l.R. (1977) Madras 192 and Prof
K.C. l.Yheare: 'Federal Govemnient~ referred to.

H 2. The fundamental rights enshrined in Articles 15, 16 and 25 to 30
S.R. BOMMAI v. U.0.1. 707

leave no manner of doubt that they form part of the basic structure of the A
Constitution. Besides, by the 42nd Amendment, Part IVA entitled 'Fun-
damental Duties' was introduced which inter alia casts a duty on every
citizen to cherish and follow the noble ideals which inspired our national
struggle for freedom, to uphold and protect the sovereignty, unity and
integrity of India, to promote harmony and the spirit of common brother-
hood amongst all the people oflndia transcending religious, linguistic and
B
regional or sectional diversities, and to value and preserve the rich
heritage of our composite culture. These provisions clearly bring out the
dual concept of secularism and democracy, the principles of accommoda-
tion and tolerdnce as advocated by Gandhiji and other national leaders.
Thus it is agreed that secularism is a basic feature of our Constitution. c
This concept which was implicit was made explicit by the 42nd Amend-
ment. (991 H; 992 A-DI

3. The mere defeat of the ruling party at the centre cannot by itself,
without anything more, entitle the newly elected party which comes to D
power at the centre to advise the President to dissolve the Assemblies of
those States where the party in power is other than the one in power at the
Centre. Merely because a different political party is elected to power at the
centre, even if with a thumping majority, is no ground to hold that 'a
situation has arisen in which the Government of the State cannot be
carried on in accordance with the provisions of this Constitution', which E
is the requirement for the exercise of power under Article 356(1) of the
Constitution. To exercise power under the said provision and to dissolve
the State Assemblies solely on the grou11d of a new political party having
come to power at the centre with a sweeping majority would, to say the
least, betray intolerance on the part of the Central Government clearly F
basing the exercise of power under Article 356(1) on considerations ex-
traneous to the said provision and, therefore, legally mala fide. It is a
matter of common knowledge that people vote for different political parties
at the Centre and in the States and, therefore, if a political party with an
ideology different from the ideology of the political party in power in any
State comes to power in the centre, the Central Government would not be G
justified in exercising power under Article 356(1) unless it is shown that
the ideology of the political party in power in the State is inconsistent with
the constitutional philosophy and, therefore, it is not possible for that
party to run the affairs of the State in accordance with the provisions of
the Constitution. It is axiomatic that no State Government can function H
708 SUPR~ME COURT REPORTS [1994]25.C.R.

A on a programme which is destructive or the Constitutional philosophy as
such functioning can never be in accordance with the provisions of the
Constitution. But where a State Government is functioning in accordance
with the provisions or the Constitution and its ideology is consistent with
the constitutional philosophy, the Central Government would not be jus-
tified in resorting to Article 356(1) to get rid or the State Government
B 'solely' on the ground that a different political party has come to power at
the centre with a landslide victory. Such exercise of power would be clearly
malafide. [992 H; 993 A-Fl

The State of Rajasthan v. Union of India, [1978] 1 SCR 1, dissented
C from.

4. Article 74(1) ordains that the President 'shall' act in accordance
with the advice tendered by the Council of Ministers. The proviso, however,
entitles him to require the Council or Ministers to reconsider its advice if
he has any doubts or reservation but once the Council of Ministers has
D reconsidered the advice, he is obliged to act in accordance therewith.
Article 74(2) then provides that 'the question whether any, and if so what,
advice was tendered to the President shall not be inquired into in any
Court'. What this clause bars from being inquired into is 'whether any,
and if so what, advice was tendered' and nothing beyond that. Since the
E reasons would from part of the advice, the Court would be precluded from
calling for their disclosure but Article 74(2) is no bar to the production of
all the material on which the ministerial advice was based. Of course the
privilege available under the Evidence Act, sections 123 and 124, would
stand on a differe~t footing and can be claimed de hors Article 74(2) of the
Constitution. It bas to be disagreed to the extent the decision in RajasOian
F case conflicts with this view. [994 C-F]

The State ofRajasthan v. The Union ofIndia, [1978] 1 SCR 1, referred
to.

5. Part XVIII, which deals with Emergency Provisions provide for
G exercise of emergency powers under different situations. Article 352
provides that 'if the President is satisfied' that a grave emergency exists
threatening the security of India or any part thereof, whether by war or
external aggression or armed rebellion, the President may make a declara-
tion to that effect specifying the area of its operation in the Proclamation.
H Notwithstanding the use of the language 'if the President is satisfied' which
S.R. BOMMAI v. U.0.1. 709
suggests that the decision would depend on the subjective satisfaction of the A
President, such a decision cannot be made the subject matter of judicial
scrutiny for the obvious reason that the existence or otherwise of a grave
emergency does not fall within the purview of judicial scrutiny since the
Courts are ill-equipped to undertake such a delicate function. So also under
Article 369 the exercise of emergency power is dependent on the satisfaction
of the President that a situation has arisen whereby the financial stability
B
or credit oflndia or any part thereof is threatened. The decision to issue a
proclamation containing such a declaration is also based on the·subjective
satisfaction of the President, i.e. Council of Ministers, but the Court would
hardly be in a position to x'ray such a subjective satisfaction for want of
expertise in regard to such matters. These provisions, therefore, shed light C
on the extent of judicial review. [994 G, H; 995 A-DJ

6.1. The marginal note of Article 356 indicates. that the power
conferred by that provision is exercisable 'in case of failure of constitu-
tional machinery in the States'. While the text of the said article does not D
us~ the same phraseology, it empowers the President on his being satisfied
that, 'a situation has arisen' in which the Government of the State 'cannot'
be carried on in accordance with the provisions of the Constitution, i.e.
on the failure of the constitutional machinery, to take action in the
manner provided in sob-clauses (a), (b) and (c) and clause (1) thereof.
This action he must take on receipt of a report from the Governor of the E
concerned State or 'otherwise', if he is satisfied therefrom about the
failure of the constitutional machinery. Article 356(1) confers extra-ordi-
nary powers of the President, which he must exercise sparingly and with
great circumspection, only ii he is satisfied from the Governor's report or
otherwise that a situation has arisen in which the Government of the State
cannot be carried out in accordance with the provisions of the Constitt<- F
lion. The expression 'otherwise' is of very wide import and cannot be
restricted to material capable of being tested on principles relevant to
admissibility of evidence in courts of law. It would be difficult to predicate
the nature of material which may be placed before the President or which
he may have come across before taking action under Article 356(1). G
Besides, since the President is not expected to record his reasons for his
subjective satisfaction, it would be equally difficult for the Court to enter
'the political thicket' to ascertain what weighed with the President for the
exercise of power under the said provision. The test laid down by this
Court in Barium Chemicals and subsequent decisions for adjudging the
validity of administrative action can have no application for testing the H
710 SUPREME COURT REPORTS [1994) 2 S.C.R,.

A satisfaction of the President under Article 356. The power conferred by
Article 356 is of an extraordinary nature to be exercised in grave emer-
gencies and, therefore, the exercise of such power cannot be equated to
the power exercised in administrative law field and cannot, therefore, be
tested by the same yardstick. Several imponderables would enter con-
sideration and govern the ultimate decision, which would be based, not
B only on event• that have preceded the decision, but would also depend on
likely consequences to follow and, therefore, it would be wholly incorrect
to view the exercise of the President's satisfaction recorded by executive
officers in the exercise of administrative control. [995 D-H; 996 A-DI

6.2. By the very nature of things which would govern the decision
c making under Article 356, it is difficult to hold that the decision of the
President is justiciable. To do so would be entering the political thicket
and questioning the political wisdom which the Courts of law must avoid.
The temptation to delve into the President's satisfaction may be great but
the Court would be well advised to resist the temptation for want of
D judicially manageable standards. Therefore, the Court cannot interdict
the use of the constitutional power conferred on the President under
Article 356 unless the same is shown to be malafide. Before exercise of the
Court's jurisdiction sufficient caution must he administered and unless a ... '
strong and cogent prima facie case is made out, the President i.e. the
executive must not be called upon to answer the charge. No quia timet
E action would be permissible in such cases in view of the limited scope of
judicial review in such cases. A proclamation issued under Article 356 can
be challenged on the limited ground that the action is malafide or ultra
vires Article 356 itself. [996 E-H; 997 A)

The Barium Chemicals Ltd. v. The Company Law Board & Ors.,
F [1966) Suppl. SCR 311, held inapplicable.

The State of Rajasthan v. The Union ofIndia, [1978) 1 SCR 1, referred
to.

7. Thus the proclamations issued and consequential action taken
G against the States of Madhya Pradesh, Himachal Pradesh, Rajasthan and
Karnataka are not justiciable while the proclamation issued in connection
with Meghalaya may be vulnerable hut it is not necessary to issue any
order or direction in that behalf as the issue is no morelive in view of the
subsequent developments that have taken place in that State after fresh
H elections. [997 B-C] '
S.R. BOMMAI v. U.0.1. [SAWANT,J.] 711

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3645 of A
1989.

From the Judgment and Order dated 4.8.89 of the Karnataka High
Court in W.P. No. 7899/89.

WITH
B

T.C.(C) Nos. 5, 7, 8, 9/93, C.A. Nos. 193, 194, 1692, 1692A, 1692C,
I
4627-30 of 1993 and I.A. No. 4 In C.A. No. 1692/93.

Alta£ Ahmed, Additional Soliciter General, Milon K. Banerjee, PL. C
Dubey, Attorney General, Ram Jathmalani, Arun Jaitley, K. Parasaran, J.P.
Bhattacharjee, P.P. Rao, T.R. Andhyarajuna, Ashok K. Desai, Shanti
Bhushan, O.P. Sharma, AK. Sahu, Ms. Lata Krishnamurthy, Ms. Kamini
Jaiswal, Ms. Arnita V. Joseph, R.C. Verma, Ms. Alpana Poddar, Kailash
Vasdev, S.K. Agnihotri, Sakesh Kumar, Ashok Kumar Singh, H. Lal, S.C. D
Patel, P.L. Dubey, Ashok Singh, G. Prakash, S. Sasiprabhu, A Jayaram,
Ashok K. Srivastava, A.K. Goel, Mrs. Sheela Goel, P.R. Ramasesh, S.V.
, Deshpande, Ms. Indra Makwana, Ms. Bina Gupta, AS. Bhasme, Parshant
Bhushan, M.M. Kashyap, Vijay Hansaria, P. Parmeswaran, K. Swami,
P.Tiwari, Ms. A Subhashini, AS. Rao, R.B. Misra, R.P. Srivastava, Naveen E
Parkash and Rathin Das for the appearing parties.

The Judgement of the Court was delivered by

SAWANT, J. On behalf of Kuldip Singh, J. and himself. Article 356
has a vital bearing on the democratic parliamentary form of government F
and the autonomy of the States under the federal Constitution that we have
adopted. The interpretation of the Article has, therefore, once again
engaged the attention of this Court in the backgronnd of the removal of
the governments and the dissolution of the legislative assemblies in six
States with which we are concerned here, on different occasions and in
different situations by the exercise of power under the Article. The crucial G
question that falls for consideration in all these matters is whether the
President has unfettered powers to issue Proclamation under Article
356(1) of the Constitution. The answer to this question depends upon the
answers to the following questions : (a) Is the Proclamation amenable to
judicial review? (b) If yes, what is the scope of the judicial review in this H
712 SUPREME COURT REPORTS (1994] 2 S.C.R.

A respect? and (c) What is the meaning of the expression "a situation has
arisen in which the Government of the State cannot be carried on in (

accordance with the provisions of this Constitution" used in Article 356 (1)?

Article 356 reads as follows:

B "356, Provisions in case of failure of constitutional machinery in
States. - (1) If the President, on receipt of report from the Gover-
nor of a State or otherwise, is satisfied that a situation has arisen
in which the government of the State cannot be carried on in
accordance with the provisions of this Constitution, the President
c may by Proclamation-

(a) assume to himself all or any of the functions of the Government
of the State and all or any of the powers vested in or exercisable
by the Governor or any body or authority in the State other than
the Legislature of the State;
D
(b) declare that the powers of the Legislature of the State shall be
exercisable by or under the authority of Parliament;
"
(c) make such incidental and consequential provisions as appear
to the President to be necessary or desirable for giving effect to
E
the objects of the Proclamation, including provisions for suspend-
ing in whole or in part the operation of any provisions of this
Constitution relating to any body or authority in the State:

Provided that nothing in this clause shall authorise the President to
F assume to himself any of the powers vested in or exercisable by a High
Court, or to suspend in whole or in part the operation of any provision of
this Constitution relating to High Courts.

(2) Any such Proclamation may be revoked or varied by a subsequent
G Proclamation.

(3) Every Proclamation issued under this article shall be laid before
each House of Parliament and shall, except where it is a Proclamation
revoking a previous Proclamation, cease to operate at the expiration of two
months unless before the expiration of that period it has been approved.by· •
H resolutions of both Houses of Parliament:
S.R. BOMMAI v. U.0.1. [SAWANT,J.] 713

Provided that if any such Proclamation (not being a Proclamation A
revoking a previous Proclamation) is issued at a time when the House of
the People is dissolved or the dissolution of the House of the People takes
place during the period of two months referred to in this clause, and if a
resolution approving the Proclamation has been passed by the Council of
States, but no resolution with respect to such Proclamation has been passed
B
by the House of the People before the expiration of that period, the
Proclamation shall cease to operate at the expiration of thirty days from
the date on which the House of the People first sits after its reconstitution
unless before the expiration of the said period of thirty days a resolution
approving the Proclamation has been also passed by the House of the
People. c
(4) A Proclamation so approved shall, unless revoked, cease to
operate on the expiration of a period of six months from the date of issue
of the Proclamation:
D
Provided that if and so often as a resolution approving the con-
tinuance in force of such a Proclamation is passed by both Houses of

.,. Parliament, the Proclamation shall, unless revoked, continue in force for a
further period of six months from the date on which under this clause it
would otherwise have ceased to operate, hut no such Proclamation shall in
any case remain in force for more than three years: E

Provided further that if the dissolution of the House of the People
takes place during any such period of six months and a resnlution approv-
ing the continuance in force of such Proclamation has 'been p•ssed by the
Council of States, but no resolution with respect to the continuance in force F
of such Proclamation has been passed by tho House of the People during
the said period, the Proclamation shall cease to operate al the expiration
of thitty days from the date on which the House of the People first sits
after its reconstitution unless before the expiration of the said period of
thirty days a resolution approving the continuance in force of the Proclama-
tion has been also passed by the House of the People. G

Provided also that in the case of the Proclamation issued under
clause (1) on the 11th day of May, 1987 with respect to the State of Punjab,
the reference in the frrst proviso to this clause to 11 three years1' shall be
construed as a reference to "five years". H
714 SUPREME COURT REPORTS [1994] 2 S.C.R.

A (5) Notwithstanding anything contained in clause (4), a resolution
with respect to the continuance in force of a Proclamation approved under
clause (3) for any period beyond the expiration of one year from the date r
of issued of such Proclamation shall not be passed by either House of
Parliament unless:

B (a) a Proclamation of Emergency is in operation, in the whole of
India or, as the case may be, in the whole or any part of the state,
at the time of the passing of such resolution, and

(b) the Election Commission certifies that the continuance in force
of the Proclamation approved under clause (3) during the period
c specified in such resolution is necessary on account of difficulties
in holding general elections to the Legislative Assembly of the State
concerned:

Provided that nothing in this clause shall apply to the Proclamation
D issued under clause (1) ori the 11th day of May, 1987 with respect to the
State of Punjab."

2. Before we analyse the provisions of Article 356, it is necessary to
bear in mind the context in which the Article finds place in the Constitu- ~ Jc
tion. The Article belongs to the family of Articles 352 to 360 which have
E been incorporated in Part XVIII dealing with "Emergency Provisions" as
the title of the said Part specifically declares. Among the preceding Ar-
ticles, Article 351 deals with Proclamation of emergency. It states that if
the President is satisfied that a grave emergency exists whereby the security
of India or of any part of the territory thereof is threatened whether by war
F or external aggression or armed rebellion, he may by Proclamation make
a declaration to that effect in respect of the whole of India or of such part
of the territory thereof as may be specified in the Proclamation. Explana-
tion to clause (1) of the said Article states that Proclamation of emergency
declaring that the security of India or any part of the territory thereof is
threatened by war or by external aggression or by armed rebellion, may be
G made before the actual occurrence of war or of any such aggression or
rebellion if the President is satisfied that there is imminent danger thereof.
Clause (4) of the said Article requires that every Proclamation issued
under the said Article shall be laid before each House of Parliament and
shall cease to operate at the expiration of one month, unless before the
H expiration of that period it has been approved by resolutions of both ·
S.R. BOMMAI v. U.0.1. [SAWANT,J.] 715

Houses of Parliament. It is not necessary for our purpose to refer to other A
provisions of the said Article. Article 353 refers to the effect of the
Proclamation of emergency. It states that while the Proclamation of emer-
gency is in operation, executive power of the Union shall extend to the ,_.
//'"
giving of the directions to any State as to the manner in which the executive "
power thereof is to be exercised. It further states that during the emergency B
the power of Parliament to make laws with respect to any matter, shall
include power to make laws conferring powers and imposing duties or
authorising the conferring of powers and the imposition of duties upon the
Union or officers and authorities of the Union as respects that matter even
if it is not enume.rated in the Union List. Article 354 gives power to the
President to direct that Articles 268 and 269 which relate to the distribution C
of revenue between the Union and the States shall cease to operate during
the period of emergency. Article 358 gives power during the emergency to
suspend the provisions of Article 19 to enable the State (i.e., the Govern-
ment and Parliament of India and the Government and the Legislature of
each of the States and all local or other authorities within the territory of D
India or under the control of the Government of India) to make any law
or to take any executive action which the State would be competent to
make or to take but for the provisions contained in Part III of t.he Con-
stitution while the Proclamation of emergency declaring that the security
of India or any part of the territory thereof is threatened by war or by
external aggression, is in operation. Such power, it appears, cannot be E
assumed by the State when the security of India is threatened by armed
rebellion and the Proclamation of emergency is issued for that purpose.
Article 359 gives power to the President to declare that the right to move
any Court for the enforcement of rights conferred by Part III of the
Constitution except those conferred by Articles 20 and 21, shall remain F
suspended when a Proclamation of emergency is in operation.

Article 355 makes an important provision. It casts a duty on fhe
Union to protect States against external aggression and internal distur-
bance, and to ensure that the Government o( every State is carried 11 in
accordance with the provisions of fhe Constitution". This Article cor- G
responds to Article 277-A of the Draft Constitution. Explaining the pur-
pose of the said Article to the .Constituent Assembly, Dr. Ambedkar stated
as follows:

"Some people might think that Article 277-A is merely a pious H
716 SUPREME COURT REPORTS [1994] 2 S.C.R.

A declaration, that it ought not to be there. The Drafting Committee
has taken a different view and I would, therefore, like to explain
why it is that the Drafting Committee feels that article 277-A ought (

to be there. I think it is agreed that our Constitution, notwithstand-
ing the many provisions which are contained in it, whereby the
Centre has been given powers to override the Provinces, none-the-
B Jess is a Federal Constitution and when we say that Constitution
is a Federal Constitution, it means this, that the provinces are as
sovereign in their field which is left to them by the Constitution as
the Centre is in the field which is assigned to it. In other words,
barring the provisions which permit that Centre to override any
c legislation that may be passed by the Provinces, the Provinces have
a plenary authority to make any law for the peace, order and good
government of that Province. Now, when once the Constitution
makes the sovereign and gives them plenary power to make any
law for the peace, order and good government of the province,
really speaking, the intervention of the Centre or any other
D
authority must be deemed to be barred, because that would be an
invasion of the sovereign authority of the province. That is a
fundamental proposition which, I think, we must accept by reason
of the fact that we have a Federal Constitution. That being so, if
the Centre is to interfere in the administration of provincial affairs,
E as we propose to authorise the Centre by virtue of Articles 278
and 278-A, it must be by and under some obligation which the
Constitution imposes upon the Centre. The invasion must not be
an invasion which is wanton, arbitrary and unauthorised by law.
Therefore, in order to make it quite clear that articles 278 and
278-A are not to be deemed as a wanton invasion by the Centre
F
upon the authority of the province, we propose to introduce article
277-A. As Members will see, article 277-A says that it shall be the
duty of the Union to protect every unit, and also to maintain the
Constitution. So far as such obligation is concerned, it will be found
that it is not our Constitution alone which is going to create this
G duty and this obligation. Similar clauses appear in the American
Constitution. They also occur in. the Australian Constitution, where
the constitution in express terms, provides that it shall be the duty
of the Central Government to protect the units or the States from
external aggression or internal commotion. All that we propose to
H
S.R. HOMMA! v. U.0.1. [SAWANT,J.] 717

do is to add one more clause to the principle enunciated in the A
American and Australian Constitutions, namely, that it shall also
be the duty of the Union to maintain the Constitution in the
provinces as enacted by this law. There is nothing new in this and
as I said, in view of the fact that we are endowing the provinces
with plenary powers and making them sovereign within their own
field, it is necessary to provide that if any invasion of the provincial
B
field is done by the Centre it is in virtue of this obligation. It will
be an act in fulfilment of the duty and the obligation and it cannot
be treated, so far as the Constitution is concerned, as a wanton,
arbitrary, unauthorised act. That is the reason why we have intro-
duced article 277-A." (C.A.D. Vol.IX, p,133) c
Articles 278 and 278-A of the Draft Constitution referred to above
correspond to present Articles 356 and 357 of the Constitution respectively.
Thus it is clear from Article 355 that it is not an independent source of
power for interference with the functioning of the State Government but D
is in the nature of justification for the measures to be adopted under
Articles 356 and 357. What is however, necessary to remember in this
connection is that while Article 355 refers to three situations, viz., (i)
external aggression, (ii) internal disturbance, and (iii) non-carrying on of
the Government of the States, in accordance with the provisions of the
Constitution, Article 356 refers only to one situation, viz., the third one. As E
against this, Article 352 which provides for Proclamation of emergency
speaks of only one situation, viz., where the security of India or any part
of the territory thereof, is threatened either by war or external aggression
or armed rebellion. The expression 11internal disturbance!! is certainly of
11
larger connotation than armed rebellion and includes situations arising F
11

out of "armed rebellion" as well. In other words, while a Procla1nation of
emergency can be made for internal disturbance only if it is created by
armed rebellion, neither such Proclamation can be made for internal
disturbance caused by any other situation nor a Procl11mation can be issued
under Article 356 unless the internal disturbance gives rise to a situation G
in which the Government of the State cannot be carried on in accordance
with the provisions of the Constitution. A mere internal disturbance short
of armed rebellion cannot justify a Proclamation of emergency under
Article 352 nor such disturbance can justify issuance of Proclamation under
Article 356 (1), unless it disables or prevents carrying on of the Govern-
ment of the State in accordance with the provisions of the Constitution. H
718 SUPREME COURT REPORTS [1994] 2 S.C.R,

A Article 360 envisages the Proclamation of financial emergency by the
President when he is satisfied that a situation has arisen whereby the
(
financial stability or credit of the country or of any part of the territory
thereof is threatened. It declares that such Proclamation shall be laid
before each House of Parliament and shall cease to operate at the expira-
tion of two months unless it is approved by .the resolutions of both Houses
B of Parliament. We have thus emergency provisions contained in other
Articles in the same Part of the Constitution.

The common thread running through all these Articles in Part XVJII
relating to emergency provisions is that the said provisions can be invoked
c only when there is an emergency and the emergency is of the nature
described therein and not of any other kind. The Proclamation of emer-
gency under Articles 352, 356 and 360 is further dependent on the satis-
faction of the President with regard to the existence of the relevant
conditions- precedent. The duty cast on the Union under Article 355 also
D arises in lhe twin conditions stated therein.

It is in the light of these other provisions relating to the emergency
that we have to construe the provisions of Article 356. The crucial expres-
sions in Article 356 (1) are - if the President, "on the receipt of report from
the Governor of a State or otherwise 11 11 is satisfied" that "the situatioh has
E arisen in which the Government of the State cannot be carried. an·1 "in
accordance with the provisions of the Constitution". The conditions prece-
dent to the issuance of the Proclamation, therefore, are: (a) that the
President should he satisfied either on tbe basis of a report form the
Governor of the State or otherwise, (b) that in fact a situation has arisen
F in which the Goverr..ment of the State cannot be carried on in accordance
with the provisions of the Constitution. In other words, the President's
satisfaction has to be based on objective material. That material may be
available in the report sent to him by the Governor or otherwise or both
from the report and other sources. Further, the objective material so
available must indicate that the Government of the State cannot be carried
G on in accordance with the provisions of the Constitution. Thus the existence
of the objective material showing that the Government of the State cannot
be carried on in accordance with the provisions of the Constitution is a
condition precedent before the President issued the Proclamation. Once
such material is shown to exist, the satisfaction of the President based on
H the material.is· not open to question, However, if there is no such objective
S.R. BOMMAI v. U.0.1. [SAWANT, J.] 719

material before the President, or the material before him cannot reasonably A
suggest that the Government of the State cannot be carried on in accord-
ance with lhe provisions of the Constitution, the Proclamation issued is
open to challenge.

It is further necessary to note that the objective material before the
President must indicate that the Government of the State "cannot be
B
carried on in accordance with the provisions of the Constitution". In other
words, the provisions require that the material before the President must
·., be sufficient to indicate that unless a Proclamation is issued, it is not
possible to carry on the affairs of the State as per the provisions of the
Constitution. H is not every situation arising in the State but a situation C
which shows that the constitutional Government has become an impos-
sibility, which alone will entitle the President to issue the Proclamation.
These parameters of the condition precedent to the issuance of the
Proclamation indicate both the extent of and the limitations on, the power
of the judicial review of the Proclamation issued. It is not disputed before D
us that the Proclamation issued under Article 356(1) is open to judicial
review. All that is contended is that the scope of the review is limited.
According to us, the language of the provisions of the Article contains
sufficient guidelines on both the scope and the lin1itations, of the judicial
review.
E
3. Before we examine the scope and the limitations of the judicial
review of the Proclamation issued under Article 356(1), it is necessary to
deal with the contention raised by Shri Parasaran appearing for the Union
of India. He contended that there is difference in the nature and scope of
the power of j,udicial review in the administrative law and the constitutional F
law. While in the field of administrative law, the Court's power extends to
legal control of public authorities in exercise of their statutory power and
therefore not only to preventing excess and abuse of power but also to
irregular exercise of power, the scope of judicial review in the constitution~
al law extends only to preventing actions which arc unconstitutional or ultra G
vires the Constitution. The areas where the judicial power, therefore can
operate are limited and pertain to the domain where the actions of the
Executive or the legislation enacted infringe the scheme of the division of
power between the Executive, the Legislature and the judiciary or the
distribution of powers between the States and the Centre. Where, there is
a Bill of Rights as under our Constitution, the areas also cover the infrin- H
720 SUPREME COURT REPORTS [1994] 2 S.C.R.

A gements of the fundamental rights. The judicial power has no scope Ji
constitutional law beyond examining the said infringements. He also con-
tended that likewise, the doctrine of proportionality or unreasonableness
has no play in constitutional law and the executive action and legislation
cannot be examined and interfered with on the anvil of the said doctrine.

B We are afraid that this contention is too broad to be accepted. The
implication of this contention, among others, is that even if the Constitution
provides preconditions for exercise of power by the constitutional
authorities, the Courts cannot examine whether the preconditions have
been satisfied. Secondly, if the powers are entrusted to a constitutional
C authority for achieving a particular purpose and if the concerned authority
under the guise of attaining the said purpose, uses the powers to attain an
impermissible object, snch use of power cannot be questioned. We have
not been pointed out any authority is support of these propositions. We
also find that many of the parameters of judicial review developed in the
D field of administrative Jaw are not anti-thetical to the field of constitutional
law, and they can equally apply to the domain covered by the constitutional
law. That is also true of the doctrine of proportionality.

4. We may now examine the principles of judicial review evolved in.
the field of administrative Jaw. As has been stated by Lord Brightman in
E Chief Constable of the North Wales Police v. Evans, (1982] 3 All ER 141,
"judicial review, as the words imply, is not an appeal from a decision, but
a review of the manner in wh<ch the decision was made". In other words,
judicial review is concerned with reviewing not the merits of the decision
but the decision-making process itself. Lord Diplock in Council of Civil
F Se1Vice Unions v. Minister for the Civil Service, (1985) AC 374 at 408, has
enunciated three heads of grounds upon which administrative action is
subject to control by judicial review, viz., (i) illegality, (ii) irrationality and
(iii) procedural impropriety. He has also stated there that the three
grounds evolved till then did not rule out that "further development on a
case by case basis may not in course of time add further grounds" and has
G added that "principle of proportionality" which is recognised in the ad-
ministrative law by several members of European Economic Community
may be a possible ground for judicial review for adoption in the future. It
may be stated here that we have already adopted the said ground both
statutorily and judicially in our labour and service jurisprudence. Lord
H Diplock has explained the three heads of grounds. By "illegality" he means

,.
S.R. BOMMAI v. U.O.l. [SAWANT,J.] 721

that the decision-maker must understand correctly that law that regulates A
its decision-making power and must give effect to it, and whether he has
or has not, is a justiciable question. By 11 irrationality11 he means un-
reasonableness. A decision may be so outrageous or in defiance of logic or
of accepted moral standards tbat no sensible person who had applied his
mind to the question to be decided, could have arrived at it, and it is for
the judges to decide whether a decisior falls in the said category. By
B
"procedural impropriety" he means not only failure to observe the basic

-- rules of natural justice or failure to act with procedural fairness, but also
failure to observe procedural rules that are expressly laid down in the
legislative instrument by which the Tribunal's jurisdiction is conferred even
where such failure does not involve any denial of natural justice. Where
the decision is one which does not alter rights or obligations enforceable
c
in private law, but only deprives a person of legitimate expectations,
"procedural impropriety" will normally provide the only ground on which
the decision is open to judicial review.

It was observed by Donaldson LI in R. v. Crow11 Court at Carlisle, ex
D
p Marcus-Moore, [1981] Times, 26 October, DC, that judicial review was
capable of being extended to meet changing circumstances, but not to the
extent that it became something different from review by developing an
appellate nature. The purpose of the remedy of judicial review is to ensure
that the individual is given fair treatment to substitute the opinion of the E
judiciary or of individual judges for that of the authority constituted by law
to decide the matters in issue. In R v. Pa11e/ 011 Take-overs and Mergers, ex
p Guinness pie, (1987) QB 815 at 842, he referred to the judicial review
jurisdiction as being supervisory or as 'longstep' jurisdiction. He observed
that unless that restriction on the power of the Court is observed, the Court F
will under the guise of preventing the abuse of power be itself guilty of
usurping power. That is so whether or not there is a right of appeal against
the decision on the merits. The duty of the court is to confine itself to the
question oflegality. Its concern is with whether a decision-making authority
exceeded its powers, committed an error of law, committed a breach of the
rules of natural justice, reached a decision which no reasonable tribunal G
could have reached or abused its powers.

Lord Roskil in Council of Civil Service Unions v. Minister for the Civil
Service, (1985) AC 374 at 414, opined that the phrase "principles of natural
justice" "be better replaced by speaking of a duty to act fairly ...... It is not H
722 SUPREME COURT REPORTS [1994] 2 S.C.R.

A for the courts to determine whether a particular policy or particular
decisions taken in fulfilment of that policy are fair. They are only concerned
with the manner in which those decisions have been taken and the extent

--
of the duty to act fairly will vary greatly from case to case ... Many features
will come into play including the nature of the decision and the relationship
of those involved on either side before the decision was taken."
B

.
In PuhOwfer v. Hillingdon London Borough Council, [1986] AC 484
at 518, Lord Brightman stated:

"Where the existence or non-existence of a fact is left to the
-
c judgment and discretion of a public body and that fact involves a
broad spectrum ranging from the obvious to the debatable to the
just conceivable, it is the duty of the court to leave the decision of
that fact to the public body to whom Parliament has entrusted the
decision-making power save in a case where it is obvious that the
public body, consciously or unconsciously, are acting perversely. 11
D
In Leech v. Deputy Governor of Parkhurst Prison, [1988] AC 533 583,
Lord Oliver stated:

"the susceptibility of a decision to the supervision of the courts
must depend, in the ultimate analysis, upon the nature and conse-
E
quences of the decision ·and not upon the personality or individual
circumstances of the person called upon to make the decision."

While we are on the point, it will be instructive to refer to a decision
of the Supreme Court of Pakistan on the same subject, although the
F language of the provisions of the relevant Articles of the Pakistan Constitu-
tion is not couched in the same terms.

In Muhammad Sharif v. Federation of Pakistan, PLO [1988] Lahore
725, the question was whether the order of the President dissolving the
G National Assembly on 29.5.1988 was in accordance with the powers con-
ferred on him under Article 58(2)(b) of the Constitution. Article 58(2)(b)
is as follows:

"58(2) Notwithstanding anything contained in clause (2) of Article
48, the President may also dissolve the National Assembly in his
H discretion where, in his opinion ..... .
S.R. BOMMAI v. U.0.1. [SAWANT,J.) 7'23

(a) xxxxxxxxxxx A
(b) a situation has arisen in which the Government of the Federa-
tion caonot be carried on in accordance with the provisions of the
Constitution and an appeal to the electorate is necessary.'

The provisions of Article 48(2) are as follows: B

"Notwithstanding anything contained in clause (1), the President
shall act in his discretion in respect of any matter in respect of
which he is empowered by the Constitution to do so (and the
validity of anything done by the President in his discretion shall C
not be called in question on any ground whatsoever."

The Presidential Order read as follows:

"WHEREAS the objects and purposes for which the National
Assembly was elected have not been fulfilled; D

AND WHEREAS the law and order in the country have broken
down to ao alarming extent resulting in tragicloss of innumerable
valuable lives as well as loss of property;

AND WHEREAS the life, property, honour and security of the E
citizens of Pakistan have been rendered totally unsafe and the
integrity and ideology of Pakistan have been seriously endangered;

AND WHEREAS public morality has deteriorated to unprece-
dented level; ""
F
.. AND WHEREAS in my opinion a situation has arisen in which
the Government of the Federation cannot be carried on in acc0rd-
ance with the provisions of the Constitution and an appeal to the
electorate is necessary.

NOW THEREFORE, I, General Muhammad Zia-ul-Haq, Presi- G
dent of Pakistan in exercise of the powers conferred on me by
clause (2)(b) of Article 58 of the ConstiJution of the Islamic
• • Republic of Pakistao hereby dissolve the national Assembly with
immediate effect and in consequence thereof the Cabinet also
stands dissolved forthwith." H
724 SUPREME COURT REPORTS [1994] 2 S.C.R.

A The main argument against the order was that an order under the
said provision is to be issued not in subjective discretion or opinion but on
objective facts in the sense that the circumstances must exist to lead one·
to the conclusion that the relevant situation had arisen. As against this, the
argument of the Attorney General and other counsel supporting the
Presidential Order was that it is the subjective satisfaction of the President
B
and it is in his discretion and opinion to dissolve the National Assembly.
It was also argued on their behalf that in spite of the fact that Article
58(2)(b) states that "notwithstanding anything contained in clause (2) of
Article 48," the President may also dissolve the National Assembly in his
discretion under Article 58(2) and when he does exercise his discretion to
C dissolve the Assembly, the validity thereof cannot be questioned on any
ground whatsoever as provided for wider Article 48(2). Dealing with the
first argument, the learned Chief Justice, Salam stated as follows:

'rwhether it is 'subjective' or 'objective' satisfaction of the President
or it is his 'discretion' or 'opinion', this much is quite clear that
D
the President cannot exercise this powers under the Constitution
on wish or whim. He has to have facts, circumstances which can
lead a person of his status to form an intelligent opinion requiring
exercise of discretion of such a grave nature that the representative
of the people who are primarily entrusted with the duty of running
E the affairs of the State are removed with a stroke of the pen. His
action must appear to be called for and justifiable under the
Constitution if challenged in a Court of Law. No doubt, the Courts
will be chary to interfere in his 'discretion' or formation of the
'opinion' about the 'situation' but if there be no basis or justifica-
F tion for the order under the Constitution, the Courts will have to
perform their duty cast on them under the Constitution. While
doing so, they will not be entering in the political arena for which
appeal to electorate is provided for."

Dealing with the second argument, the learned Chief Justice held:
G
"If the argument be correct then the provision "Notwithstanding
anything contained in clause (2) of Article 48" would be rendered
redundant as if it was no part of the Constitution. It is obvious and • •
patent that no letter or part of a provision of the Constitution can
H be said to be redundant or non-existent under any principle of
S.R. BOMMAI v. U.0.1. [SAWANT, I.] 725

construction of Constitutions. The argument may be correct in A
exercise of other discretionary powers but it cannot be employed
with reference to the dissolution of National Assembly. Blanket
coverage of validity and unquestionability of discretion under Ar-
ticle 48(2) was given up when it was provided under Article 58(2)
that "Notwithstanding clause (2) of Article 48--", the discretion can
be exercised in the given circumstances. Specific provision will
B
govern the situation. This will also avoid redundancy. Courts'
Power whenever intended to be excluded is expressly stated; other-
wise it is presumed to be there in Courts of record.... Therefore,
it is not quite right to contend that since it Was in his 'disqetion',
on the basis of his 'opinion' the President could dissolve the c
National Assembly. He has to have reasons which are justifiable
in the eyes of the people and supportable by law in a Court of
Justice ..... It is understandable that if the President has any justifi-
able reason to e~ercise his discretion' in his 'opinion' but does not
1

wish to disclose, he may say so and may be believed or if called D
upon to explain the reason he may take the Court in confidence
without disclosing the reason in public, may be for reason of
security of State. After all patriotism is not confined to the office
holder for the time being. He cannot simply say like Caesar it is
my will, opinion or discretion. Nor give reasons which have no
nexus to the action, are bald, vague, general or such as can always E
be given and have been given with disastrous effects ...... ".

Dealing with the same arguments, R.S. Sidhwa, J. stated as follows:

"... I have no doubt that both the Governments are not compelled
to disclose all the reasons they may have when dissolving the F
Assemblies under Articles 58(2)(b) and 112(2)(b). If they do not
choose to disclose all the material, but only some, it is their pigeon,
for the case will be decided on a judicial scrutiny of the limited
material placed before the Court and if it happens to be totally
irrelevant or extraneous, they must suffer." G

15. The main question that arises in this case is when can it be said
that a situation has arisen in which the Government of the Federa-
tion cannot be carried on in accordance with the provisions of the H
726 SUPREME COURT REPORTS [1994] 2 S.C.R.

A Constitution. The expression '1Governrnent of the Federation11 is
not limited to any one particular function, such as the executive,
the legislative, or the judicial, but includes the whole functioning
of the Federation Gcvernment in all its remifications."

5. We may now refer to the decisions of this Court on the subject.
B
In Barium Chemicals Ltd. & Anr. v. The Company Law Board & Ors.,
(1966] Suppl. 3 S.C.R. 311, the facts were that an order was issued on behalf
of the Company Law Board under Section 237(b) of the Companies Act
appointing four Inspectors to investigate the affairs of the appellant-Com-
e pany 'on the ground that the Board was of the opinion that there were
circumstances suggesting that the business of the appellant-Company was
being conducted with intent to defraud its creditors, members or any other
persons and that the persons concerned in the management of the affairs
of the Company had in connection therewith, been guilty of fraud, mis-
D feasance and other misconduct towards the Company and its members.
The appellant-Company had filed a writ petition before the High Court
challenging the said order and one of the grounds of challenge was that
there was no material on which such order could have been made. In reply
to the petition, the Chairman of the Company Law Board filed an affidavit
in which it was contended, inter alia, that there was material on the basis
E of which the order was issued and that he had himself examined this
material and formed the necessary opinion within the meaning of the said
Section 237(b) before the issue of the order and that it was not competent
for the Court to go into the question of the adequacy or otherwise of such
material. However, in the course of reply to some of the allegations in the
F petition, the affidavit in paragraph 14 had also proceeded to state the facts
on the basis of which the opinion was formed. The majority of the judges
held that the circumstances disclosed in paragraph 14 of the said affidavit
must be regarded as the only material on the basis of which the Board
formed the opinion before ordering an investigation under Section 237(b)
and that the said circumstances could not reasonably suggest that the
G business of lhe Company was being conducted to defraud the creditors,
members or other persons or that the management was guilty of fraud
towards the Company and its members. They were, therefore, extraneous
to the matters mentioned in Section 237(b) and the impugned order was
ultra vires the section. Hidaytullah, J., as he then was, in this connection
H stated that the power under Section 237(b) is discretionary power and the
S.R. BOMMAI v. U.O.l. [SAWANT,J.] 727

first requirement for its exercise is the honest formation of an opinion that A
an investigation is necessary and the next requirement is that there are
circumstances suggesting the inferences set out in the section. An action
not based on circumstances suggesting an inference of the enumerated kind
will not be valid. Although the formation of opinion is subjective, the
existence of circumstances relevant to the inference as the sine qua non for
action, must be demonstrable. If their existence is questioned, it has to be
B
proved at least prima facie. It is not sufficient to assert that the circumstan-
ces exist, and give no clue to what they are, because the circumstances must
be such as to lead to conclusions of action definiteness. Shela!, J. comment-
ing on the same issue, stated that although the formation of opinion is a
purely subjective process and such an opinion cannot be challenged in a C
Court on the ground of proprioty, reasonableness or sufficiency, the
authority concerned is nevertheless required lo arrive at duch an opinion
from circumstances suggesting what is set out in sub-clauses(i), (ii) or (iii)
of s.237(b). The expression "circumstances suggesting" cannot support the
construction that even the existence of circumstances is a matter of subjec- D
tive opinion. It is hard to contemplate that the Legrslature could have left
to the subjective process both the formation of opinion and also the
existence of circumstances on which it is to be founded. It is also not
reasonable to say that the clause permitted the Authority to say that it has
formed the opinion on circumstances which io its opinion exist and which
in its opinion suggest an intent to defraud or a fraudulent or unlawful E
purpose. If it is shown that the circumstances do not exist or that they are
such that it is impossible for any one to form an opinion therefrom
suggestive of the matters enumerated in s.237(b), the opinion is challenge-
able on the ground of non-application of mind or perversity or on the
ground that it was formed on collateral grounds and was beyond the scope F
of the statute.

In MA. Rashid & Ors. v. State of Kera/a, (1975] 2 S.C.R. 93, the facts
were that the respondent State issued a notification under Rule 114(2) of
the Defence of India Rules, 1971 imposing a total ban on the use of
machinery for defibring husks in the districts of Trivandrum, Quilon and G
Alleppey. The appellants who were owners of Small Scale Industrial Units,
being affected by the notification, challenged the same. In that connection,
this Court observed that where powers are conferred on public authorities
to exercise the same when "they are satisfied'1 or \Yhen 11 it appears to them 11
11
or when in their opinion' a certain state of affairs existed, or \¥.hen powers H
1
7'2f3 SUPREME COURT REPORTS [1994] 2 S.C.R.

A enable public authorities to take "such action as they think fit" in relation
to a subject matter, the courts will not readily defer to the conclusiveness
of an executive authority's opinion as to the existence of a matter of law or
fact upon which the validity of the exercise of the power is predicated.
Administrative decisions in exercise of powers conferred in subjective
terms are to be made in good faith and on relevant considerations. The
B courts can inquire whether a reasonable man could have come to the
decision in question without misdirecting himself on the law or the facts in
a material respect. The standard of reasonableness to which the ad-
ministrative body is required to ccnform may range from the ccurts opinion
of what is reasonable to the criterion of what a reasonable body might have
c decided; and ccurts will find out whether conditions precedent to the
formation of the opinion have a factual basis. But. the onus of establishing
unreasonableness rests upon the person challenging the validity of the acts.

In State of Rajasthan & Ors. etc. etc. v. Union of India etc. etc., [1978]
1 S.C.R. 1 at 80-83, Bhagwati, J. on bahalf of Gupta, J. and himself, while
D dea!fug with the "satisfaction of the President" prior to the issuance of the
Proclamation under Article 356(1) stated as follows:

"...... So long as a question arises whether an authority under the
Constitution has acted within the limits of its power or exceeded
E it, it can certainly be decided by the Court. Indeed it would be its
Constitutional obligation to do so ...... This Court is the ultimate
interpreter of the Constitution and to this Court is assigned the
delicate task of determining what is the power conferred on each
branch of Government, whether it is limited, and if so, what are
the limits and whether any action of that branch transgresses such
F limits. It is for this Court to uphold the Constitutional values and
to enforce the Constitutional limitation. That is the essence of the
Rule of Law...... " .. _,
xxxxxxxxxxx
G "......we must make it clear that the constitutional jurisdiction of
this court is confined only to saying whether the limits on the power
conferred by the Constitution have been observed or there is
transgression of such limits. Here the only limit on the Power of
the President under Art. 356, cl.(1) is that the President should be
H satisfied that a situation has arisen where the Government of the
S.R. BOMMAI v. U.O.l. [SJ\ WANT,.!.] 729

State cannot be carried on in accordance with the provisions of A
the Constitution. The satisfaction of the President is a subjective
one and cannot be tested by reference to any objective tests. It is
deliberately and advisedly subjective because the matter in respect
to which he is to be satisfied is of such a nature that its decision
must necessarily be left to the executive branch of Government.
B
There may be a wide range of situations which may arise and their
political implications and consequences may have to be evaluated
in order to decide whether the situation is such that the Govern-
ment of the State cannot be carried on in accordance \vith the
provisions of the Constitution. It is not a decision which can be
based on what the Supreme Court of United States has described C
as "judicially discoverable" and "manageable standards". It would
largely be a political judgment based on assessment of diverse and
varied factors, tact changing situations, potential consequences,
public reaction 1 motivations an<l responses of different classes of
people and their anticipated future behaviour and a host of other D
considerations, in the light of experience of public affairs and
pragmatic management of complex and often curious adjustments
that go to make up the highly sophisticated mechanism of a modern
den1ocratic government. It cannot, therefore, by its very nature be
a fit subject-matter for judicial determination and hence it is left
to the subjective satisfaction of the Central Government which is E
best in a position to decide it. The Court cannot in the circumstan-
ces, go into the question of correctness or adequacy of the facts
and circumstances on which the satisfaction of the Central _Govern-
ment is based .... But one thing is certain that if the satisfaction is
n1ala fide or is based on \Vhelly extraneous and irrelevant grounds, F
the Court \vould have jurisdiction to examine it, because in that
case there would be no satisfaction of the President in regard to
. ~ ... the matter which he is required to be satisfied. The satisfaction of
the President is a condition precedent to the exercise of power
under Art. 356, cl.(J) and if it can be shown that ther' is no
satisfaction of the President at all, the exercise of the power would G
be constitutionally invalid .... It must of course be concerned (sic.)
that in most cases it would be difficult, if not imi;ossible, to
challenge the exercise of power under Art. 356, cl.(1) even on this
limited ground, because the facts and circumstances on which the
satisfaction is based would not be known, but where it is possible, H
730 SUPREME COURT REPORTS [1994] 2 S.C.R.

A the existence of the satisfaction can always be challenged on the
ground that it is ma/a fide or based on wholly extraneous and
irrelevant grounds .... This is the narrow minimal area in which the
exercise of power under Art. 356, cl.(1) is subject to judicial review
and apart from it, it cannot rest with the Court to challenge the
satisfaction of the President that the situation contemplated in that
B clause exists."

In Kehar Singh & Anr. etc. v. Union of India & Anr., [1988] Supp. 3
S.C.R. 1103, it is held that the President's power under Article 72 of the
Constitution dealing with the grant of pardons, reprives, respites, remis-
C sions of punishments or suspensions, remissions or commutations of sen-
tences of any person convicted of any offence falls squarely within the
judicial domain and can be examined by the court by way of judicial review
However, the order of the President cannot be subjected to judicial review
on its merits except within the stTict limitation defined in Marn Ram etc.
D etc. v. Union of India & Anr., [1981] 1 S.C.R. 1196. Those limitations are
whether the power is exercised on considerations or actions which are
wholly irrelevant, irrational, discriminatory or ma/a fide. Only in these rare
cases the Court will examine the exercise of the said power.

6. From these authorities, one of the conclusions which may safely
E be dr&wn is that the exercise of power by the President under Article
356(1) to issue Proclamation is subject to the judicial review at least to the
extent of examining whether the conditions precedent to the issuance of
the Proclamation have been satisfied or not. This examination will neces-
sarily involve the scrutiny as to whether there existed material for the
F satisfaction of the President that a situation had arisen in which the
Government of the State could not be carried on in accordance with the
provisions of the Constitution. Needless to emphasise that it is not any
material but material which would lead to the conclusion that th Govern-
ment of the State cannot be carried on in accordance with the provisions
of the Constitution which is relevant for the purpose. It has further to be
G remembered that the Article requires that the President "has to be satisfied"
that the situation in question has arisen. Hence the material in question
has to be such as would induce a reasonable man to come to the conclusion
in question. The expression used in the Article is "if the President... ... .is
satisfied". The word "satisfied" has been defrned in Shorter Oxford English
H Dictionary [3rd Edition] at page 1792 as 4. To furnish with sufficient proof
S.R. BOMMAI v. U.O.l. [SAWANT,J.] 731

or information, to set free from doubt or uncertainty, to convince; 5. To A
answer sufficiently [an objection, question]; to fulfil or comply with [a
request]; to solve [a doubt, difficulty]; 6. To answer the requirements of [a
state of things, hypothesis, etc.]; to accord with [conditions]. Hence, it is

- not the personal whim, wish, view or opinion or the ipse di.rit of the
President de hors the material but a legitimate inference drawn from the
material placed before him which is relevant for the purpose. In other
words, the President has to be convinced of or has to have sufficient proof
B

,. of information with regard to or has to be free from doubt or uncertainty
about the state of things indicating that the situation in question has arisen.
Although, therefore, the sufficiency or otherwise of the material cannot be
questioned, the legitimacy of inference drawn from such material is cer- c
tainly open to judicial review.

It has also to be remembered in this connection .that the power
exercised by the President under Article 356[1] is on the advice of the
Council of Ministers tendered under Article 74(1] of the Constitution. The D
Council of Ministers under our system would always belong to one or the
other political party. In view of the pluralist democracy and the federal
structure that we have accepted under our Constitution, the party or
parties in power [in case of coalition Government) at the Centre and in the
States may not be the same. Hence there is a need to confine the exercise
E
of ·power under Article 356(1] strictly to the situation mentioned therein
which is a condition precedent to the said exercise. That is why the framers
of the Constitution have taken pains to specify the situation which alone
would enable the exercise of the said power. The situation is no less than
one in which "the Government of the State cannot be carried on in
accordance with the provisions of this Constitution". A situation short of F
the same does not empower the issuance of the Proclamation. The word
11
cannot 11 emphatically connotes a situation of impasse. In shorter Oxford
dictionary, third edition, at page 255, the word "can" is defined as "to be
able; to have power or capacity11 • The word "cannotu, therefore, would mean
"not to be able" or "not to have the power or capacity". In Stroud's judicial G
dictionary, fifth edition, the word· "cannot" is defined to include a legal
inability as well as physical impossibility. Hence situation which can be
remedied or do not create an impasse, or do not disable or interfere with \
the governance of the State according to the Constitution, would not merit
the issuance of the Proclamation under the Article. H
732 SUPREME COURT REPORTS [1994] 2S.C.R.

A It has also lo be remembered that a situation contemplated un<ler
the Article is one \vhere the govcrn1nent of the state cannot be carried on
11 r
in accordance with the provisions of the Constitution 11 • The expression
indeed envisages varied situations. Article 365 which is in Part XIX entitled

B
"vliscellaneous", has contemplated one such situation. It states that :

"Where any Slate has failed to comply with, or to give effect to,
any directions given in the exercise of the executive power of the
-
Union under any of the provisions of this Constitution, it shall be
lawful for the President to hold that a situation has arisen in which
the government of the Stale cannot be carried on in accordance ,_ T
c with the provisions of this Constitution."

The failure to comply with or to give effect to the directions given by
the Union under any of the provisions of the Constitution, is of course, not
the only situation contemplated by the expression "government of the State
cannot be carried on in accordance \Vith the provisions of this Constitution 11
D Article 365 is more in the nature of a deeming provision. However, the
situations other than those mentioned in Article 365 must be such where
the governance of the State is not possible to be carried on in accordance
with the provisions of the Constitution. In this connection, we may refer to
what Dr. Ambedkar had to say on the subject in the Constituent Assembly:
E
"Now I come to the remarks made by my Friend Pandit Kunzru.
The first point, if I remember correctly, which was raised by him
was that the power to take over the administration when the
constitutional machinery fails is a new thing, which is not to be
found in any constitution. I beg to differ from him and I would
F like to draw his attention to the article contained in the American
Constitution, where the duty of the United Stales is definitely
expressed to be to maintain the Republican form of the Constitu-
tion. When we say that the Constitution must be maintained in
accordance with the provisions contained in this Constitution we
practically mean what the American Constitution means, namely
G
that the form of the constitution prescribed in this Constitution
must he maintained. Therefore, so far as that point is concerned
we do not think that the Drafting Committee has made any depar-
ture from an established principle." [C.A.D. Vol. IX, p.175-76]

H As pointed out earlier, n1ore or less si1nilar expression occurs in
S.R.BOMMAI v. U.O.l.[SAWANT,J.) 733

Article 58[2J[b] of the Pakistan Constitution. The expression there is that A
the "Government of the Federation cannot be carried on in accordance
with provisions of the Constitution and ao appeal to the electorate is
necessary. 11 Commenting upon the said expression, Shafiur Rahman, J. in
Ahmad Tariq v. Federation of Pakistan, PLO [1992] S.C. 646 at 664 ob-
11
served It is an extreme power to be exercised where there is actual or
B
imminent breakdown of the constitutional machinery, as distinguished from
a failure to observe a particular provision of the Constitution. There may
be occasions for the exercise of this power where there takes place exten-
sive, continued and pervasive failure to observe not one but numerous,
provisions of the Constitution, creating the impression that the country is
governed not so much by the Constitution but by the methods extra-Con- c
stitutional. 11

Sidhwa, J. in the same case observed that "to hold that because a
particular provision of the Constitution was not complied with, the National
Assembly could be dissolved under Article 58[2][b] of the Constitution D
would amount to an abuse of power. Unless such a violation independently
was so grave that a Court could come to no other conclusion but that it
alone directly led to the breakdown of the functional working of the
j
Government, it would not constitute a valid ground.

The expression and its implication have also been the subject of E
elaborate discussion in the Report of the Sarkaria Commission on Centre-
State Relations. It will be advantageous to refer to the relevant part of the
said discussion, which is quite illuminating:

6.3.23 In Article 356, the expression "the government of the State F
cannot be carried on in accordance with the provisions of the
Constitutionn, is couched in wide terms. It is, therefore, necessary
to understand its true import and ambit. In the day-to-day ad-
ministration of the State, its various functionaries in the discharge
of their multifarious responsibilities take decisions or actions which
may not, in some particular or the other, be strictly in accord with G
all the provisions of the Constitution. Should every such breach or
infraction of a constitutional provision, irrespective of its sig-
nificance, extent and effec~ be taken to constitute a "failure of the
constitution3! machinery' within the contempiation of Article 356.
In our opinion, the answer to the question must be in the negative. H
734 SUPREME COURT REPORTS (1994] 2 S.C.R.

A We have already noted that by virtue of Article 355 it is the duty
of the Union to ensure that the Government of every State is
carried on in accordance with the provisions of the Constitution.
Article 356, on the other hand, provides the remedy when there
has been an actual break-down of the constitutional machinery of
the State. Any abuse or misuse of this drastic power damages the
B
fabric of the Constitution, whereas the object of this Article is to
enable the Union to take remedial action consequent upon break-
down of the constitutional machinery, so that that governance of
the State in accordance with the provisions of the Constitution, is
restored. A wide literal construction of Article 356[1], will reduce
c the constitutional distribution of the powers between the Union
and the States to a licence dependent on the pleasure of the Union
Executive. Further it will enable the Union Executive to cut at the
root of the democratic Parliamentary form of government in the
State. it must, therefore, be rejected in favour of a construction
which will preserve that form of government. Hence, the exercise
D
of the power under Article 356 must b_e limited to rectifying a
'failure of the constitutional machinery in the State'. The marginal
heading of Article 356 also points to the same construction.

6.3.24. Another point for consideration is, whether 'external
E aggression' or 'internal disturbance' is to be read as an indispen-
sable element of the situation of failure of the constitutional
machinery in a State, the existence of which is a pre-requisite for
the exercise of the power under Article 356. We are clear in our
mind that the answer to this question should be in the negative.
On the one hand, 'external aggression' or 'internal disturbance'
F
may not necessarily create a situation where government of the
State cannot be carried on in accordance with the Constitution.
On the other, a failure of the constitutional machinery in the State
may occur, without there being a situation of 'external aggression'
or 'internal disturbance'.
G
xxxx xxxx xxxx xxxx

6.4.01. A failure of constitutional machinery may occur in a number
of ways. Factors which contribute to snch a situation are diverse
H and imponderable. It is, therefore, difficult to give an exhanstive
S.R. BOMMAI v. U.0.1. [SAWANT,J.) 735

catalogue of all situations which would fall within the sweep of the A
phrase, 1'the government of the State cannot be carried on in
1
accordance with the provisions of this Constitution' Even so, some
•

instances of what does and what does not constitute a constitution-
al failure within the contemplation of this Article, may be grouped
and discussed under the following heads:
B
fa] Political crisis.

fb] Internal subversion.

fc] Physical break-down.
c
[d] Non-compliance with constitutional directions of the Union
Executive.

It is not claimed that this categorisation 1s co1nprehensive or
perfect. There can be no water-tight compartmentalisation, as D
many situations of constitutional failure will have elements of n1ore
than one type. Nonetheless, it will help determine whether or not,
in a given situation it will be proper to invoke this last-resort power
under Article 356."

The Report then goes on to discuss the various occasions on which E
the political crisis, internal subversion, physical break-down and non-com-
pliance with constitutional directions of the Union Executive may or can
be said to, occur. It is not necessary here to refer to the said elaborate
discussion. Suffice it to say that we are in broad agreement with the above
interpretation given in the Report, of the expression 11 the government of
the State cannot be carried on in accordance \vith the provisions of this F
Constitution1\ and are of the view that except in such and similar other
circumstances, the provisions of Article 356 cannot be pressed into service.

7. It will be convenient at this stage itself, also to illustrate the
situations which may not amount to failure of the constitutional machinery G
in the State inviting the presidential power under Article 356[1] and where
the use of the said power will be improper. The examples of such situations
are given in the Report in paragraph 6.5.01. They are:

[i] A situation of maladministration in a State where a duly con-
stituted Ministry enjoying majority support in the Assembly, is in H
736 SUPREME COURT REPORTS [1994] 2 S.C.R.

A office. Imposition of President's rule in such a situation will be
extraneous to the purpose for which the power under Article 356
has been conferred. It was made indubitably clear by the Constitu-
tion-framers that this power is not meant to be exerci.sed for the
purpose of securing good governn1ent.

B [ii] Where a Ministry resigns or is dismissed on losing its majority
support in the Assembly and the Governor recommends, imposi-
tion of President's rule without exploring the possibility of installing
an alternative government enjoying such support or ordering fresh
elections.
c
[iiiJ Where, despite the advice of a duly constituted Ministry which
has not been defeated on the floor of the House, the Governor
declines to dissolve the Assembly and without giving the Ministry
an opportunity to demonstrate its majority support through the
'11oor test', recommends its supersession and imposition of
D
President's rule merely on his subjective assessment that the Min-
istry no longer commands the confidence of the Assembly.

[iv] Where article 356 is sought to be invoked for superseding the
duly constituted Ministry and dissolving the State Legislative As-
E sembly on the sole ground that, in the General Elections to the
Lok Sabha, the ruling party in the State, has suffered a massive
defeat.

lv] Where in a situation of 'internal disturbance', not amounting
F to or verging on abdication of its governmental powers by the State
Government, all possible measures to contain the situation by the
Union in the discharge of its duty, under Article 355, have not
been exhausted.

[vi] The use of the power under Article 356 will be improper if, in
G the illustrations given in the preceding paragraphs 6.4.10, 6.4.ll
and 6.4.12, the President gives no prior \Varning or opportunity to
the State Government to correct itself. Such a warning can be
dispensed with only in cases of extreme urgency where failure on
the part of the Union to take immediate action, under Article 356,
H will lead to disastrous consequences.
S.R. BOMMAI v. U.O.L[SAWANT,J.] 737

[vii} Where in response to the prior \Varning or notice or to an A
informal or formal direction under Articles 256, 257, etc., the State
Government either applies the corrective and thus complies with
the direction, or satisfies the Union Executive that the warning or
direction was based on incorrect facts, it shall not be proper for
, the President to hold that "a situation has arisen io which the
B
Governn1ent of the State cannot be carried on in accordance with
11
the provisions of this Constitution Hence, in such a situation, also,
•

Article 356 cannot be properly invoked.

[viii] The use of this power to sort out internal difference or
intra-party problems of the ruling party would not be constitution- C
ally correct.

[ix] This power cannot be legitimately exercised on the sole ground
of stringent financial exigencies of the State.

[x] This power cannot be invoked, merely on the ground that there D
are serious allegations of corruption against the Ministry.

[xi] The exercise of this power, for a purpose extraneous or
J
irrelevant to the one for which it has been conferred by the
Constitution, would be vitiated by legal ma/a fides."
E
We have no hesitation in concurring broadly with the above illustra-
tive occasions where the exercise of power under Article 356[1] would be
improper and uncalled for.

8. It was contended on behalf of the Union of India that since the F
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 enquiry 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. This contention is fallacious for G
reasons more than one. In the first instance, it is based on a misconception
of the purpose of Article 74[2]. As has been rightly pointed out by Shri
Shanti Bhushan, the object of Article 74[2] was not to exclude any material
or documents from the scrutiny of the Courts but to provide that an order
issued by or in the name of the President could not be questioned on the H
)

738 SUPREME COURT REPORTS (1994] 2 S.C.R.

A ground that it was either contrary to the advice tendered by the Ministers
or was issued without obtaining any advice from the Ministers. Its object
was only to make the question whether the President had followed the
advice of the Ministers or acted contrary thereto, non-justiciable. What
advice, if any, was tendered by the Ministers to the President was thus to
be beyond the scrutiny of the Court. '
B
A good deal of light on the said purpose of the provision is thrown
by its history. Identical provisions were contained in Sections 10[4] and
51(4] of the Government of India Act, 1935. However, in the Government
.;
of India Act, 1915, as amended by the Act of 1919 it was provided under
c Section 52(3] as follows:

"3. In relation to the transferred subjects the governor shall be
guided by the advice of his Ministers, unless he sees sufficient cause
to dissent from their opinion, in which case he may require action
to be taken othenvise than in accordance with that ad,ice".
D
The relations of the Governor-General and the Governor with the
·Ministers were not regulated by the Act but were left to be governed by
an Instrument of Instructions issued by the Crown. It was considered
undesirable to define these relations in the Act or to impose an obligation
on the Governor-General or Governor to be guided by the advice of their
E Ministers, since such a course might convert a constitutional convention
into a rule of law and thus bring it within the cognisance of the Court. Prior
to the Constitution (42nd Amendment] Act, 1976, under the Constitutional
convention, the President was bound to act in accordance with the advice
of the Council of Ministers (Re: Shamsher Singh & Anr. v. State of Punjab,
F [1975] 1 SCR 814]. By the 42nd Amendment, it was expressly so provided
in Article 74(1]. The object of Article 74(2] was thus not to exclude any
material or document from the scrutiny of the courts. This is not to say
that the rule of exclusion laid down in Section 123 of the Indian Evidence
Act is given a go-bye. However, it only emphasises that the said rule can
G be invoked in appropriate cases.

9. What is further, although Article 74(2] bars judicial review so far
as the advice given by the Ministers is concerned, it doeS not bar scrutiny
of the material on the basis of which the advice is given. The Courts are
not interested in either the advice given by the Ministers to the President
H or the reasons for such advice. The Courts are, however, justified in
S.R.BOMMAI v. U.0.1. [SAWANT,J.] 739

probing as lo whether there was any material on the basis of which the A
advice was given, and whether it was relevant for such advice and the
President could have acted on it. Hence when the Courts undertake an
enquiry into the existence of such material, the prohibition contained in
Article 74[2] does not negate their right to know about the factual existence
of any such material. This is not to say that the Union Government cannot
raise the plea of privilege under Section 123 of the Evidence Act. As and
B
when such privilege against disclosure is claimed, the Courts will examine
such claim within the parameters of the said section on its merits. In this
connection, we may quote Justice Mathew, who in the case of State of UP.
v. Raj Narain, [1975] 3 SCR 333 at 360 observed as follows :
c
"To justify a privilege, secrecy must be indispensble to induce
freedom of official communication or efficiency in the transaction
of official business and it must be further a secrecy which has
remained or would have remained inviolable but for the compul-
sory disclosure. in how many transactions of official business is
D
there ordinarily such a secrecy? If there arises at any time a
genuine instance of such otherwise inviolate secrecy, let the neces-
sity of maintaining it be determined on its merits."

10. Since further the Proclamation issuec! under Article 356[1] is
required by clause [3] of that Article to be laid before each House of E
Parliament and ceases to operate on the expiration of two months unless
it has been approved by resolutions by both the Houses of Parliament
before the expiration of that period, it is evident that the question as to
whether a Proclamation should or should not have been made, has to be
discussed on the floor of each House and the two Houses would be entitled F
to go into the material on the basis of which the Council of Ministers had
tendered the advice to the President for issuance of the Proclamation,
Hence the secrecy claimed in respect of the material in question cannot
remain inviolable, and the plea of non-disclosure of the material can hardly
be pressed. When the Proclamation is challenged by making out a prima
facie case with regard to its invalidity, the burden would be on the Union G
Government to satisfy that there exists material which showed that the
Government could not be carried on in accordance with the provisions of
the Constitution. Since such material would be exclusively within the
. ; knowledge of the Union Government, in view of the provisions of Section
106 of the Evidence Act, the burden of proving the existence of such H
740 SUPREME COURT REPORTS [1994] 2 S.C.R.

A material would be on the Union Government.

11. A further question which has been raised in this connection is
whether the validity of the Proclamation issued under Article 356[1] can
be challenged even after it has been approved by both Houses of Parlia-
ment under clause [3] of Article 356. There is no reason lo make a
B distinction between the Proclamation so approved and a legislation enacted
by the Parliament. If the Proclamation is invalid, it does not stand validated
merely because it is approved of by the Parliament. The grounds for
challenging the validity of the Proclamation may be different from those
challenging the validity of a legislation. However, that does not make any
c difference to the vulnerability of the Proclamation on the limited grounds
available. As has been stated by Prof. H.W.R. Wade in "Administrative Law
- 6th Edition."

11
•••••• There are many cases where some administrative order or

regulation is required by statute to be approved by resolutions of
D the Houses. But this procedure in no way protects the order or
regulation from being condemned by the court, under the doctrine
of ultra vires, if it is not strictly in accordance with the Act. Whether
the challenge is made before or after the Houses have given their
approval is immaterial". [p-29]
E
xxxx xxxx xxxx

11
in accordance with constitutional principle, parliamentary
.........

approval does not affect the normal operation of judicial review".
[p-411]
F
xxxx xxxx xxxx

"As these cases show, judicial review is in no way inhibited by the
fact that rules or regulations have been laid before Parliament and
approved, despite the ruling of the House of Lords that the test
G of unreasonableness should not then operate in its normal way.
The Court of Appeal has emphasised that in the case of subor-
dinate legislation such as an Order in Council approved in draft
by both Houses, 'the courts would without doubt be competent to
consider whether or not the Order was properly made in the sense
H of being intra vires'." [p- 870]
S.R. BOMMAI v. U.O.l. [SAWANT, J.] 741

In this connection a reference may also be made to R v. HM. A
Treaswy exp. Smelday, (1985) QB 657, from which decision the learned
author has extracted the aforesaid observations.

12. We may also point out that the deletion of clause [5j of Article
356 as it stood prior to its deletion by the Constitution [44th Amendment]
Act in 1978, has made no change in the legal position that the satisfaction B
of the President under clause [1] of Article 356, was always judicially
reviewable. The clause read as follows:

.•. ''5. Notwithstanding anything in this Constitution, satisfaction of
the President mentioned under clause [1], shall be final and con-
clusive and shall not be questioned in any court on any ground".
c
On the other hand, the deletion of the clause has reinforced the
earlier legal position, viz., that notwithstanding the existence of the clause
[5], the satisfaction of the President under clause [1] was judicially review-
able and the judicial review was not barred on account of the presence of D
the clause. In this connection, we may usefully refer to the decision of this
Court in State of Rajasthan v. Union of India [supra] where it was unani-
mously held that in spite of the said finality clause, the Presidential
Proclamation was subject to judicial review on various grounds. It was
observed there as follows:
E
11
This is indeed a very drastic power which, if misused or
.........

abused, can destroy the constitutional equilibrium between the
Union and the States and its potential for harm was recognised
even by the Constitution-makers ........ " fp-72]

xxxx xxxx xxxx F

"Of course by reason of cl. [SJ of Art. 356, the satisfaction of the
President is final and conclusive and cannot be assailed on any
ground but this immunity from attack cannot apply where the
challenge is not that the satisfaction is improper or unjustified, but G
that there is no satisfaction at all. In such a case it is not the
sotisfaction arrived at by the President which is challenged, but the
existence of the satisfaction itself." [p-82]

' > It was accordingly held that in view of the finality clause, the narrow
area in which the exercise of power under Article 356 was subject to H
742 SUPREME COURT REPORTS [1994] 2 S.C.R.

A judicial review included the grounds where the satisfaction is perverse or
ma/a fide or based on wholly extraneous and irrelevant grounds and was
therefore, no satisfaction at all.

In A.K. Roy v. Union of India, I1982] 2 SCR 272 at 297, the Court
has observed that "clause 15] has been deleted by the 44th Amendment and,
B therefore, any observations made in the State of Rajasthan case !supra] on
the basis of that clause cannot any longer hold good". These observations
imply that after the deletion of clause 15], the judicial review of the
Proclamation issued under Article 356 [1] has become wider than indicated
in the State of Rajasthan case [supra).
c In Kihoto Hallahan v. Zachil/hu & Ors., 11992] Supp. 2 SCC 651 at
707-710, the Court has observed that "an ouster clause confines judicial
review in respect of actions falling outside the jurisdiction of the authority
taking such action, but precludes challenge to such action on the grounds
of an error committed in the exercise of jurisdiction vested in the authority
D because such an action cannot be said to be an action without jurisdiction".

Again in Union of India v . Jyoti Prakash Mittar, [1971] 3 SCR 483
and Union of India v. Tu/si Ram Patel, [1985] Supp. 2 SCR 131, this Court
observed that "When there is such a finality clause restricting the scope of
judicial review, the judicial review would be confined to jurisdictional
E errors only, viz., infirmities based on violation of constitutional mandates,
mala fides, non-compliance with rule of natural justice and perversity".
These observations are of course, in the field of administrative law and
hence a reference to the rule of natural justice has to be viewed in that
light.
F
13. It will be an inexcusable error to examine the provisions of Article
356 from a pure legalistic angle and interpret their meaning only through
jurisdictional technicalities. The Constitution is essentially a political docu-
ment and provisionsr.such as Article 356 have a potentiality to unsettle and
subvert the entire constitutional scheme. The exercise of powers vested
G under such provisions needs, therefore, to be circumscribed to maintain
the fundamental constitutional balance lest the Constitution is defaced and
destroyed. This can be achieved even without bending much less breaking
the normal rules of interpretation, if the interpretation is alive to the other
equally important provisions of the Constitution and its bearing on them.
' .
H Democracy and federalism are the essential features of our Constitution
S.R. BOMMAI v. U.0.1. [SAWANT, J.] 743

and are part of its basic stru.cture. Any interpretation that we may place A
on Article 356 must, therefore help to preserve and not subvert their fabric.
The power vested de jure in the President but de facto in the Council of
Ministers under Article 356 has all the latent capacity to emasculate the
two basic features of the Constitution and hence it is necessary to scrutinise
the material on the basis of which the advice is given and the President B
forms his satisfaction more closely and circumspectly. This can be done by
the Courts while confining themselves to the acknowledged parameters of
the judicial reView as discussed above viz., illegality, irrationality and mala
fides. Such scrutiny of the material \Viii also be within the judicially dis-
coverable and manageable standards.
. c
14. We may in this connection, refer to the principles of federalism
and democracy which are embedded in our Constitution. Article 1 of the
Constitution states that ln<lia shall be a Union of States. Thus the States
are constitutionally recognised units and not mere convenient administra-
tive divisions. Both the Union and the States have sprung from the D
provisions of the Constitution. The learned author, H.M. Seervai, in his
commentary "Constitutional Law of India" [page 166, third edition] has
summed up the federal nature of our Constitution by obserVing that the
federal principle is dominant in our Constitution and the principle of
federalism has not been watered down for the following reasons : "(a) It is
no objection to our Constitution being federal that the States were not E
independent States before they became parts of a Federation. A Federal
situation existed, first, when the British Parliament adopted a federal
solution in the G.I. Act, 1935, and secondly, when the Constituent Assemb-
ly adopted a federal solution in our Constitution; (b) Parliament's power
to alter the boundaries of States without their consent is a breach of the F
federal principle, but in fact it is not Parliament which has, on its O\.Vn,
altered the boundaries of States. By extra constitutional agitation, the
States have forced Parliament to alter the boundaries of States. In practice,
therefore, the federal principle has not been Violated; (c) The allocation of
• the residuary power of legislation to Parliament (i.e. the Federation) is G
irrelevant for determining the federal nature of a Constitution. The U.S.
and the Australian Constitutions do not confer the residuary power on the
Federation but on the States, yet those Constitutions are indisputably
federal; (d) E'ternal sovereignty is not relevant to the federal nature of a
Constitution, for such sovereignty must belong to the country as a whole.
But the di,ision of internal sovereignty by a distribution of legislative H
744 SUPREME COURT REPORTS [1994] 2 S.C.R.

A powers is an essential feature of federalism, and our Constitution possesses
that feature. With limited exceptions, the Australian Constitution confers
overlapping legislative powers on the Slates and the Commonwealth,
whereas List II, Sch. VII of our Constitution confers exclusive powers of
legislation on the States, thus emphasising the federal nature of our Con-
stitution; (e) The enactment in Art. 352 of the emergency power arising
B from war or external aggression which threatens the security of India
merely recognises de jure what happens de facto in great federal countries
like the U.S., Canada and Australia in times of war, or imminent threat of
war, because in war, these federal countries act as though they were
unitary. The presence in our Constitution of exclusive legislative powers
C conferred on the States makes it reasonable to provide that during the
emergency created by war or external aggression, the Union should have
power to legislate on topics exclusively assigned lo the States and to take
corresponding executive action. The Emergency Provisions, therefore, do
not dilute the principle of Federalism, although the abuse of those
D provisions by continuing the en1ergcncy \vhen the occasion \vhich caused it
had ceased to exist, does detract from the principle of federal government.
The amendments introduced in Art. 352 by the 44th Amendment have, to
a considerable extent, reduced the chances of such abuse. And by deleting
clauses which made the declaration an i the continuance of emergency by
the President conclusive, the 44th Amendment has provided opportunity
E for judicial review which, it is submitted, the Courts should not lightly
decline when as a matter of common knowledge, the emergency has ceased
to exist. This deletion of the conclusive satisfaction of the President has
been prompted not only by the abuse of the Proclamation of emergency
arising out of war or external aggression, but, even more by the wholly
1

p unjustified Proclamation of emergency issued in 1975 to protect the per-
sonal position of the Prime Minister; (f) The power to proclaim an emer-
gency originally on the ground of internal disturbance, but now only on the
ground of armed rebellion, does not detract from the principle of
federalism because such a power exists in indisputably federal constitu-
tions. Deb Sadhan Roy v. The State of West Bengal, AIR (1972) SC 1924
G has established that internal violence would ordinarily interfere with the
powers of the Federal Government to enforce its own la\vs and to take
necessary executive action. Consequently, such interference can be put
down with the total force of the United States. And the same position
obtains in Australia; (g) The provisions of Arl. 355 imposmg a duty on the
H
S.R. BOMMAJ v. U.O.l. [SAWANT..I.[ 745

Union to protect a State against external aggression and internal <lisor<ler A
are not inconsistent \Vith the federal principle. 'fhc \Var Po\V'CT belongs to
~I
the Union in all federal govcrnn1cnts and therefore the defence of a State
against external aggression is essential in any federal government. As to
internal disturbance, the position reached in Deb's case [supra] sho\vs that
the absence of an application by the Stale does not materially affect the
federal principle. Such application has lost its importance in the United
B
States and in Australia; (h) Since it is of the essence of the Federal
principle lhat both Federal and State laws operate on the san1e individual,
it must folk)\v that in case of conflict of a valid Federal hnv and a valid
State law, the Federal J;.t'N 111ust prevail and our Constitution so provides
in Art. 254, \vith an exception noted earlier which does not affect the C
present discussion; (i) It follows from what is stated in (g) above, that
Federal laws must be implemented in the States and that the Federal
executive must have pow~~r to take appropriate executive action under
Federal la\vs in the State, including the enforcement of those la\vs. Whether
this is done by setting op in each Stale a parallel Federal machinery of law D
enforcement, or by using the existing State machincry1 is a 1natter governed
by practical expediency which docs not affect the Federal principle. In the
United States, a defiance of Federal law can be, and has been put down
by the use of Armed Forces of the U.S. and the National Militia of the
States. This is not inconsistent with the Federal principle in the United
Stales. Our Constitution has adopted the method of empowering the Union E
Government to give directions to the States to give eff~ct to the Union law
and to prevent obstruction in the working of the Unjon law. Such a power,
though different in form, is in sub.stance the same as the power of the
Federal government in the U.S. to enforce its laws, if necessary by force.
Therefore, the power to give directions to the State governments does not F
\oolatc the Federal principle; G) Article 356 (read with Art. 355) which
provides for the failure of constitutional machinery was based of Art. 4, s.4
of the U.S. Constitution and Art. 356, like Art. 4, s.4, is not inconsistent
with the Federal principle. As stated earlier, these provisions \Vere meant
to be the last resort, but have been gravely abused and can therefore be
said to affect the working of the Constitution as a Federal Government. G
But the recent amendment of Art. 356 by the 44th Amendment, and the
submission to be made hereafter that the doctrine of the Political Question
does not apply in India, show that the Courts can now take a more active
part in preventing a n1ala fide or improper exercise of the po\ver to impose
H
746 SUPREME COURT REPORTS [ 1994] 2 S.C.R.

A a President', Ruic, unfellercd by the American doctrine of the political
question; (k) The YiC\V that unin1portant n1attcrs \Vere assigned to the
States cannot he sustained in face of the very in1portant subjects assigned
to the Stales in List II, and the same applies to taxing power> of the Stales,
\vhich arc made n1utually exclusive of the taxing po\vcrs of the Union so
that ordinarily the States have independent source of revenue of their own.
B The legislative entries relating to taxes in List II show that the sources of
revenue available to the States are sul'fstantial an<l \Vould increasingly
become more substantial. [n addition to the exclusive taxing powers of the
Slates, the States become entitled either to appropriate taxes collected by
the Union or to a share in the taxes collected by the Union."
c
In this connection, we may also refer to what Dr. Ambedkar had to
say while answering the debate in the Constituent Assembly in the context
of the very Articles 355, 356 and 357. The relevant portion of his speech
has already been reproduced above. He has emphasised there that not-
D withstanding the fact that there are many provisions in the Constitution
\vhcrcunder the Centre has been given powers to override the States, our
constitution is a federal Constitution. It means that the States are sovereign
in the licld which is left to them. They have a plenary authority to make
any law for the peace, order and good gover.,ment of the State.

E 15. The above discussion thus shows that the States have an inde-
pendent constitutional existence and they have as important a role to play
in the political, social, educational and cultural life of the people as the
Union. They are neither satellites nor agents of the Centre. The fact that
during emergency and the certain other eventualities their po\vers arc
F ovcrridcn or invaded by the Centre is not destructive of the essential
federal nature of our Constitution. The invasion of po\ver in such cir-
cumstances is not a normal feature of the Constitution. They are exceptions
and have to be resorted to only occasionally to meet the exigencies of the
special situations. The exceptions are not a rule.

G 16. For our purpose, further it is really not necessary to determine
whether, in spite of the provisions of the Constitution referred to above,
our Constitution is federal, quasi· federal or unitary in nature. It is not the
theoretical label given to the Constitution but the practical implications of
the provisions of the Constitution which are of importance to decide the
H question that arises in the present context, viz. 1 whether the powers under ·
S.R. BOMMAI v. U.0.1. ISAWANT,J.i 747

.A..rticlc 356[ 1] c<Jn be exercised by the President arbitrarily and unmindful A
of its consequences to the governance in the concerned St<itc. So long as
l11c States arc not n1crc adn1inislrativc units hut in their O\Vn right constitu-
tional potentates \Vith the same paraphernalia as the lJnion and with 1

independent Legislature and the Executive constituted by the same process
as the Union, \Vhotever the bias in favour of the Centre, it cannot be argued
that merely because (and assuming it is correct) the Constitution is labelled
B
unitary or quasi-federal or a mixture of federal and unitary structure, the
President has unrestricted po\ver of issuing Proclan1ation under Article
35611). If the Presidential powers under the said provision are subject to
judicial revic\v \Vithin the li1nits discussed above, those lirnitations \Vill have
to be applied strictly \Vhile scrutinising the concerned material. C

17. Jt n1ust further not be forgotten that in a representative
democracy in a populous country like ours when legislatures of the States
are dissolved pursuant to the power used under Article 356jl) of the
Constitution and the elections are proposed to be held, it involves for the D
public exchequer an enormous expenditure and consequently t<.Lxes the
public. l~he machinery and the resources of the State arc diverted from
other useful work. The expenses of contesting elections which even other-
\Visc are heavy and unaffordable for common man arc mnltiplied. Frequent
elections consequent upon unjustified use of Article 35611} has thus a
potcntia1Iy dangerous consequence of negating the very democratic prin- E
ciple by making the election-contest the exclusive preserve of the affluent.
What is further, the frequent dissolution of the Legislature, has the trn-
dency to create disenchantment in the people with the process of election
and thus with the democratic way of life itself. The history warns us that
i the frustration with democracy has often in the past, led to an invitation to F
fascism and dictatorship of one form or the other.

18. The Presidential power under Article 35611 J has also to be viewed
from yet another anti equally important angle. Decentralisation of J'Hnvcr
is not only valuable administrative device to ensure closer scrutiny, ac-
countability and efficiency, but is also an essential part of democr<-1cy. Jt i~ G
for this purpose that Article 40 in Part IV of our Constitution dealing with
the Directive Principles of State Policy enjoins upon the State to take steps
to organise village p;_1nchayats .ind endo\V them \vith the such po\vcrs and
authorities as may be nccl :,sary to enable them to function .as units of

'''
self-gorcrnance. 'fhe participation nf the people in the governance i~ a sine
748 SUPREME COURT REPORTS I199412 S.C.R.
A qua non of <len1ocracy. The democratic \Vay of life began hy direct par-
ticipation of the people in the day to day affairs of the socieLy. With the
growth of population and the expansion of the territorial bouodarics of the
State, representative democracy replaced direct democracy and people
gradually surrendered more and more of their rights of direct participation,
to their representatives, Notwithstanding the surrender of the requisite
B powers, in matters \Vhich arc retained, the po\vcrs arc jealously guarded
and rightly so. If it is true to say that in democracy, people arc sovereign
and all power belongs primarily to the people, the retention of c,uch power
by the people and the anxiety to exercise them is legitimate. The normal
rule being the sclfgovcrnancc, according to the \Vi.shes expressed by the
c people, the occasions to interfere with the self-governance shouid both be
rare and demonstrahly compelling.

19. In this connection, a very significant and special fectture of our
society has to be constantly kept in mind. C)ur society is, among other
D things, n1ulti-lingual, multi-ethnic and multi-cultural. Prior to inde-
pendence, political promises were made that the States \Viii be forrned on
linguistic basis and the ethnic and cultural identities will not only be
protected but promoted. It is in keeping with the said pron1ises, that the
States eventually have come to be organised broadly on linguistic, ethnic
and cultural basis. The peoples in every State desire to fulfil their own
E aspirations through self-governance within the framc\vork of the Constitu-
tion. Hence interference with the self governance also amounts to the
betrayal of the people and unwarranted interference. The betrayal of the
democratic aspirations of the people is a negation of t.hc detnocratic
principle which runs through our constitution.

F
20. What is further- and this is an equally, if not more important r'
aspect of our Constitutional law, we have adopted a pluralist de1nocracy.
It implies, among other things, a multi- party system. Whatever the nature
of federalism, the fact remains that as stated above, as per the provisions
of the Constitution, every State is constituent political unit and has to have
G an exclusive Executive and Legislature elected and constituted by the same
process as the Union Government. Under our political and electoral
system, political parties may operate at the State and national level or
exclusively at the State level. There may be different political parties in
different States and ot the national level. Consequently, situations may
H arise, as indeed they have, when the political parties in power in various
S.R. BOMMAI v. U.O.l. [SAWANT.J.] 749

States and at the Centre may be different. It may also happen - as has A
happened till date - that through political bargaining, adjustment and
understanding, a State-level· party may agree lo elect candidates of a
national level party to the Parliament and vice versa. This mosaic of
variegated pattern of political life is potentially inherent in a pluralist
multi-party democracy like ours. Hence the temptation of the political
party or parties in power [in a coalition Government] to destabilise or sack
B
the Government in the State not run by the same political party or parties

- is not rare and in fact the experience of the working of Article 356[ 1] since
the inception of the Constitution, shows that the State Governments have
been sacked and the legislative assemblies dissolved on irrelevant, objec-
tionable and unsound grounds. So far the power under the provision has c
been used on more than 90 occasions and in aln1ost all cases again:,t
governments run by political parties in opposition. If the fabric of pluralism
and pluralist democracy and the unity and integrity of the country are to
be preserved, judicary in the circumstances is the only institutio11 which can
act as the saviour of lhe system and of the nation. D

It is for these reasons that we arc unable to agree with the view that
-if the ruling party in the States suffers an overwhelming defeat in the
elections to the Lok Sabha - however complete the defeat may be - it will
be a ground for the issue of the Proclamation under Article 356[1]. We do
not read the decision in State of Rajasthan case [supra] to have taken such E
a view. This is particularly so since it is observed in the judgment that :

"Now, we have no doubt at all that merely because the ruling party
in a State suffe.rs defeat in the elections to the Lok Sabha or for
the matter of that, in the panchayat elections, that by itself can be F
no ground for saying that the government of the State cannot be
carried on in accordance with the provisions of the Constitution.
The federal structure under our Constitution clearly postulates
that there may be one party in power in the State and another at
the Centre. It is also not an unusual phenomenon that the same
electorate may elect a majority of members of one party to the G
Legislative Assembly, \vhile at the same time electing a 1najority
of members of another party to the Lok Sabha. Moreover, the
Legislative Assembly, once elected, is to continue for a specific
,
term and mere defeat at the elections to the Lok Sabha prior to
the expiration of the term without an)1hing more would he no H
750 SUPREME COURT REPORTS [1994J 2 S.C.R.

A ground for its dissolution. The defeat would not necessarily in all
cases indicate that the electorate is no longer supporting the ruling
party because the issues may be different. But even if it were
indicative of a definite shift in the opinion of the electorate, that
by itself would be no ground for dissolution, because the Constitu-
tion contemplates that ordinarily the will of the electorate shall be
B expressed at the end of the term of the Legislative Assembly and
a change in the electorate's will in between would not be
relevant... ...... the defeat of the ruling party in a State at the Lok
Sabha elections cannot by itself, without anything more, support
the inference that the Government of the State cannot be carried
c on in accordance with the provisions of the Constitution. To
dissolve the Legislative Assembly solely on such ground would be
an indirect exercise of the right of recall of all the members by the
President without there being any provision in the Constitution for
recall even by the electorate." (p-84-85J

D There is no doubt that certain observations in the said decision create
an impression to the contrary. We have already endorsed earlier the
recommendation in the Report of the Sarkaria Commission that the con-
cerned ground cannot be available for invoking power under Article 356(1].
It has no relevance to the conditions precedent for invoking the said power,
E viz., the break-down of the constitutional machinery in the State.

21.. Thus the federal principle, social pluralism and pluralist
democracy which form the basic structure of our Constitution demand that
the judicial review of the Proclamation issued under Article 356(1] is not
F only an imperative necessity but is a stringent duty and the exercise of
power under the said provision is confined strictly for the purpose and to
the circun1stance.s mentioned therein and for none else. It al.so require-s
that the n1atcrial on the basis of which the po\ver is exercised is scrutinised
circumspectly. In this connection, we may refer to what Dr. Ambedkar had
to say in reply to the apprehensions expressed by the other Hon'ble
G Members of the Constituent Assembly, in this context which also bring out
the concerns 'veighing on the mind of the Hon'blc Members:

''Jn rcgarJ ro the general debate \vhich has taken place in \Vhich it
ha::-. been suggested that these articles are liable to be abused 1 1
'
:11ay s~1y that I <lo nrit altogether deny that there is a possibility of
S.R. llOMMAI v. U.0.1. [SAWANT,J.] 751

these articles being abused or employed for political purposes. But A
that objection applies lo every part of the Constitution which gives
power lo the Centre to override the Provinces. In fact I share the
sentiments expreS>ed by my honourable Friend Mr. Gupte yester-
day that the proper thing we ought to expect is that such articles
' will never be called into operation and they would remain a dead
B
letter. If at all they are brought into operation, I hope the President,
who is endowed with these powers, will take proper precautions
before actually suspending the administration of the provinces. I
•. hope the first thing he will do would be to issue a mere warning
to a province that has erred, that things were not happening in the
way in which they were intended to happen in the Constitution. If C
that warning fails, the second thing for him to do will be to order
an election allmving the people of the province to settle matters
by themselves. It is only when these two remedies fail that he would
resort to this article. It is only in those circumstances he would
resort to this article. I do not think we could then say that these D
articles were imported in vain or that the President had acted
wantonly." [C.A.D. Vol. IX, p - 177]

.. The extract from the Report of the Sarkaria Commission which has
been reproduced in paragraph 7 above will show that these hopes of Dr.
Ambedkar and other Hon'ble Member of the Constituent Assembly have E
not come true.

22. The further equally important question that arises in this context
is whether the President when he issues Proclamation under Article 356[1],
would be justified in removing the Government in power or dissolving the F
Legislative Assembly and thus in exercising all the powers mentioned in
sub-clauses (a), (b) and (c) of clause [1] of Article 356 whatever the nature
of the situation or the degree of the failure of the constitutional machinery.
A strong contention was raised that situations of the failure of the constitu-
tional machinery may be varied in nature and extent, and hence measures
to remedy the situation may differ both in kind and degree. It would be a G
disproportionate and unreasonable exercise of power if the removal of
Government or dissolution of the Assembly is ordered when what the
situation required, was for example, only assumption of some functions or
powers of the Government of the State or of any body or authority in the
State under Article 356[1J[a]. The excessive use of power also amounts to H
752 SUPREME COURT REPORTS [1994] 2 S.C.R.

A illegal, irrational and mala fide exercise of power. Hence, it is urged that
the doctrine of proportionality is relevant in this context and has to be ,.
applied in such circumstances. To appreciate the discussion on the point,
it is necessary to realise that the removal of Government and the dissolu-
tion of Assembly are effected by the President, if he exercises powers of
the Governor under Articles 164[1] and 174[2](b) respectively under sub-
B clause [a] of Article 356[1], though that is neither necessary nor obligatory
while issuing the Proclamation. In other words, the removal of the Ministry
or the dissolution of the Legislative Assembly is not an automatic conse-
quence of the issuance of the Proclamation. The exercise of the powers
~

under sub-clauses [a], [b] and [c] of Article 356[1] may also co-exist with a
c mere suspension of the political Executive and the Legislature of the State.
Sub-clause [c] of Article 356[1] makes it clear. It speaks of incidental and
consequential provisions to give effect to the objects of the Proclamation
including suspension in whole or part of the operation of any provision of
the Constitution relating to any body or authority in the State. It has to be
noted that unlike sub-clause [a], it does nol exclude the Legislature of the
D
State. Sub-clause [b] only speaks of exercise of the powers of the Legisla-
lure of the State by or under the authority of the Parliament. What is
further, the assumption of only some of the functions of the Government
and the powers of the Governor or of any body or authority in the State
other than the Legislature of the State under sub-clause [a], is also con-
-
E ceivable with the retention of the other functions and powers with the
Government of the State and the Governor or any body or authority in the
State. The language of sub-clause [a] is very clear on the subject. It must
be remembered in this connection that where there is a bicameral Legis-
lature, the Upper House, i.e., the Legislative Council cannot be dissolved.
F Yet under sub-clause [b] of Article 356[1] its powers are exercisable by or
under the authority of Parliament. The word used there is "Legislature" and
not "Legislative Assembly". Legislature includes both the Lower House and
the Upper House, i.e., the Legislative Assembly and the Legislative Coun-
cil. It has also to be noted that \\rhen the powers of the Legislature of the
State are declared to be exercisable by or under the authority of the
G Parliament under Article 356[1][b], it is competent for Parliament under
Article 357, to confer on the President the power of such Legislature to
make laws and to authorise the President to delegate the powers so
conferred, lo any other authority lo be specified by him. The authority so
chosen may be the Union or officers and authorities thereof. Legally, '
H
S.R. BOMMAJ v. U.0.1. fSAWANTJ.j 753

therefore, it is permissihle under Article 356 \ J\,firstly, only to suspend the A
political executive nr any body or authority in !he State and also the
Legislature nf the State and not to rc1novc or dissolve thcn1. Secondly, it
is also permissible for the president to as~ume only some of the functions
of the political executive or of any body or authority of the State other than
the Legislature \vhilc neither suspending nor removing them. The fact that
son1c cf these exercises have not bt:cn 1t.:::iorted to in practice so far, docs
B
not militate against the legal positi{ln \Vh1ch emerges from the clear lan-
guage of Article 3561 I}. In this connection, \VC may refer to what Dr.
Ambedkar had lo say on the subject in the Constituent Assembly. The
relevant e:xtract from his speech is repro<luceJ in paragraph 21 above.
Hence it is possible for the President to use only some of the requisite c
po,vers vested in him under Article 356[ 1] to meet the situation in questil in.
He does not have to use all the po,vcrs to meet all the situations whatever
the kin<l and degree of the failure of the constiti.;tional machinery in the
State. To that extent, the contention is indeed valid. Ho\vevcr, whether in
a particular situation the extent of po,vcrs used is proper and justifiable is D
a question which would remain debatable and beyond judicially dis-
coverable and manageable standards unless the exercise of the excessive
power is so palpably irrational or n1ala {tdf' as to invite judicial intervention.
In fact, once the issuance of the Proclamation is held valid, the scrutiny of
the kind and degree of power used under the Proclamation, falls in a
narrower compass. There is every risk and fear of the Court undertaking E
upon itself the task of evaluating with fine scales and through its own lenses
the comparative merits of one rather than the other measure. The Court
will thus travel unwittingly into the political arena and subject itself more
readily to the charges of encroaching upon policy-making. The "political
thicket' 1 objection sticks more easily in such circu1nstanccs. Although, F
therefore, on the language of Article 356\1], it is legal to hold that the
President may exercise only some of the powers given to him, in practice
it may not always be easy to demonstrate the excessive use of the pov. er. 1

23. An allied question which ar.ises in this connection is whether,
not\li·ithstanding the fact that a situation has arisen where there is a break- G
down of the constitutional machinery in the State, it is always necessary to
resort to the power of issuing Proclamation under Article 356[1]. The
contention is that since under Article 355, it is the duty of the Union to
ensure that the government of every State is carried on in accordance with
the provisions of the Constitution and since further the issuance of the H
->'

754 SUPREME COURT REPORTS [1994J 2 S.C.R.

A Proclamation under Article 356[1[ is admittedly a drastic step, there is a
corresponding obligation on the President to resort to other n1easures
before the step is taken under Article 356[ 11. This is all the more necessary
considering the principles of federal ;rnd democratic polity embedded in
our Constitution. In this connection, \VC may refer again to \vhat Dr.
Ambedkar himself had to say on the subject. We have quoted the relevant
B extract from his speech in paragraph 6 above. He has expressed the hope
there that resort to Article 356[1] would be only as a last measure and
before the Article is brought into operation, the President would take
proper precaution. He hoped that the first thing the President would do
would be to issue a mere warning. If the warning failed, he would order an
c election and it is only when the said two remedies fail that he would resort
to the Article. We must admit that we are unable to appreciate the second
measure to \vhich Dr. Ambe<lkar referred as a preliminary to the resort to
Article 356[1 J. We should have thought that the elections to the Legislative
Assembly arc a last resort and if they arc held, there is nothing further to
be done by exercising power under Article 356[1J. We may, therefor, ignore
D
the said s..iggestion made by him. But we respectfully endorse the first
measure viz. of warning to v..·hich the President should resort before rushing
to exercise the power under Article 356[1]. In addition to warning, the
President will always have the power to issue the necessary directives. We
arc of the vie\v that except in situations where urgent steps are imperative
E and exercise of the drastic power under the Article cannot brook delay,
the President should use all other measures to restore the constitutional
machinery in the State. The Sarkaria Commission has also made recom-
mendations in that behalf in paragraphs 6.8.01 to 6.8.04 of its Report. It is
not necessary to quote them here. We endorse the said recommendations.

F
24. The next important question to be considered is of the nature
and effect of the action to be taken by the President pursuant to the
Proclamation issued by him. The question has to be considered with
reference to three different situations. Since clause [3] of Article 356
requires every Proclamation issued under clause [1] thereof, to be laid
G before each House of Parliament and also states that it shall cease to
operate at the expiration of two months unless before the expiration of that
period it has been approved by resolutions of both Houses of Parliament,
the question which emerges is \vhat is the legal consequence of the actions
taken by the President, [a] if the Proclamation is invalid, yet it is approved
H by both Houses of Parliament; [b] if the Proclamation is invalid and not .
S.R. BOMMAI v. U.0.1. [SAWANT.J.] 755

approved by either or both Houses of Parliament; and [c] if the Proclama- A
lion is valid but not approved hy either or both Houses of Parliament. The
other question that arises in this connection is, \Vhether the legal conse-
quences differ in these three classes of cases, depending upon the nature
llf the action taken by the President.

B
The Proclamation falling under clauses [a] and [b] will not make any
difference to the legal status of the actions taken by the President under
them. The actions will undoubtedly be illegal. However, the Court by
suitably moulding the relief, and the Parliament and the State Legislature
by legislation, may validate those acts of the President which are capable
of being validated. As far as the Parliament is concerned, such acts will not c
include the removal of the Council of Ministers and the dissolution of the
Legislative Assembly since there is no provision in the Constitution which
gives such po\vcr to the Parliament. That power is given exclusively to the
Governor under Articles 164[1] and l74[2J[b] respectively. It is this power,
among others, which the President is entitled to assume under Article D
356[1J[a]. The Parliament can only approve or disapprove of the removal
of the Council of Ministers and the dissolution of the Legislative Assembly
under clause [3] of that Article, if such action is taken by the President.
The question then arises is whether the Council of Ministers and the
Legislative Assembly can be restored by the Court when it declares the
Proclamation invalid. There is no reason why the Council of Ministers and E
the Legislative Assembly should not stand restored as a consequence of
the invalidation of the Proclamation, the same being the normal legal effect
to the invalid action. In the context of the constitutional provisions which
we have discussed and in view of the power of the judicial review vested
in the Court, such a consequence is also a necessary constitutional fall-out. F
Unless such result is read, the power of judicial review vested in the
judiciary is rendered nugatory and meaningless. To hold otherwise is also
tantamount to holding that the Proclamation issued under Article 356[1] is
beyond the scope of judicial review. For when the validity of the Proclama-
tion is challenged, the Court will be powerless to give relief and would
always be met with the fait accompli. Article 356 would then have to be G
read as an exception to judicial review. Such an interpretation is neither
possible nor permissible. Hence the necessary consequence of the invalida-
tion of the Proclamation would be the restoration of the Ministry as well
as the Legislative Assembly, in the State. In this connection; we may refer
to the decision of the Supreme Court of Pakistan in Mian Mumammad H
756 SUPREME COURT REPORTS j1994J 2 S.C.R.

A Nawaz Sharif v. President of Pakistan and On., j1993J PLO .SC 473. The
Court there held that the i1npugnc<l order of dissolution of National
Assembly and the dismissal of the Federal Cabinet were without lawful
authority and) therefore, of no legal effect. As a consequence of the said
declaration, the Court declared lhal the National Assembly, Prime Minister
and the Cabinet stood restored and enlilled lo function as immediately
B before the impugned order was passed. The Court further declared that
all steps taken pursuant lo the impugned order including lhc appoinlrnenl
of care-taker Cabinet and care-taker Prime lv1inistcr were also of no legal
effect. The Courl, however, added lhat all orders passed, acls done and
measures taken in the meanwhile, by the care-taker (]overnrnent \vhich had
C been done, taken and given effect to in accordance \Vith the terms of the
Constitution and \Vere required to be done or taken for the ordinary and
orderly running of the Stale, shall be deemed lo have been validly and
legally done.

D As regards the third cbss of cases where the Proclamation is held
valid but is nol approved by either or both Houses of Parliament, the
consequence of the same would be the same as where the Proclamation is
revoked subsequently or is not laid before each House of the Parliament
before the expiration of two months or where it is revoked after its approval
by the Parliament or ceases to operate on the expiration of a period of six
E months from the date of its issue, or of the further permissible period under
clause j4] of Article 356. ll does not, however, appear from the provisions
of Article 356 or any other provision cf the Constitution, that mere non-
approval of a valid Proclamation by the Parliament or ils revocation or
cessation, will have the effect either of restoring the Council of Ministers
F or the Legislative Assembly. The inevitable consequence in such a situation
is fresh elections and the constitution of the new Legislative Assembly and
the Ministry in the Slate. The law made in exercise of the power of the
Legislature ·of the State by Parliament or the President or any other
authority during the period the valid Proclamation subsists before it is
revoked or disapproved, or before it expires, is protected by clause 12] of
G Article 357.

It is therefore, necessary lo interpret clauses Ill and 13] of Article
356 harmoniously since the provisions of clause 13] are obviously meant to
be a check by the Parliament [which also consist of members from the '
H concerned Stales] on the powers of the President under clause [1]. The
S.R. BOMMAI v. U.O.l. [SAWANT,J.] 757

check would become meaningless and rendered ineffective if the President A
takes irreversible actions while exercising his powers under sub- clauses [a],
[b] and [c] of Clause [1] of the said Article. The dissolution of the A'5embly
by exercising the powers of the Governor under Article 174[2][b] will be
one such irreversible action. Hence, it \Vill have to be held that in no case,
the President shall exercise the Governor's power of dissolving the Legis-
B
lative Assembly till at least both the Houses of Parliament have approved
of the Proclamation issued by him under Clause [1] of the said Article. The
dissolution of the assembly prior to the approval of the Proclamation by
the Parliament under clause [3] of the said Article will be per se invalid.
The President may, however, have the power of suspending the Legislature
under sub-clause [c] of clause [1] of the said Article. c
25. Our conclusion, therefore, firstly, is that the President has no
power to dissolve the Legislative Assembly of the State by using his power
f' under sub-clause [a] of clause [1} of Article 356 till the Proclamation is
approved by both the Houses of the Parliament under clause [3] of the said
Article. He may have power only to suspend the Legislative Assembly D
under sub-clause [c] of Clause [1] of the said Article. Secondly, the Court
may invalidate the Proclamation whether it is approved by the Parliament
or not. The necessary consequence of the invalidation of the Proclamation
would be to restore the status quo ante and, therefore, to restore the
Council of Ministers and the Legislative Assembly as they stood on the E
date of the issuance of the Proclamation. The actions taken including the
laws made during the interregnum may or may not be validated either by
the Court or by the Parliament or by the State Legislature. It may, however,
be made clear that it is for the Court to mould the relief to meet the
requirements the situation. It is not bound in all cases to grant the relief
of restoration of the Legislative Assembly and the Ministry. The question F
of relief to be granted in a particular case pertains to the discretionary
jurisdiction of the Court.

The further important question that arises is whether the Court will
be justified in granting.interim relief and what would be the nature of such
relief and at what stage it may be granted. The grant of interim relief would G
depend upon various circumstances including the expeditiousness with
which the Court is moved, the prima facie case with regard to the invalidity
, r of the Proclamation made out, the steps which are contemplated to be
taken pursuant to the Proclamation etc. However, if other conditions are
satisfied, it will defeat the very purpose of the judicial review if the requisite H
758 SUPREME COURT REPORTS [1994) 2 S.C.R.

A interim relief is denied. The least relief that can be granted in such
circumstances is an injunction restraining the holding of fresh elections for
constituting the new Legislative Assembly. There is no reason why such a
relief should be denied if a precaution is taken to hear the challenge as
expeditiously as possible laking into consideration the public interests
involved. The possibility of a delay in the disposal of the challenge cannot
B be a ground for frustrating the constitutional right and defeating the
constitutional provisions. It has, however, to be made clear that the inter·
loculory relief that may be granted on such challenge is lo prevent the
frustration of the constitutional remedy. It is not to prevent the constitu-
tional authority from exercising its powers and discharging its functions.
C Hence it would be wholly impermissible either to interdict the issuance of
the Proclamation or its operation till a final verdict on its validity is
pronounced. Hence the normal rules of quia tiniet action have no relevance
in mallers pertaining to the challenge to the Proclamation. To conclude,
the Court in appropriate cases will not only be justified in preventing
D holding of fresh elections but would be duty-bound to do so by granting
suitable interim relief to make effective the constitutional remedy of judi-
cial review and to prevent the en1asculation of the Constitution.

26. In the light of our conclusions with regard to the scope of the
power of the President to issue Proclamation under Article 356[1), of the
E parameters of judicial review and the quia tintet action, we may now
examine the facts in the individual cases before us. It has, however, to be
made clear at the outset that the facts are not being discussed with a view
to give relief prayed for, since in all cases fresh elections have been held,
new Legislative Assemblies have been elected and new Ministries have
been installed. Nor do the petitioners/appellants seek any such relief. The
F facts are being discussed to find oGt whether the action of the President
was justified in the light of our conclusions above. The finding may serve
as a guidance for future. For the sake of convenience, we propose to deal
with the cases of the States of Karnataka, Meghalaya and Nagaland
separately from those of the States of Himachal Pradesh, Madhya Pradesh
G and Rajasthan.

KARNATAKA:

CA.No. 3645 of 1989
' '
H 27. Taking first the challenge to the Proclamation issued by the
S.R. BOMMAI v. U.0.1. [SAWANT,J.] 759

President on 21.4.1989 dismissing the Government of Karnataka and dis- A
solving the State Assembly, the Proclamation does not contain any reasons
and merely recites that the President is satisfied on a consideration of the
report of the Governor and other information received by him, that the
Government of the State cannot be carried on in accordance with the
provisions of the Constitution. The facts were that the Janata Party being
the majority party in the State Legislature had formed Government under
B
the leadership of Shri S.R. Bommai on 30.8.1988 following the resignation
on 1.8.1988 of the earlier Chief Minister, Shri Hegde who headed the
Ministry from March 1985 till his resignation. In September 1988, the
Janata Party and Lok Dal [BJ merged into a new party called Janata Dal.
The Ministry was expanded on 15.4.1989 with addition of 13 members. c
Within two days thereafter, i.e., on 17.4.1989, one Shri K.R. Molakery, a
legislator of Janata Dal defected from the party and presented a letter to
the Governor withdrawing his support to the Ministry. On the next day, he
presented to the Governor 19 letters allegedly signed by 17 Janata Dal
legislators, one independent but associate legislator and one legislator D
belonging to the Bhartiya Janata Party which was supporting the Ministry,
withdrawing their support to the Ministry. On receipt of these letters, the
Governor is said to have called the Secretary of the Legislature Depart-
ment and got the authenticity of the signatures on the said letters verified.
On 19.4.1989, the Governor sent a report to the President stating therein
that there were dissensions in the Janta Party which had led to the E
resignation of Shri Hegde and even after the formation of the new party,
viz., Janata Dal, there were dissensions and defections. In support of his
case, he referred to the 19 letters received by him. He further stated that
in ,;ew of the \vithdrawal of the support by the said legislators, the chief
i Minister, Shri Bommai did not command a majority in the Assembly and,
F
hence, it was inappropriate under the Constitution, to have the State
administered by an Executive consisting of Council of Ministers which did
not command the majority in the House. He also added that no other
political party was in a position to form the Government. He, therefore,
recommended to the President that he should exercise power under Article
356(1]. It is not disputed that the Governor did not ascertain "the view of G
Shri Bommai either after the receipt of the nineteen letters or before
making his report to the President. On the next day, i.e., 20.4.1989, seven
out of the nineteen legislators who had allegedly written the said letters to
1he Governor sent letters to him co111plaining that their signarure!> were
H
760 SUPREME COURT REPORTS [1994} 2 S.C.R.

A obtained on the earlier letters by misrepresentation and affirmed their
support to the Ministry. The Stale Cabinet met on the same day and
decided to convene the Session of the Assembly within a week i.e., on
27.4.1989. The Chief Minister and his Law Minister met the Governor the
same day and informed him about the decision to summon the Assembly
Session. It is also averred in the petition that they had pointed out to the
B Governor the recommendation of the Sarkaria Commission that the
strength of the Ministry should be tested on the floor of the House. The
.Chief Minister also offered to prove has majority on the floor of the House
even b)'•)lreponing the Assembly Session, if needed. To the same effect, he
sent a tB\,cX message to the President. The Governor, ho\vever sent yet
c another report to the President on the same day i.e., 20-4-1989, in par-
ticular, referring to the letters of seven members pledging their support to
the Ministry and withdrawing their earlier letters. He, however, opined in
the report that the letters from the seven legislators were obtained by the
Chief Minister by pressurising them and added th~t horse-trading was
D going on and atn1osphere was getting vitiated. ln the end, he reiterated his
opinion that the Chief Minister had lost the confidence of the majority in
the House and repeated his earlier request for action under Article 356[1}.
On that very day, the President issued the Proclamation in question with
the recitals already referred to above. The Proclamation was, thereafter
approved by the Parliament as required by Article 356[3}, Shri Bommai
E and some other members of the Council of Ministers challenged the
validily of the Proclamation before the Karnataka High Court by a writ
petition on various grounds. The petition was resisted by the Union of
India, among others. A three-Judge Bench of the High Court dismissed the
petition holding, among other things, that the facts stated in the Governor's
F report could not be held to be irrelevant and that the Governor's satisfac-
tion that no other party was in a position to form the Government had to
be accepted since his personal bona [ides were not questioned and his
satisfaction \\'as based upon reasonable assessment of all the relevant facts.
The Court also held that recourse lo floor-test was neither compulsory nor
obligatory and was not a pre-requisite to sending the report to the Presi-
G dent. ft was also held that the Governor's report could not be challenged
on the ground of legal ma/a fides since the Proclamation had to be issued
on the satisfaction of the Union Council of Ministers. The Court further
relied upon the test laid down in the State of Rajasthan case [supra] and
held that on the basis of the material disclosed, the satisfaction arrived at
H
S.R. BOMMAI v. U.0.1. [SAWANT..l.I 761

,., by the President could not be faulted.

In vie\V of the conclusion.s that \\'C have reached \Vith regard to the
A

parameters of the judicial rcvie\v, it is cJear that the High Court had
committed an error in ignoring the most relevant fact that in viev,' of the
conflicting letters of the seven legislators, it \Vas in1proper on the part of
B
the Governor to have arrogated to himself the task of holding, firstly, that
the earlier nineteen letters \Vere genuine and were written by the said
legislators of their free \viii and volition. He had not even cared to intcrvie\\'
, the said legislators, hut had merely got the authenticity of the signatures
verified through the I. . egislature Secretariat. Secondly, he also took upon
himself the task of deciding that the seven out of the nineteen legislators c
had written the subsequent letters on account of the pressure from the
Chief Minister and not ottt of their f;ec \Viii. Again he had not cared even
to interview the said legislators. Thirdly, it is not kno\vn from where the
Governor got the information that there was horse-trading going on be-
!'ween the legislators. Even assuming that it \Vas so, the correct and the D
proper course for him to adopt was to await the test on the floor of the
House which test the Chief Minister had willingly undertaken to go through
on any day that the Governor chose. In fact, the State Cabinet had itself
taken an initiative to convene the meeting of the Assembly on 27-4-89, i.e.,
only a week ahead of the date on which the Governor chose to send his
report to the President. Lastly, what is important to note in connection \Vith E
this episode is that the Governor at no time asked the Chief Minister even
, to produce the legislators before him who were supporting the Chief
Minister, if the Governor thought that the situation posed such grave threat
to the governance of the State that he could not await the resull of the
floor-test in the House. We are of the view that this is a case where all F
cannons of propriety were thro\vn to \Vind and the undue haste made by
'
~ the Governor in inviting the President to issue the Proclamation under
Artide 356[1] clearly smacked of mala }ides. The Proclamation issued by
the President on the basis of the said report of lhe Governor and in the
circumstances so obtaining, therefore, equally suffered from 1nala /ides. A
duly constituted Ministry was dismissed on the basis of material which \Vas G
neither tested nor allowed to be tested and was no more than the ipse dixit
of the Governor. The action of the Governor was more objectionable since
as a high constitutional functionary, he was expected to conduct himself
,. more fairly, cailtiously and circumspectly. Instead, it appears that the
. '; Governor was in a hurry to dismiss the Ministry and dissolve the Assembly. H
762 SlJl'RFME CUURT IZEl'ORTS IJ9'1.Jj 2 S.C.R.

A The Proclan1~1tion having been bJscd on the said report and su-callc<l other
inforn1ation \vhich is not disclosed) \\'<IS therefore liab.le to he struck do\\11.

28. In this connection, it is necessary to stress th<Jt in all cases \Vhcre
the support tO the f'vfinistry is cJaitned to ha\'e been \Vithdra\Vn by some
Legislators, the proper course for testing the strength of the f\rtinistry is
B holding the lest on the floor of the House. Thal alone is the conslitutionaliy
ordained forum for seeking openly and objectively the clain1s and counter-
claims in that behalf. The assessment of the strength of the Ministry is not
a matter of private opinion of auy individual, be he the Governor or the
President. ll is capable of being demonstrated and ascertained publicly in
c the House. f-lcnce \Vhen such demonstration is possible, it is not open tu
bypass it and instead depend upon the subjective satisfaction· of the Gover-
nor or the President. Such private assessment is an anathen1a to the
democratic principle, apart from being open to serious objections of per-
sonal n1ala fides. It is possible that on some rare occasions 1 the floor-test
may be impossible, although it is difficult to envisage such situation. Even
D assun1ing that there arises one, it should be obligatory on the Governor ill
such circumstances, to state in writing, the reasot.s for not holding the
floor-test. The High Court was, therefore, wrong in holding that the floor
test was neither compulsory nor obligatory or that it was not a pre-requisite
to sending the report to the President recommending action under Article
E 35611]. Since we have already referred to the recommendations of the
Sarkaria Con1mission in this connection, it is not necessary to repeat them
here.

The High Court was further wrong in taking the view that the facts
F stated in the Governor's report were not irrelevant when the Governor
without ascertaining either from the Chief Minister or from the seven
MLAs whether their retraction was genuine or not, proceeded to give his
unverified opinion in lhe matter. What was further forgotten by the High
Court was that assuming that the support was withdrawn to the Ministry
by the 19 MLAs, it was incumbent upon the Governor to ascertain whether
G any other Ministry could be formed. The question of personal bona fide.1·
of the Governor is irrelevant in such matters. What is to be ascertained is
whether trc Governor had proceeded legally and explored all possibilities
nf ensuring a cnnstitutinnal go\'ernment in the State before reporting thJt
the constitutional n1Jchinery had broken down. Even if this meant installing
I-I the Govcrnn11:;nt belonging to a minority party~ the Governor \Vas duty·
SR. BOMMAI v. U.O.l. [SAWANT,J.] 763

bound to opt for it so long as the Government could enjoy the confidence A
of the House. That is also the recommendation of the Five-member Com-
mittee of the Governors appointed by the President pursuant to the
decision taken at the Conference of Governors held in New Delhi in
November 1970, and of the Sarkaria Commission quoted above. It is also
obvious that beyond <he report of the Governor, there was no other
B
material before the President before he issued the Proclamation. Since the
11
nfacts stated by the Governor in his report, as pointed out above contained
his O\Vn opinion based on unascertained material, in the circumstances,
they could hardly be said to form an objective material on which the

- President could have acted. The Proclamation issued was, therefore, in-
wlid. C
We may on this subject refer to the unanimous Report of the Five-
member Committee of Governors which recommended as follows:

"...... the test of confidence in the ministry, should normaliy be left
to a vote in the Assembly .......... where the Governor is satisfied D
by whatever process or means, that the ministry no longer enjoys
majority support, he should ask the Chief Minister to face the
Assembly and prove this majority within the shortest possible time.
If the Chief Minister shirks this primary responsibility and fails to
comply, the Governor would be in duty bound to initiate steps to E
form an alternative ministry. A Chief Minister's refusal to test his
strength on the floor of the Assembly can well be interpreted as
prima facie proof of his no longer enjoying the confidence of the
legislature. If then, an alternative ministry can be formed, which.,
in the Governor's view, is able to command a majority in the
assembly, he must dismiss the ministry in power and install the F
alternative ministry in Office. On the o.ther hand, if no such ministry
is possible, the Governor will be left with no alternative but to
make a report to the President under Article 356...... ."

xxxx xxxx xxxx
G
TIAs a general proposition, it may be stated that, as far as possible,
the verdict as to majority support claimed by a Chief Minister and
his Council of Ministers should be left to the legislature, and that
it is only if a responsible government cannot be maintained without
doing violence to correct constitutional practice that the Governor H
764 SUPREME COURT REPORTS [1994J 2 S.C.R.

A should resort to article 356 of the Constitution ..... "

xxxx xxxx xxxx
1
'What is important to remember is that recourse to article 356
should be the last resort for a Governor to seek ........ "
B
xxxx xxxx xxxx

"....... the guiding principle being, as already stated, that the con-
stitutional machinery in the state should, as far as possible, be
maintained 11 •
c MEGHALAYA:

T. C. Nos. 5 & 7 of 1992.

29. In this case the challenge is lo the Proclamation dated 11.10.1991
D issued under Article 356[1]. The facts arc that the writ petitioner G.S.
Massar belonged to a Front known as Meghalaya United Parliamentary
Party [MUPPJ which had a majority in the Legislative Assembly and had
formed in March 1990, a Government under the leadership of Shri B.B.
Lyngdoh. On 25-7- 1991, one Kyndiah Arthree who was at the relevant
time, the Speaker of the House, was elected as the leader of the opposition
E group known as United Meghalaya Parliamentary Forum [UMPFJ. The
majority in this group belonged to the Congress Party. On his election,
Shri Arthrce claimed support of majority of the members in the Assembly
and requested the Governor to invite him to form the Government. There-
upon, the Governor asked the then Chief Minister Shri Lyngdoh to prove
F his majority on the floor of the House. Accordingly, a special Session of
the Assembly was convened on 7.8.1991 and a Motion of Confidence in the
Ministry was moved. Thirty legislators supported the Motion and 27 voted
against it. However, instead of announcing the result of the voting on the
Motion, the Speaker declared that he had received a complaint against five
independent MLAs of the ruling coalition front alleging that they were
G disqualified as legislators under the Anti-defection law and since they had
become disentitled to vote, he was suspending their right to vote. On this
announcement, uproar ensured in the House and it had to be adjourned.
On 11.8.1991, the Speaker issued show cause notices to the alleged defec-
tors, the five independent MLAs on a complaint filed by one of the
H legislators Shri Shylla. The five MLAs replied to the notice denying that
S.R. BOMMAI v. U.0.1. ISAWANT,J.] 765

they had joined any of the parties and contended that they had continued A
to be independent. On receipt of the replies, the speaker passed an order
on 17.8.1991, disqualifying the five MLAs on the ground that four of them
were Ministers in the then Ministry and one of them was the Deputy
Government Chief Whip. Thereafter, again on the Governor's advice, the
Chief Minister Shri Lyngdoh summoned the Session of the Assembly on B
9.9.1991 for passing a vote of confidence in the Ministry. The Speaker
however, refused to send the notices of the Session to the five independent
MLAs disqualified by him and simultaneously made arrangements to
prohiM their entry into the Assembly. On 6.9.1991, the five MLAs, ap-
proached this Court. The Court issued interim order staying the operation
of the Speaker's orders dated 7.8.1991 and 17.8.1991 in respect of four of C
them. It appears that one of the members did not apply for such order.
The Speaker, thereafter, issued a Press-statement in which he declared that
he did not accept any interference by any Court with his order of 17.8.1991:
The Governor, therefore, prorogued the Assembly indefinitely by his Order
dated 8.9.1991. The Assembly was again convened at the instance of the D
Governor on 8.10.1991. In the meanwhile, the four independent MLAs who
had obtained the interim orders moved a contempt petition in this Court
against the Speaker who had not only made the declaration in the Press
statement defying the interim order of this Court but also taken steps to
., prevent the independent MLAs from entering the House. On S.10.1991,
this Court passed another order directing that all authorities of the State E
should ensure the compliance of the Court's interim order of 6.9.1991.
Pursuant to this direction, the four of the five independent MLAs received
invitation to attend the Session of the Assembly convened on October 8,
1991. In all, 56 MLAs including the four independent MLAs attended the
Session. After the Motion of Confidence in the Ministry was put to vote, p
., the Speaker declared that 26 voted for the Motion and 26 against it and
' excluded the votes of the four independent MLAs. Thereafter, declaring
that there was a tie in voting, he cast his own vote against the Motion and
declared that the Motion had failed and adjourned the House sine die.
However, 30 MLAs, viz., 26 plus four independent Ml.As who had voted
for the Motion, continued to stay in the House and elected the Speaker G
from amongst themselves to conduct the business. The new Speaker
declared that the Motion of Confidence in the Ministry had been carried
since 30 Ml.As had voted in favour of the Government. They further
proceeded to pass a Motion of No- confidence in the Speaker. The thirty
H
766 SUPREME COURT REPORTS (1994) 2 S.C.R.

A MLAs thereafter sent a letter to the Governor stating therein that they had
voted in favour of the Ministry and had also passed a Motion of No-
confidence in the Speaker. However, on 9.10.1991, the Governor wrote a "
letter to the Chief Minister asking him to resign in view of what had
transpired in the Session on 8.10.1991. Unfortunately, the Governor in the
said letter also proceeded to observe that the non-cognisance by the
B
Speaker of the Supreme Court's orders relating to the four independent
MLAs was a matter between the Speaker and the Court. The Chief
Minister moved this Court, thereafter, against the letter of the Governor,
and this Court on 9.10.1991, among other things, asked the Governor to ,
take into consideration the orders of this Court and votes cast by the four
c independent MLAs before taking any decision on.the question whether the
"
Government had lost the Motion of Confidence. In spite of this, the
President on 11.10.1991 issued Proclamation under Article 356[1). The
Proclamation stated that the President was satisfied on the basis of the
report from the Governor and other information received by him that the
situation had arisen in which the Government of the State could not be
D
carried on in accordance with the provisions of the Canstitution. The
Government was dismissed and the Assembly was dissolved. This Court by
an order of 12.10.1991, set aside the order dated 17.8.1991 of the then ,-1'

Speaker. However, thereafter, both the Houses of Parliament met and
approved the Proclamation issued by the President.
E
30.. The unflattering episode shows in unmistakable terms the
Governor's unnecessary anxiety to dismiss the Ministry and dissolve the
Assembly and also his failure as a constitutional functionary to realise the
binding legal consequences of and give effect to the orders of this Court.
What is worse, the Union Council of Ministers also chose to give advice to
F the President to issue the Proclamation on the material in question. It is
i~
not necessary to comment upon the validity of the Proclamation any further
save and except to observe that prima facie, the material before the
President was not only irrational but motivated by factual and legal ma/a
fides. The Proclamation was, therefore, invalid.
G
NAGALAND

CA, Nos. 193-94 of 1992

31. The Presidential Proclamation dated 7.8.1988 was issued under
H Article 356[1] imposing President's ru.le in the State of Nagaland. At the
·"'-·
S.R. BOMMAI v. U.0.1. [SAWANT, J.] 767

relevant time, in the Nagaland Assembly consisting of 60 members, 34 A
belonged to Congress-I, 18 to Naga National Democratic Party, one
i
belonged to Naga Peoples Party and seven were independent, Shri Serna,
the leader of the ruling party was the Chief Minister heading the State
Government. On 28th July, 1988, 13 of the 34 MLAs of the ruling Con-
gress-I Party informed the Speaker of the Assembly that they had formed B
a party separate from Congress-I ruling party and requested him for
allotment of separate seats for them in the House. The Session was to
commence on 28.8.1988. By his decision of 30.7.1988, the Speaker held that
there was a split in the party within the meaning of the Tenth Schedule of
>
the Constitution. On 31.7.1988, Shri Vamuzo, one of the 13 defecting
MLAs who had formed separate party, informed the Governor that he C
commanded the support of 35 out of the then 59 members in the Assembly
and was in a position to form the Government. On 3.10.1988, the Chief
Secretary of the State wrote to Shri Vamuzo that according to his informa-
tion, Shri Vamuzo had wrongfully confined the MLAs who had formed the
new party. Shri Vamuzo denied the said allegation and asked the Chief D
Secretary to verify the truth from the Members themselves. On verification,
the Members told"the Chief Secretary that none of them was confined, a•
,, alleged. On 6.8.1988, the Governor sent a report to the President of India
J about the formation of a new party by the 13 MLAs. He also stated that
the said MLAs were allured by money. He further stated that the said
MLAs were kept in forcible confinement by Shri Vamuzo and one other E
person, and that the story of split in the ruling party was not true. He added
that the Speaker was hasty in according recognition to the new group of
the 13 members and commented that hor"e-trading was going on in the
State. He made a special reference to the insurgency in Nagaland and also
stated that some of the members of the Assembly were having contacts with F
the insurgents. He expressed the apprehension that if the affairs were
allowed to continue as they were, it would affect the stability of the State.
In the meanwhile, the Chief Minister submitted his resignation to the
Governor and rei::ommended the imposition of the President's rule. The
President thereafter, issued the impugned Proclamation and dismissed the
Government and dissolved the Assembly. Shri Vamuzo, the leader of the G
new group challenged the validity of the Proclamation in the Guahati High
Court. The petition was heard by a Division Bench comprising the Chief
Justice and Hansaria, J. The Bench differed on the effect and operation of
Article 74[2] and hence the matter was referred to the third Judge. But
H
768 SUPREME COURT REPORTS [1994] 2 S.C.R.

A before the third learned judge could hear the matter, the Umon of India
moved this Court for grant of special leave which was granted and the
x'
proceedings in the High Court were stayed. It may be stated here that the
Division Bench was agreed that the validity of the Prociamation could be
examined by the Court and it was not immune from judicial review. We
have already discussed the implications of Article 74[2] earlier and have
B pointed out that although the advice given by the Council of Ministers is
free from the gaze of the Court, the material on the basis of which the
advice is given cannot be kept away from it and is open to judicial scrutiny.
On the facts of this case also we are of the view that the Governor should
(
have allowed Shri Vamuzo to test his strength on the floor of the House. I
c This was particularly so because the Chief Minister, Shri Serna had already
submitted his resignation to the Governor. This is notwithstanding the fact
that the Governor in his report had stated that during the preceding 25
years, no less than 11 Governments had been formed and according to his
information, the Congress-I MLAs were allured by the monetary benefits
and that amounted to incredible lack of the pPlitical morality and complete
D
disregard of the wishes of the electorate . It has to be emphasised here that
although the Tenth Schedule was added to the Constitution to prevent
political bargaining and defections, it did not prohibit the formation of
<'
another political party if it was backed by no less than 1/3rd members of
the existing legislature party. Since no opportunity was given to Shri
"
E Vamuze to prove his strength on the floor of the House as claimed by him
and to form the Ministry, the Proclamation issued was unconstitutional.

32. We may now deal with the cases of the States of Madhya Pradesh.
Rajasthan and Himachal Pradesh. The elections were held to the Legisla-
tive Assemblies in these States along with the elections to the Legislative
F
Assembly of Uttar Pradesh, in February, 1990. The Bhartiya Janata Party
[BJP] secured majority in the Assemblies of all the four States and formed •
Governments there.

Following appeals of some organisations including the BJP,
G thousands of kar sevaks from Uttar Pradesh as well as from other States
including Madhya Pradesh, Rajasthan and Himachal Pradesh gathered
near the Ram Janam Bhumi-Babri Masjid structure on the 6th December,
1992 and eventually some of them demolished the disputed structure.
Following the demolition, on the same day the Uttar Pradesh Government
H resigned. Thereafter, on the same day the President issued Proclamation
S.R. BOMMAI v. U.0.1. [SAWANT,J.] 769

under Article 356(1] and dissolved the Legislative Assembly of the State. A
-j The said Proclamation in riot challenged. Hence we are not Concerned in
these proceedings with its validity.

As a result of the demolition of the structure which was admittedly
a mosque standing at the site for about 400 years, there \Vere violent
reactions in this country as well as in the neighbouring coµntries where B
some temples were destroyed. This in turn created further reactions in this
country resulting in violence and destruction of the property. The Union
Government tried to cope up with the situation by taking several steps
)
including a ban on several org~nisations including Rashtriya Swayamsevak
• Sangh (RSSJ, Vishva Hindu Parishad [VHP] Bajrang Dal which had along c
with BJP given a call for kar sevaks to march towards Ayodhya on 6th
December, 1992. The ban order was issued on 10th December, 1992 under
under the Unlawful Activities (Prevention] Act, 1967. The dismissal of the
State Governments and the State Legislative Assemblies in Madhya
Pradesh, Rajasthan and Himachal Pradesh were admittedly a consequence
of these developments and were effected by the issuance of Proclamations D
under Article 356(1], all on the 15th December, 1992.

.. " MADHYA PRADESH

CA. Nos. 1692, 1692-A to 1692-C of 1993 & CA. Nos. 4627-30 of
1993.
E

33. The Proclamation was a consequence of three reports sent by the
Governor to the President. The first was of 8.12.1992. It referred to the fast
deteriorating law and order situation in the wake of widespread acts of
violence, arson and looting. He expressed bis "lack of faith" in the ability F
1 of the State Government to stem the tide primarily because of the political
• leadership's 11 overt and covert support to the associate communal organisa-
tions" which seemed to point out that there was a break-down of the
administrative machinery of the State. This report was followed by second
report on 10.12.1992 which referred to the spread of violence to the other
till then peaceful areas. Yet another report was sent by him on 13.12.1992 G
along with a copy of a letter dated 11.12.1992 received by him from the
Executive Director, Bharat Heavy Electricals Ltd., Bhopal [BHEL]. This
letter bad referred to the total failure of the law and order machinery to
provide safety and security of life and property in the areas in and around
the BHEL factory and the pressure brought on the Administration of the H
770 SUPREME COURT REPORTS [1994] 2 S.C.R.

A factory to accommodate the kar sevaks in the BHEL area. The Governor
also referred to the statement of the Chief Minister of Madhya Pradesh,
Shri Sunder..Lal Patwa describing the ban of RSS and VHP as unfortunate.
In view of the statement of the Chief Minister, the Governor expressed his
doubt about the credibility of the State Government to implement sincerely
the Centre's direction to ban the said organisations, particularly because
B the BJP leaders including the Chief Minister, Shri Patwa had always sworn
by the values and traditions of the RSS. In this context, he also referred to
the decision of the VHP to observe December 13th as blackday to protest
against the ban and to observe protest week against the "heinous law" from

C
14th to 20th December, 1992. He expressed his anxiety that all these moves
were fraught with danger in the context of the situation obtaining then. The
•
Governor, therefore, recommended that considering the said facts and the
fact that the RSS was contemplating a fresh strategy to chalk out its future
plan, and also the possibility of the leaders of the banned organisations
going underground, particularly with the connivance of the State Ad-
D ministration, the situation demanded immediate issuance of the Proclama-
tion. Hence the Proclamation.

HIMACHAL PRADESH. r'

T.C. No. 8 of 1993
E
34. The Proclamation issued by the President succeeded the report
of the Governor of Himachal Pradesh which was sent to him on 15.12.1992.
In his report the Governor had stated, among other things, that the Chief
Minister and his Cabinet had instigated kar sevaks from Himachal Pradesh
F to participate in the kar seva on 6.12.1992 at Ayodhya. Not only that, but
some of the Ministers had expressed their desire publically to participate
in kar seva if the party high-command permitted them to do so. As a result,
a number of kar sevaks including some BJP MLAs participated in the kar
seva at Ayodhya. A member of the Legislative Assembly belonging to the
ruling BJP had also openly stated that he had participated in the demoli-
G tion of the· Bahri Masjid. The Governor then added that Chief Minister,
Shri Shanta Kumar had met him on 13.12.1992, i.e., two days before he sent
the letter to the President, and had informed him "that he desired to
implement the ban orders imposed by the Government of India on RSS,
VHP and three other organisations and that he had already issued direc-
...
H lions in that behalr'. The Governor, however, opined that since the Chief
S.R.BOMMAI v.U.OJ.[SAWANT,J.) 771

Minister himself was a member of RSS, he was not in a position to A
.. ' implement the directions honestly and effectively and that most of the
people in the State felt the same way. He also stated that some of the
Ministers were publicly criticising the ban on the said three communal
organisations and when the Chief Minister and some of his colleagues in
the Ministry were members of the RSS, it was not possible for the ad-
ministrative machinery to implement the ban honestly and effectively. It is
B
on the basis of this report that the Proclamation in question was issued.

, RAJAS THAN

T.C. No. 9 of 1993 c
35. The Presidential Proclamation was pursuant to the report of the
Governor sent to the Prime Minister that Government of Rajasthan had
played "an obvious role" in the episode at Ayodhya; that the BJP had
control over RSS, VHP and Bajrang Dal which were the banned organisa-
D
tions, and the ban was not being implemented at all. CJne of th~ Ministers
had resigned and along with him, 22 MLAs and 15500 BJP workers had
,, participated in the Kar seva at Ayodhya. They were given a royal send-off
on their departure from the State and a royal welcome on their return by
the influential people in the political party running the Government , i.e.,
BJP. For more than a week, the law and order situation had deteriorated E
and the dominant feature of the break- down of the law and order situation
was the anti-minority acts. He opined that it was not possible for the
Administration to function effectively, objectively and in accordance with
the rule of law, in the then political set up and hence a situation had arisen
in which the Government of the State could not be carried on in accord- F
\ ance with the provisions of the Constitution.
'
36. The validity of the three Proclamations was challenged by writ
petitions in the respective State High Courts. The writ petition challenging
the Proclamations in respect of Madhya Pradesh Government and the
Legi•lative Assembly was allowed by the High Court and the appeal against G
the decision of the High Court is preferred in this Court by the Union of
India. By its order dated 16.4.93, the writ petitions challenging the

" ,.,
Proclamations in respect of the Governments and the Legislative As-
semblies of Rajasthan and Himachal Pradesh which were pending in the
respective High Courts, stand transferred to this Court. H
r/

772 SUPREME COURT REPORTS [1994/ 2 S.C.R.

A 37. It is contended that the imposition of the President's rule in the
States of Madhya Pradesh, Rajasthan and Himachal Pradesh was ma/a fide,
based on no satisfaction and was purely a political act. Mere fact that
communal disturbances and/or instances of arson and looting took place is
no ground for imposing the President's rule. Indeed, such incidents took
place in several Congress (I) - ruled States as well as in particular, in the
B State of Maharashtra - on a much larger scale and yet no action was taken
to displace those governments whereas action was taken only against BJP
governments. It is pointed out that so far as Himachal Pradesh is con-
cerned, there were no communal disturbances at all. There was no law and
order problem worth the name. Even the Governor's report did not speak
c of any such incidents. The governments of Madhya Pradesh, Rajasthan and
Himachal Pradesh, it is argued, cannot be held responsible for what
happened at Ayodhya on December 6, 1992. For that incident, the
Government of Uttar Pradesh had resigned owning responsibility therefor.
It is also pointed out that according to the report of the Governor of
D Himacal Pradesh, the Chief Minister met him and indicated clearly that he
was desirous of and was implementing the ban, and that some arrests were
also made. In such a situation, there was no reason for the Governor to
believe, or to report, that the Chief Minister is not sincere or keen to
implement the ban on the said organisations. As a matter of fact, the
Tribunal under Unlawful Activities (Prevention) Act, 1967, has declared
E the ban on RSS as illegal and accordingly the ban has since been revoked.
The non-implementation of an illegal ban cannot be made the basis of
action under Article 356. Assuming that there was such inaction or refusal,
it cannot be made a ground for dismissing the State Government and for
dissolving the Assembly. The White Paper now placed before the Court
was not in existence on December 15, 1992. The manifestoes issued by the
F
BJP from time to time cannot constitute the information referred to in the
J
Proclamations-not, in any event, legally relevant material. '

In the counter to the writ petition in the Madhya Pradesh High
Court, the case of the Union of India inter alia, was that the Proclamation
G is issued on the satisfaction of the President that government of Madhya
Pradesh cannot be carried on in accordance with the provisions of the
Constitution. The reports of the Governor disclosed that the State Govern-
ment had miserably failed to protect the citizens and property of the State
against internal disturbance. On the basis of the said reports, the President .....
H formed the requisite satisfaction. The Proclamation under clause (1) has
S.R. BOMMAI v. U.0.1. [SAWANT, J.] 773

been approved by both Houses of Parliament. In such a situation the Court A
· ought not to entertain the writ petition to scrutinise the wisdom or other-
wise of the Presidential Proclamation or of the approval of the Parliament.

It was further contended that the circumstances in the State of M.P.
were different from several other States where too serious disturbance to
law and order took place. There is no comparison between both situations.
B
"Besides Bhopal, over-all situation in the State of M.P. was such that there
were sufficient and cogent reasons to be satisfied that the Government in
the State could not be carried on in accordance with the provisions of the
• Constitution. It is denied that there was no law and order situation in the
State." The Governor's reports are based upon relevant material and are C
made bona fide, and after due verification.

In the counter affidavit filed in the writ petiiion (T.C. 8/93) relating
to Himachal Pradesh, it is 'lated that the events of 6th December, 1992
were not the handiwork of few persons. It is "the public attitude and D
statements of various groups and political parties including BJP which led
to the destruction of the structure in question and caused great damage to
,, the very secular fabric of the country and created communal discord and
disharmony all over the country including Himachal Pradesh." It is stated
that the repercussions of the event cannot be judged by comparing the
number of persons killed in different States. It is asserted that the Council E
of Ministers and the President "had a wealth. of material available to them
in the present case which are relevant to the satisfaction formed under
Article· 356. They were also aware of the serious damage to communal
amity and harmony which has been caused in the State of Madhya Pradesh,
among others. They were extremely concerned with repercussions which F
events at Ayodhya might still have in the States" and "the ways and means
\ to bring back normally not only in the law and order situation but also
communal amity and harmony which had been so badly damaged as a
result of the activities, attitude and stand of inter alia the party in power in
,, the State." It is also stated that, according to the definite information
available to the Government of India, members of the RSS were not only G
present on the spot at Ayodhya but actually participated in the demolition
and they were responsible for promotion of communal disharmony. It is
also asserted that the action was taken by the President not only on the
basis of the report of the Governor but also on the basis of other informa-
tion received by him. H
774 SUPREME COURT REPORTS (1994] 2 S.C.R.

A In the Counter affidavit filed in the writ petition relating to Rajasthan
(T.C.No.9 of 1993), it is stated that after the demolition on 6th December,
1992, violence started in various parts of the country leading to loss of life
and property. It is asserted that it is not possible to assess the law and
order situation in different States only on the basis of casualty figures. The
situation in each State has to be assessed differently. The averment of the
B petitioner that the State Government implemented the ban on RSS
properly is denied. There is no requirement that the report of the Governor
should be addressed to the President. It can also be addressed to the Prime
Minister. Besides the report of the Governor, other information was also
available on which the President had formed his satisfaction. The allega-
•
J
c tions of ma/a fide, capricious and arbitrary exercise of power are denied.
The Presidential Proclamation need not contain reasons for the action, it
is submitted. No irrelevant material was taken into consideration by the
President.

D The learned counsel for Union of India and other counsel supporting
the impugned Proclamations argued that the main plank and the primary
progranune of BJP was the construction of a Ram Temple at the very site
where the Babri Masjid stood. The party openly proclaimed that it will
remove - relocate, as it called it - the Bahri Masjid structure since accord-
ing to it the Babri Masjid was super-imposed on an existing Ram Temple
E by Emperor Babar. The party came to power in all the four States on the
said plank and since then had been working towards the said goal. It has
been the single goal of all the leaders of BJP, their Ministers, Legislators
and all cadres. For this purpose, they had been repeatedly collecting kar
sevaks from all corners at Ayodhya from time to time. In the days imme-
diately preceding December 6, 1992, their leaders had been inciting and
F exhorting their followers to demolish the Babri Masjid and to build a
temple there. The Ministers in Madhya Pradesh, Himachal Pradesh and I
Rajasthan had taken active part in organising and sending kar sevaks to
Ayodhya. When the kar sevaks returned from Ayodhya after demolishing
the Masjid, they were welcomed as heroes by those very persons. Many of
G the Ministers and Chief Ministers were members of RSS and were protest-
ing against the ban on it. They could not, therefore, be trusted to enforce
the ban, notwithstanding the protestations to the contrary by some of them.
The counsel relied for the purpose upon the following facts to support
there contentions :-

H In May/June, 1991, mid-term poll was held to Lok Sabha. The
S.R. BOMMAI v. U.0.1. [SAWANT,J.) 775

Jllanifesto issued by the BJP on the eve of May/June, 1991 mid-term poll A
states that the BJP "seeks the restoration of Ram Janambhoomi in Ayodhya
·only by way of a symbolic righting of historic wrongs, so that the old
unhappy chapter of acrimony could be ended, and a Grand National
Reconciliation effected." At another place under the head "Sri Ram Man-
dir at Janmasthan", the following statement occurs: "BJP firmly believes
B
that construction of Ram Mandir at Janmasthan is a symbol of the vindica-
tion of our cultural heritage and national self-respect. For BJP it is purely
a national issue and it will not allow any vested interests to give it a
sectarian and communal colour. Hence, the party is committed to build
Shri Ram Mandir at Janmasthan by relocating super-imposed Bahri struc-
ture with due respect." By themselves, the above statements may not mean c
that the programme envisaged unlawful or forcible demolition of the
disputed structure. The said statements are also capable of being under-
stood as meaning that the party proposed to vindicate their stand by
constitutional means that the disputed structure was in fact the Ram
Janmasthan which was forcibly converted into a mosque by Emperor Bahar D
and that only thereafter they would relocate the said structure and build
Shri Ram Temple at that site. However, the above statements when read
in the light of the speeches and acts of the leaders of the BJP., give room
for another interpretation as well. Those facts are brought out in the "White
Paper on Ayodhya" issued by the Government of India in February, 1993. E
They are as follows :- "A movement to construct the Shri Ram Temple at
the site of the disputed structure by removing or relocating it gathered
strength in recent years. A determined bid to storm the structure in
October/November, 1990 resulted in some damage to the structure and loss
of lives as a result of police firing. The Central Government was negotiating
F
with various parties and organisations for a peaceful settlement of the issue.
However, a new dimension was added to the campaign for construction of
the temple with the formation of the Government in Uttar Pradesh in June,
1991. The Government declared itself committed to the construction of the
temple and took certain steps like the acquisition of land adjoining the
disputed structure, demolition of certain other structure, including temples G
standing on the acquired land, and digging and levelling of a part of the
acquired land. The disputed structure itself was left out of the acquisition.
The plan of the proposed temple released by the VHP envisaged location
of the sanctum sanctorum of the temple at the very site of the disputed
structure. The Union Government was concerned about the safety of the H
776 SUPREME COURT REPORTS [1994] 2 S.C.R.

A structure. But at the meeting of the National Integration Council held on
November 2, 1991, the Chief Minister of Uttar Pradesh, Shri Kalyan Singh,
undertook lo protect the structure and assured everybody there that it is \:
ihe responsibility of the State Government to protect the disputed structure
and that no one would be allowed to go there. He also undertook that all
the orders of the Court will be faithfully implemented. In July 1992, a large
B
number of kar sevaks gathered on the acquired land and proposed to start
the construction. The situation was averted and kar seva was called off on
July 26, 1992. The BJP decided to re- enact the Rath Yatra by Sri L.K.Ad-
vani and Shri M.M. Joshi on the pattern of 1990 Rath Yatra with the
objective of mobilising people and kar sevaks for the construction of Shri
..
c Ram Temple. Shri Advani said that they have now plunged into the temple
!

movement in full strength. The leaders of the BJP were acting in concert
with VHP, RSS and allied organisations. The Rath Yafras started on
December l, 1992. Shri Advani started from Varanasi and Shri Joshi from
Mathura. The starting points had their own sinister significance for the
D future demands and programmes for restoration of the temples at both
these places. Both the leaders travelled through eastern aud western parts
of Uttar Pradesh and reached Ayodhya. During their Yatra, both these
leaders gave provocative speeches and mobilised kar sevaks and asked ,.
their workers and people to reach Ayodhya in large numbers to perform
E kar seva. Shri L.K. Advani, during the Rath Yatra, kept constantly appeal-
ing to the kar sevaks to take the plunge and not bother about the survival
of the Kalyan Singh Government. He also kept saying that kar seva in
Ayodhya would not remain restricted to "bhajan or kirtan" but would
involve physical labour. Shri Joshi, during the Rath Yatra, maintained that
the BJP Government in U.P. would not use force against the kar sevaks in
F Ayodhya and that the nature of kar scva would be decided by
Sants/Mahants and the RJB-BM issue was a religious matter which can be
j
solved only by the Dharmacharyas but not by the Supreme Court. He J

threatened of serious consequences if the BJP Government in U.P. was
dismissed. On 1st December, 1992, SbriJoshi appealed to the gathering [at
G Mathura] to assemble at Ayodhya in large numbers for kar seva and
demolish the so-called Bahri Masjid. Smt. Vijayaraje Scindia, another
leader of the BJP stated at Patna on November 23, 1992 that the Babri
Masjid will have to be demolished. Shri V.H. Dalmiya, a leader of VHP
declared on November 9, 1992 at Delhi that the RJB Temple would be
H constructed in the same way it was demolished by Babar. He stated that
S.R. BOMMAI v. U 0.1. [SAWANT, J.] 777

Kar sevaks were pressuring the leadership the they should be called not A
to construct the RJB Temple but to demolish the masjid. As early as 1st
December, 1992, 25,000 kar sevaks had reached Ayodhya. By 5th Decem-
ber, their number crossed two lacs. Arrangements \Vere made for their
accommodation in tents, schools and colleges and even in the open near
the disputed structure. The local Administration stepped up its efforts to
increase civic amenities in view of the arrival of kar sevaks in such large
B
numbers. 11

''The Central Government had posted para-military forces at Ayod-
hya to meet any eventuality and to be ready for any assistance that the local
Administration or the BJP Government may ask for. Instead of utilising C
the senices of the said forces, the Chief Minister of Uttar Pradesh had
been protesting to the Central Government about the camping of the said
forces at Ayodhya. In his letter dated Isl December, 1992 addressed to the
Prime Minister, Sri Kalyan Singh recorded his protest about the continued
presence of the said forces at Ayodhya, termed it as unauthorised and
illegal on the ground that they were stationed there without the consent D
and against the wishes of the State Government."

"On December 6, 1992, while the crowd of kar sevaks was being
addressed by leaders of the BJP, VHP etc., roughly 150 persons in a
sudden move broke through the cordon on the terrace, regrouped and E
started pelting stones at the police personnel. A large crowd broke into the
dispute structure. The mob swelled enormously within a short time and
started demolishing the structure. The local police stood by as mute
spectators since they were under orders of the Chief Minister not to use
force against the kar sevaks. The Central forces were equally helpless since
they were not allowed to intervenes by the local Magistrate on the spot." F
\
It was also emphasised that according to the statement of the Union
Home Minister made in Rajya Sabha on December 21, 1992, "all these kar
sevaks, when they returned, were received by tho Chief Ministers and
Ministers/.
G
Relying on these facts and events, it was contended that what hap-
pened on December 6, 1992 did.not happen in a day. It was the culmination
of a sustained campaign carried on by the BJP and other allied organisa-
tions over the last few years. It was then pointed out that in the manifesto
issued by the BJP in connection with the 1993 General Elections, there is H
778 SUPREME COURT REPORTS [1994] 2 S.C.R.

A not a word of regret about what happened on December 6, 1992. On the
contrary, the following statement occurs there under the heading "Ayod-
hya1'.

"Ayodhya

B In their actions and utterances, the forces of pseudo-scularism
convey the unmistakable impression of a deep repugnance for all
things Hindu. Indeed, in their minds "Hindu" has come to be
associated with 11 communal11 • The controversy over the Ram Jan-
mabhoomi temple in Ayodhya is a powerful illustration of this
c phenomenon. For them 11Sahmat11 is secular and 11Saffron" com-
munal. Although the facts of the dispute are well known, certain
features merit repetition. First, it was always apparent that a vast
majority of Hindus were totally committed to the construction of
a grand temple for Lord Rama at the site where puja has been
performed uninterruptedly since 1948 and where besides, no
D namaz has been offered since 1936. The structure build by the
Moghul Emperor Babur was viewed by the Hindus as a symbol of
national humiliation.

Second, the election of 19°1 in U ttar Pradesh centred on the
E Ayodhya dispute. It was a virtual referendum on Ram Janmab-
hoomi and the BJP with its promise to facilitate the construction
of the Ram Temple won the election. However, this update did
not prevent the Congress and other pseudo-secular parties from
wilfully obstructing the initiatives of the U ttar Pradesh government.
Everything, from administrative subterfuge to judicial delay, was
F
used by the opponents of the temple to prevent the BJP govern-
ment from fulfilling its promise to the electorate. I

On December 6, 1992 kar sevaks from all over India assembled
in Ayodhya to begin the reconstruction of the Rama Temple at
G the site adjoining the garbha griha. Matters took an unexpected
turn when, angered by the obstructive tactics of the Narasimha
Rao government, inordinate judicial delays and pseudo-secularist
tannts, the kar sevaks took matters into their own hands,
demolished the disputed structure and constructed a makeshift
H temple for Lord Rama at the garbha griha.
S.R. BOMMAJ v. U.0.1. [SAWANT,J.J 779

Owning responsibility for its inability to prevent the demolition, A
the BJP-government headed by Shri Kalyan Singh submitted its
resignation. A disoriented Central government was not content
with the imposition of President's rule in Uttar Pradesh. In viola-
tion of democratic norms, the centre dismissed the BJP govern-
ments in Rajasthan, Madhya Pradesh and Himachal Pradesh.
B
Further, it banned the Rashtriya Swayamsevak Sangh, Vishwa
Hindu Parishad and Bajrang Dal.

Worst of all, in collusion with other rootless forces the govern-
ment unleashed a vicious propaganda offensive aimed at belittling
the Hindus. The kar sevaks were denigrated as fascisis, lumpens c
and vandals, and December 6, was described as a 11 national shame 11 •
Recently, the CBI has filed chargesheets against leaders of the BJP
and the Vishwa Hindu Parishad with the purpose of projecting
them as criminals.

This relentless onslaught of the pseudo-secular forces against D
the people of India had very serious consequences. For a start, it
created a wide emotional gulf between the rulers and the people.
Ayodhya was a popular indictment of the spurious politics of
.., double-standards. Far from recognising it as such, the Congress
and other anti-BJP parties used it as a pretext for furthering the E
cause of unprincipled minorityism.

It is this minorityism that prevents the Congress, Janata Dal,
Samajvadi Party and the Communist Parties from coming out with
an unambiguous declaration of intent on Ayodhya. This BJP is the
only party which is categorical in its assurance to facilitate the F
construction of the Rama Temple at the site of the erstwhile Babri
structure. This is what the people desire."

The further submission was that the demolition of the disputed
structure was the outcome of the speeches, programme and the several
campaigns including Rath Yatras undertaken by the leaders of the BJP. It G
is neither possible nor realistic to dissociate the Governments of Madhya
Pradesh, Rajasthan and Himachal Pradesh from the acts and deeds of their
party. It is one party with one programme. It is stated in the report of the
Himachal Pradesh Governor that the Chief Minister himself was a member
of the RSS. In the report of the Governor of Madhya Pradesh also, it is H
780 SUPREME COURT REPORTS [1994] 2 S.C.R.

A stated that the Chief Minister and other ministers swore by the values and
traditions of the RSS. The reports also indicate that these governments
actively participated in organising and despatching the kar sevaks to Ayod-
\.
hya and welcomed them and praised when they came back after doing the
deed. Thus, a common thread runs through all the four BJP Governments
and binds them together. The manifestoes of the party on the basis of which
B '"!"
these Governments came to power coupled with their speeches and actions
clearly demonstrate a commonness, and unity of action between the party
and the four Governments. The very manifestoes and their programme of
action were such as to hurt the religious feelings of the Muslim Community.
The demolition of the disputed structure was no ordinary event. The
c disputed structure had become the focal point, and the bone of contention
between two religious communities, The process which resulted in the
demolition and the manner in which it was perpetrated, dealt a serious
blow to the communal harmony and peace in the country. It had adverse
international repercussions as well. A number of Hindu temples were
D demolished in Pakistan and Bangladesh in reprisal of the demolition at
Ayodhya. It was difficult in this situation for the minorities in the four
States to have any faith in the neutrality of the four Governments. It was
absolutely necessary to recreate a feeling of security among them. They
required to be assured of the safety and security of their person and y

property. This was not possible with the BJP Governments in power.
E
It was also stressed that the Chief Ministers of Himachal Pradesh
and Madhya Pradesh were the members of the banned RSS in such
circumstances, the respective Governors were rightly of the view that the
said Chief Ministers could not be expected to, or relied upon to implement
the ban sincerely. Hence it could not be said to be an unfounded opinion.
F
Allowing a party which had consciously and actively brought about such a
situation to continue in office in these circumstances would not have helped
1
in restoring the faith of people in general and of the minorities in par- '
ticular. It is no answer to say that disturbance took place on a much larger
scale in certain States ruled by Congress (I) party and that no action was
G taken against those. Gov~rnments.
.
In reply to the_se contentions, the counsel for the petitioners sub-
mitted that if the reasoning of the counsel for the Union of India was
accepted, it would mean that BJP cannot form government in any State
H and the party has to be banned and that the acceptance of such submissions
S.R. BOMMAI v. U.0.1. [SAWANT, J.] 781

would create a serious political situation. They also pointed out that the A
majority judgment of !he two judges of the Madhya Pradesh High Court
I had quashed the Proclamation taking the view that is was not possible to
accept that failure on the part of the State Government to save the lives
and properties of citizens in a few cities in the State as a result of sudden
outbreak of violence could reasonably lead to the satisfarlion of the Presi-
dent that the Government was unable to function in accordance with the
B
Constitution a.nd, therefore, the consequent dissolution of the Assembly
was also bad in law.

38. The gist of the contentions of the petitioners was that a mere
disturbance in some parts of Madhya Pradesh and Rajasthan involving the C
loss of some lives and destruction of some property did not amount to a
situation where it could be said that the Governments of those States could
not be carried on in accordance with the provisions of the Constitution.
Further, the fact that the ministries of these States belonged to BJP whose
one of the political planks in the election manifesto was the construction D
of Shri Ram Temple at the site of the mosque by relocating the mosque
somewhere else, did not amount to an act to give rise to the apprehension
the the Ministries of that party were infidel to the objective of secularism
enshrined in the Constitution. So also, the pursuit of the programme of
constructing the temple on the site of the mosque by relocating the latter
elsewhere, by speeches and by exhorting the kar sevaks to assemble at E
Ayodhya on 6th December, 1992 and by giving them a warm send-off for
the purpose did not amount to a deviation form the creed of secularism·
nor did the welcome to the kar sevaks in the State after the destruction of
the mosque or the inaction of the leaders of the BJP present at the site in
preventing the kar sevaks from destroying the mosque or want of the F
expression of regret on their part over such destruction amount to a
breach of the goal of secularism. A mere continuance in office of the
Ministries which were formed on the said political plank in the aftermath
of the destruction of the mosque by itself could not further have led to the
feelings of insecurity in the minds of the Muslims when the State Govern-
ments of Rajasthan and Madhya Pradesh could not be said to be remiss in G
taking all necessary actions to prevent riots and violence and when there
was no incident of violence or destruction in Himachal Pradesh. As against
this, the sum and substance of the contentions on behalf of the Union of
India and others supporting the Proclamations in these States was that the
Ministries heading the administration in these States could not be trusted H
782 SUPREME COURT REPORTS (1994] 2 S.C.R.

A to adhere to secularism when they had admittedly come to power on the·
political plank of constructing Shri Ram Mandir on the site of the mosque
by relocating the mosque elsewhere which meant by destroying it and then
reconstructing it at other place. This was particularly so, when by its actual
deed on 6th December, 1992, the party in question demonstrated what they
meant by their said political manifesto. It was facile thereafter to contend
B that the party only wanted to follow the constitutional means to pursue the
goal of constructing the Ram Temple on the said site. The destruction of
mosque was a concrete proof of the creed which the party in question
wanted to pursue. In such circumstances, the Ministries formed by the said
party could not he trusted to follow the objective of secularism which was
C part of the basic structure of the Constitution and also the soul of the
Constitution.

39. These contentions inevitably invite us to discuss the concept of
secularism as accepted by our Constitution. Our Constitution does not
D prohibit the. practice of any religion either privately or ·publicly. Through
the Preamble of the Constitution, the people of this country have solemnly
resolved to constitute this country, among others, into a secular republic
and to secure to all its citizens [i] JUSTICE, sociai economic and political;
[ii] LIBERTY of thought, expression, belief, faith and worship; [iii]
EQUALITY of status and of opportunity; and [iv] to promote among them
E all FRATERNITY assuring the dignity of the individual and the unity and
integrity of the Nation. Article 25 of the Constitution guarantees to all
persons equally the freedom of conscience and the. right freely to profess,
practice and propagate religion subject to public order, morality and health
and subject to the other ~undamental Rights and the State's power to make
F any law regulating or restricting any economic, financial, political or other
secular activity which may be associated with religious practice. Article 26
1 •
guarantees every religious denomination or any section thereof the right [a] '·
to establish and maintain institutions for religious and charitable purposes,
[b] to manage its own affairs in matters of religion, [cj to own and acquire
movable and immovable property and [dj to administer such property in
G accordance with law. Article 29 g11arantees every section of the citizens its
distinct culture, among others. Article 30 provides that all minorities based
on religion shall have the right to establish and administer educational
institutions of their choice. It prohibits the State from making any dis"
crirnination in granting aid to an educational institution managed by a
H religious minority. Under Articles 14, 15 and 16, the Constitution prohibits

J
S.R. BOMMAI v. U.0.1. [SAWANT, J.] 783

discrimination against any citizen on the ground of his religion and guaran- A
tees equal protection of law and equal opportunity of public employment.
Article 44 enjoins upon the State to endeavour to secure to its citizens a
uniform civil code. Article 51A casts a duty on every citizen of India, an1ong
others, [a] to abide by the Constitution and respect its ideals and institu-
tions, (b] to promote harmony and the spirit of common brotherhood,
among all the people of India, transcending, among others, religious and
B
sectional diversities, [c] to value and preserve the rich heritage of our
composite culture, [dj to develop scientific temper, humanism and the
... ~
spirit of inquiry and reform; and [e] to safeguard public property and to
abjure violence.
c
These provisions by implication prohibit the establishment of a
theocratic State and prevent the State either identifying itself with or
favouring any particular religion or religious sect or denomination. The
State is enjoined to accord equal treatment to all religions and religious
sects and denominations.
D
As has been explained by Shri M.C. Setalvad, [Patel Memorial
·~
Lecturer - 1965 on Secularism], "secularism often denotes the way of life
and conduct guided by materialistic considerations devoid of religion. The
basis of this ideology is that material means alone can advance mankind
and that religious beliefs retard the growth of the human beings .......... this E
ideology is of recent growth and it is obvious that it is quite different from
the concept of Secular State in the West which took root many centuries
ago ...... n

11
A different view in relation to religion is the basis of 'secularism' F
understood in the sense of what may be called a "secular attitude 11 towards
life. Society generally or the individual constituting it tend progressively to
isolate religion from the more significant area~ of common life. Many of
us, Hindus and Muslims and others, are in our way of life, and outlook on
most matters largely governed by ideas and practices which are connected
with or are rooted in our religion. l'he secular attitude would wean us away G
from this approach so that in our relations \vith our fellow-beings or in
dealings with other social groups, we have less and less regard for religion
and religious practices and base our lives and actions more on worldly
consideration, ·restricting religion and its influence to what has been called
its 11 proper" sphere, i.e . , the advancement of the spiritual life and wellbeing H
784 SUPREME COURT REPORTS (1994] 2 S.C.R.

A of the individual. Secularism of this character is said to be essential to our
progress as human beings and as a nation because it will enable us to shake
off the narrow and restrictive outlook arising out of castism, communalism
and other life ideas which come in the way of our development".

".... the concept of a Secular State is quite distinct from 'secularism'
B of the kinds we have adverted to above ..... No doubt, the two concepts are
interdependent in the sense that it is diffjcult to conceive of a society or a
group of individuals being induced to adopt a secular philosophy or a
secular attitude without the aid of a Secular State."

c "A secular State is not easy to define. According to the liberal
democratic tradition of the West, the secular State is not hostile to religion
but holds itself neutral in matters of religion ...... " Thereafter, referring to
the Indian concept of secularism, the learned jurist stated as follows:
"....... the secularist way of life was repeatedly preached by leaders of
D movement so that religious matters came to be regarded entirely as relating
to the conscience of the individuals ....... 11

"The coming of the partition emphasised the great importance of
secularism. Notwithstanding the partition, a large Muslim minority consist-
ing of a tenth of the population continued to be the citizens of independent
E India. There are other important minority groups of citizens. In the cir-
cumstances, a secular Constitution for independent India under which all
religions could enjoy equal freedom and all citizens equal right and which
could weld together into one nation, the different religious communities,
11
became inevitable. Thereafter, the learned jurist has gone on to point out
F that our Constitution undoubtedly lacks a complete separation between the
church and the State as in the United States and at the same time, we have
no established church as in Great Britain or some other countries, In our
country, all religions are placed on the basis of equality and it would,
therefore, seem that it is erroneous to describe our country as a secular
State. He quoted Dr. Radhakrishnan who said that "the religious impar-
G tiality of the Indian State is not to be confused with secularism or atheism.
He also pointed out that the proceedings of the Constituent Assembly show
that 11 two attempts made to introduce the word 11 secular 11 in the Constitution
had failed ..... ". At the same time, he asserted that" ..... nevertheless, it could
not be said that the Indian State did not possess some important charac-
H teristics of a secular State" and has pointed out some of the provisions of
S.R. BOMMAI v. U.0.1. [SAWANT,J.] 785

the Constitution to which we have already made a reference above. He has A
then stated that the ideal of a secular State in the sense of a State which
treats all religions alike and displays benevolence towards them is in a way
more suited to the Indian envirorunent and climate than that of a truly
secular State by which he meant a State which creates complete separation
between religion and the State. Justice Chinnapp.a Reddy, delivering his
Ambedkar Memorial lecture on 'Indian Constitution and Secularism' has
B
observed that "...... Indian constitutional secularism is not supportive of
religion at all but has adopted what may be termed as permissive attitude
towards religion out of respect for individual conscience and dignity.
There, even while recognising the right to profess and practice religion etc.,
it has excluded ali secular activities from the purview of religion and also c
of practices which are repugnant to public order, morality and health and
are abhorrent to human rights and dignity, as embodied in the other
fundamental rights guaranteed by the Constitution."

One thing which prominently emerges from the above discussion on D
secularism under our Constitution is that whatever the attitude of the State
towards the religions, religious sects and denominations, religion cannot be
mixed with any secular activity of the State. In fact, the encroachment of
religion into secular activities is strictly prohibited. This is evident from the
provisions of the Constitution to which we have made reference above. The
State's tolerance of religion or religions does not make it either a religious E
or a theocratic State. When the State allows citizens to practice and profess
their religions, it does not either explicitly or implicitly allow them to
introduce religion into non-religious and secular activities of the State. The
freedom and tolerance of religion is only to the extent of permitting pursuit
of spiritual life which is different from the secular life. The latter falls in
the exclusive domain of the affairs of the State. This is also clear from F
sub-section [3] of Section 123 of the Representation of the Peoples Act,
1951 which prohibits an appeal by a candidate or his agent or by any other
person with the consent of th~ candidate or his election agent to vote or
refrain from voting for any person on the ground of his religion, race, caste,
community or language or the use of or appeal to religious symbols. G
Sub-Section [3A] of the same section prohibits the promotion or attempt
to promote feelings of erunity and hatred between different classes of the
citizens of India on the grounds of religion, race, caste community or
language by a candidate or his agent or any other person with the consent
of a candidate or his election agent for the furtherance of the prospects of
the election of that candidate or for prejudicially affecting the election of H
786 SUPREME COURT REPORTS (1994] 2 S.C.R.

A any candidate. A breach of the provisions of the said sub-sections [3) and
[3A] are deemed to be corrupt practices within the meaning of the said
section.

Mr. Ram J ethmalani contended that what was prohibited by Section
123(3) was not an appeal to religion as such but an appeal to religion of
B the candidate and seeking vote in the name of the said religion. According
to him, it did not prohibit the candidate from seeking vote in the name of
a religion to which the candidate did not belong. With respect, we are
unable to accept this contention. Readi~g sub-sections [3) and [3A] of ~ tr'
Section 123 together, it is clear that appealing to any religion or seeking
votes in the name of any religion is prohibited by the two provisions. To
C read otherwise is to subvert the intent and purpose of the said provisions.
What is more, assuming that the interpretation placed by the learned
counsel is correct, it cannot the content of secularism which is accepted by
and is implicit in our Constitution.

D 40. In view of the content of secularism adopted by our Constitution
as discussed above, the question that poses itself for our consideration in
these matters is whether the three Governments when they had to their
credit the acts discussed above, could be trusted to carry on the governance
of the State in accordance with the provisions of the Constitution and the
President's sati,faction based on the said acts could be challenged in law.
E To recapitulate, the acts were [i] the BJP manifesto on the basis of which
the elections were contested and pursuant to which elections the three
Ministries came to power stated as follows:

· "BJP firmly believes that construction of Shri Ram Mandir at
Janmasthan is a symbol of the indication of our cultural heritage
F and national self-respect. For BJP it is purely a national issue and ,
,
it not allow any vested interest to give it a sectarian and communal
colour. He11ce party is committed to build Shri Ram Mandir at
J anmasthan by relocating superimposed Bahri structure with due
respect 11 • ....
G [Emphasis supplied]

[ii) Leaders of the BJP had consistently made speeches thereafter to the
same effect. [iii] Some of the Chief Ministers and Ministers belonged to
RSS which was a banned orgarusation at the relevant time. [iv] The Mini-
H;
.. sters in the Ministries concerned exhorted people to join kar seva in
S.R.BOMMAI v.U.0.1.[SAWANT,J.] 787

Ayodhya on 6th December, 1992. One MLA belonging to the ruling B.IP A
in Himachal Pradesh made a public statement that he had actually par-
ticipated in the destruction of the mosque. [v] Ministers had given public
send-off to the kar sevaks and had also welcomed them on their return
after the destruction of the mosque. [vi] The implementation of the policy
pursuant to the ban or the RSS was to be executed by the Ministers who
B
were themselves members of the said organisation. [vii] At least in two
States, viz., Madhya Pradesh & Rajasthan there were atrocities against the
Muslims and loss of lives and destruction of property.
'+
I
As stated above, religious tolerance and equal treatment of all
religious groups and protection of their life and property and of the places C
of their worship are an essential part of secularism enshrined in our
Constitution. We have accepted the said goal not only because it is our
historical legacy and a need of our national unity and integrity but also as
a creed of universal brotherhood and humanism. It is our cardinal faith.
Any profession and action which go counter to the aforesaid creed are a D
prima facie proof of the conduct in defiance of the provisions of our
Constitution. If, therefore, the President had acted on the aforesaid
11
credentials11 of the Ministries in these States whirh had unforeseen and
imponderable cascading consequences, it can hardly be argued that there
was no material before him to come to the conclusion that the Govern-
ments in the three States could not be carried on in accordance with the E
provisions of the Constitution. The consequences of such professions and
acts which are evidently against the provisions of the Constitution cannot
be measured only by what happens in praesentie. A reasonable prognosis
of events to come and of their multifarious effects to follow can always be
made on the basis of the events occurring, and if such prognosis and led F
to the conclusion that in the circumstances, the governments of the States
could not be carried on in accordance with the provisions of the Constitu-
tion, the inference could hardly be faulted. We are, therefore, of the view

- that the president had enough material in the form of the aforesaid
professions and acts of the responsible section in the political set up of the
three States including the Ministries to form his satisfaction that the G
Governments of the three States could not be carried on in accordance
with the provisions of the Constitution. Hence the Proclamations issued
could not be said to be invalid.

41. The appeals filed against the judgment of the Madhya Pradesh H
788 SUPREME COURT REPORTS [1994] 2 S.C.R.

A High Court have, therefore, to be allowed and the Transfer Cases challeng-
ing the Proclamation, have to be dismissed.

SUMMARY OF CONCLUSION:

Our conclusions, therefore, may be summarised as under :
B
I. The validity of the Proclamation issued by the President under
Article 356 [1] is judicially reviewable to the extent of examining 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. When a prima facie case is made out in the challenge to the
C Proclamation, the burden is on the Union Government to prove that the
relevant material did in fact exist. Such material may be either the report
of the Governor or other than the report.

II. Article 74[2] is not a bar against the scrutiny of the material on
D the basis of which the President had arrived at his satisfaction.

III. When the President issues Proclamation under Article 356[1], he
may exercise all or any of the powers under sub-clauses [a], [b] and [c]
thereof. It is for him to decide which of the said powers he will exercise,
and at what stage, taking into consideration the exigencies of the situation.
E
IV. Since the provisions contained in clause [3] of Article 356 are
intended to be a check on the powers of the President under clause [1]
thereof, it will not be permissible for the President to exercise powers
under sub-clauses [a], [b] and [c] of the latter clause, to take irreversible
actions till a least both the Houses of Parliament have approved of the
F Proclamation. It is for this reason that the President will not be justified in ,;.
dissolving the Legislative Assembly by using the powers of the Governor
under Article 174[2][b] read with Article 356[1][a] till at least both the
Houses of Parliament approve of the Proclamation.

G V. If the Proclamation issued is held invalid, then notwithstanding
the fact that it is approved by both Houses of the Parliament,. 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 Min-
istry.

H VI. In appropriate cases, the Court will have power by an interim
S.R. BOMMAI v. U.O.L [SAWANT,J.] 789

injunction, to restrain the holding of fresh elections to the Legislative A
Assembly pending the final disposal of the challenge to the validity of the
proclamation to avoid the Jait accompli and the remedy of judicial review
being rendered fruitless. However, the Court will not interdict the issuance
of the Proclamation or the exercise of any other power under the
Proclamation.
B
VII. While restoring the status quo ante, it will be open for the Court
to mould the relief suitable and declare as valid actions taken by the
President till that date. It will also be open for the Parliament and the
Legislature of the State to validate the said actions of the President.

VIII. Secularism is a part of the basic structure of the Constitution.
c
The acts of a State Government which are calculated to subvert or sabotage
secularism as enshrined in our Constitution, can lawfully be deemed to give
rise to a situation in which the Government of the State cannot be carried
on in accordance with the provisions of the Constitution.
D
IX. The Proclamations dated 21.4.1989 and 11.10.1991 and the action
taken by the president in removing the respective Mirustries and the
Legislative Assemblies of the State of Karnataka and the State of
Meghalaya challenged in Civil Appeal No. 3645 of 1989 and Transfer Case
Nos. 5 & 7 of 1992 respectively are unconstitutional. The Proclamation
dated 7.8.1988 in respect of State of Nagaland is also held unconstitutional. E
However, in view of the fact that fresh elections have since taken place and
the new Legislative Assemblies and Ministries have been constituted in all
the three States, no relief is granted consequent upon the above declara-
tions. However, it is declared that all actions which might have been taken
during the period the proclamation operated, are valid. The Civil Appeal
No.3645 of 1989 and Transfer Case Nos. 5 & 7 of 1992 are allowed F
accordingly with no order as to costs. Civil Appeal Nos. 193-94 of 1989 are
disposed of by allowing the writ petitions filed in the Guahati High Court
accordingly but without costs.

X. The proclamations dated 15th December, 1992 and the actions G
taken by the President removing the Ministries and dissolving the Legisla-
tive Assemblies in the States of Madhya Pradesh, Rajasthan and Himachal
Pradesh pursuant to the said Proclamations are not unconstitutional. Civil
Appeals No. 1692, 1692A-1692C, 4627-30 of 1993 are accordingly allowed
and Transfer Case Nos. 8 & 9 of 1993 are dismissed with no order as to
costs. H
790 SUPREME COURT REPORTS (1994] 2 S.C.R.

A B.P. JEEVAN REDDY, J. Article 356 of the Constitution of India is
a provision without a parallel. Constitution of no other country contains a
similar provision. The only other Constitution that contains a somewhat
similar provision is the Constitution of Pakistan of 1973, viz., Article 58(2)
and Article 112(2). Both the Indian and Pakistani provisions appear to be
B inspired by Section 45 and Section 93 of the Government of India Act,
1935. Article 356, however, is qualitatively different, while the Pakistani
provisions are ·more akin to the provisions of 1935 Act. Under Article 356,
the President is empowered to remove the State Government, dissolve the
Legislative Assembly of the State and take over the functions of the
government of the State in case he is satisfied that the goverrunent of that
C State cannot be carried on in accordance with the provisions of the
Constitution. In the context of the Indian Constitution (more specifically
after the amendment of Article 74(1) by the 42nd (Amendment) Act) this
really is the power vested in the council of ministers headed by the Prime
Minister at the centre. The action can be taken either on the report of the
D Governor or on the basis of information received otherwise or both. An
awesome power indeed. The only check envisaged by the Constitution -
apart from the judicial review - is the approval by both Houses of Parlia-
ment which in practice has proved to be ineffective, as this judgment Will
demonstrate. And with respect to judicial review of the action under
Article 356, serious reservations are expressed by the counsel for the Union
E of India and other respondents. If. what they say is accepted, there is a
danger of this power eroding the very federal structure of our State and
introducing a serious imbalance in our constitutional scheme. It is, there-
fore, necessary to define the parameters of this power and the parameters
of judicial review in these matters in the interest of our constitutional
system. It is for this reason that we heard elaborate arguments from all the
F
parties before us on the meaning, scope and dimensions of the power under
this Article. We may say, we are fully aware of the delicate nature of the
problem. We are aware that though the questions raised herein are con-
stitutional in character, they do have political overtones. Is is quite likely
that our views will not be found palatable by some but that probably cannot
G be helped. Sworn to uphold the Constitution, we must say what the Article
says and means.

It is true that on account of elections having taken place subsequent
to the issuance of the proclamations impugned herein, no effective relief
H can be grant~d in these matters, we are yet requested by all the parties
S.R. BOMMAl v. U.0.1. [ll.I'. JEEVAN REDDY .1.J 791

concerned herein that \Ve should express ourselves on all the issues <Jrising A
herein so that the principles enunciated by this court may serve as
guidelines for the future for <111 concerned.

ARTICLE 356: THE BACKGROUND:

India becan1c a BritL-;h colony in the year 1858. Roughly t\vo- thirds B
of it vvas under direct Briti~h rule \Vhilc the rc1naining one-third \Vas under
the rulers hip of n1orc than 500 Princes, \Vho inturn \Vere directly under the
thumb of the British cruv. n. 1~hc 1935 Ac1 introduced, for the first ti1ne,
1

the c.:oncept of division of powers bet\veen the centre and the provinces.
Most of the po\vcrs \Vere retained with the Centre. The provincial govern- C
ments were kept under an ever-watchful an<l all pov..rerful centre. The
Ciovcrnors in the provinces anJ the Governor-General at the centre exer-
cised real and substantial power, unlike the Governors and the President
under the Constitution. Frain the British point of vie,v, it \Vas an experi-
n1cnt1 the first one) in self-rule by the Indians. A few po\vcrs were entrusted
to the elected governments at the centre or in the provinces; even those D
could be resumed and taken back by the Governor-General or Governor,
as the case may be, \I/hen.ever he was satisfied that the government at the
centre or of the province could not be carried on in accordance with the
provisions of the Act. Governor-General and Governor, under the 1935
Act, meant the imperial colonial power. Evidently, the British Parliament E
was not prepared to trust the Indian political parties. Many of them were
opposed to British rule and some of their leaders had declared openly that
they would enter the Legislatures and the government with a view to break
the system from within. Sections 45 and 93 were the products of this
mis-trust.
F
But then why was a provision like Article 356 ever made in the
Constitution? What was the occasion and necessity for it? For ascertaining
this; we may have to turn to the debates in the Constituent Assembly. The
draft Articles 277(4) and 278 (corresponding to Articles 355 and 356) were
taken up for consideration on August 3, 1949. It would be appropriate to G
read both Articles 355 and 356 as enacted by the Constituent Assembly:

"355. Duty of the Union to protect States against external aggres-
sion and internal disturbance.-' lt shall be the duty of the Union
to produC.ts every State against external aggression and internal
disturbance and to ensure that the government of every State is H
792 SUPREME COURT REPORTS [1994] 2 S.C.R.

A carried on in accordance \vith the provisions of lhis Constitution.

356. Provisions in case of failure of constitutional rnachincry in
States.-- (1) If the President, on receipt of report from the Gover-
nor of a State or othcrWise, is satisfied that a situation has arisen
in \\ hich the government of the State cannot be carried on in
1

B accordance with the provisions of this Constitution the President
may by Proclamation-

(a) assume to himself all or any of the fonctions of the Government
of the Slate and all or any of the powers vested in or exercisable
by the Governor or any body ur authority in the State other than
..
c the Legislature of the Stato:
t

(b) declare that the powers of the legislature of the State shall be
exercisable by or under the authority of Parliament:

(c) make such incidental and consequential provisions as appear
D
to the President to he necessary or desirable for giving effect to
the objects of the Proclamation, including provisions for suspend-
ing in whole or in part the operation of any provisions of this
Constitution relating to any body or authority in the State;

E Provided that nothing in this clause shall authorise the Presi-
dent to assume to himself any of the powers vested in or exercisable
by a High Court, or to suspend in whole or in part the operation
of any provisions of this Constitution relating to High Courts.

(2) Any such Proclamation may be revoked or varied by a sub-
F sequent Proclamation.

(3) Every Proclamation issued under this article shall be laid before
each House of Parliament and shall, except where it is a Proclama·
tion revoking a previous Proclamation, cease to operate at the
expiration of two 1nonths unless before the expiration of that
G
period it has been approved by resolutiuns of both Houses of
Parliament:

Pro\idcd that if any such Proclamation (not being a Proclama-
tion revoking a previous Proclarnation) is issued at a time when
H the House of the People is dissolved or the dissolution of the.
S.R. HOMMA! v. U.0.1. [B.P.JEEVAN REDDY,.!.[ 793

House of the people takes place during the period of t\VO months A
referred to in this clause, and if a resoluti_on approving the
.
' Proclamation has been passed by the Council of State, but no
resolutions \vith respect to such Proclamation has been passed by
the House of the People before the expiration of that period, the
Proclamation shall cease to operate at the expiration of thirty <lays
B
from the date on which the House of the People first sits after its
reconstitution unless before t.he expiration of the said period of
thirty days a resolution approving the Proclamation has been also
passed by the House of the People .

• (4) A Proclamation so approved shall, unless revoked, cease to C
' operate on the expiration of a period of six months from the date
of issue of the Proclamation:

Prnvided further that if the dissolution of the House of the
People takes place during any such period of six months and a D
resolution approving the continuance in force of such Proclamation
has been passed by the Council of States, but no resolution with
respect to the continuance in force of such Proclamation has been
passed by the House of the People during the said period, the
Proclamation shall cease to operate at the expiration of thirty days
from the date on which the House of the People first sits after its E
reconstitution unless before the expiration of the said period of
thirty days a resolution approving the continuance in force of the
Proclamation has been also passed by the House of the People."

Dr. B.R. Ambedkar was of the view that the Constitution must p
provide for situation of break-down of the Constitutional machinery in the
') State analogous to provisions contained in Section 93 of the 1935 Act. If a
situation arises, for whalever reason, where the government of a Stale
cannot be carried on in accordance with the provisions of the Constitution,
he said, the President of India must be empowered to remedy it. For that
purpose, he could take over all or any of the functions of the government G
as well as of the State Legislature. He could also make such other
provisions as he may think necessary - including suspension of the
provisions of the Constitution except those relating to High Court. This
power, he stated must be understood in the context of draft Article 277(A)
(Article 355), which cast an obligation upon the Union to protect every H
794 SUPREME COURT REPORTS [.1994] 25.C.R.

A State against external aggression and internal disturbance and to ensure
that the government of every State is carried on in accordance with the
provisions of the Constitution. To discharge this obligation, he said, the
centre must be empowered to take over the government of the State. At •'
the same time, he said, the President is not expected to act in a wanton or
arbitrary n1anner but on the basis of a report from the Governor or on the
B basis of other material in his possession 1 as the case may be.

Several me1nbers strongly opposed the incorporation of a provisions
like the one contained in draft Article 278 on the ground inter a/ia that il
would be an invasion upon the field reserved for the States and that
C permitting the President to take over the govcrn1nenl of the State even on •
the basis of the information received "otherwise'1 - i.e., without there being
a report of the Governor to that effect, was bound to be abused. A few
members pleaded that this power should be exercised only on the report
of the Governor and that the words "or otherwise" should be deleted from
D the Article. All these objection were over-ridden by Dr. Ambedkar with
the argument that no provisions of any Con.':ititution, for that matter, is
immune from bcin~ abused. He then 1nadc this significant statement: 11 ln
fact I share the sentiments expressed by my Hon'ble friend Mr. Gupte
yesterday that the proper thing we ought to expect is that such articles will
never be called into operation and that they would remain a dead letter. If
E at all the are brought into operation, I hope the President, who is endowed
with these powers, will take proper precautions before actually suspending
the administration of the provinces." He added: "I hope the first thing be will
do would be to issue a clear wanting to province that has erred, that things
were not happening in the way in which they were intended to happen in
the Constitution."
F
Article 356 was thus conceived as a mechanism to ensure that the
r
governn1ent of the State is carried on in accordance with the provisions of •
the Constitution. Democratic rule based on adult franchise was being
introduced for the first time. Almost 1/3rd of the country, under princely
G rule, had never known elections. Rule of Law \\'as a novelty in those areas.
The infant democracy required careful nurturing. Many a hiccup was
expected in the days to come. This perhaps explains the need for a
provisions like the one in Article 356.

H Article 356 finds place in Part XVIII which carries the heading
S.R. BOMMAJ v. U.0.1. [B P.JEEVAN REDDY,.!.] 795

''Emergency Provisions 11 • Article 352, the first article in this Part, cmpo\vers A
the President of India to proclaim emergency in the country or any part
thereof if he is satisfied that a grave emergency exists whereby the security
of India or any part thereof is threatened whether by war, external aggres-
sion or armed rebellion. (By the 44th Amendment, the words "armed
rebellion" were substituted in the place of the \Vords "internal disturbance").
Articles 353 and 354 set out the effects of such a proclamation and provide
B
for certain incidental matters. Article 355, set out hcreinbefore, imposes a
duty upon the Union to protect the States against external aggression and
armed rebellion and also to ensure that the government of every State is
carried on in accordance with the provisions of the Constitution. Articles
355, 356 and 357 go together. Article 356 provides for the action to be taken C
by the President where he is satisfied that a situation has arisen in which
the government of a State cannot be carried on in accordance with the
provisions of the Constitution by making a proclamation in that behalf,
while Article 357 sets out the powers that can be exercised by the Parlia-
ment when a proclamation under Article 356 is in operation. Articles 358 D
and 359 deal with suspending of certain fundamental rights during the
period the proclamation under Article 352 is in operation, while Article
360 empowers the President to declare financial emergency in certain
l' situations.

In a sense, Article 356 is an emergency provision though, it is true, E
it is qualitatively different from the emergency contemplated by Article
352, or for that matter, from the financial emergency contemplated by
Article 360. Undoubtedly, break-down of the Constitutional machinery in
a State docs gives rise to a situation of emergency. Emergency means a
situation which is not norma1, a situation \Vhich calls for urgent remedial }:;'
action. Article 356 confers a power to be exercised by the President in
y
! exceptional circumstances to discharge the obligation cast upon him by
Article 355. It is a measure to protect and preserve the Constitution,
consistent with his oath. He is as much bound to exercise this power in a
situation contemplated by Article 356 as he is bound not to use it where
such a situation has not really arisen. G

By 42nd (Amendment) Act of the Constitution. uause (5) was added
in Article 356. It was deleted by 44th (Amendment) Act which incor-
' porated an altogether different provisions as ciausc (5). It would be ap-
propriate to take the article as it now stands while trying to understand its H
./
796 SUPREME COURT REPORTS [1994] 2 S.C.R.

A meaning, purpose and scope. But before we do that, it would be ap-
propriate to examine the nature or the Indian Federation as ordained by
our Constitution.

THE FEDERAL NATURE OF THE CONSTITUTION:

B
The expression 11 Federation11 or nfederal form of governmentn has no
fixed meaning. It broadly indicates a division of powers between a central
(federal) government and the units (States) comprised therein. No two
federal constitutions arc alike. Each of them, be it of U.S.A., Canada,
Australia or of any other country, has its own distinct character. Each of
c them is the culmination of certain historical process. So is our constitution.
It is, therefore, futile to try to ascertain and fit our constitution into any
particular mould. It must be understood in the light of our own historical
process and the constitutional evolution. One thing is dear: it was not a
case of independent Stale coming together to form a federation as in the
case of U.S.A.
D
A review of the provisions of the Constitution shows unmistakably
that while creating a federation, the founding fathers wished lo establish a
strong a centre. In the light of the past history of this sub-continent, this
was probably a natural and necessary decision. A land as varied as India
E is, a strong centre is perhaps a necessity. This bias to,vards centre is
reflected in the distribution of legislative heads between the Centre and
States. All the more important heads of Legislation are placed in List-I.
Even among the legislative heads mentioned List_II, several of them, e.g.,
Entries 2, 13, 17, 23, 24, 26, 27, 32, 33, 50, 57 and 63 are either limited by
F or made subject to certain Entries in List-I to some or the other extent.
Even in the concurrent list (List-lll), the Parliamentary enactment is given
the primacy, irrespective of the fact whether such enactment is earlier or ,
later in point of time lo a State enactment on the same subject-matter. •
Residuary powers are with the Centre. By the 42nd Amendment, quite a
few of the Entries in List-II were omitted and/or transferred lo other lists.
G Above all, Article 3 empowers the Parliament to form new States out of
existing States either by merger or division as also to increase, diminish or
alter the boundaries of the States. In the process, existing States may
disappear and nc\V ones may come into existence. As a result of the
Reorganisation of States Act) 1956, fourteen States and six Union Ter-
H ritories came into existence in the place of t\venty sc:vcn States and one
S.R. BOMMAI v. U.0.1. [B.P. JEEVAN REDDY. .J.] 797

area. Even the names of the States can be changed by the Parliament A
-· unilaterally. The only requirement, in all this process, being the one
\ , prescribed in the proviso to Article 3, viz., ascertainment of the views of
the Legislatures of the affected Stales. There is single citizenship, unlike
U.S.A. The judicial organ, one of the three organs of the State, is one and
single for the entire country - again unlike U.S.A., where you have the
Federal judiciary and State judiciary separately. Articles 249 to 252 further
B
demonstrate the primacy of Parliament. If tl::e Rajya Sabha passes a
resolution by 2/3rd majority that in the national interest, Parliament should
make laws with respect to any matter in List-II, Parliament can do so
(Article 249), no doubt, for a limited period. During the operation of a
proclamation of emergency, Parliament can make laws with respect to any c
matter in List-II (Article 250). Similarly, the Parliament has power to make
laws for giving effect to International Agreements (Article 253). So far as
the finances are concerned, the States again appear to have been placed
in a less favourable position, an aspect which has attracted a good amount
of criticism at. the hands of the States and the proponents of the States D
autonomy. Several taxes are collected by the Centre and made over, either
partly or fully, to the Stater.. Suffice il lo say that Centre has been made
far more powerful vis-a-vis the St;i,tes. Correspondingly, several obligations
. too are placed upon the Centre including the one in Article 355 - the duty
to protect every State against external aggression and internal disturbance.
Indeed, this very Articles confers greater power upon the Centre in the E
name of casting an obligation upon it, viz., 11 to ensure that the Government
of every State is carried on in accordance with the provisions of this
Constitution". It is both a responsibility and a power.

The fact that under the scheme of our Constitution, greater power is F
conferred upon the Centre vis-a-vis !he States does not mean that States
'I arc mere appendages of the Centre. Within the sphere allotted lo them.
States are supreme. The Centre cannot tamper \vith their powers. More
particularly, the Courts should not adopt an approach, an interpretation,
which has the effect of or tends to have the effect of whittling down the G
powers reserved to the States. It is a matter of common knowledge that
over the last several decades, the trend the world over is towards
strengthening of Central Government - be it the result of advances in
technological/scientific fields or otherwise, and that even in U.S.A. the
Centre has become far more po\verful notwithsta1.1ding the obvious bias in
that Constitution in favour of the States. All this must put the Court on H
798 SUPREME COURT REPORTS (1994] 2 S.C.R.

A guard against any conscious whittling down of the powers of the States. Let
it be said that the federalism in the Indian Constitution is not a matter of
_administrative convenience, but one of principle - the outcome of our own •'
historical process and a recognition of the ground realities. This aspect has
been dealt with elaborately by Sri M.C. Setalvad in his Tagore Law Lec-
tures "Union and State relations under the Indian Constitution" (published
B by Eastern Law House, Calcutta, 1974). The nature of the Indian federa-
tion with reference to its historical background, the distribution of legisla-
tive powers, finane:ial and administrative relations, powers of taxation,
provisions relating to trade, commerce and industry, have all been deait
with analytically. It is not possible - nor is it necessary - for the present
•
i
C purposes to refer to them. It is enough to note that our Constitution has
certainly a bias towards Centre vis-a-vis the States The Automobile
Trall.lpO!t (Rajasthan) Ltd. v. The State of Rajasthan & Ors., [1963] 1 S.C.R.
491 at 540. It is equally necessary to emphasise that Courts should be
careful not to upset the delicately crafted constitutional scheme by a
D process of interpretation.

A few decisions supporting the view expressed hereinabove may be
referred to briefly. In Bernbari Union and Exchange of Enclaves - Reference
under Article 143 - [1960] 3 S.C.R. 850 and 256, Gajendragadkar, J.
observed:
E
"It may, therefore, be assumed that in construing Article 3 we
should take into account the fact that the Constitution con-
templated changes of the territorial limits of the constituent States
and there was no guarantee about their terri.torial integrity."

F Similarly, in State of West Bengal v. Union of India, [1964] 1 S.C.R.
371 at 405, this Court observed: l
''There is no constitutional guarantee against alteration of the
boundaries of the States. By Article 2 of the Constitution the
P~rlj.ament may admit into the Union of establish new States on
G suth''terms .and conditions as it thinks fit, and by Article 3 the
P.arliiiment is by law authorised to form a new State by redistribu-
\io~'~f the territory of a State of by uniting any territory to a part
of any s·tate, increase the area of any State, diminish the area of
any State alter the boundaries of any State, and alter the name of
H any State. Legislation which so vitally affects the very existence of
S.R. BOMMAI v. U.0.1.[B.P.JEEVAN REDDY, J.] 799

the States may. be moved on the recommendation of the President A
which in practice n1eans the recommendation of the Union Min-
'; istry., and if the proposal in the Bill affects the area, boundaries or
name of any of the States, the President has to refer the Bill to the
Legislature of that State for merely expressing its views thereon.
Parliament is therefore by law invested .with authority to alter the
B
boundaries of any State and to diminish its area so as to destroy
a State with all its powers and authority".

AN ANALYSIS OF ARTICLE 356:

The heading of Article 356 characterises it as a provision providing c
for failure of Constitutional machinery in State. Clause (1), however, does
not use the words "failure of constitutional machinery11 • Even so, the
significance of the title of the Section cannot be overlooked. It emphasises
the level, the stage, the situation in which the power is to be exercised.
Clause (1) speaks of the President being satisfied "that a situation has D
arisen in which the government of the State cannot be carried on in
accordance with the provisions of this Constitution". If so satisfied, he may,
by proclamation, assume and exercise the several powers mentloned in
sub-clauses (a), (b) and (c). An analysis of clause (1) of the Article yields
the following ingredients: (a) if the President is satisfied; (b) on receipt of
report from the Governor of State or otherwise; (c) that a situation has E
arisen in which the government of the State cannot be carried on in accord-
ance with the provisions of the Constitution; ( d) the President may by
proclamation, (1) assume to himself all or any of the functions of the
Government of the State of all or any of the powers of the Governor or
any other body or authority in the State except the legislature of the State; F
(ii) declare that the powers of the legislature of the State shall be exercised
'' by the Parliament or under its authority; and (iii) make such incidental or
consequential provisions as appear to him to be necessary or desirable 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. (The proviso to G
clause (1) clarifies that nothing in the said clause shall authorise the
President lo assume to himself any of the powers vested in or exercisable
by a High Court or to suspend in whole or part the operation of any
provision relating to High Courts.) Clause (2) says that any proclamation
under clause (1) can be revoked or varied by a subsequent proclamation. H
800 SUPREME COURT REPORTS [1994] 2 S.C.R.

A Clause {3) provides that every proclamation issued under clause (1) (ex-
cept a proclamation revoking a previous proclamation) shall be laid before
each House of the Parliament and "shall .... cease to operate at the expira-
tion of two months unless before the expiration of that period it has been
approved by resolutions of both Houses of Parliament". The proviso to
clause {3) provides for a situation where the Lok Sabha is dissolved on the
B
date of the proclamation or is dissolved within two months of such
proclamation. Clause (4) says that a proclamation so approved by both
Houses of Parliament shall, unless revoked earlier, cease to operate on the
expiration of period of six months. (By 42nd Amendment, the words 'one
year' were substituted for the words 'six months' but by 44th Amendment,
c the words "six months" have been restored). The three provisos to clause
(4) provide for certain situations which it is not necessary for us to consider
for the purpose of these cases. Clause (5), as inserted by 38th Amendment
ran as follows: " (5) Notwithstanding anything in this Constitution, the
satisfaction of the President mentioned in clause (1) shall be final and
D conclusive and shall not be questioned in any court on any grounds". By
44th Amendment, however, this clause was repealed altogether and in its
place a new clause (5) introduced which limits the maximum period, for
which such a proclamation can be operative, to one year except in a case
where a proclamation of emergency is in operation. It is not necessary to
consider clause (5) also for the purpose of these cases.
E
The power conferred by Article 356 is a conditioned power; it is not
an absolute power to be exercised in the discretion of the President. The
condition is the.formation of satisfaction-subjective, no doubt-that a situa-
tion of the type contemplated by the clause has arisen. This satisfaction
may be formed on the basis of the report of the Governor or on the basis
F of other information received by him or both. The existence of relevant
material is a pre-condition to the formation of satisfaction. The use of the r
word "may indicates not only a discretion but an obligation to consider the
advisability and necessity of the action. It also involves an obligation to
consider which of the several steps specified in sub-clauses (a), (b) and (c)
G should be taken and to what extent? The dissolution of the Legislative
Assembly-assuming that it is permissible- is not a matter of course. It
should be resorted to only when it is necessary for achieving the purposes
of the proclamation. The exercise of the power is made subject to approval
of the both Houses of Parliament.

H Clause {3) is both a check on the power and a safeguard against
S.R. BOMMAI v. U.0.1. [B.P.JEEVAN REDDY,J.] 801

.abuse of power. Clause (1): Clause (1) opens with the words 'if the A
president... ..is satisfied". These words are indicative of the satisfaction
being a subjective one. In Barium Chemicals v. Company Law Board, [1966]
Suppl. S.C.R. 311 - a decision followed uniformly ever since it was
pronounced-Shela!, J. pointed out, on a consideration of several English
and Indian authorities that the expressions "is satisfied", "is of the opinion'',
"or has reasons to believe" are indicative of subjective satisfaction, though
B
it is true the nature of the power has to be determined on a totality of
consideration of all relevant provisions. Indeed, there was no controversy
before us regarding the nature of this power. Clause (1), it may be noted,
uses the words "is -satisfied", which indicates a more definite state of mind
than is indicated by the expressions 11is of the opinion11 or 11 has reasons to C
believen. Since it is a case of subjective satisfaction, question of observing
the principles of natural justice does not and cannot arise. Having regard
to the nature of the power and the situation in "'hich it is supposed to be
exercised, principles of natural justice cannot be imported into the clause.
It is evident that the satisfaction has to be formed by the President fairly, D
on a consideration of the report of the Governor and ·or other material, if
any, placed before him. Of course, the President under our Constitution
being, what may be called, a constitutional President obliged to act upon
the aid and advice of the council of ministers (which aid and advice is
binding upon him by virtue of clause (1) of Article 74), the satisfaction
referred to in Article 356(1) really means the satisfaction of the union E
council of ministers with the Prime Minister at its head.

Clause (1) requires the President to be satisfied that a situation-has
arisen in which the government of the state "cannot" be carried on uin
accordance with the provisions of this constitution". The words 11cannot" F
1, emphasise the type of situ_a4ion contemplated by the clause. These words
read with the title of one Article "provisions in case of failure of constitu-
tional machinery in states 11 emphasise the nature of the situation con-
templated.

The words 11 provisions of this Constitution 11 mean what they say. The G
said words cannot be limited or confined to a particular chapter in the
constitution or to a particular set of Articles, while construing a constitu-
tional provision, such a limitation ought not to be ordinarily inferred unless
the context does clearly so require. The provisions of the constitution
include the chapter relating to fundamental rights, the chapter relating to H
802 SUPREME COURT REPORTS [1994] 2 S.C.R.

A directive principles of the state policy a' also the preamble to the Constitu-
tion. Though, at o~e time, it was thought that preamble does not form part
of the Constitution, that view is no longer extent. It has been held by the
majority of ju<lges in Keshava11a11da Bharti v. State of Kera/a, [1973] Suppl.
S.C.R. 1 that preamble <loes form part of the Constitution. It cannot be
otherwise. The attempt to limit the said words to certain machinery
B provisions in the Constitution is misconceived and cannot be given effect
to. It is difficult to believe that the said words do not take in fundamental
provisions like the fundamental rights in Chapter-Ill. It must,however,be
remembered that it is not each and every non-compliance with a particular < I
provision of the Constitution that calls for the exercise of the power under
c Article 356 (l). The non-compliance or violation of the Constitution should
be such as to lead to or given rise to a situation where the government of
the State cannot be carried on in accordance with the provisions of the
Constitution. It is indec<l difficult-nor is it advisable-to catalogue the
various situations \vhich may arise and which would be comprised within
D clause (1). It would be more appropriate to deal with concrete cases as
and when they arise.

The satisfaction of the President referred to in clause (1) may be
formed either on the receipt of the report(s) of the Governor or otherwise.
The Governor of a State is appointed by the President under Article 155.
E He is indeed a part of the government of the State. The executive power
of the State is vested in him and is exercised by him directly or through
officers subordinate to him in accordance with the provisions of the Con-
stitution (Article 154). All executive action of the government of a State is
expressed to be taken in the name of the Governor, except a few functions
F which he is required to exercise in his discretion. He has to exercise his
powers with the aid and advice of the council of ministers with the Chief
Minister at its head (Article 163). He takes the oath, prescribed by Article
r
159, to preserve, protect and defend the Constitution and the laws to the
best of his ability. It is this obligation which requires him to report to the
President the commissions and omission of the government of his State
G v,rhich according to him are creating or have created a situation where the
government of the State cannot be carried on in accordance \vith the
provisions of the Constitution. In fact, it would be a case of his reporting
against his own government but this may be a case of his wearing two hats,
1

one as the head of the State government and the other as the holder of an
H independent constitutional office whose duty it is to preserve, protect and
S.R. BOMMAI v. U.O.l. [B.P. JEEVAN REDDY, J.] 803

defend the Constitution See Shamsher Singh v. State of Punjab, [1975] 1 A
S.C.R. 814 at 835. Since he cannot himself take any action action of the
nature contemplated by Article 356(1), he reports the matter to the Presi-
dent and it is for the President to be satisfied-whether on the basis of the
said report or on the basis of any other information which he may receive
otherwise- that situation of the nature contemplated by Article 356(1) has
arisen. It is then and only then that he can issue the proclamation. Once
B
the proclamation under Article 356(1) is issued or simultaneously with it,
the President can take any or all the actions specified in clauses (a), (b)
and (c).

Power of the President to dissolve Legislative Assembly of the State: c
We shall now examine whether clause (1) of Article 356 empowers
the President to dissolve the Legislative Assembly of the State. There are
two points of view-which we may set out before expressing our preference:

ONE VIEW, which is supported by the opinions of some of learned D
.Tudg« in State of Rajasthan & Ors. v. Union of India [1978] 1 S.C.R. 1, is
that the power of dissolution is implicit in sub-clause (a). The reasoning
runs thus: the President assumes the functions of the government of the
State as well as the Powers of the Governor under the said sub-clause; the
Legislative Assembly can be dissolv.ed by the Governor under article 174 E
(2) (B); of course, this may have tci'be done on the advice of the council
of ministers with the Chief Minister at its head; since the President assumes
to himself the powers and functions of both the government and the
Governor, he can dissolve the Legislative assembly as part of the same
proclamation or by a subsequent order.
F
'·I THE OTHER VIEW, which says that the President has no such
power, runs along the following lines:

The clause does not speak of dismissal of the government or the
dissolution of the Legislative Assembly. It says that if the President is
satisfied "that a situation has arisen in which the government of the State G
cannot be carried on in accordance with the provisions of this Constitu-
tion", the President may (i) assume to himself all or any of the functions of
.... the government of the state; (ii) assume to himself all or any of the powers
vested in or exercisable by the Governor; (iii) assume to himself all or any
of the functions of any body or authority in the State other than the H
./

804 SUPREME COURT REPORTS [1994] 2 S.C.R.

A Legislature of the State,(iv) declare that the powers of the Legislature of
the State shall be exercisable by or under the authority of the Parliament
'
~·

and (v) make such incidental or consequential provision, as may be neces-
sary for giving effect to the proclamation including suspending in whole or
part the operation of any provisions of the Constitutions relating to any
body or authority in the state except the High Court. Now, when sub-clause
B (a) speaks of the President assuming to himself all or any of the powers
vested in or exercisable by the Governor, it surely does not mean or imply
dismissal or removal of the Governor. Similarly, the assuming by the
President of all or any of the functions or powers of any body or authority
in the state (other than the legislature of the state) does not mean the
c dismissal or dissolution of such body or authority. For the same reason, it
must be held that the words "the President may assume to himself all or
any of the functions of the government of the state" in sub-clause (a) do
not by themselves mean the dismissal of the state government. But if these
words arc read along with the main limb of clause (1) which speaks of a
D situation in which "the government of the state cannot be carried on in
1
accordance with the provisions of this Constitution 1, it can and does mean
dismissal of the government for the reason that government of the state is
carried on by the government of the State alone. This dismissal is not
absolute in the sense of a physical death of a living being. It only means
putting the government out of the way. Such dismissal does not preclude
E the President from restoring the government after the period of proclama-
tion is aver, or at any time earlier by revoking the proclamation, if he is so
advised. Coming to sub-clause (b), when it speaks of the powers of Legis-
lature of the State being made exercisable by Parliament, or under its
authority, it cannot and does not mean or imply dissolution of the Legis-
F lature of the State. It is significant to note that the sub-clause refers to
Legislature of the State and not Legislative Assembly. In a given State, the r
legislature may consist of Legislative Assembly as well as Legislative Coun-
cil. In such a case, there can be no question of dissolving the Legislative
Council since it is a continuing body [Article 172(3)]. Only the Legislative
Assembly can be dissolved [Article 174(2)(b)J. In other words, there can
G be no question of dissolution of the "Legislature of the State" - the expres-
sion employed in sub-clause (b). The question may then arise, why was
sub-clause (b) put in and what does it imply? The answer must be that
.y •
when the government of the State is dismissed or removed from office, the
Legislative Assembly cannot function normally. It is difficult to visualise a
H
S.R. BOMMAI v. U.0.1. jB.P. JEEVAN REDDY, J.] 805

legislative Assembly, or for that matter Legislature, functioning without a A
council of ministers, i.e.i government. Thus, where the government of a
State is dismissed or removed from the office, the Legislature of the State
becomes ipso facto unworkable. It is for this reason that sub-clause (b)
provides that the powers of the Legislature of the State shall be exercisable
by or under the authority of the Parliament. Indeed, the very fact that
B
clause (b) has provided for only one situation (viz., the powers of the
Legislature being vested in the Parliament) means and implies that any
other step like dissolution of the Legislative Assembly was not within the
contemplation of the constitution-makers. Sub-clause (c) empowers the
President to make such incidental or consequential provisions ?<;j may
appear to be necessary or desirable for giving effect to the objects of the C
proclamation. Such incidental or consequential provisions may also include
"suspending in whole or part the operation of any provisions of this
Constitution relating to any body or authority" except, of course, the High
Court. The provisions of the Constitution relating to the Legislative As-
sembly of the State may be suspended under sub-clause (c) during the D
period of proclamation - generally referred to as keeping the Legislative
Assembly under suspended animation - to prevent the majority party (or
any other party) calling upon the Governor to invite it to form the ministry
and/or for preventing the Legislature from passed resolutions or transact-
ing other business which may interfere with the President's 'rule in the
State. It is significant to notice in this connection that during the Con- E
stituent Assembly debates on these Articles, Dr. Ambedkar only spoke of
suspension of the powers of the Legislatures and not their dissolution.
(Vide Page 134 - Vol. IX - Constituent Assembly Debates.)

According to this line of reasoning - since the Legislature of the State F
can only be kept under suspended animation by suspending the relevant
provisions of the Constitution - the Legislature of the State springs back to
life with the expiry of the period of proclamation. This is for the reason
that with the expiry of the period of proclamation or on the revocation of
the proclamation, as the case may bei the suspension of the provision of
the Constitution will also come to end. G

The proponents of this view criticise the other (first) view on several
grounds: firstly, they say, it does not seem to take into consideration the
fact that dissolution of the Legislative Assembly is an extremely serious
step; if this power was supposed to be conferred on the President under H
806 SUPREME COURT REPORTS [1994] 2 S.C.R.

A clause (1) of Article 356, the Constitution-makers would have said so
expressly and not left it lo be inferred. Secondly, it ignores the language of
sub- clause (b). Sub-clause (b) speaks of "powers of the Legislature of the
Stale" being exercised by the Parliament or under its authority. Clause (b)
does not speak of dissolution of "Legislature of the State'', since that is an
impossibility - only the Legislative Assembly can be dissolved and not the
B Legislative Council as explained hereinabove. There are quite a few States
where the Legislature consists of Legislative Assembly as well as Legisla-
tive Council. Thirdly, clause (1) speaks of failure of the government and
not of the Legislative Assembly, though it is true, the government is drawn
from and very often forms the majority party in the Legislative Assembly.
c But the Legislative Assembly also consists of the opposition and other
parties, groups and independent members, who may themselves have been
pointing out and demonstrating against the unconstitutional working of the
government. There does not appear to be any good reason why the Legis-
lative Assembly should be dissolved for the acts and defaults of the
D government. It is true, say the proponents of this view, if the President
cannot dissolve the Legislative Assembly, it would spring back to life after
the period of proclamation and elect the very same government which was
dismissed. They answer it by saying firstly that this may or may not happen.
Secondly, they say, even if the same government is elected again, it is in no ,.
way contrary to the spirit of the Article. The objection was not to its
E existence but to its working. There is no reason to presume that it will
again carry on the government otherwise than in accordance with the
provisions of the Constitution.

Having given our anxious consideration to both the contending view
p points - and notwithstanding the obvious appeal of the second point of view
- we are inclined to agree with the first view which says that clause (1) does
empower the President to dissolve the Legislative Assembly. This view is l
also supported by the decision in State of Rajasthan, besides the fact that
over the last forty-four years, the said power has never been questioned.
We are inclined to hold that the power to dissolve the Legislative Assembly
G is implicit in sub-clause (a) of clause (1) though there is no such thing as
dissolution of the 'l.legislature of the State' where it consists of two Houses.
It must also be recognised that in certain situations, dissolution of Legis-
lative Assembly may be found to be necessary for achieving the purposes
of the proclamation. Power there is. It's exercise is a different matter. The Y •
H existence of power does not mean that dissolution of Legislative Assembly
S.R. BOMMAI v. U.0.1. [B.1'.JEEVAN REDDY.J.] 807

should either be treated as obligatory or should invariably be order \vhen- A
cver a government of the State is disn1issed. It should be a matter for lhe
President to consider, taking into consideration all the relevant facts and
circumstances, whether the Legislative Assembly should also be dissolved
· or not. If he thinks that it should be so dissolved, it would be a;:ipropriate,
indeed highly desirable, that he slates the reasons for such extraordinary
step in the order itself.
B

The question then arises at \vhat stage should he exercise-this power?
To answer this query, we must turn to clause (3). Clause (3) says that every
proclamation issued under Article 356(1) shall be laid before both Houses
of Parliament and shall cease to operate at the expiry of two months unless C
before the expiration of that period it has been approved by resolutions
passed by both Houses. This is C')nceived both as a check upon the power
and as a vindication of the principle of Parliamentary suprc1nacy over the
Executive. The President's action - which is really the action of the Union
Council of Ministers - is subject to approval of both Houses of Parliament.
Unless approved by both House of Parliament, the proclamation lapses at D
the end of two months and earlier if it is disapproved or declined to be
approved by both the Houses of Parliament, as explained hereinafter.
Having reg>rd to the incongruity of the Executive (even though Union
Executive) dissolving the Legislature (even if of a State), it would be
consistent with the scheme and spirit of the Constitution - particularly in E
the absence of a specific provision in the constitution expressly empowering
the President to do so - to hold that this power of dissolution can be
exercised by the President only after both Houses of Parliament approve
the proclamation and not before such approval. Once the Parliament ,,Jaccs
its seal of approval on the proclamation, further steps as may be found
necessary to achieve the purposes of the proc]amation, i.e., dissolution of F
Legislative Assembly, can be ordered. In other words, once the Parliament
approves the initial exercise of his power, i.e., his satisfaction that a
situation had arisen where the government of the State could not be carried
on in accordance with the Constitution, the President can go ahead and
take further steps necessary for effectively achieving the objects of the
proclamation. Until the approva~ he can only keep the Assembly ur der G
suspended animation but shall not dissolve it.

It m!lst be made clear even at this stage that while no writ petition
shall be entertained by any court before the actual issuance of proclamation
under clause (1), it shall be open to a High Court or Supreme Court to H
)
808 SUPREME COURT REPORTS [1994) 2 S.C.R.

A entertain a \Vrit petition questioning the proclamation if it is satisfied that
the \vrit petition raises arguable questions \vith respect to the validity of
the proclan1ation. "fhe court \\.rould be entitled to entertain such a writ
petition even before the approval of the proclamation by the Parliament -
as also after such approval. In an appropriate case and if the situation
den.ands, the High Court/Supreme Court can also state the dissolution of
B the Assembly but not in such a manner as to allow the Assembly to
continue bey'Jn·d its original term. But in every such case where such an
order is passed the High court/Supreme Court shall have to dispose of the
matter within two to three months. Not disposing of the writ petition while
granting such an interim order \vould create several complications because
the life of the proclamation does not exceed six months even after the
c approval by Parliament and in any event the proclamation cannot survive
beyond one year except in the situation contemplated by clause (5) which
is, of course, an exceptional situation.

Meaning of approval in clause (3)" In State of Rajasthan
D Chandrachud, 3hagwati and A. C. Gupta, JJ. have expressed the view that
the proclamation issued under clause (1) remains in operation f')r a period
of two months in any event. It is held that even if the Parliament disap-
proves or declines to approve the proclamation within the said period of
•
''f
two months, the proclamation continues to be valid for two months. The
approval of the Parliament under clause (3) is held to be relevant only for
E the purpose of continuance of the proclamation beyond two months. It has
also been held further that even if both the Houses do not approve or
disapprove the proclamation, the government which has been dismissed or
the Assembly which may have been dissolved do not revive. With utmost
respect to the learned Judges, we find ourselves unable to agree \vith the
said view in so far as it says that even where both Houses of Parlian1cnt
F disapprove or do not approve the proclamatjon, the governn1cnt \Vhich has
been dismissed does not revive. (The State of Rajasthan also holds that
such disapproval or non-approval docs not revive the Legislative Assembly
r
which may have been dissolved but we need not deal with this aspect since
according to the view expressed by us hereinabovc, no such dissolution is
G permissible before the approval of both the Houses.) Clause (3), it may be
emphasised, uses the words "approved by resolutions of both Houses of
1 11 1
Parliament' The word approvat1 means affirmation of the action by higher
•

or superior authority. In other words, the action of the President has to be
approved by the Parliament. The expression 11 approval 1' has an intrinsic
meaning which cannot be ignored. Disapproval or non-approval means that
,.. .
H
S.R. BOMMAl v. U.O.l. [B.P.JEEVAN REDDY.I.] 809

the Houses of Parliament are saying that the President's action was not A
justified or warranted and that it shall no longer continue. In such a case,
the proclamation lapses, i.e., ceases to be in operation at the end of two
months - the necessary consequence of which is the status quo ante revives.
To say that notwithstanding the disapproval or non-approval, the status quo
ante does not revive is to rob the concept of approval of its content and
meaning. Such a view renders the check provided by clause (3) ineffective B
and of no significance whatsoever. The Executive would be telling the
Parliament: ':I have dism_issed the govcrnn1cnt. Now, whether you approve
or disapprove is of no consequence because the government in no event
be revived. The deed is done. You better approve it because you have
practically no choice". We do not think that such a course is consistent with
the principle of Parliamentary supremacy and Parliamentary control over
c
the Executive, the basic premise of the Parliamentary supremacy. It would
indeed mean supremacy of the Executive over the Parliament. The dismiss-
al oi a government under sub-clause (a) of clause (1) cannot also be
equated to the physical death of a living being. There is no irrevocability
about it. It is capable of being revived and it re\1ves. Legislative Assembly D
which may have kept in suspended animation also springs back to life. So
far as the validity of the acts done, orders passed and laws, if any, made
during the period of operation of the proclamation is concerned, they
would remain uneffected inasn1uch as the disapproval or non-approval
does not render the proclamation invalid with retrnspective effect. It may
be recalled that the power under Article 356(1) is the power vested in the E
President subject no doubt to approval within two months. The non-ap-
proval means that the proclamation ceases to be in operation at the expiry
of two months, as held in State of Rajasthan.

No\v, coming to the power of the court to re.store the government to p
office in case it finds the proclamation to be unconstitutional, it is, in our
opinion, beyond question. Even in case the proclan1ation is approved by

' the Parliament it would be open to the court to restore the State govern-
ment to its office in case it strikes down thr,, proclamation as unconstitu-

- tional. If this power were not conceded to the court, the very power of
judicial review would be rendered nugatory and the entire exercise r ean- G
ingless. If the court ca1mot grant the relief flowing from the invalidation of
the proclamation, it may as well decline to entertain the challenge to the
proclamation altogether. For, there is no point in the court entertaining the
challenge, examining it, calling upon the Union Government to produce
I ~
the material on the basis of \vhich the requisite satisfaction was formed and H
810 SUPREME COURT REPORTS [1994] 2 S.C.R.

A yet not give the relief. In our considered opinion) such a course is incon-
ceivable.

A question may arise - what happens to the acts done, orders made
and laws enacted by Parliament or under its authority during the period
the proclamation was in operation in case the proclamation is declared to
B be unconstitutional by the court'! Would all of them become unconstitu-
tional or void? Firstly, there is no reason to presume that a court which
strikes down the proclamation would not provide for this contingency. It
would be within the power of the court to say that these acts and orders
are saved. Indeed, it shouid say so in the interests of general public and lo
C avcid all kinds of complication, leaving it to government and the Legisla-
ture of the State concerned to rectify, modify or repeal them, if they so
choose. The theory of factum valet may also be available to save the act,
orders and things done by the President or under his authority during the
said period.
D
It was suggested by Sri Ram Jethmalani that the President can
'!assume all or any o,f the functions 11 of the State government without
dismissing the government. Emphasis is laid upon the words 11 all or any11 in
sub-clause (1). In particular, he submitted, where the State government is
found remiss in performing one or some of the functions, that or those
E functions of the State government can be assumed by the President with a
view to remedy the situation. After rectifying the situation, the counsel
submitted, the President will give those functions back to the State govern-
ment and thD.t in such a situ1tion there would be no occasion or necessity
for dismissing the State government. The learned counsel gave the analogy
F of a motor car - if one or a few of the parts of a car mal-func:tir.n or cease
to function, one need not throw .,away the car. That or those particular parts
can be replaced or rectified and the car would function normally ag•in. It
is difficult to agree with the said interpretation. The power under Article
,
356(1) can be exercised only where the President is satisfied the "the
goven1n1ent of the State cannot be carried on in accordance with the
G provisions of the Constitution." The title to the Article "failure of constitu-
tional machinery in the States 11 also throws upon the nature of the situation
contemplated by it. It means a situation where the government of the State,
-
- and not one or a few funr:tions of the government - cannot be carried on
in accordance with the Constitution. The inability or unfitness aforesaid
H may arise either on account of the non- performance or mal-per.formance
S.R.BOMMAI v. U.01. [B.P.JEEVAN REDDY,J.] 811

of one or more functions of the government or on account of abuse or A
misuse of any of the powers, duties and obligations of the government. A
proclamation under Article 356(1) necessarily contemplates the removal of
the government of the state since it is found unable or 'unfit to carry on
the government of the State in accordance with the provisions of the
Constitution. In our considered opinion, it is not possible to give effect to
" the argument of Sri Ram Jethmalani. Acceptance of such an argument
B
would introduce the concept of hvo governments in the same sphere - the
Central Government exercising ono of some of the powers of the State
government'and the State government performing the rest. Apart from its
novelty, such a situaiioni in our opinion, does not promote the object
underlying article 356 nor is it practicable. c
Sri Jethmalani brought to our notice the British Joint Parliamentary
Report, para 109, in support of his contention aforementioned. We are
unable to see any relevance of the said para to the interpretation of Article
356(1). Under the Government of India Act, 1935 the Governor-General
and the Governor were not constitutional heads of State as under the D
Constitution. They exercised real power in their own right. Only a few
powers were entrusted to the elected governments and even those could
be taken away (by the governor-General at the Centre and the Governor
in the provinces) as and when they were satisfied that a situation has arisen
where the government at the centre of of the province cannot be carried E
on the accordance with the provisions of the said Act. Under Article 356,
the position is entirely different. The power can be exercised only against
the States and that too by the President and not by the Governor. The
entire constitutional philosophy is different. Therefore, merely because the
same words "all or any'' in Sections 93 and 45 of the Government of India
Act occur in Article 356(1), the same meaning cannot be attributed to them F
mechanically, ignoring all other factors - assuming that the said words in
Sections 93 and 45 meant what Sri Jethmalani says.

ARTICLE 356 IN ACTION:

Since the commencement of the Constitution, the President has
G
invoked Article 356 on as many as ninety or more occasions. Quite a
performance for a provision which was supposed to remain a'dead-letter'.
Instead of remaining a 'dead-letter', it has proved to be the 'death-letter'
of scores of State Governments and Legislative Assemblies. The Sarkaria
Commission which was appointed to look into and report on Centre-State H
812 SUPREME COURT REPORTS [1994] 2 S.C.R.

A relations considered inter alia the manner in which this power has been
exercised over the years and made certain recommendations designed to
prevent its misuse. Since the Commission was headed by a distinguished
Judge of this Court and also because it made its report after an elaborate
and exhaustive study of all relevant aspects, its opinions are certainly
entitled to great weight notwithstanding the fact that the report has not •,
B been accepted so far by the Government of India.

In para 6.3.23, the Commission observed that though the words ''a
government of the State cannot be carried on in accordance with the
provisions of the Constitution" are of wide amplitude, each and every
breach and infraction of constitutional provision, irrespective of its sig-
c nificance, extent and effect, cannot be treated as constituting failure of
constitutional machinery. Article 356 the Commission said, provides
remedy for a situation where there has been an actual break-down of the
constitutional machinery of the State. Any abuse or misuse of this drastic
power, said the Commission, damages the fabric of the Constitution. A
D literal construction of Article 356(1) should be avoided, it opined.

In para 6.4.01, the Commission noted that failure of constitutional
machinery may occur in a number of cases. It set- out some of the instances
leading to i~ viz., (1) political crisis; (b) internal subversion; (c) fiscal
break-down; and (d) non-compliance with constitutional directions of the
E Union Executive. The Commission, however, hastened to add that the
instances set out by it are not claimed to be comprehensive or perfect.
Then it examined each of the said four heads separately.

In para 6.5.01, the Commission set out illustrations in which invoking
Article 356 would be improper. Illustration (iii) in the said paragraph read
F thus:

"(iii) Where, despite the advice of a duly constituted ministry which
has not been defeated no the floor of the house, the G.overnor
decides to dissolve the assembly and without giving the ministry
an opportunity to demonstrate its majority through the floor-test,
G recommends its supersession and imposition of President's rule
merely on subjective assessment that the ministry no longer com-
mands the confidence of the assembly."

In para 6.6.01, the Commission noticed the criticism levelled against
H the frequent invoking of Article 356 and proceeded to examine its validity.

..
S.R. BOMMAI v. U.0.I. [B.P. JEEV AN REDDY, J.] 813

In its opinion, dismissal of nine assemblies fol1o\ving the general elections A
to the Lok Sabha in March, 1977 and a similar dismissal following the
general election to the Lok Sabha in 1980, were clear instances of invoking
Article 356 for purely political purposes unrelated to Article 356. After
examining the facts and the principle of the decision of this Court in State
of Rajasthan v. Union of India, and after considering the various sugges-
tions placed before it by several parties, individuals and organisations, the
B
Commission made the following recommendation in para 6.8, which have
been strongly commended for our acceptance by the learned counsel for
the petitioners. They read as follows:
" I
"RECOMMENDATIONS c
6.8.01, Article 356 should be used very sparingly, in extreme cases,
as a measure of last resort, when all available alternatives fail to
prevent or rectify a break-down of constitutional machinery in the
State. All attempts should be made to resolve the crisis at the Stale D
level before taking recourse to the provisions of Article 356. The
availability and Choice of these alternatives will depend on the
._,,. nature of the constitutional crisis, its causes and exigencies of the
situation. These alternatives may be dispensed with only in cases
of extreme urgency where failure on the part of the Union to take
immediate action under Article 356 will lead to disastrous conse- E
quenees. (paragraph 6.7.04)

6.8.02, A warning should be issued to the errant State, in specific
terms, that it is not carrying on the Government of the State in
accordance \\'ith the Constitution. Before taking action under ~A.r- F
tide 356, any explanation received from the State should be taken
into account. However, this may not be possible in a situation when
not taking immediate action would lead to disastrous consequen-
ces. (paragraph 6.7.08)

6.8.03. When an 'external aggression' or 'internal disturbance' G
paralyses the State administration creating a situation drafting
towards a potential breakdown of the Constitutional machinery of
the State, all alternative courses available to the Union for dis-
charging its paramount responsibility under article 355 should be
exhausted to contain the situation. (paragraph 6.3.17) H
I
814 SUPREME COURT REPORTS [1994] 2 S.C.R.

A 6.8.04. (a) In situation of political breakdown, the Governor should
explore all possibilities of having a government enjoying majority
support in the Assembly. If it is not possible for such a government
to be installed and if fresh elections can be held without avoidable
delay, he should ask the outgoing Ministry, if there is one, to
continue as a caretaker government, provided the Ministry was
B defeated solely on a major policy issue, unconnected with any
allegations of mal-adrninistration or corruption and is agreeable to
continue. The Governor should then dissolve the Legislative As-
sembly, leaving the resolution of the constitutional crisis to the
electorate. During the interim period, the caretaker government
c should be allowed to function. As a matter of convention, the
caretaker government should merely carry on the day-to day
government and desist form taking any major policy decision.
(Paragraph 6.4.08)

(b) If the important ingredients described above are absent, it
D would not be proper for the Governor to dissolve the Assembly
and instal a caretaker government. The Governor should recom-
mend proclamation of President's rule without dissolving the As-
sembly. (Paragraph 6.4.09)

E 6.8.05. Every Proclamation should be placed before each house of
Parliament at the earliest, in any case before the expiry of the two
month period contemplated in clause (3) of Article 356 (Paragraph
6.7.13)

6.8.06. The State Legislative Assembly should not be dissolved
F either by the Governor or the President before the Proclamation
issued under Article 356(1) has been laid before parliament and
it has had an opportunity to consider it. Article 356 should be
suitably amended to ensure this (paragraph 6.6.20)

6.8.07. Safeguards corresponding, in principle, to clauses (7) and
G
(8) of Article 352 should be incorporated in Article 356 to enable
Parliament to review continuance in force of a Proclamation.
(Paragraph 6.6.23)

6.6.08. To make the remedy of judicial review on the ground of
H ma/a fides a little more meaningful, it should be provided, through
S.R. BOMMAI v. U.0.1. [ll.P.JEEVAN REDDY,.1.J 815

an appropriate an1cndmcnt, nOt\vithstanding anything in clause (2) A
of Article 74 of the Constitution, the in<.1tcrial facts and grounds
on which Article 356(1) is invoked should be made an integral rart
of the Proclamation issued under that Article. this will also make
the control of Parlian1ent over the exercise of this po\ver by the
Union Executive, more effective. (paragraph 6.6.25)
B
6.8.09. Normally, the President is moved to action under Article
356 on the report of the Governor. The report of the Governor is
placed before each house of Parliament. Such a report should be
1
a 'speaking document" containing a precise and clear statement of
all material facts and grounds on the basis of which the President C
may satisfy himself as to the existence or otherwise of the situation
contemplated in Article 356 (Paragraph 6.6.26)

6.8.10. The Governor's report, on the basis of which a Proclamation
under Article 356(1) is issued, should be given wide publicity in
all the media and in full. (Paragraph 6.6.28) D
6.8.11. Normally, President's Rule in a State should be proclaimed
on the basis of the Governor's report under Article 356(1). (Para-
graph 6.6.29)

6.8.12. In clause (5) of Article 356, the word 'and' occurring E
between sub-clauses (a) and (b) should be substituted by 'or'."
(Paragraph 6.7.11)"

The aforesaid recommendations are evidently the outcome of the
opinion formed by the Commission that n1ore often than not, the power
under article 356 has been invoked improperly. It is not for us to express
F
any opinion whether this impression of the commission is justified or not.
It is not possible for us to review all the ninety cases in which the said
power has been invoked and to say in which cases it was invoked properly
and in which cases, not. At the same time, we are inclined to say, having
regard to the constitutional scheme obtaining under our Constitution, that G
the recommendations do merit serious consideration.

It is probably because he was of the opinion that the invocation of
this power was not warranted in many cases, Sri P.V ..Rajamannar, former
Chief Justice of Madras High Court, - (who was appointed as the Inquiry
Committee by the Government of Tamil Nadu to report on the Centre- H
816 SUPREME COURT REPORTS [1994] 2 S.C.R.

A State relations) - recommended that Articles 356 and 357 be repealed
altogether. (Sec Para (8) in Chapter IX, "Emergency Provisions" of his
Report, submitted in 1971). In the alternative, he recommended, <'
safeguards n1ust be provi<lcd to secure the interests of the States against
the arbitrary and unilateral action of a party commanding overwhelming
majority at the Centre. In other respects, Sri Rajamannar's views accord
B broadly with the views expressed by the Sarkaria Commission and hence,
need not be set out in cxtenso.

THE CONSTITUTION OF INDJA AND THE CONCEPT OF
SECULARISM:
•
c Article 356(1) speaks of a situation where the government of a state
cannot be carried on in accordance with the provisions of the Constitution.
We have said hercinbefore that the words "the provisions of this Constitu-
tion1' take in all the provisions including the Preamble to the Constitution.
The Preamble to the Constitution srcaks of a secular Indian Republic.
D While the respondents' counsel contended that secularism being a basic
feature of the Constitution: a State government can be dismissed if it is
guilty of unsecular acts, the counsel for petitioners, Sri Ram J ethmalani
strongly refuted the idea. According to Sri Jethmalani, 'secularism' is a
\ ague concept, not defined in the Constitution and hence, cannot furnish
1

a ground for taking action under Article 356. Without going into the
E specifics of the said contention, we shall examine first how far this concept
is embedded in our constitution and in what sense.

Having completed the process of framing the Constitution, the Con-
stituent Assembly proceeded to finalise its preamble. Speaking on behalf
of and in the name of the people of India, they said, their object has been
F to constitute India into a 11 Sovereign Democratic Republic11, and to secure
to all its citizens soci•I justice, liberty of belief, faith and worship, and
equality of status and opportunity. They said, the goal was also to promote
among all the people of India " fraternity assuring the dignity of the
individual ....... ". By the 42nd Amendment to the Constitution, the words
11
G socialist, secular'1 were added after the word 11 sove1eign'1 and before the
word "democratic". No other provision of the Constitution was amended to
adumbrate these concepts.

Both the expressions · 'socialist' and 'secular' - by themselves are not
<'
capable of precise definition. We are, however, not concerned with their "
H generai meaning or content. Our object is to ascertain the meaning of the
S.R. HOMMA! v. U.O.L [B.P. JEEV AN REDDY, l.J 817

expression secular" in the context of our Constitution. As the <lisc.:ussion A
11

bereaftcr would demonstrate, the 42nd Amendment merely made explicit
• what was implicit in it. The preamble speaks of "social justice", "liberty of
'
belief, faith and worship" and of "equality of status and of opportunity".
Article 14 (under the sub-heading "Right of Equality") enjoins the State
not to deny to any person equality before the law or the equal protection
of laws within the territory of India. Articles 15 and 16 elucidate this B
doctrine of cq uality. They say that the State shall not discriminate against
any citizen on ground only of religion, race or caste, whether in ~he matter
of employment under the State or otherwise. By Article 25, "all persons"
are declared equally entitled to freedom of conscience and the right to
freely profess, prattice and propagate religion, subject, of course, to public.:
order, morality and health. Articles 26, 27 and 28 elucidate the freedom
c
guaranteed by Article 25. Article 27 declares that no person shall be
compelled to pay any taxes, the proceeds of which are specifically ap-
propriated in payment of expenses for the promotion or maintenance of
any particular religion or religious denomination. Article 28(1) decrees that
no religious instruction shall be provided in any educational institution D
wholly maintained out of the State funds while Article 28(3) says that no
person attending an educational institution recognised by the State or
receiving aid out of State funds shall be required to take part in any
religious worship conducted in such institution, except with his or his
guardian's (in the case of a minor) consent. Similarly, Clause (2) of Article
30 enjoins upon the State not to discriminate against any educational E
institution, in granting aid, on the ground that it is under the management
of a minority, religious or linguistic. Clause (3) of Article 51-A [introduced
by the 42nd (Amendment) Act] says that "it shall be the duty of every
citizen of India - to promote harmony and spirit of brotherhood amongst
all the people of India transcending religious, linguistic and regional or
sectional diversities". What do these articles, read together with the
F
Preamble signify? While Article 25 of the Constitution guarantees lo all its
people freedom of religion, Articles 14, 15 and 16 enjoin upon the State to
treat all its people equally irrespective of their religion, caste faith or belief.
While the citizens of this country are free to profess, practice and
propagate such religion, faith or belief as they choose, so far as the State G
is concerned, i.e., from the point of view of the State, the religion, faith or
belief of a person is immaterial. To it, all are equal and all are entitled to
be treated equally. How is this equal treatment possible, if the State were
to prefer or promote a particular religion, race or caste, which necessarily
means a less favourable treatment of all other religions, races and castes.
H
818 SUPREME COURT REPORTS [1994] 2 S.C.R.

A How are the Constitutional promises of social justice, liberty of belief, faith
or worship and equality of status and of opportunity lo be attained unless
the State eschews the religion, faith or belief of a person from its considera- ... '
tion altogether while dealing with him, his rights, his duties and his entit-
lements? Secularis1n is thus 111ore than a passive attitude of religiolls
tolerance. It is a positive concept of equal treatment of all religious. This
B attitude is described by some as one of neutrality to\vards :"eligion or as
one of benevolent neutrality. This may be a concept evolved by western
liberal thought or it may be, as some say, an abiding faith with the Indian
people at all points of time. That is not material. Whal is material is that
it is a constitutional goal and a basic feature of the Constitution as affirmed •.,..
in Keshavananda Bhmti and Indira N. Gandhi v. Raj Narain, [1975] 2 S.C.C.
c 159. Any step inconsistent with this constitutional policy is, in plain \Vords,
unconstitutional. This does not mean that the State has no say whatsoever
in matters of religion. Laws can be made regulating the secular affairs of
Temples, Mosques and other places of worship; and maths. (See S.P. Milla/
v. Union of India, [1983] 1 S.C.R. 729.) The power of the Parliament to
D reform and rationalise the personal laws is unquestioned. The command
of Article 44 is yet to be realised. The correct perspective appeared to have
been placed by Sri K.M. Munshi during the Constituent Assembly Debates.
He said:

"Religion must be restricted to spheres whial legitimately apper-
E tain to religion, and the rest of life must be regulated, unified and
modified in such a manner that we may evolve) as early as possible,
a strong and consolidated nation. Our first problem and the most
important problem is to produce national unity in this country. We
think we have got national unity. But there are many factors - and
F important factors - which still offer serious dangers to our national
consolidation, and it is very necessary that the whole of our life,
so far as it is restricted to secular spheres, must be unified in such
a way that as early as possible, we may be able to say. 'Well, we
are not merely a nation because we say so, but also in effect, by
the way we live, by our personal law, we are a strong and con-
G solidated nation 11 •

Sri M.C. Setalvad in his lecture on secularism (Patel Memorial
Lectures - 1965) points out that after affirming the ideas of religious liberty
and adequate protection to the minorities at its Karachi Session (1931), the
H Congress party asserted emphatically that "the State shall observe neutrality
S.R. BOMMAI v. U.0.1. [B.P. JEEVAN REDDY,J.] 819

in regard to all religions". He says that this resolution is in a manner the A
key to the under standing of the attitude adopted by those who framed the
I ,.
Indian Constitution nearly twenty years later, embodying in it the guarantee
of religious neutrality. He also points out that "the debates in the Con-
stituent Assembly leave little doubt that what was intended by the Constitu-
tion was not the secularisation of the State in the sense of its complete
dissociation from religion, but rather an attitude of religious neutrality, with B
equal treatment to a11 religions and religious minorities. 11 The same idea is
put forward by Gajendragadkar, J., (in his inaugural address to the Seminar
on "Secularism; o ts implications for Law and life in India") in the following
1 words:
j

"It is true that the Indian Constitution does not use the word c
11 11
secularism in any of its provisions, but its material provisions are
inspired by the concept of secularism. When it promised all the
citizens of India that the aim of the Constitution is to establish
socio·economic justice, it placed before the country as a whole,
the ideal of a welfare State. And the concept of welfare is purely D
secular and not based on any considerations of religion. The
essential basis of the Indian Constitution is that all citizens are
'..,. equal, and this basic equality (guaranteed by Article 14) obviously
proclaims that the religion of a citizen is entirely irrelevant in the
matter of his fundamental rights. The state does not owe loyalty
to any particular religion as such; it is not irreligious or anti·
E
religion; it gives equal freedom for all religions and holds that the
religion of the citizen has nothing to do in the matter of socio-
economic problems. That is the essential characteristic of
secularism which is writ large in all the provisions of the Indian
Constitution. 11 F

Prof. Upendra Baxi says that "Secularism" in the Indian Constitution
connotes;

"(i) The state by itself, shall not espouse or establish or practice G
any religion;

(ii) public revenues will not be used to promote any religion;
. -.. (iii) the state shall have the power to regulate any 11 economic 1
financial or other secular activity11 associated with religious practice H
820 SUPREME COURT REPORTS [1994) 2 S.C.R.

A (Article 25(2)(a) of the Constitution);

(iv) the state shall have the power through the Jaw to provide for
"social welfare and reform or the throwing open of the Hindu
religious institutions of a public character to all classes and sections
of Hindus" (Article 25(2)(b) of the Constitution);
B
(v) the practice of untouchability (in so far as it may be justified
by Hindu religion) is constitutionally outlawed by Article 17;

(vi) every individual person will have, in that order, an equal right
to freedom of conscience and religion;
c
(vii) these rights are however subject to the power of the state
through law to impose restrictions on the ground of 11 public order,
morality and health";

(viii) these rights are furthermore subject to other fundamental
D
rights .in Part 111; 11

(The Struggle for the Re-definition of Secularism in India - pub-
lished in Social Action Vol. 44 - January, March 1994)

E In short, in the affairs of the State (in its widest connotation) religion
is irrelevant; it is strictly a personal affair. In this sense and in this behalf,
our Constitution i' broadly in agreement with the U.S. Constitution, the
First Amendment whereof declares that " Congress shall make no laws
respecting an establishment of religion or prohibiting the free exercise
thereof.. ... " (generally referred to as the "establishment clause"). Perhaps,
F this is an echo of the doctrine of separation of Church and State; may be
it is the modern political thought which seeks to separate religion from the
State - it matters very little.

In this view of the matter, it is absolutely erroneous to say that
G 11
secularism is a 11 vacuous word 11 or a phantom concept •
11

It is perhaps relevant to point out that our founding fathers read this
concept into our constitution not because it was fashionable to do so, but
because it was an imperative in the Indian context. It is true - as Sri Ram
J ethmalani was at pains to emphasise - that India was divided on the basis ~·
H of religion and that areas having n1ajority n1uslim population were con-
S.R. BOMMAI v. U.0.1. [B.P. JEEV AN REDDY, J.] 821

stituted into a new entity - Pakistan - which immediately proceeded to A
proclaim itself as an Islamic Republic, but it is equally a fact that even after
partition, India contained a sizeable population of minorities. They com-
prised not less than 10 to 12% of the population. Inspired by Indian
tradition of tolerance and fraternity, for whose sake, the greatest son of
Modern India, Mahatma Gandhi, laid do\vn his life and seeking to redeem
the promise of religious neutrality held forth by the Congress party, the B
founding fathers proceeded to create a state, secular in its outlook and
egalitarian in its action. They could not have countenanced the idea of
treating the minorities as second-class citizens. On the contrary, the
dominant thinking appears to be that the majority community, Hindus,
must be secular and thereby help the minorities to become secular. For, it
is the majority community alone that can provide the sense of security to
c
others. The significance of the 42nd (Amendment) Act lies in the fact that
it formalised the pre-existing situation. It put the matter beyond any doubt,
leaving no room for any controversy. In such a situation, the debate
whether the Preamble to the Constitution is included within the words "the
provisions of this Constitutionn is really unnecessary. Even if we accept the D
reading of Sri Jethmalani, Preamble is a key to the understanding of the
relevant provisions of the Constitution. The 42nd (Amendment) Act has

·' furnished the key in unmistakable terms.

Given the above position, it is clear that if any party or organisation
seeks to fight the elections on the basis of a plank which has the proximate E
effect of eroding the secular philosophy of the Constitution would certainly
be guilty of following an nnconstitutional course of action. Political parties
are formed and exist to capture or share State power. That is their aim.
They may be associations of individuals but one cannot ignore the func-
tional relevance. An association of individuals may be devoted to propaga-
tion of religrat; it would be a religious body. Another may be devoted to F
' promotion of culture; it would be an cultural organisation. They are not
' aimed at acquiring State power, whereas a political party does. That is one
of its main objectives. This is what we mean by saying 'functional relevance'.
One cannot conceive of a democrci.tic form of government without the
political parties. They are part of the Political system and constitutional G
scheme. Nay, they are integral to the governance of a democratic society.
If the Constitution requires the State to be secular in thought and action,
the sames inquirement attaches to polit.ical parties as well. The Constitu-
tion does not recognise, it does not permit, mixing religion and State power.
Both must be kept apart. That is the constitutional injunction. None can
H
822 SUPREME COURT REPORTS [1994] 2 S.C.R.

A say otherwise so long as this Constitution governs this country. Introducing
religion into politics is to introduce an impermissible element into body
politic and an imbalance in our constitutional system. If a political party
espousing a particular religion comes to power, lhal religion tends to
become, in practice, th!'. official religion. All other religions come to
acquire a secondary status, at any rate, a less favourable position. This
B would be plainly anti-thctical to Articles 14 to 16, 25 and the entire
constitutional schemesadumbrated hereinabove. Under our Constitution,
no party or organisation can simultaneously be a political and a religious
party. It has to be either. Same would be the position, if a party or
organisation acts and/or behaves by word of mouth, print or in any other
manner to bring about the said effect, it would equally be guilty of an act
c of unconstitutionality. It would have no right to function as a political party.
The fact that a party may be entitled to go to people seeking a mandate
for a drastic amendment of the Constitution or its replacement by another
Constitution is wholly irrelevant in the context. We do not know how the
Constitution can be amended so as to remove secularism from the basic
D structure of the Constitution.* Nor do we know how the present Constitu-
tion can be replaced by another; it is enough for us to know that the
Constitution does not provide for such a course - that it does not provide
for its own demise.

Consistent with the constitutional philosophy, sub-section (3) of Sec-
E tion 123 the Representation of Peoples Act, 1951 treats an appeal to the
electorate to vote on the basis of the religron, race, caste or community of
the candidate or the use of religious symbols as a corrupt practice. Even a
single instance of such a nature is enough to vitiate the election of the
candidate. Similarly, sub-section (3-A) of Section 123 provides that
F "promotion of , or attempt to promote, feelings of enmity or hatred
between different classes of citizens of India on grounds of religion, race, •
caste, community or language" by a candidate or his agent etc. for the •
furtherance of the prospects of the election of the candidate is equally a
corrupt practice. Section 29-A provides for registration of associations and
bodies as political parties with the Election Commission. Every party
G contesting elections and seeking to have a uniform symbol for all its
candidates has to apply for registration. while making such application, the
association or body has to affirm its faith and allegiance lo "the principles
of socialism, secularism and democracy" among others. Since the Election

The decision of this Court in Keshavanandn Bharti, [1973} Suppl. 1 SCR at 166 and 280
H says that secularism is one of the basic features of the Constitution.
S.R. BOMMAI v.U.0.l. [B.P.JEEVAN REDDY,J.] 823

Commission appears to have made somesother orders in this behalf after A
the conclusion of arguments and because those orders have not been
placed before us or debated, we do not wish to say anything more on this
subject.

ARTICLE 74(2) - ITS MEANI'IG AND SCOPE:
B
The Constitution of India has introduced parliamentary democracy
in this country. The parliamentary democracy connotes vesting of real
po\ver of governance in the Prime Minister and council of his ministers
who are very often drawn from the majority party in Parliament. Some
Jurists indeed refer to it derisively as Prime-ministerial form of Govern-
ment. Jn such a democracy, the head of the State, be he the King or the c
President, remains a constitutional head of the State. He acts in accordance
with the aid and advice tendered to him by the council of ministers with
the Prime Minister at its head. This is what clanse (1) of Article 74
provided, even before it was amended by the 42nd (Amendment) Act. It
was so understood and interpreted in Ramjaway Kapoor v. State of Punjab, D
A;.R. (1955) S.C. 549, and in Shamsher Singh. The 42nd Amendment
merely made explicit what was already implicit in clause (1). The 44th
Amendment inserted a proviso to clause (1) which too was in recognition
of an existing reality. It empowers the President to require the council of
ministers to reconsider the advice tendered by them. The advice tendered
on such reconsideration is made binding upon the President. Since clause E
(2) of Article 74 has to be read and understood having regard its context,
it would be appropriate to read both the Clauses of article 74 as they stand
now:

"74. Council of Ministers to aid and advice President - -(1) There

- .
•
shall be a Council of the Ministers with the PrimesMinister at the
head to aid and advice the President who shall, in the exercise of
his fu.nctions, act in accordance with such advice:
F

Provided that the President may require the Council of Mini-
sters to reconsider such advice., either generally or othervlise, and G
the President shall act in accordance with the advice tendered after
such reconsideration.

(2) The question whether any, and if so what, advice was tendered
by Ministers to the president shall not be inquired into in any
Court." (Emphasis added) H
824 SUPREME COURT REPORTS [1994] 2 S.C.R.

A Article 53(1)of the Constitution says that. "the executive power of the
Union shall be vested in the President and shall be exercised by him either
+
directly or through officers subordinate to him in accordance with this
Constitution." Clause (2), however, declares that without prejudice to
Clause (1), the supremescommand of the Armed forces of the Union shall
be vested in the President and that the exercise of such power shall be
B regulated by law.

Clause (1) of Article 77 provides that "all executive action of the
Government of India shall be expressed to be taken in the names of the
President." Clause (2) then says that all orders made and other instruments
executed in the name of the President shall be authenticated in such
c manner as may be specified in the Rules to be made by the President. It
further provides that the validity of an order or instrument which is
authenticated in accordance with the said Rules shall not be called in
question on the ground that it is not an order or instrument made or
executed by the President. Rules have been made by the President as
D contemplated by this clause contained in Notification No. SO. 2297 dated
November 11, 1958 (as amended from time to time). Several officers of the
Government have been empowered to authenticate the orders and other
·instruments to be made and executed in the name of the President. Clause
(3) requires the President to make Rules for the more convenient transac-
tion of the business of the Government of India and for allocation among
E
Ministers of the said business. In other words, Rules have to be made by
th President under clause (3) for two purposes, viz., (1) for the more
convenient transaction of the business of the Government of India and (b)
for the allocation amcng Ministers of the said business. Rules of business
have indeed been made as required by this clause and the business of the
F Governn1ent of India allocated between several Ministers.

Y ct another article which requires to be noticed in this connection
is Article 361 which declares that "the President shall not be answerable to
any Court for the exercise and performance of the powers and duties of
G his office or for any act done or purporting to be done by him in the
exercise and performance of those powers and duties''. No criminal
proceeding can be instituted or continued against the President in any
Court while he is in office, nor is he subject to any process for his arrest
or imprisonm~nt.

H Article 78 specifies the duties of the Prime Minister as regards the·
S.R. BOMMAJ v. U.OL [ll.P. JEEVAN REDDY,l.J 825

furnishing of information to President and certain other matters. Clause A
(1) obliges the Prime Minister to communicate to the· President all
decisions of the Council of Nlinisters relating to the ad1ninistration of the
affairs of the Union and proposals for legislation. Clause (b) says that
Prime Minister shall furnish such information as the president may call for
with respect to the matters communicated under clause (a). Clause (c)
obliges the Prime Minister, if required by the President, to submit any
B
matter for reconsideration of the Council of Ministers \vhich has not been
considered by it.

t
The President is clothed with several powers and functions by the
Constitution. It is not necessary to detail them to expect to say that Article C
356 is one of them. When Article 74(1) speaks of the President acting "in
the exercise of his functions!!, it refers to those powers and functions.
Besides the Constitution, several other enactments too confer and may
hereinafter confer, certain powers and functions upon the President. They
too will be covered by Article 74(1). To wi~ the President shall exercise D
those powers and discharge those functions only on the aid and advice of
the Council of Ministers with the Prime Minister at its head

Article 361 is the manifestation of the theory prevalent in English law
that 'King can do no wrong' and , for that reason, beyond the process of
the court. Any and every action taken by the President is really the action E
of his ministers and subordinates. It is they who have to answer for, defend
and justify any and every action taken by them in the name of the President,
if such action is questioned in a Court of law. The President cannot be
called upon to answer for or justify the action. It is for the council of
ministers to do so. Who comes forward to do so is a matter for them to
F
decide and for the court to be satisfied about it. Normally speaking, the
•
! Minister or other official or authority of the Ministry as is entrusted with
the relevant business of the Government, has to do it.

,. Article 53(1) insofar as says that the executive power of the Union,
which vests in the President, can be exercised by him either directly or G
through officers subordinate to him in accordance with the Constitution
stresses the very idea. Even where he acts directly, the President has to act
on the aid and advice of the Council of Ministers or the Minister con-
cerned, as the case may be. (Advice tendered by a Minister is deemed to
be the ad;icc tendered by the council of Ministers in view of the principle H
826 SUPREME COURT REPORTS [1994J 2 S.C.R.

A of joint responsibility of the cabinet/council of ministers). If such act is
questioned in a Court of Law, it is for the Minister concerned (according
to Rules of Business) or an official of that Ministry to defend the Act. ....
Where the President acts through his subordinates, it is for that subor-
dinate to defend the action.

B
Article 74 and 77 are in a sense complimentary to each other , though
they may operate in different fields. Article 74(1) deals with the acts of the
President done "in exercise of his functions'~ whereas Article 77 speaks of
the executive action of the Govemment of India which is taken in the ,
namesof the President of India. Insofar as the executive action of the •
c Government of India is concerned, it has to be taken by the Minister/Of-
ficial to whom the said business is allocated by the rules of Business made
under clause (3) of Article 77 for the more convenient transaction of the
business of the Government of India. All orders issued and the instruments
executed relatable to the executive action of the Government of India have
D to be authenticated in the manner and by the officer empowered in that
behalf. The President does not really comesinto the picture so far as Article
77 is concerned. All the business of the Government of India is transacted
by the Ministers or other officials empowered in that behalf, of course, in
the name of the President. Orders are issued, instruments are executed and • •
other acts done by various Ministers and officials, none of which may reach
E the President or may be placed before him for his consideration. There is
no occasion in such cases for any aid and advice being tendered to the
President by the Council of Ministers. Though expressed in the name of
the President, they are the acts of the Government of India. They are
distinct from the acts of the President 11 in the exercise of his functions"
F contemplated by Article 74. Of course, even while acting in exercise of his
functions, the President has to act in accordance with the aid and advice
tendered by the Council of Ministers with the PrimesMinister at its head. •I
He is thus rendered a constitutional - or a titular-head. (The proviso to
clause (1) no doubt empowers him to require the Council of Ministers to
reconsider such advice, either generally or in any particular cases, but if
G and when the Council of Ministers tenders the advice on such re-considera-
tion, he is bound by it.) Then comes clause (2) of Article 74 which says
that the question "whether any, and if so, what advice was tendered by the
Ministers to the President shall not be enquired into in any Court." The
idea behind clause (2) is this: the Court is not to enquire - it is not <'
H concerned with - whether any advice was tendered by any Minister or

\
S.R. HOMMA! v. U.0.1. [B.P.JEEVAN REDDY,J.] 827

Council of Ministers to the President, and if so, what was that advice. That A
is a matter between the President and his Council of Ministers. What
advice was tendered, whether it was required to be reconsidered, what
advice was tendered after reconsideration, if any, what was the opinion of
the President, whether the advice was changed pursuant to further discus-
sion, if any, and hov.· the ultimate decision was arrived at, are all matters
between the President and his Council of Ministers. They are beyond the
B
ken of the Court. The Court is not to go into it. It is enough that there is
an order/act of the President in appropriate form. It will take it as the
order/act of the President. It is concerned only with the validity of the order
and legality of the proceeding or action taken by the President in exercise
of his functions and not with what happened in the inner Councils of the c
President and his Ministers. No one can challenge such decision or action
on the ground that it is not in accordance with the advice tendered by the
Ministers or that it is based on no advice. If, in a given case, the President
acts without, or contrary to, the advice tendered to him, it may be a case
warranting his impeachment, but so far as the Court is concerned, it is the D
act of the President. (We do not wish to express any opinion as to what
would be the position if in the unlike event of the council of Ministers itself
questioning the action of the President as being taken without, or contrary,
to their advice).

Clause (2) of Article 74, understood in its proper perspective, is thus E
confined to a limited aspect. It protects and preserves the secrecy of the
deliberations between the President and his Council of Ministers. In fact,
clause (2) is a reproduction of sub-sectioa (4) of Section 10 of the Govern-
ment of India Act, 1935. (The Government of India Act did not contain a
provision corresprnding to Article 74(1) as it stood before or after the
Amendments aforementioned). The scope of clause (2) should not he F
•" extended beyond its legitimate field. In any event, it cannot be read or
understood as conferring an immunity upon the council of mini:: ter!-. or the
Minister/Ministry concerned to explain, defend and justify the orders and
acts of the President· done in exercise of his function.* The limited
provision contained in Article 74(2) cannot override relating to judicial G
review. If and when any action taken by the President in exercise of his

The orders and acts of the President of h1dia made and taken in exercise of his
functions are generally expressed as having been ordered of taken by the President of
India whereas the executive action of the Govcrnn1ent o( India is expressed to have
been ordered or taken by the Governn1e11t of India in the name of the President of
India. This difference in forn1 is only indicative - and not obligatory or n1andatory. H
828 SUPREME COURT REPORTS (1994] 2 S.C.R.

A functions is questioned in a Court of Law, it is for the Council of Ministers
to justify the same, since the action or order of the President is presumed
to have been taken in accordance with Article 74(1). As to which Minister
or which official of which Ministry comes forward to defend the order/ac-
tion is for them to decide and for the Court to be satisfied about it. Where, l~
of course, the act/order questioned is one pertaining to the executive power
B of the Government of India, the position is much simpler. It does not
represent the act/order of the President done/taken in exercise of his
functions and hence there is no occasion for any aid or advice by the
Ministers to him. It is the act/order of Government of India, though
expressed in the name of the President. It is for the concerned Minister or •
c Ministry, to whom the function is allocated under the Rules of Business to
defend and justify such action/order.

Section 123 of the Evidence Act, in our opinion, is 10 no manner
relevant in ascertaining the. meaning and scope of Article 74(2). Its field
and purpose is altogether different and distinct. Section 123 reads thus:
D
"123. Evidence as to affairs of State--No one shall be permitted to
give any evidence derived from unpublished official records relat-
ing to any affairs of State, except with the permission of the officer
at the head of the department concerned, who shall give or with-
hold such permission as he thinks fit."
E
Evidence Act is a pre-Constitution enactment. Section 123 enacts a
rule of English common Law that no one shall be permitted to give
evidence derived from unpublished official records relating to affairs of
State except \vith the permission of the concerned head of the department.
F Tl docs not prevent the head of department permitting it or the head of
the department himself giving evidence on that basis. The law relating to
'•
Section 123 has been elaborately discussed in several decisions of this
Court and is not in issue herein. Our only object has been to en1phasise
that Article 74(2) and Section 123 cover different and distinct areas. It may
happen that while justifying and government's action in Court, the Minister
G or the concerned official may claim a privilege under Section 123. If and
when such pt ivilege is claimed, it will be decided on its own merits in
accordance with the provisions of that Section. But, Article 74(2) docs not
and cannot mean that the Government of India need not justify the action
taken by the President in the exercise of his functions because of the
H provision contained therein. No such immunity \Vas intended - or is
S.R. BOMMAI v. U.0.1. !B.P. JEEV AN REDDY, J.] 829

provided - by the clause. if the act or order of the President is questioned A
in a Court of Law, it is for the Council of Ministers to justify it by disclosing
'r the material which formed the basis of the act/order. The Court will not
ask whether such material formed part of the advice tendered to the
President or whether that material was placed before the President. The
• Court will not also ask what advice was tendered to the President, what
B
deliberations or discussions took place between the President and his
Ministers and how was the ultimate decision arrived at. The Court will only
see what was the material on the basis of which the requisite satisfaction
is formed and whether it is relevant to the action under Article 356(1). The
court will not go into the correctness of the material or its adequacy. Even
if the court were to come to a different conclusion on the said material, c
it would not interfere since the Article speaks of satisfaction of the Presi-
dent and not that of the court.

In our respectful opinion, the above obligation cannot be evaded by
seeking refuge under Article 74(2). The argument that the advice tendered D
to the President comprises material as well and , therefore, calling upon
the Union of India to disclose the material would amount to compelling
the disclosure of the advice is, if we can say so respectfully, to indulge in
.,
sophistry. The material placed before the President by the Minister/Coun-
cil of Ministers _does not thereby become part of advice. Advice is what is E
based upon the said material. Material is not advice. The material may be
placed before the President to acquaint him - and if need be to satisfy him
- that the advice being tendered to him is the proper one. But it cannot
mean that such material, by dint of being placed before the President in
support of the advice, becomes advice itself. One can understand if the
advice is tendered in writing· in such a case that writing is the advice and
F
l is covered by the protection provided by Article 74(2). But it is difficult to
appreciate how does the supporting material becomes part of advice. The
respondents cannot say that whatever the President sees - or whatever is
placed before the President becomes prohibited material and cannot be
seen or summoned by the court. Article 74(2) must be interpreted and G
understoad in the context of entire constitutional system. Undue emphasis
and expansion of its parameters would engulf valuable constitutional
guarantees. For these reasons, \Ve find it difficult to agree with the reason-
ing in State of Rajasthan on this score, insofar as it runs contrary to our
~~ H
830 SUPREME COURT REPORTS [1994] 2 S.C.R.

A ARTICLE 356 AND JUDICIAL REVIEW·

Judicial review of administrative and statutory action is perhaps the
most important development in the field of public law in the second half
of this century. In India, the principles governing this jurisdiction are
exclusively Judge-made. A good amount of debate took place before us •
B with respect tp the applicability, scope and reach of judicial review vis-a-vis
the proclamation issued by the President under Article 356 of the Constitu-
tion. A Large volumesof case-law and legal literature has been placed
before us. Though it may not be possible to refer to all that material, we
shall refer to relevant among them at the appropriate place.
c
One of the contentions raised by the Union of India in Writ Petition
No. 237 of 1993 (filed by Sri Sunderlal Patwa and others in Madhya
Pradesh High Court questioning the proclamation) and other writ petitions
is that inasmuch as the action under Article 356 is taken on the subjective
D satisfaction of the President and further because the President cannot be
sued in a Court of Law by virtue of Article 361, the impugned proelamation
is not justiciable. this argument is, however, not pressed before us. It is also
averred that since the Parliament has approved the said proclamation, the
Court ought not to entertain the writ petition and/or examine the correct-
ness or otherwise of the Presidential proclamation. (This contention has
E been further elaborated and pressed before us, as we shall mention
hereinafter). Article ?4(2) is relied upon to submit that the material on
which the President based the requisite satisfaction cannot be compelled
to be produced in Court. (This contention has already been dealt with by
us.) It is also submitted that the report of the Governor which forms the
F basis of action under Article 356 and the material upon which it is based
cannot be called in question by virtue Article 361 - (urged in a modified
form). •

Sri K. Parasaran, learned counsel appearing for the Union of India
conceded that the action of the President under Article 356 cannot be said
G to be beyond judicial review and judicial scrutiny. He, however, submitted
that having regard to the nature of the function, the high constitutional
status of the authority in whom the power is vested and the exigencies in
whi~h the said action is taken, the Court ought not to go into the question
< .
of the advisability of the action or into the adequacy of the material on
H which it is based. The Presidential action, counsel submitted, is not suscep-
S.R. BOMMAl v. U.0.1. [B.P. JEEVAN REDDY, J.] 831

tible to normal rules of judicial review, having regard to the political nature A
of the action and absence of any judicially manageable standards. There
may be several imponderables ~ the situation, which the Court cannot
weigh. The President's action under Article 356 cannot be equated to
administrative action of a government official. It is exercise of a consitutu-
.... tional function by the highest dignitary of the nation, the President of India .
B
May be the learned counsel submitted, in a case like Meghalya (Trans-
ferred Case Nos.5 and 7 of 1992), the Court may interfere where the
invalidity of action is demonstrable with reference to the orders of this
Court, i.e., where the invalidity is writ large on its face. But, generally
"'I ·\· speaking, the Court is ill-fitted to judge the material on which the action
is based to determine whether the said material warranted the action taken. c
The Court cannot sit in judgment over the prognosis of the President (for
that matter, of the Union Council of Ministers) that the situation in a given
State was one in which the government of that State could not be carried
on in accordance with the provisions of the Constitution. This is an in-
stance, the learned counsel continued, where the Constitution has com- D
mitted a particular power to the President to be exercised in his discretion
in certain specified situations - a power flowing from the obligation cast by
Article 355 upon the Union of India to ensure that 11 the government of every
State is carried on in accordance with the provisions of this Constitution11 •
The President is oath-bound to protect and preserve the Constitution.
Placed as he is and having regard to the material which is available to him E
alone - and also because he alone is best fitted to determine on the basis
• of material before him whether the situation contemplated by Article
356(1) has arisen - the matter must be left to his judgment and good sense.
He alone is presumed to possess the astute political-cum-administrative
expertise necessary for a proper and sound exercise of the said power. F
Judicial approach, which the courts are trained to adopt, is not suited to
the function under Article 356. The Courts would be better advised to
leave the function to those to whom it is entrusted by the Constitution. The
President of India has to be trusted. Of course, President in Article 356(1)
means the Union Council of Ministers by virtue of Article 74{1) but that
makes little difference in principle. That is the system of government we G
have adopted. There is no reason to believe that the highest authority like
the President of India - i.e., the Union Council of Ministers - would not
act fairly and honestly or that they would not act in accordance with the
spirit and scheme of the Constitution. Sri Parasaran further submitted that
H
832 SUPREME COURT REPORTS [1994] 2 S.C.R.

A where a particular proclamation is questioned, the burden of establishing
its invalidity lies upon the petitioner. It is for him to produce the material
to substantiate his contentions. By virtue of Article 74(2), the Court would

B
not enquire into the advice tendered by the Ministers to the President
leading to the issuance of the impugned proclamation. The advice com-
prises and is based upon certain material and information. The advice and
material cannot be separated. If the Court ·cannot enquire into the advice,
..
it cannot also call upon the Union of India to disclose that material. The
learned counsel submitted further that there is a distinction between
judicial review of administrative action and Judicial revi~w of constitutional ~.,.
action. The decisions of this Court relating to judicial review of administra-
C tive or statutory action and discretion cannot be applied to judicial review
of constitutional action. Appeal against such action, properly and truly
speaking, must, and should always be, to the ulimate political sovereign -
the people.

D Sri P.P. Rao, learned counsel for the State of Madhya Pradesh while
adopting the contentions of Sri K. Parasaran concentrated mainly upon the
secular nature of our Constitution, \vith the sequiter tliat non-secular
policies, programmes and acts of political parties place such parties outside
1'
the pale of constitutionalism. He submitted that by adopting such policies
and programmes and by indulging in non-secular course of action, the
E governments run by such parties render themselves amenable to action
under Article 356. According to the learned counsel, B.J.P.'s election
manifesto, together wih the speeches and acts of their leaders and cadres
make it a non-secular party and, therefore, the dismissal of their govern-
ment in Madhya pradesh is perfectly justified. Sri Andhyarujina, learned
Advocate-General of Maharashtra submitted that the doctrine of political .
F question has not been given-up altogether by the decision of the U.S.
Supre.me Court in Baker v. Carr, [1962] 11 L.Ed. 633. All that the decision
has done is to limit the area of operation of the said doctrine. The dismissal
of a State government or dissolution of the State Legislative Assembly is
essentially a political question, the validity and correctness whereof cannot
G be adjudged with reference to any know judicial standards and/or dicta.
Such matters be best left to the wisdom of the President and ultimately of
"
the people. It is for the people to judge whether a partkular dismissal or
dissolution was just or not.

S/Sri Soli Sorabjee, Ram Jethmalani and Shanti Bhushan, learned
H counsel for the Petitioners submitted, on the other hand, that the action of
· S.R. BOMMAI v. U.0.1. [B.P. JEEV AN REDDY, J.] 833

the President under Article 356 is not beyond judicial scrutiny. The Con- A
stitution does not create any such immunity and it would not be desirable
to inferany such immunity by a process of reasoning or as a matter of

. self-restraint by this Court. The power has been used more often than not
for purposes other than those contemplated by Article 356. The provision
has been abused repeatedly over the years reducing the State governments
and the Stale Legislatures to the status of mere municipalities. If the Court B
were to refuse to enquire into the validity of such proclamations, a serious
imbalance will set in in the constitutional scheme. This court is as much
bound to uphold, protect and preserve the Constitution as the President
of India. The founding fathers did not say or indicate anywhere that the ·
President shall exercise the said power in his absolute discretion/judgment. C
On the contrary, the action is made expressly subject to approval by both
the Houses of Parliament. The remedy of judicial review guaranteed by
Articles 32 and 226 extends and applies to this action as to any other action
of the President under the Constitution. Where the Parliament wished to
bar judicial review, it has said so expressly, e.g., Article 31-B and 31-C.
There is no distinction between the judicial review of administra- D
live/statutory action and judicial review of Constitutional action. The tests
are the same. No other tests can possibly be suggested. The power under
Article 356 is undoubtedly the power to be exercised on the subjective
satisfaction of the President, which means the Council of Ministers. The
latter is undoubtedly a political body and the experience shows that where
a different party is in power in a state, the Central Government has been E
resorting to Article 356 to destabilise that party and to further the
prospects of their own party. The circumstances in which and the grounds
on which the action based on subjective satisfaction can be interfered with,
have been exhaustively stated by this Court in Barium Chemicals as far back
as 1966 which decision has been followed unifromly by this Court over the F
last three decades. The tests evolved in the said decision are relevant even
in the case of action under Article 356. The power under Article 356 is a
conditioned power; it can be exercised only when the President i• satisfied
that the government of a State cannot be carried on in accordance with the
provisions of the Constitution. Even in the case of _an unqualified and
unconditional power like the one under Article 72 (power to grant pardon G
• etc.) this Court has held that the action of the President is amen°ble to
judicial review Kehar Singh v. Union of India, [1988] Suppl. 3 S.C.R. 1102.
The satisfaction must be based upon existing material and must be such as
would lead a reasonable man to be satisfied that the Government of the
State cannot be carried on in accordance with the provisions of the
H
834 SUPREME COURT REPORTS [1994] 2 S.C.R.

A Constitution. Even if the action is taken with the best of intentions, it would
be bad if the action is outside the pale of Article 356. If the grounds are.
not relevant or if there are no grounds warranting the requisite satisfacti011,

.
the action would be bad. Article 74{2) has no relevance in this behalf. It is
a sort of red herring drawn across the trial by the Respondents' counsel to
confuse the issue. The petitioners are not interested in or aaxious to know
B that advice, it any, was tendered by the Ministers to the President leading
to the issuance of the impugned proclamation. They are not interested in
that aspect. There challenge is to the validity of the proclamation and since
it is an action based upon subjective satisfaction and also because the
proclamation does not recite the grounds upon it has been issued, it is for
C the Union of India to justify their action before this Court. This is the
general principle applicable to cases of subjective satisfaction and the
proclamation under Article 356 is no exception to this rule say the counsel.

Since it is not disputed by the counsel for the Union of India and
other respondents that the proclamation under Article 356 is amenable to
D judicial review, it is not necessary for us to dilate on that aspect. The power
under Article 356(1) is a conditional power. In exercise of the power of
judicial review, the court is entitled to examine whether the condition has
been satisfied or not. In what circumstances the court would interfere is a
i'
different matter but the amenability of the action to judicial review is
E beyond dispute. It would be sufficient to quote a passage form State of
Rajasthan:

"........ So long as a question arises whether an authority under the
Constitution has acted within the limits of its power or exceeded
it, it can certainly be decided by the Court. Indeed it would be its
F Constitutional obligation to do so ........... this court is the ultimate
interpreter of the Constitution and to this Court is assigned the
delicate task of determining what is the power conferred on each
\
branch of Goverment, whether it is limited, and if so, what are the
limits and whether any action of that branch transgresses such
G limits. It is for this court to uphold the Constitutional values and
to enforce the Constitutional limitations. That is the essence of the
.....
Rule Of law................"

The controversy really pertains to the scope, reach and extent of the
H judicial review.
S.R. BOMMAI v. U.0.1. [B.P. JEEVAN REDDY, J.) 835

Regarding the scope and reach of judicial review, it must be said at A
the very outset that there is not, and there cannot be, a uniform rule
applicable to all cases. It is bound to vary depending upon the subject-mat-
ter, nature of the right and various other factors.

This aspect has been emphasised by this Court in Indra Sawhney v.
Union of India, (1992) 6 J.T. 655, in the following words: B

"The extent and scope of judicial scrutiny depends upon the nature
of the subject matter, the nature of the right affected, the character
of the legal and constitutional provisions applicable and so on. The
acts and orders of the State made under article 16(4) do not enjoy C
any particular kind of immunity. At the same time, we must say
that court would normally extend due deference to the judgment
and discretion of the Executive - a co-equal wing - in these matters.
The political executive, drawn as it is from the people and repre-
sent as it does the majority will of the people, is presumed to know D
the conditions and the needs of the people and hence its judgment
in matters within its judgment and discretion will be entitled to the
due weight."

A passage from the article "Justiciability and the control of discre-
tionary power" b Prof. D.G.T. Welliarns appears to echo our thought E
correctly. the Professor says, "Variability, of course, is the outstanding
featureof judicial review of administrative action ........... an English Judge
has commented that (with administrative law 'in a phase of active
devefopment') the Judges 'will adapt the rules ..............to protect the rule
of law' and an Australian judge has noted that there 'is no fixed rule which
requires the same answer to be given in every case'. Similar sentiments have F
., been expressed in the case of express procedural requirements whe•e the
• Cou~ts have to wrestle with the distincti').ll. between mendatory and direc-
tory requirements, where the law has beco described 'as inextricable tangle
of loose ends', and where the variables - including ideas orsubstantial
compliance' or as to whether anyone has been prejudiced - are such that G
• even the same statutory provision may be differently interpreted according
to the circumstances of a case ............. the fluidity of the rules on express
procedural requirements has been eloquently recognized both by Lord
Hailsham - who, against a background of 'the rapidly developing
jurisprudence of administrative law' spoke of a 'spectrum of possibilities'
when he stressed that the Courts are not necessarily 'bound to fit the facts H
836 SUPREME COURT REPORTS [1994] 2 S.C.R.

A of a particular case and a developing chain of events into rigid legal
categories or to stretch or cramp them on a bed of Procrustes invested by
lawyers for the purposes of convenient exposition' ........ ".

Having said this, we may now proceed to examine a few decisions
where proclamations of emergency were questioned to notice how the
B challenge was dealt with. We may first notice the decision of the Privy
Council in Bhagat Singh v. King Emporer, A.I.R. (1931) P.C. 111. Section
72 of the Government of India Act, 1919 empowered the Governor-
General to make and promulgate ordinance for the peace and good
Government of British India in case of emergency. The ordinance so made,
however was to be effective for a period of six months from the date of its
c promulagtion and was to be effective like an enactment made by the Indian
legislature and be subject to the very same restrictions applying to an
enactment made by the Indian legislature. The section read as follow:
1
'72. The Governor·General may in cases of emergency make and
promulgate ordinances for the peace and good government of
D
British India or any part thereof, and any ordinance so made shall
for the space of not more than six months from its promulgation,
have the like force of law as an Act passed by the Indian legislature;
but the power of making ordinance under this section is subject to
the like restrictions, as the power of the Indian legislature to make
E laws; and any ordinance made under this section is subject to the
like disallowance as an Act passed by the Indian legislature and
may be controlled or supreseded by any such Act."

Exercising the said power, the Governor-General issued an or-
dinance whereunder the appellant was convicted. In the appeal to the
F Board, the appellant contended that, as a matter of fact, there was no state
of emergency and that the Governor-General acted illegally in proclaiming
that one exists and issuing the ordinance on that basis. This contention was
rejected by the Board in the following words:

"That raises directly the question who is to be the judge of whether
G a state of emergency exists. A state of emergency is something that •
does not permit of any exact definition: It connotes a state of
matters calling for drastic action which is to be judged as such by
someone. It is more than obvious that someone must be the
Governor-General and he alone. Any other view would render
H utterly iil.ept the whole provision. Emergency demands immediate.
S.R. BOMMAI v. U.0.1. [B.P. JEEV AN REDDY, J.] 837

action and that action is prescribed to be taken by the Governor- A
> , General. It is he alone who can promulgate the ordinance.

Yet, if the view ruged by the petitioners is right, the judgment
of the Governor-General could be upset either (a) by this Board
declaring that once the ordinance was challenged in proceedings
by way of habeas coupus the Crown ought to prove affirmatively B
before a Court that a state of emergency existed, or (b) by a finding
of this Board-after a contentious and protracted enquiry-that no
state of emergency existed, and that the ordinance with all that
" followed on it was illegal.
c
In fact, the contention is so completely without foundation on
the face of it that it would be idle to allow an appeal to argue
about it.

It was next said that the ordinance did not conduce to the peace
and good government of British India The same remarks applies. D
The Governor-General is also the judge of tliat. The power given
by s-72 is an absolute power without any limits prescribed, except
only that it cannot do what the Indian legislature would be unable ·
to do, although it is made clear that it is only to be used in extreme
cases of necessity where the good Government of India demands E
it.ti

Thus, the approach of the Board was one of 'hands-off. The Gover-
nor-General was held to be the final Judge of the question whether an
emergency exists. The power conferred by Section 72 was described an an
absolute power without any limits prescribed, except that which apply to F
•' an enactment made by the Indian legislature. It was also observed that the
subject matter is not fit one for a court to enquire into.

We may point out that this extreme position is not adopted by Sri
Parasaran, learned counsel appearing for the Union of India. He did
concede that judicial review under the Constitution is not excluded in the
G
matter of proclamation under Article 356(1) though his submission was
that it should be available in an extremely narrow and limited area since it
.._, is a power committed expressly to the President by the Constitution and
also because the issue is not one amenable to judicial review by applying
known judicially manageable standards. The Supreme Court of Pakistan in H
838 SUPREME COURT REPORTS [1994] 2 S.C.R.

A Federation of Pakistan v. Mohd. Saifu/lah Khan, P.L.D. (1989) S.C. 166,
described the approach (adopted in Bhagat Singh) in the following words
(quoting Cornelius, J.): "In the period of foreign rule, such an argument,
i.e., that the opinion of the person exercising authority is absolute may have
at times prevailed, but under autonomous rule, where those who exercise
power in the State are themselves citizens of the same State,.it can hardly
B be tolerated."

We have no hesitation in rejecting the said approach as totally
inconsistent with the ethos of our Constitution, as would be evident from
the discussion infra.

c The view taken in Bhagat Singh was affirmed by the Privy Council in
the year 1944 in King Emporer v. Benoari Lal Sharma & Ors., (1944) 72 I.A.
57, C.P.C. It was held that whether an emergency existed at the time the
ordinance was made and promulgated was a matter of which the Gover-
nor-General was the sole Judge. If it were not so, it was observed, the
D Governor- General would be disabled from taking action necessary to meet
the emerging dangerous situation, according to his assessment of the
situation. It is enough to say that this case again represents what we have
called the extreme view. It is inappropriate in the context of Article 356.

The next decision is again of the Privy Council in Stephen Kalong
E Ningkan v. Government of Malaysia, (1970) AC. 379. The appellant was
the Chief Minister of Sarawak, and Estate in the Federation of Malaysia.
On June 16, 1966, the Governor of Sarawak requested him to resign on the
ground that he had ceased to command the confidence of the council
Negri. The appellant refused whereupon the Governor informed him on
June 17, 1966 that he ceased to hold the office. The appellant approached
F the High Court of Kuching against the governor's intimation. On Septem-
ber 7, 1966, the High Court upheld his plea and ruled that the Governor '•
had no power to dismiss him. On September 14, 1966, His Majesty Yang
di-Pertuan Agung (Head of the State of Malaysia) proclaimed a state of
emergency throughout the territories of the State of Sarawak. The
G proclamation was made under Article 150 of the Federal Constitution of
Malaysia, which reads thus:

"Article 150(1): If the Yang di-Petruan Agong is satisfied that a
grave emergency exists whereby the security or the economic life
of the Federation or of any part thereof is threatened, he may issue
H a proclamation or emergency. 11
S.R. BOMMAI v. U.0.1. [B.P.JEEVAN REDDY,l) 839

The Article provided for such proclamation being placed for ap- A
• proval before both the Houses of Parliament, who had the power to
' disapprove the same. Clause (5) of Article 150 empowered the Federal
Parliamrnt, during the period the proclamation of emergency was in opera-
tion, to make laws with respect to any matter which it appeared to it as
required by reason of the emergency. Such law, it was provided, shall be
operative notwithstanding anything contained either in the Constitution of B
the Federation or the Constitution of the State of Sarawak, and will not
be treated as amerndment to the constitution. Any such law was, ho,.vever,
to be in force only for the period of emercency. In exercise of the power
conferred by clause (5) of article 150, the Federation Parliament passed
Emergency (Federal Constitution and Constitution of Sarawak) Act, 1966.
Section 5 of this Act specifically empowered the Governor to dismiss the
c
Chief Minister, in his absolute discretion, if, at any time, the Council Negri
passed the resolution of no-confidence in the Government by a majority
and yet the Chief Minister failed to resign. On September 23, 1966, the
Council Negri met and passed the resolution of no-confidence in the Chief
Minister (appellant). On the next day, the Governor dismissed the appel- D
!ant under the new Act. He impugned the action in the Federal Court of
Malaysia, wherein he sought for a declaration that the 1966 Act aforesaid
was ultra vires the Federal Parliament. He contended that the procla1nation
of emergency was a fraud on the Constitution and of no effect inasmuch
as no state of grave emergency existed. The Act aforesaid founded as it
was on the proclamation of emergency, was equally void and of no effect, E
he submitted. He contended that the evidence showed that non of the usual
signs and symptoms of 11 grave emergency11 existed in Sarawak at or before
the time of the proclamation; that no disturbances, riots or strikes had
occurred; that no extra troops or police had been placed on duty; that no
curfew or other restrictions on movement had been found necessary and F
that the 'confrontation' with Indonesia had already come to an end. The
Federation d Malaysia repudiated all the said contentions. It submitted
that the proclamation of emergency was conclusive and not assailable
before the Court.

The Privy Council (Lord MacDermott speaking for the Board) ex-
G
pressed the view in the first instance that it was "unsettled and debatable"
whether a proclamation made by the Superme Head of the Federation of
Malaysia under statutory powers could be challenged on some or other
grounds but then proceeded on the assumption that the matter is justiciable.
On that assumption, the Board proceeded to exam_ine the further conten- H
840 SUPREME COURT REPORTS [1994] 2 S.C.R.

A tions of the appellant. It found that the proclamation of emergency and th~
impugned Act were really designed to meet the constitutional dead-lock
that had arisen on account of the absence of provision empowreing the
Governor to dismiss the Chief Minster where the latter ceased to enjoy the
confidence of the Council Negri. It observed: "It is not for their Lordships
to criticise or comment upon the wisdom or expediency of the steps taken
B by the Governor of Malaysia in dealing with the constitutional situation
which had occurred in Sarawak, or to enquire whether that situation could
itself have been avoided by a different approach." The Privy Council
observed further that "they can find, in the material presented, no ground
r
for holding that the respondent- government was acting erroneously or in •
any way malafide in taking the view that there was a constituional crisis in
c Sarawak, that it involved or threatened a breakdown of a state government
and amounted to any emergency calling for immediate action. Nor can
their Lordships fmd any reason for saying that the emergency thus con-
sidered to exist was not grave and did not threaten the security of Sarawak.
These were essential matters to be determined according to the judgment
D of the respondent-ministers in the light of their knowledge and ex-
perience ...... and that he (the appellant) failed to satisfy the Board that the
steps taken by the Government including the proclamation and the im-
pugned Act, were in fraudem Legis or otherwise unauthorised by the
relevant legislation". The appeal was according dismissed. ·

E There stands of reasoning are evident in the decision. Firstly, the
Privy Council assumed that the issue was justiciable. On that basis, it
examined the. facts of the case and found that the situation did amount to
an emergency. Secondly and more importantly, it examined and found that
there was no "reason for saying that the emergency thus considered to exist
was not grave and not threaten the security of Sarawak", though at the same
F time, it held that existence of emergency is a matter to be determined by
the council of ministers in the light of their knowledge and ex'jlerience and
thirdly, that the appellant failed to establish that the proclamation of

--
G
emergency was a fraud on the Constitution.

We may now notice the only decision of this court dealing with
Article 356, viz., State of Rajasthan. Two circumstances must be kept in
mind while examining the decision, viz., (i) the writ petitions (and suits)
filed by various states were not directed against proclamation(s) of emer-
gency, since no such proclamations were issued prior to the filing of those
suits and v.Tit petitions; and (ii) at that time, clause (5) introduced by 38th
H (Amendment) Act was in force. Clause (5) read as follows:
S.R. BOMMAI v. U.O.l. [B.P. JEEV AN REDDY, J.] 841

"5. Notwithstanding anything in this Constitution, the satisfaction A
of the President mentioned in the clause (1) shall be final and
conclusive and/shall not be questioned in any court on any ground."

[This clause was substituted by an altogether different clause by the
44th (Amendment) Act].
B
The subject matter of challenge in the suits (under Article 131) and
writ petitions (under Article 32) in this matter was a letter written by the
then Home Minister to Chief Ministers of certain States advising them to
seek the dissolution of respective Legislative Assemblies and seek a fresh
mandate from the people. The letter stated that the elections to Lok Sabha C
held in March, 1977 indicated that the Congress party, in power in those
States, has lost its mandate totally and has become alienated with the
people. The letter, together with a statement made by the then Union Law
Minister, was treated as a threat to dismiss those State governments. To
ward off such a threat, they approached the Supreme Court by way of suits
and writ petitions. They was heard expeditiously and dismissed on April D
29, 1977. Reasoned opinions were delivered later, by which date proclama-
tions under Article 356(1) were actually issued. One of the questions
related to the maintainability of the suits, with which question, of course,
we are not concerned.
E
Six opinions were delivered by the Seven-Judge Bench. Though all
of them agreed that the writ petitions and suits be dismissed, their reason-
;ng is not uniform. It would, therefore, be appropriate to notice the ratio
underlyjng each of the opinions insofar as it is relevant for our purposes:

Beg, CJ. The opinion of Beg, C.J. contains several strands of thought. They F
may be stated briefly thus:

(i) The language of Article 356 and the practice since 1950 shows that the
Central Government can enforce its will against the State governments with
respect to the question how the State governments should function and who G
should hold reiris of power.

(ii) By virtue of Article 365(5) and Article 74(2), it is impossible for the
Court to question the satisfaction of the President. It has to decide the case
on the basis of only those facts as may have been admitted by or placed by
the President before the Court. H
842 SUPREME COURT REPORTS [1994] 2 S.C.R.

A (iii) The language of Article 356(i) is very wide. It is desirable that
conventions are developed channelising the exercise of this power. The
{
Court can interfere only when the power is used in a grossly perverse and
unreasonable manner so as to constitute patent misuse of the provisions or
to an abuse of power. The same idea is expressed at another place saying
B that "a constitutionally or legally prohibited or extraneous or collateral
purpose is sought to be achieved" by the proclamation, it would be liable
to be struck down. The question whether the majority party in the Legis-
lative Assembly of a State has become totally estranged from the electorate
is not a matter for the Court to determine. •.
C (iv) The assessment of the Central Government that a fresh chance should
be given to the electorate in certain States as well as the question when to
dissolve the Legislative Assemblies are not matters alien to Article 356. It
cannot be said that the reasons assigned by the Central Government for
the steps taken by them are not relevant to the purposes underlying Article
D 356.

We may say at once that we are in respectful disagreement with
propositions (i), (ii) aod (iv) altogether. So far as proposition (iii) is
concerned, it is not far off the mark aod in substance accords with our
view, as we shall presently show.
E
Y. V. 01andrachud, J. On the scope of judicial review, the learned Judge
held that where the reasons disclosed by the Union of India are wholly
extraneous, the court cao interfere on the ground of malafides. Judicial
scrutiny, said the learned Judge, is available "for the limited purpose of
F seeing whether the reasons bear any rational nexus with the action
proposed". The court cannot sit in judgment over the satisfaction of the +
President for determining whether any other view of the situation is '
reasonably possible, opined the learned Judge. Turning to the facts of the
case before him, th~ learned Judge observed that the grounds assigned by
the Central Govctnment in its counter-affidavit cannot be said to be
G irrelevant to Artic!ii: 356. The Court cannot go deeper into the matter nor
shall the Court enquire whether there were any other reasons besides those
disclosed in the counter-affidavit.

P.N. Bhagwati and A.C. Gupta, JJ. The learned Judges enunciated the
H following propositions in their opinion:
S.R. BOMMAI v. U.0.1. [B.P. JEEV AN REDDY, J.] 843

The action under Article 356 has to be taken on the subjective A
satisfaction of the President. The satisfaction is nol objective. There are no
·• judicially discoverable and manageable standards by which the Court can
examine the correctness of the satisfaction of the President. The satisfac-
tion to be arrived at is largely political in nature, based on an assessment
of >arious and varied facts and factors besides several imponderables and
B
fast changing situations. The court is not a fit body lo enquire into or
determine the correctness of the said satisfaction or assessment, as it may
be called. However, if the power is exercised malafide or is based upon
wholly extraneous or irrelevant grounds, the Court would have jurisdiction
to examine it. Even clause (5) is not a bar when the contention is that there
was no satisfaction at all. c
The scope of judicial review of the action under Article 356, - the
learned Judge held - is confined lo a "narrow minimal area: May be that
in most cases, it would be difficult, if not impossible, to challenge the
exercise of power under Article 356(1) on the aforesaid limited ground,
because the facts and circumstances on which the satisfaction is based, D
would not be known. however, where it is possible, the existence of satisfac-
tion can always be challenged on the ground that it is malafied or based on

- wholly extraneous and irrelevant grounds. 1'

We may say with great respect that we find it difficult to agree with
the above formulations in toto. We agree only with the statements regarding
E

the permissible grounds of interference by court and the effect of clause
(5), as it then obtained. We also agree broadly with the first proposition,
though not in the absolute terms indicated therein.

Goswami and Untwalia, fl. The separate opinions of Goswami and Un- F
twalia, JJ. emphasise one single fact, namely, that inasmuch cis the facts
• state.cl in the counter-affidavit filed by the Home Minister cannot be said
to be 'malafide, extraneous or irrelevant\ the action impugned cannot be
1

assailed in the Court.
G
Fazal Ali, !. The learned Judge held that :

(i) the action under Article 356 is immune from judicial scrutiny unless the
1
action is guided by extraneous consideration or persona1 consideration'
11 11 11
•

(ii) the inference drawn by the Central Government following the 1977
elections to the Lok Sabha cannot be said to be unreasunablc. It cannot H
844 SUPREME COURT REPORTS [1994] 2 S.C.R.

A be said that the inference drawn had no nexus with Article 356.

It would thus be seen that there is a broad concensus among five of ·<
the seven Judges that the court can interfere if it is satisfied that the power
has been exercised malafide or on wholly extraneous or irrelevant grounds.
Some learned Judges have stated the rule in narrow terms and some others
B in a little leS> narrow terms but not a single learned Judge held that the
proclamation is immune from judicial sc~utiny. It must be remembered that
at that time clause (5) was there barring judicial review of the proclamation
and yet they said that ctmrt can interfere on the ground of malafides or
where it is based wholly on extraneous or irrelevant grounds. Surely, the
c deletion of clause (5) has not restricted the scope of judicial review.
Indeed, it removed the cloud cast on the said power. The court should, if
anything, be more inclined to examine the constitutionality of the
proclamation after such deletion.

It would be appropriate at this stage to examine a few decisions of
D the Pakistan Supreme Court, since the Constitution of Pakistan, 1973
contains a provision somewhat similar to Article 356.

Article 58 of the Constitution of Pakistan, 1973 provides for dissolu-
tion of National Assembly. Clause (1) says that the President shall dissolve
E the National Assembly if so advised by the Prime Minister. It further
provides that in any event on the expiry of forty-eight hours after ,the Prime
Minister has advised the dissolution, the National Assembly stands dis-
solved. Clause (2) is relevant for our purpose. It reads thus :

"(2) Notwithstanding anything contained in clause (2) of Article
F 48, the President may also dissolve the National Assembly in his
discretion where, in his opinion--

(a) a vote of no-confidence having been passed against the Prime
Minister, no other member of the National Assembly is likely to
command the confidence of majority of the members of the Na-
G tional Assembly in accordance with the provisions of the Constitu- ...
tion as ascertained in a session of the National Assembly
summoned for the purpose; or

(b) a situation has arisen in which the Government of the Federa-
H tion cannot be carried on in accordance with the provisi0ns of the·
S.R. BOMMAI v. U.0.1. [B.P.JEEVAN REDDY,J.] 845

Constitution and an appeal to the electorate is necessary." A
Sub-clause (b) of clause (2) approximates to clause (1) of Article 356
of our Constitution. Under this clause, the President may dissolve the
National Assembly, in his discretion, where in his opinion, a situation has
arisen in which the Government of the Federation cannot be carried on in
• B
accordance with the provisions of the Constitution and an appeal to the
electorate is necessary.

The first decision is in Federation of Pakistan v. Mohammad Khan, a
decision of a Bench of twelve-Judges of the Pakistan Supreme Court,
reported in P.K.D. [1989] S.C. 166. Acting under Article 58(2)(b), the C
President of Pakistan dissolved the National Assembly and dismissed the
federal cabinet with immediate effect by a notification dated May 29, 1988.
The order made by the President recited 'that the objects and purposes for
which the National Assembly was elected have not been fulfilled; that the
law and order in the country have broken down to an alarming extent,
resulting in tragic loss of innumerable valuable lives as well as property; D
that the life, property, honour and security of the citizens of Pakistan have

• - been rendered totally unsafe; and that the integrity and ideology of Pakis-
tan have been seriously endangered." The validity of the said order was
challenged by a member of the National Assembly by way of writ petition
in the Lahore High Court, which ailowed it but declined to grant the E
further relief sought for by the petitioner; viz., restoration of the National
Assembly, (Provincial Assembly of Punjab was also dissobcd by a similar
order made by the Governor of Punjab under Article 112(2)(b), which too
was questioned in the High Court and with the same result.) In the appeal
before the Supreme Court, it was contended that the action of the Presi-
dent was immune from judiciai scrutiny inasmuch as it was an instance of F
exercise of his discretionary power. The contention was repelled by the
Supreme Court in the following words.

"The discretion conferred by Article 58(2)(b) of the Constitution on
._, the President cannot, therefore,. be regarded to be an absolute one, G
but is to be deemed to be a qualified one, in the sense that it is
circumscribed by the object of the law that confers it.

It must further be noted that the reading of the provisions of
Article 48(2) and 58(2) shows that the President has to first form
his opinion, objectively, and thcni it is open to him to exercise his H
846 SUPREME COURT REPORTS (1994] 2S.C.R.

A discretion one way or the other, i.e., either to dissolve the Assembly
or to decline to dissolve it. Even if some in1munity envisaged by
Article 48(2) is available to the action taken under Article 58(2)
that can possibly be only in relation to his 'opinion'. An obligation
is cast on the President by the aforesaid Constitutional provision

B
that before exercising his discretion he has to form· his 'opinion'
that a situation of the kind envisaged in Article 58(2)(b) has arisen
..
which necessitates the grave step of dissolving the National As-
sembly. In Abut Ala Maudoodi v . Government of West Pakistan,
P.L.D. (1964] S.C. 673, Cornelius C.J., while interpreting certain
provisions of the Criminal Law Amendment Act, 1908, construed
c the worJ 'opinion' as under :

........... .it is a duty of Provincial Government to lake into considera-
tion all relevant facts and circumstances. That imports the exercise
of an honest judgment as to the existence of conditions in which
alone the opinion must be formed honestly, that the restriction is
D necessary. In this process, the only element which I find to possess
a subjective quality as against objective determination, is the final

E
formation of opinion that the action proposed is necessary. Even
this is determined, for the most part, by the existence of cir-
cumstances compelling the conclusion. The scope for exercise of
personal discretion is extremely limited ..... As I have pointed out,
-
if the section be construed in a comprehensive manner, the re-
quirement of an honest opinion based upon the ascertainment of
certain matters which are entirely within the grasp and apprecia-
tion of the government agency is clearly a pre-requisite to the
exercise of the power. In the period of foreign rule, such an argu-
F ment, i.e., that the opinion of the person exercising authority is
absolute may have at times prevailed, but under autonomous rule,
where those who exercise power in the State are themselves citizens
of the same States, it can hardly be tolerated."

G It was further held that "though the President can make his own
assessment of the situation as to the course of action to be followed but
his opinion must be founded on some material. 11

One of the learned Judges (Shaifur Rehman, J.) dealt with the
H meaning and significance of the words 11 cannot be carried on1' occurring in
- ~

S.R. BOMMA! v. U.0.1. [B.P. JEEV AN REDDY, J.] 847

Article 58(2)(b) in the following words: A
.. >
the expression ''cannot be carried on 11, sandwitched as it is between
11

11
• Federation Govcrnn1ent
11
and 11 in accordance with the provisions
11
of the Constitution acquires a very potent, a very positive and
,

very concrete content. Nothing has been left to surmises, like or
dislikes, opinion or view. It does not concern itself with the pace B
of the progress, the shade of the quality or the degree of the
performance or the quantum of the achievement. It concerns itself
.,. with the breakdoWQ of the Constitutional mechanism, a stalemate,
a deadlock ensuring the observance of the provisions of the Con-
'
st.itution. 11 c
The next decision of the Pakistan Supreme Court brought to our
notice is in Khaja Ahmed T01iq Rahim v. The Federation of Pakistan,
reported in P.L.D. [1992] S.C. 646. On August 6, 1990, the President of
Pakistan dissolved the National Assembly in exercise of his discretion, by
an order made under Article 58(2)(b) of the Constitution of Pakistan. The D
formal order referred to the National Assembly being afflicted with inter-
~
nal dissensions and frictions, persistent and scandalous 'horse-trading' for
• political gain and furtherance of personal interests, corrupt practices and
inducement in contravention of the Constitution and the Law and failure
to discharge substantive legislative functions other than the adoption of the E
Finance Bill all of which led the President to believe that the National
Assembly has lost the confidence of the people. The validity of the order
was challq1ged by a former Federal Minister in the Lahore High Court.
The High Court upheld the Presidential Order whereupon the nlatter was
carried to the Supreme Court. Both the part~es agreed that the principles
enunciated by the Supreme Court in Federation of Pakistan v. Moha~unad F
; ' Saifullah Khan, do govern the controversy.

On fact, the Supreme Court found that though some of the goods

- given may not be relevant, there are other relevant goods all of which read
together 11 are sufficient to justify the action taken11 •

The next decision relied upon by Sri Sorabjee is in Mirza Mohd.
G

Nawaz Sharie! v. The President of Pakistan reported in P.L.D. (1993] S.C.
473. The said decision pertains to the most recent dismissal of the Federal
Government and dissolution of the National Assembly by the President of
Pakistan by his order dated April 18, 1993. H
848 SUPREME COURT.REPORTS [1994] 2 S.C.R.

A In this decision, several propositions have been enunciated by the
court. Firstly, it is reiterated that "if it could be shown that no grounds ·<
existed on the basis of which an honest opinion could be formed 'that a
situation had arisen in which the government of the Federation cannot be
carried on in accordance with the provisions of the Constitution and an
appeal to the electorate is necessary' the exercise of the power would be
...
B unconstitutional and open to correction through judicial review". It is next
held that "Article 58(2)(b) of the Constitution empowers the executive head
to destroy the legislature and to remove the chosen representatives. It is
an exceptional power provided for an exceptional situation and must ~r
receive, as it has in Federation of Pakistan v. Haji Md. Seiful/ah Khan &
C Ors., P.L.D [1989] SC 166, the narrowest interpretation". It is also held that
if there is a doubt whether the Prime Minister had lost the confidence of
the National Assembly "the only course left constitutionally open for the
President for arriving at his satisfaction in this matter iS to 'summon the
National Assembly and require the Prime Minister to obtain a vote of
/ D confidence in the National Assembly". This observation was, of course,
ma:le in the context of Article 91(5), which says:

"(5) The Prime Minister shall hold office during the pleasure of
the President, but the President shall not eltercise his powers under
this clause unless he is satisfied that the Prime Minister does not
E command the confidence of the majority of the members of the
National Assembly, in which case he shall summon the National
Assembly and require the Prime Minister to obtain a vote of
confidence from the Assembly."

The court then examined the presidential order and held that none
F of the ground therein bore any nexus to the order passed and that the
grounds stated were extraneous and irrelevant and in dear departure of
the constitutional provisions. Accordingly, it was held that the presidential

-
declaration was unconstitutional and that as a natural and logical corollary,
the ministTy which has been dismissed along with the dissolved National
G Assembly must be restored and revived.

Before we refer to the principle of these decisions, it is necessary to
bear in mind the nature of the power conferred by the Constitution of
Pakistan. Under Article 58(2)(b), the President, who acts alone and per-
sonally, is empowered not only to dismiss the federal government but also
H to dissolve the National Assembly if, in his opinion, a situation has arisen
S.R. BOMMAI v. U.0.1. [B.P.JEEVAN REDDY,J.] 849

in which the government of the Federation cannot be carried on in accord- A
.., ance with the provisions of the Constitution and an appeal to the electorate
is necessary. This is of course, not the position under our Constitution.
Under our Constitution, the President has to act and does act in accord-
ance with the aid and advice tendered to him by the council of ministers
i
with the Prime Minister at its head. There is no occasion for the President
to act in his personal capacity or with out reference to council of ministers. B
The second distinguishing feature is that under the Pakistan Constitution
the President is empowered to dismiss the federal government just as the
Governor of a province is empowerd to dismiss the provincial government,
'• whereas under our Constitution, there is no question of President dismiss-
' ing the Union Government; it is really a case where the Union Government
dismisses the State government if the situation contemplated by Article
c
356(1) arises. The stong remarks made by the Pakistan Supreme Court
must no doubt be understood in the context of the aforesaid character of
Article 58(2)(b). Yet the relevance of the approach adopted by the Pakis-
tan Supreme Court is not without significance.
D
We may at this stage refer to the decision of the Constitution Bench

-
of this Court in Kehar Singh & Anr. v. Union of India, [1988] Suppl. 3 S.C.R.
n 1102. Article 72 of the Constitution confers upon the President the power
to grant pardons, reprieves, respites or remissions of punishment or to
suspend, remit or commute the sentence of any person convicted of any
offence. The power extends to cases where the sentence is a sentence of E
death. The article does not provide any guidance in which matters should
the President exercise which power and in which cases to refuse. In other
words, the power appears ex-facie to be absolute. Kehar Singh was con-
victed under Section 302 I.P.C. in connection with the assassination of the
then Prime Minister of India, Snit. Indira Gandhi and sentenced to death.
F
,. ' The sentence was confirmed by this court on appeal. A subsequent writ
. petition and review filed by him in this court failed. Kehar Singh' s son then
presented a petition to the President of India for grant of pardon under
Article 72. He requested a personal hearing. Personal hearing was refused
and in a letter adC!ressed to Kehar Singh a counsel, the Secretary to the
President expressed the President's opinion that the President cannot go
G
into the merits of the case finally decided by the highest court of the land.
The petition was accordingly rejected. The rejection of the petition was
questioned by way of writ petition in this court. This court expressed the
--1 view that under Article 72, it is open to the President to scrutinise the
evidence on record of a cirminal case and come to a different conclusion
H
850 SUPREME COURT REPORTS [1994] 2 S.C.R.

A from that recorded by the court both on the question of guilt as well as
sentence. This power, it was held, is not in conflict with nor in supersession
of judicial power. It L' an altogether different power, an executive power
exercised on the aid and advice of the council of ministers. It was also
stated that any number of considerations may enter the decision of the
President and that it is not possible to lay any guidelines governing the
B exercise of the said power. What is relevant for our purpose is the holding
regarding the extent of judicial review of the exercise of power under the
said article. It was held that the exercise of power under Article 72 falls
squarely within the judicial domain and can be examined by the court by
way of judicial review. While the court cannot go into the merits, the
..
C limitations of such review are those enunciated in Marn Ram v. Union of
India, [1981] 1 S.C.R. 1196 at 1249. The court held, "the function of
determining whether the act of a constitutional or statutory functionary
falls within the constitutional or legislative conferment of power, or is
vitiated by self denial on an erroneous appreciation of the full amplitude.
of the power is a matter for the court." This was so held inspite of the
D seemingly absolute nature of the power conferred by Article 72 upon the
President. The argument of the learned Attorney General of India that the
exercise of power under Article 72 was not justiciable was accordingly
rejected.

Counsel appearing on both the sides placed strong reliance upon the
E decision of the House of Lords in C.C.S.U. v. Minister for the Civil Service,
as laying down correctly the principles to be followed in the matter of
judicial review of administrative action whether governed by a statute or
by 'common law'. The petitioners say that this approach ought to be
adopted even in the case of the Constitutional action like the one under
F Article 356. The respondents demur to it. It is, therefore, necessary to
examine what does the said decision lay down precisely.

The Government Communications Headquarters i·s a branch of the
public services under the Foreign <ind Commonwealth office. Its main
G functions are to ensure the security of the United Kingdom military and
official communications and to provide signals intelligence for the Govern-
ment. Since 1947, i.e., from the time of its establi,hment, the staff employed
therein were permitted to belong lO national trade unions and most of them
did so. There were several disputes between the staff and the government
over the years all of which were settled by negotiations with the Union. On
H January 25, 1984, however, the Secretary of the State for Foreign and
- S.R. BOMM~ v. U.0.1. [B.P.JEEVAN REDDY,J.) 851

..., Commonwealth Affairs announced suddenly that the staff of the Govern- A
ment Communications Headquarters will no longer be permitted to belong
to national trade unions and that they would be permitted to belong to only
to a departmental staff association approved by the Director. The said
decision was given effect to by certain orders issued on December 22, 1993.
The Unions questioned the validity of the said instructions.
B
The conditions of service of the staff working in Government Com-
munications Headquarters were to be regulated by the Minister for the
Civil Service, empowered as he was by Article 4 of the 1982 Order-in-
Council. The said order-in-Council was not issued under powers conferred
by any Act of Parliament. It was issued by the Sovereign by virtue of her
prerogative. According to the definition given by Dicey in "Introduction to
c
the study of the Law of the Constitution" - which has been accepted and
followed at all points of lime in U .K. - "prerogative is the name for the
remaining portion of the Crown's original authority, and is therefore, as
already pointed out, the name for the residue of discretionary power left
at ;.ny moment in the hands of the Crown, whether such power be in fact D
exercised by the King himself or by his lv.linisters." The very same idea has
been stated by Lord Diplock in the following words:

11
For a decision to be susceptible to judicial review, the decision-
maker must be empowered by public law (and not merely, as in
arbitration, by agreement between private parties) to make E
decisions that, if validly made, will lead to administrative action or
abstention from action by an authority endowed by law with ex-
ecutive powers, which have one or other of the consequences
mentioned in the preceding paragraph. The ultimate source of the
decision-making power is nearly always nowadays a statute or F
subordinate legislation made under the statute; but in the absence
of any statute regulating the subject matter of the decision, the
source of the decision-making power m•y still be the common law
itself, i.e., that part of the common law that is given by lawyers the
label of the prerogative."
G
The contention on behalf of the Minister was that action taken by
.___\..., him in exercise of the prerogative power is not amenable to judicial review .
The said contention was rejected. So far as the merits are concerned, the
only contention urged by the Unions related to "the manner in which the
decision whicli led to these instructions being given, was taken, that is to H

.
852 SUPREME COURT REPORTS [1994] 2 S.C.R.

A say, without prior consultation of any kind with the appellant or, indeed,
others." The right 'of prior consultation was founded upon the theory of
legitimate expectation. All the Law Lords agreed that having regard to the
practice in vogue since the establishment of the said establishment, the
Unions could claim a legitimate expectation to be consulted before effect-
ing any change in the conditions of their service. But, they held, the said
B legitimate expectation cannot prevail over the considerations of national
security which prompted the Minister to issue the impugned instructions.
It is on this ground alone that the Haus~ of Lords dismissed the appeal
preferred by the Unions.
•
C So far as India is concerned, there is no such thing as 'prerogative'.
There is the executive power of the Government of India and there are the
.constitutional functions of the President. It is not suggested by the counsel
for the respondents that all the orders passed and every action taken by
the President or the Government of India is beyond judicial review. All
that is suggested is that some of the powers of the President and the
D Government of India are immune. Sri Parasaran relies upon the opinion
of Lord Roskill where certain prerogative powers are held not fit subject-
matters for judicial scrutiny. They are the powers relating to entering of
treaties with foreign power, defence of the realm, grant of pardon/mercy,
conferring of honours, dissolution of Parliament and appointment of Min-
E isters. We agree that broadly speaking the above matters, because of their
very nature, are outside the ken of courts and the courts would not,
ordinarily speaking, interfere in matters relating to above subjects. But that ·.
is different from saying all the President's action are immune. In fact, the
main holding in this decision is that action taken in exercise of the preroga-
tive power is not immune from judicial review apart from the clear enun-
F ciation of the grounds of judicial review. It is also held, of course, that in
matters involving government policy, the ground of irrationality may not be
an appropriate one.

We may now examine the principles enunciated by this Court in •
G Barium Chemicals, which is the leading decision of this court on the subject
of subjective satisfaction. it exhaustively lays down the parameters of
judicial review in such matters. Barium Chemicals was concerned with an
enquiry ~"dered into the affairs of the appellant -company by the Company
Law Board under Section 237(b) of the Companies Act, 1956. Section 237
H read as follows :
S.R. BOMMAI v. U.0.1. (B.P. JEEVAN REDDY, J.] 853

"Without prejudice to its powers under Section 235, the Central A
)
Government -

(a) shall appoint one or more competent persons as inspec-
tors to investigate the affairs of a company and to report
thereon in such manner as the Centre Government may
direct, if - B

(i) the company, by special resolution, or

(ii) the Court, by order, declares that the affairs of the
company ought to be investigated by an inspector ap- C
pointed by the Central Government; and

(b) may do so it, in the opinion of the Central Government,
there are circumstances suggesting -

(i) that the business of the company is being conducted with D
intent to defraud its creditors, me'l'bers or any other .
persons or otherwise for a fraudulent or unlawful purpose,
or in- a manners oppressive of any of its members, ·or that
the company was formed for any fraudulent or unlawful
purpose; of
E
(ii) that persons concerned in the formation of the company
or the management of its affairs have in connection there-
with been guilty of fraud, misfeasance or other misconduct
towards the company or towards any of its members; or

(iii) that the members of the company have not been given F
,' all the information with respect to its affairs which they
might reasonably expect, including information relating to
the calculation of the commission payable to a managing
or other director, the managing agent, the secretaries and ·
treasurers, or the man~ger of the company."
G
Clause (b) empowered the Central Government to appoint one or
more persons as inspectors to investigate into the affairs of a Company and
11
to report thereon if in its opinion there are circumstances suggesting" one
or the other of the circumstances mentioned in sub clauses (i), (ii) and (iii).
Tlie ·main opinion was delivered by Shela!, J. That the action contemplated H
854 SUPREME COURT REPORTS (1994] 2 S.C.R.

A under Section 237(b) could be taken on the subjective satisfaction of the
Central Government was not in dispute. The controversy, however, <
centered round the next aspect. According to the appellant, though the
opinion was subjective, the existence of circumstances set out in clause (b)
was a condition precedent to the. formation of such opinion and, therefore,
even if the impugned orders were to contain a recital of the .existence of
B those circumstances, the Court can go behind that recital and determine
whether they did in fact exist. On the other hand, the contention for the
Company Law Board was that cla,use (b) was incapable of such dichotomy
and that not only the opinion was subjective but that the entire clause was
•
made dependent on such opinion. It was urged that the words "opinion" ;

11

c and "suggesting were clear indications that the entire function was subjec-
tive, that the opinion which the authority has to form is that circumstances
suggesting what is set out in sub-clauses (i) and (ii) exist and, therefore,
the existence of those circumstances is by itself a matter of subjective
opinion. The Legislature having entrusted that function to the authority, it
was urged, the Court cannot go behind its opinion and ascertain whether
D the relevant circumstances exist or not.
'
After considering a large number of decisions, Shela!, J. held:
~-J
1
the words, ''reason to believe''or 11in the opinion or1 do not
' .....

always lead to the construction that the process of entertaining
E 11
reason to believe'' or 11 the opinion11 is an altogether subjective
process not lending itself even to a limited scrutiny by the Court
that such 11 a reasor.. to belive" or 11 opinion11 was not formed on
relevant facts or within the limits of, as Lord Redcliffe and Lord
Reid called, the restraint of the statute as an alternative safeguard
F to rules of natural justice where the function is administrative."
T

The learned Judge then examined the object underlying Section 237
and held:

"There is no doubt that the formation of opinion by the Central
G Government is purely subjective process. There can also be no
doubt that since the legislature has provided for the opinion of the
government and not of the court such an opinion is not subject to
a challenge on the ground of propriety, reasonableness or sufficien-
cy. But the Authority is required to arrive at such an opinion from
H circumstances suggesting what is set out in sub-clauses (i), (ii) or
S.R. BOMMAI v. (I.CJ.I. [ll.I'. JEEVAN REDDY.I.] 855

(iii). If these circumstances \Vere not to exist, can the government A
.still say that in its opinion they exist t)f can the Government say
the same thing where the circumstances relevant to the clause do
not exist? The legislature no doubt has used the expression ''cir-
cumstances suggesting''. But, that expression means that the cir-
cun1stances need not be such as \Voul<l conclusively c<lstablish an
intent to defraud or a fraudulent or illegal purpose. The proof of B
such an intent or purpose is still to be adduced through an
investigation. But the expression "circumstances suggesting" cannot
support the construction that even the existence of circumstances
is a matter of' .subjective opinion. That expression points out that
there rr.ust exist circumstances from which the Authority forn1s an c
opinion that they are suggestive of the crucial matters set out in
the three sub-clauses. It is hard to contemplate that the legislature
could have left to the subjective process both the formation of
opinion and also the existence of circumstances on which it is to
be founded. It is also not reasonable to say that the clause per-
mitted the Authority to say that it has formed the opinion on D
circnmstances which in its opinion exist and which in its opinion
suggest an intent to defraud or a fraudulent or unlawful purpose.
It is eq"ally unreasonable to think that the legislature could have
abandoned even the small safeguard of requiring the opinion to
be founded on existent circumstances which suggest the things for
E
which an investigastion can be ordered and left the opinion and
even the existence of circumstances from which it is to be formed
to a subjective process........ There must, therefore, exist cir-
cumstances which in the opinion of the Authority suggest \Vhat has
been set out in sub-clauses (i), (ii) and (iii). If it is shown that the
circumstances do not exist or that they are such that it is impossible F
for any one to form an opinion therefrom suggestive of the
, aforesaid things, the opinion is challengeable on the ground of
non-application of mind or pervertsity or on the ground that it was
formed on collateral grounds and was beyond the scope of the
statute."
G
Hidayatullah, J. observed thus in his separate opinion :

Since the existence of 11 circumstances11 is a condition funda1ncntal
11

to the making of an opinion, the existence of the circumstances, if
questioned, has to be proved at leastpn·niafacie. It is not sufficient H
856 SUPREME COURT REPORTS jl994] 25.C.R.

A lo assert that the circumstances exist and give no clue to what they
are because the circumstances musl be such a.s to lead to con-
clusions of certain definiteness. The conclusions mu.st relate to an
intent to defraud, a fraudulent or unlawful purpose, fraud or
misconduct or the withholding of information of a particular kind."

B The learned Judge proceeding further to say:

"We have to see whether the Chairman in his affidavit has shown
the existence of circumstances leading to such tentative con-
clusions. If he has, his action cannot be questioned because the
c inference is to be drawn subjectively and even if this court would
not have drawn a similar inference that fact would be irrelevant.
But if the circumstances pointed out are such that no inference of
the kind stated in Section 237(b) can at all be drawn the action
would be ultra vires the Act and void."

D The principles enunciated in this case are not only self-evident, they
have been followed uniformly since. We do not think it necessary to re-state
. these principles - they are too well-known.

Counsel brought to our notice a decision of the High Court of
E Australia in the Queen v. Toohey-Ex pane Nolthem Lmrd Council, 151
Common Wealth Law Reports 170. Under the Aboriginal Land Rights
(Northern Territory) Act, 1976, provision was made for the aboriginals to
claim return of the land traditionally occup;ed by them. The application
was to be made to the Commissioner under the Act. Tochcy, J. was acting
as the Commissioner. The application was made by the Prosecutor,
F Nothem Land Council,. According to the Land Rights Act, no such claim
could be laid if the land claimed was comprised in a town. The expression •
'town' was defined to have the same meaning as in the law relating to
Planning and Develupment of Town. In 1979, Planning Act was enacted
superseding an earlier Act. In Section 4(1) of the Planning Act, "town"
G meant inter alia "lands specifiied by the regulations to be an area which has
to be treated as a town". Planning Regulations were made by the Ad-
ministrator of the northerns territory under the Planning Act specifying
inter alia the cox peninsula as part of 'Darwin town'. The cox peninsula was
separated from Darwin town-proper by an arm of the sea. The land route
for reaching the peninsula from Darwin town-proper was a difficult and )-"' -
H long one. The Prosecutor, Northern Land Council challenged the validity
S.R. BOMMAI v. U.0.1. [B.P.JEEVAN REDDY,J.] 857

of the Planning Regulation on the ground that the inclusion of cox penin- A
sula in the Dar\vin town is not really for the purposes germane to the
Planning Act and the Regulations made thereunder but for an altogether
'
extraneous purpose. The question was whether such a plea can be inves-
tigated by the courts. The contention of the other side was that the
Administrator was the Crown's Representative in the Territory and, there-
forc, the power exercised by him was immune from any examination by the B
courts. This argument was met by the prosecutor of the Northern Land
Council saying that the Administrator is only the servant of the crown and
not its representative and hence, possesses no immunity and on the further
ground that even if he is the Representative of the Crown, there was no
such immunity. The majority (Murphy, J. dissenting) held that judicial
review of the Regulations was not barred. The conclusion may best be set
c
out in the words of Stephen, J.:

"Conclusion on exa111inability.

The trend of decisions in British and Commonwealth courts D
has encouraged me to conclude that, in the unsettled state of
Australian authority, the validity of reg.5 was open to be attacked
in the manner attempted by the Council. Such a view appears to
me to be in accord with principle. It involves no intrusion by the
courts into the sphere either of the legislature or of the executive.
It ensures that, just as legislatures of constitutionally limited com- E
petence must remain within their limits of power, so too must the
executive, the exercise by it of power granted to it by the legislature
being confined to the purposes for which it was granted. In drawing
no distinction of principle between the acts of the representative
of the Crown and those of Ministers of the Crown it recognises F
that in the exercise of statutory powers the former acts upon the
advice of the latter: as Latham, C.J. said in the Australian Com-
munist Part Case, the opinion of the Queen's representative "is
really the opinion of the Government of the day''. That this is so
in the Northern Territory appears from s.33 of the Northern G
Territory (Self-Government) Act 1978.

I have already referred to the possibility of a legislature by
appropriate words excluding judicial review of the nature here in
question. The terms of the present grant of power conferred by s.
165(1) are devoid of any suggestion of such exclusion. It follows H
858 SUPREME COURT REPORTS J!994J 2 S.C.R.

A that if it be shown that a regulation made under that pO\\'cr \Vas
made for a purpose wholly alien lo the Planning Acl it will be ultra
vire.1· the power and will be so treated by the courts."

This case establishes that the validity of an action whether taken by
a Minister or a Repre.sentative of the Crown is subject to judicial reviev,r
B even if done under the statute. In this case, it may be noted, the Regulations
in question were made under a statute, no doubt by the Administrator who
was supposed to be the Representative of the Crown in the Territory. This
factor, the court held, did not preclude the court from reviewing the
validity of the Regulations made by him.

c Having noticed various decisions projecting different points of view,
we may now proceed to examine what should be the scope and reach of
judicial review when a proclamation under Article 356(1) is questioned.
While answering this question, we should be, and we are, aware that the
power conferred by Article 356(1) upon the President is of an exceptional
D character designed to ensure that the government of the States is carried
on in accordance with the Constitution. V/c are equally aware that any
1

misuse or abuse of this power is bound to play havoc with our constitutional
system. Having regard to the form of government we have adopted, the
power is really that of the Union Council of Ministers with the Prime
Minister at its head. In a sence, it is not really a power but ar:. obligation
E cast upon the President in the interest of preservation of constitutional
governn1ent in the States. It is not a power conceived to preserve or
promote the interests of the political party in power at the Centre for the
time being nor is it supposed to be a weapon with which to strike your
political opponent. The very enormity of this power - undoing the will of
the people of a State by dismissing the duly constituted government and
F dissolving the duly elected Legislative Assembly - must itself act as a
v.rarning against its frequent use or misuse, as the case may be. Every
misuse of this power has its consequences which may not be evident
im1nediately but surface in a vicious form a few years later. SO\\' a wind and
you will reap the whirlwind. Wisdom lies in moderation and not in excess.
G
Whenever a proclamation under Article 356 is questioned, the court
will no doubt start with the presumption that it was validly issued but it
will not and it should not hesitate to interfere if the invalidity or uncon-
slilutionalily of the proclamation is clearly made out. Refusal to interfere
in such a case would amount to abdication of the duty cast upon the court
H - Supreme Court and High Courts; by the Constitution. Now, what are the )-' -
S.R. BO MM Al v. U.0.1. IB.P. JEEVAN REDDY. J.] 859

grounds upon which the court can interfere and strike down the proclama~ A
tion? While discussing the decisions hereinabove, we have indicated the
unacceptability of the approach adopted by the Privy Council in Bhagat
Singh v. Emporer and King Emporer v. Benoari Lal Samia. That was in the
years 1931 and 1944, long before the concept of judicial review had
acquired its present efficacy. As stated by the Pakistan Supreme Court,
that view is totally unsuited to a democractic polity. Even the Privy Council B
has not stuck to that vie\v, as is evident from its decision in the case from
Malaya Stephen Kaalong Ningkan v. Govemmellt of Malaysia. In this case,
the Pri;y Council proceeded on the assumption that such a proclamation
is arnen.ablc to judicial revie\v. On facts and circumstances of this case, it
found the action justified. Now, coming to the approach adopted by the
Pakistan Supreme Court, it must be said - as indicated hereinbefore - that
c
it is coloured by the nature of the power conferred upon the President by
Section 58(2)(b) of the Pakistan Constitution. The power to dismiss the
federal government and the National Assembly is vested in the President
and President alone. He has to exercise that power in his personal discre-
tion and judgment. One man against the entire system, so to speak - even D
though that man too is elected by the representatives of the people. That
•i is not true of our Constitution. Herc the President acts on the aid and
advice of the Union council of Ministers and not in his personal capacity.
Moreover, there is the check of approval by Parliament which contains
members from that State (against the government/Legislative Assembly of
which State, action is taken) as well. So far as the approach adopted by E
this court in Ban·un1 Chemicals is concerned, it is a decision concerning
subjective satisfaction of an authority created by a statute. The principles
evolved then cannot ipso facto be extended to the exercise of a constitu-
tional power under Article 356. Having regard to the fact that this is a high
constitutional power exercised by the highest constitutional functionary of
F
the Nation, it may not be appropriate to adopt the tests applicable in the
case of action taken by statutory or administrative authorities - nor at any
rate, in their entirety. We would rather adopt the formulation evolved by
this court in State of Rajasthan, as we shall presently elaborate. We also
recognise, as did the House of Lords in C. C.S. U. v. Minister for the Civil
Service that there are certain areas including those elaborated therein G
where the court would leave the matter almost entirely to the Presi-
dent/Union Government. The court would desist from entering those
arenas, because of the very nature of those functions. They are not the
matter which the court is equipped to deal \Vith. The court has never
interfered in thsoe matters because they do not ;.;idmit of judicial review by
If
860 SUPREME COURT REPORTS [1994] 2 S.C.R.

A their very nature. Matters concerning foreign policy, relations with other
countries, defence policy, power to enter into treaties with foreign powers,
issues relating to war and peace are some of the matters where the court
would decline to entertain any petition for judicial review. But the same
cannot be said of the power under Article 356. It is another matter that in
a given case the court may not interfere. It is necessry to affirm that the
B proclamation under Article 356(1) is not immune from judicial review,
though the parameters thereof may very from an ordinary case of subjective
satisfaction.

Without trying to be exhaustive, it can be stated that if a proclama-
C tion is found to be malafide or is found to be based wholly on extraneous
and/or irrelevant grounds, it is liable to be struck down, as indicated by a
majority of learned Judges in the State of Rajasthan. This holding must be
read along with our opinion on the meaning and scope of Article 74(2) and
the further circumstance that clause (5) which expressly barred the juris-
diction of the courts to examine the validity of the proclamation has been
D deleted by the 44th Amendment to the Constitution. In other words, the
truth or correctness of the material cannot be questioned by the court nor
will it go into the adequacy of the material. It will also not substitute its
opinion for that of the President. Even if some of the material on which
the action is taken is found to be irrelevant, the court would still not
interfere so long as there is some relevant material sustaining the ac~ion.
E The ground of malafides takes in inter alia situations where the proclama-
tion is found to be a clear case of abuse of power, or what is sometimes
called fraud on power - cases where this power is invoked for achieving
oblique ends. This is indeed merely an elaboration of the said ground. The
Meghalaya case, discussed hereinafter, demonstrates that the types of cases
F calling for interference cannot either be closed or specified exhaustively. It +
is a case, as will be elaborated a littele later, where the Government
recommended the dismissal of the government and dissolution of the
Assembly in clear disregard of the orders of this court. Instead of carrying
out the orders of this court, as he ought to have, he recommended the
dismissal of the government on the ground that it has lost the majority
G support, when in fact he should have held following this court's orders that
it did not. His action can be termed as a clear case of malafides as well.
That a proclamation was issued acting upon such a report is no less
objectionable.

H It is necessary to reiterate that the court must be conscious while
S.R. HOMMA! v. U.0.1. [B.P.JEEVAN REDDY, J.] 861

examining the validity of the proclamation that it is a power vested in the A
' ... highest constitutional functionary of the Nation. The court will not lightly
presume abuse or misuse. The court would, as it should, .tread wearily,
making allowance for the fact that the President and the. Union Council of
Ministers are the best judges .of the situation, that ·they alone are in
possession of information and material - sensitive in nature sometimes - B
and that the Constitution has trusted their judgment in the matter. But all
this does not mean that the President and the Union Council of Ministers
are the final arbiters in the matter or that their opinion is conclusive. The
very fact that the founding fathers have chosen to provide for approval of
the proclamation by the Parliament is itself a proof of the fact that the
opinion or satisfaction of the President (which always means the Union
c
Council of Ministers with the Prime Minister at its head) is not final or
conclusive. It is well-known that in the parliamentary form of government,
where the party in power commands a majority in the Parliament more
often that not, approval of Parliament by a simple majority is not difficult
to obtain. Probably, it is for this reason that the check created by clause D
(3) of Article 356 has not proved to be as effective in practice as it ought
to have been. The very fact that even in cases like Meghalaya and Kar-
_/' nataka, both Houses of Parliament approved the proclamations shows the
enervation of this check. Even the proponents of the finality of the decision
of the President in this matter could not but concede that the said check E
has not proved to be an effective one. Nor could they say with any
conviction that judicial review is excluded in this behalf. If judicial review
is not excluded in matters of pardon and remission of sentence under
Article 72 - a seemingly absolute and unconditional power - it is difficult
to see on what principle can it be said that it is excluded in the case of a F
conditional power like the one under Article 356.
! '

We recongnise that judicial process has certain inherent limitations.
It is suited more for adjudication of disputes rather than for administering
the country. The task of governance is the job of the Executive. The
Executive is supposed to know how to administer the country, while the G
function of the judiciary is limited to ensure that the g?vernment is carried
on in accordance with the Constitution and the Laws. Judiciary accords, as
it ohould, due weight to the opinion of the Executive in such matters but
that is not to say, it defers to the opinion of Executive altogether. What
ultimately determines the scope of judicial review is the facts and cir- H
862 SUPREME COURT REP OR TS (1994) 2 S.C.R.

A cumstanccs of the given case. A case may be a clear one - like Meghalaya
and Karnataka cases - where the court can fmd unhesitatingly that the
proclamation is bad. There may also be cases - like those relating to
Madhya Pradesh, Rajasthan and Himachal Pradesh - where the situation
is so complex, full of imponderables and a fast-evolving one that the court
finds it not a matter which admits of judicial prognosis, that it is a matter
B which should be left to the judgment of and to be handled by the Executive
and may be in the ultimate analysis by the people themselves. The best way
of demonstrating what we say is by dealing with the concrete cases before
us. Sri Parasaran, learned counsel for the Union of India urged that
inasmuch as the Proclamation under clause (i) has been approved by both
c Houses of Parliament as contemplated by clause (3), the proclamation
assumes the character of Legislation and that it can be struck down only
on grounds on which a Legislation can be struck down. We cannot agree.
Every act of parliament does ml amount to and does not result in Legis-
lation, though Legislation is its main function. Parliament performs many
D other functions, e.g., election of Speaker and Deputy Speaker, vote of
confidence/no-confidence in the Ministry, motion of thanks to the Presi-
dent after the address by the President and so on. One of such functions
is the approval of the proclamation under clause (3). Such approval can by
no stretch of imagination be called 'Legislation'. It is not processed or
passed as a Bill nor is it presented to the President for his assent. Its legal
E character is wholly different. It is a constitutional function, a check upon
the exercise of power under clause (1). It is a safeguard conceived in the
interest of ensuring proper exercise of power under clause (1). It is another
matter that in practice the check has not proved effective. But that may
not be so in future or for aU times to come. Be that as it may, it is certainly
F not Legislation nor Legislative in character.

Sri Shanti Bhushan, learned counsel for the petitioners urged that
the deletion of clause (5) by 44th Amendment, which clause was introduced
by 38th Amendment, necessarily emplies that the exercise of power under
clause (1) is amenable to judicial review in a far more extensive manner.
G Clause (5), as introduced by 38th Amendment, read as follows:

"(5) Notwithstanding anything in this Constitution, the satisfaction .._, .
of the President mentioned in the clause (1) shall be final and
11
H conclusive and shall not be questioned in any court on any ground.
S.R. BOMMAI v. U.0.1. [B.P. JEEVAN REDDY, J.] 863

The effect of this clause was considered by .this Court in State of A
Rajasthan. It was held that the said clause does not preclude the Court
•> from examining Whether the exercise of power is malafide or is based on
extraneous grounds or whether it is based on no satisfaction at all. It was
held that the said clause does not prevent the Court from examining the
proclamation on the aforesaid grounds. We, however, agree that the dele-
tion of this clause is cerlianly significant in the sense that the express bar B
created in the way of judicial review has since been removed consciously
and deliberately in exercise of the constituent power of the Parliament.
[See A.K Roy v. Union of India (supra) J. The cloud cast by the clause on
the power of judicial review has been lifted.
c
It was urged by Sri Parasaran,learned counsel appearing for the
Union of India that where a person challenges the validity of the proclama-
tion under Article 356(1), the burden lies upon him to establish its validity
and that it is not part of the duty of the Union of India to assist the
petitioner in establishing his case. Reliance is placed on certain observa- D
lions in Stephen kalong Ningkong. He submitted that it would not be a
correct practice for the court to call upon the Union of India to justify and
establish the validity of the proclamation merely because a person chooses
to question it. We do not think that there ought to be any room for
confusion on this score - nor can the observations of Hidayatullah, J. in
Bariwn Chemicals, quoted elsewhere be understood as saying so. We agree E
that merely because a person challenges the validity of the proclamation,
the Court would not as a matter of course call upon.the Union of India to
produce the materiaVinformation on the basis of which the Pres;.dent
formed the requisite satisfaction. the Court must be satisfied, prima facie,
on the basis of the averments made by the petitioner and the material, if
any, produced by him that is is a fit case where the Un.ion of India should F
be called upon to produce the materiaVinformation on the basis of which
the President formed the requisite satisfaction. It is then that the Union of
India comes under a duty to disclose the same. Since the materiaVinforma-
tion on which the satisfaction was formed is available to, and known to,
only the Union of India, it is for it to tell the Court what that materiaVin- G
formation was. They are matters within the special knowledge of the Union
of India. In such a case, only the Union of India can be called upon to
satisfy the Court that there was relevant material/information before the
President on the basis of which he had acted. It may be that, in a given
case, the materiaVinformation may be such that the Union of India may
feel it necessary to claim the privilege provided by Section 123 of the Indian H
864 SUPREME COURT REPORTS (1994] 2 S.C.R:

A Evidence Act. As and when such claim is made, it is obvious, it will be
dealt with according to Jaw.

While on this question, we may mention that if in a given case the
proclamation contains the reasons, with adequate specificity, for which the
proclamation was issued, the Court may have to be satisfied before calling
B upon the Union of India to produce the material/information that the
reasons given in the proclamation are prinia facie irrelevant to thP- forma-
tion of the requisite satisfaction and/or that it is a fit case where the Union
of India must yet be called upon to place the material/information on the
basis of which it had formed the satisfaction. The Union of India may
+
C perhaps be well advised to follow the practice of stating the reasons and
the grounds upon which the requisite satisfaction is founded.

ARTICLE 356 - IS IT CONFINED ONLY TO CASES WHERE THE
STATE GOVERNMENT FAILS OR REFUSES TO ABIDE BY THE
DIRECTIONS ISSUED BY THE CENTRAL GOVERNMENT?
D
It was submitted by Sri Jethmalani, the learned counsel for some of
the petitioners that in view of Article 365 of the Constitution, the only
situation in which the power under Article 356 can be invoked by the
President is the failure of the State Government to comply with or to give
effect to the direction given in exercise of the executive power of the Union
E
under any of the provisions of the Constitution and not in any other case.
Reference is made in this connection to Articles 256 and 257. It would be
appropriate to read all the three Articles at this stage:

"256. Obligation of States and the Union:- The executive power of
F every State shall be so exercised as to ensure compliance with the
laws made by Parliament and any existing laws which apply in that
State and the executive power of the Union shall extend to the
giving of such directions to a State as may appear to the Govern-
ment of India to be necessary for that purpose.

G 257. Control of the Union over States in certain cases:- (1) The
executive power of every State shall be so exercised as not to
impede or prejudice the exercise of the executive power of the
Union, and the executive power of the Union shall extend to the
giving of such directions to a State as may appear to the Govern-
H ment of India to be necessary for that purposes.
S.R. BOMMAI v. U.0.I. [B.P. JEEVAN REDDY, J.] 865

(2) The executive power of the Union shall also extend to the giving A
of directions to a State as to the construction and maintenance of
means of communication declared in the direction to be of national
or military importance:

Provided that nothing in this clause shall be taken as restricting
the power of Parliament to declare highways or waterways to be B
national highways or national waterways or the power of the Union
with respect to the highways or waterways so declared or the power
of the Union to construct and maintain means of communication

- as part of its functions with respect to naval, military and air force
works.

(3) The executive power of the Union shall also extend to the giving
of directions to a State as to the measures to be taken for the
c

protection or the railways within the State.

(4) Where in carrying out any direction given to a State under D
clause (2) as to the construction or maintenance of any means of
communication or under clause (3) as to the measures to be taken
for protection of any railway, costs have been incurred in excess
of those which would have been incurred in the discharge of the
normal duties of the State if such directions had not be given, there
shall be paid by the Government of India to the State such sum as E
may be agreed, or indefault of agreement, as may be determined
by an arbitrator appointed by the Chief Justice of India with
respect of the extra costs so incurred by the State.

365. Effect of failure to comply with, or to give effect to, directions
given by the Union:- Where any State has failed to comply with, F
or to give effect to, any directions given in the exercise of the
executive power of the Union under any of the provisions of this
Constitution, it shall be lawful for the President to hold that a
situation has arisen in which the government of the State cannot
be carried on in accordance with the provisions of this Constitution." G

In our opinion, the contention urged is unacceptable. Article 256
merely states that the executive power of every State shall be so exercised
as to ensure compliance with the laws made by the Parliament whether
existing or to be made in future. It is stated therein that the executive power
of the Union shall extend to giving of such directions to a State as may H
866 SUPREME COURT REPORTS [1994] 2 S.C.R.

A appear to the Government of India to be necessary for the said purpose.
This Article is confined to proper and due implementation of the par-
liamentary enactments and the power to give directions for that purpose.
Article 257 says that executive power of every State shall be so exercised
as to impede or prejudice the exercise of the executive power of the Union;
for ensuring the same, the Union Government is empowered lo give
B
appropriate directions. Clauses (2), (3) and (4) illustrate and elaborate the
power contained in clause (1). Article 365, which incidentally does not
occur in Part XVIII, but in Part XIX (Miscellaneous) merely says that

-
where any State has failed to comply with or give effect to any directions
given by the Union of India in exercise of its executive power under my of
C the provisions of the Constitution, it shall be lawful for the President to
hold that a situation has arisen in which the Government of the State
cannot be carried on in accordance with the provisions of the Constitution.
The article merely sets out one instance in which the President may hold
that the Government of the Slate cannot be carried on in accordance with
D the provisions of the Constitution. It cannot be read as exhaustive of the
situation where the President may form the said satisfaction. Suffice it to
say that the directions given must be lawful and their disobedience must
give rise to a situation contemplated by Article 356(1). Article 365 merely
says that in case of failure to comply with the directions given, "it shall be
lawful" for the President lo hold that the requisite type of situation [con-
E templated by Article 356(1) Jhas arisen. It is not as if each and every failure
ipso facto gives rise to the requisite situation. The President has to judge
in each case whether it has so arisen. Article 365 says it is permissible for
him to say so in such a case. The discretion is still there and has to be
exercised fairly.
F
FACTS AND MERITS OF INDIVIDUAL CASES:
r
KARNATAKA: •

G By a proclamation dated April 21, 1989 the President dismissed the
Government of Karnataka, dissolved the Legislative Assembly, took over
the powers of the Government and the Governor, vested the powers of the
State legislature in the Parliament and made other incidental and ancilliary
provisions suspending several provisions of the Constitution with respect
to that State. The proclamation does not contain any reasons except barely
H reciting the satisfaction of the President. The satisfaction is stated to have
S.R. BOMMAI v. U.0.1. [B.P. JEEVAN REDDY, J.] 867

been formed on a consideration of the report of the Governor and other A
information received by him. Sri S.R. Bommai was the Chief Minister then.

The Janata Legislature Party emerged as the majority party in the
State Legislature following elections to the Assembly in March, 1985. Sri
Ramakrishna Hegde was elected the leader of the Janata Legislature Party
and was sworn in as the Chief Minister in March, 1985. In August, 1988, B
Sri Hegde resigned and Sri Bommai was elected as the leader and sworn
in as the Chief Minister on August 30, 1988. In September, 1988, Janata
Party and Lok Dal (B) merged resulting in the formation of Janata Dal.
The Janata Party in Karnataka Legislature was re-named Janata Dal. On
April 15, 1989 the Ministry was expanded by Sri Bommai including thirteen c
more members. On April 17, 1989, a legislator, Sri Kalyan Rao Molakery,
defected from the party and presented • letter to the Governor withdraw-
ing his support to the Janata Dal Government. On the next day, he met
the Governor and presented nineteen letters purported to have been signed
by seventeen Jan at a Dal legislators, one associate independent legislator D
and one B.J.P. legislator withdrawing their support to the Government. The
Governor is said to have called the Secretary of the Legislature Depart-
ment and got the authenticity of the signatures on the letters verified. He
did not, of course, inform Sri Bommai about these developments. On April
19, 1989, the Governor sent a report to the President stating that there
were dissensions in Janta Party which led to the resignation of Sri Hegde E
earlier and that even after the formation of Janata Dal, there have been
dissensions and defections. He referred to the letters received by him from
defecting members and opined that on that account, the ruling party has
been reduced to minority. in the Assembly. He stated that the council of
ministers headed by Sri Bommai does not command a majority in the
F
House and 'that, therefore, "it is not appropriate under the Constitution to
have the State administered by an executive consisting of council of mini-
sters who do not command the majority in the House''. He opined that no
other party is in a position to from the Government and recommended
action under Article 356(1).
G
• On April 20, 1989, seven legislators out of those who were said to
have submitted the letters to the Governor submitted letters to the Gover-
nor complaining that their signatures were obtained on those letters by
mis-representation and by misleading them. They re-affirmed their support
to the Bommai Ministry. On the same day, the State Cabinet met and H
868 SUPREME COURT REPORTS [1994] 2 S.C.R.

A decided to convene the Assembly session on April 27, 1989. The Chief
Minister and the Law Minister met the Governor on that day itself and
informed him about the summoning of the Assembly session. They also
brought to the Governor's notice the recommendation of the Sarkaria
Commission that the support and strength of the Chief Minister should be
tested on the floor of the Assembly. Sri Bommai offered to prove his
B majority on the floor of the House. He even expressed his readiness to
pre-pone the Assembly Session if so desired by the Governor. He also sent
a telex message to that effect to the President of India. Inspite of all this,
the Governor sent another report to the President of India on April 20,
1989 referring to the letter of seven members withdrawing their earlier
C letters and opining that the said letters were evidently obtained by Sri
Bommai by pressuring those M.L.As. He reported that "horse-trading is
going on and atmosphere is getting vitiated". He reiterated his opinion that
Sri Bommai has lost the confidence of the majority in the State Assembly
and requiested action being taken on his previous letter. On that very day,
D the President issned the proclamation. It says that the said action was taken
on the basis of "the report form the Governor of the State of Karnataka
and - other information received 11 •

Both the Houses of Parliament duly met and approved the said
proclamation as contemplated by clause ,(3) of Article 356.
E
The validity of the proclamation was challenged by Sri Bommai and
certain other members of the council of ministers by way of a writ petition
(W.P. 7899of1989) in the Karnataka High Court. The Union of India (the
first respondent in the writ petition) submitted that the decision of the
F President of India based on the report of the Governor and other infor-
mation brought to his notice is not justiciable and cannot be challanged in
the writ petition. While making a report, it was submitted, the Governor
does not act on the aid and advice of his council of ministers but in his
individual capacity. The report of the Governor cannot be challenged in
view of Article 361 of the Constitution nor can he or the President be
G compelled to disclose the information or material upon which they have
acted. Article 74(2) was said to be a bar to the Court enquiring into the
said information, material and advice. It was also submitted that the
proclamation has since been approved by both Houses of Parliament under
clause (3) of Article 356. The State of Karnataka submitted that the
H Governor had taken into consideration all the facts and circumstances
S.R. BOMMAI v. U.0.1. [B.P. JEEVAN REDDY,J.) 869

prevailing in the State while submitting his report and that the proclama- A
tion issued on that basis is unobjectionable.

A Special Bench of three-Judges of High court heard the writ
petition and dismissed the same on the following reasoning:

( 1) The proclamation under Article 356( 1) is not immune from B
judicial scrutiny. The court can examine whether the satisfaction has been
formed on wholly extraneous material or whether there is a rational nexus
between the material and the satisfaction.

(2) In Article 356, the President means the Union council of mini-
sters. The satisfaction referred to therein is subjective satisfaction. This
c
satisfaction has no doubt to be formed on a consideration of all the facts
and circumstances.

(3) The two reports of the Governor conveyed to the President
essential and relevant facts which were relevant for the purpose of Article D
356. The facts stated in the Governor's report cannot be stated to be
irrelevant. They are perfectly relevant.

(4) Where the Governor's "personal bonajides" are not questioned,
his satisfaction that no other party is in a position to form the government E
has to be accepted as true and is based upon a reasonable assessment of
all the relevant facts.

(5) Recourse to floor test was neither compulsory nor obligatory. It
was not a pre-requisite to sending up a report recommending action under
Article 356(1). F
(6) The introduction of Xth Schedule to the Constitution has not
affected in any manner the content of the power under Article 356.

(7) Since the proclamation has to be issued on the satisfaction of the G
Union council of ministers, the Governor's report cannot be faulted on
the g!Ound of legal ma/ajides.

(8) Applying the test indicated in the State of Rajastltan v. Union of
India, the court must hold, on the basis of material disclosed, that the
subjectiv~. satisfaction arrived at by the President is conclusive and cannot H
870 SUPREME COURT REPORTS [1994] 2 S.C.R.

A be faulted. The proclamation, therefore, is unobjectionable.

We find ourselves unable to agree with the High Court except on <·
points (1) and (2). To begin with, we must say that question of 'personal
bonafides' of Governor is really irrelevant.

B
We must also say that the observation under point (7) is equally
misplaced. It is true that action under Article 356 is taken on the basis of
satisfaction of the Union Council of Ministers but on that score it cannot
be said that 'legal malafides' of the Governor is irrelevant. When the
Article speaks of the satisfaction being formed on the basis of the
c Governor's report, the legal malafides, if any, of the Governor cannot be
said to the irrelevant. The Governor's report may not be conclusive but its
relevance is undeniable. Action under Article 356 can be based only and
exclusively upon such report. Governor is a very high constitutional func-
tionary. He is supposed to act fairly and honestly consistent with his oath.
He is actually reporting against his own government. It is for this reason
that Article 356 places such implicit faith in his report. If, however, in a
given case his report is vitiated by legal malafides, it is bound to vitiate the
President's action as well. Regarding the other points made in the judg-
ment of the High Court, we must say that the High Court went wrong in
law in approving and upholding the Governor's report and the action of
E the President under Article 356. The Governor's report is vitiated by more
than one assumption totally unsustainable in law. The Constitution does
not create an obligation that the political party forming the ministry should
necessarily have· a majority in the Legislature. Minority governments are
not unknown. What is necessary is that that government should enjoy the
F confidence of the House. This aspect does not appear to have been kept
in mind by the Governor. Secondly and more importantly, whether the
council of ministers has lost the confidence of the House is not a matter
to be determined by the Governor or for that matter anywhere else except
the floor of the House. The principle of democracy underlying our Con-
stitution necessarily means that any such question should be decided on
G the floor of the Ho11se. The House is the place where the democracy is in
action. It is not for the Governor to determine the said question on his own
or on his own verification. This is not a matter within his subjective
satisfaction. It is an objective fact capable of being established on the floor
of the House. It is gratifying to note that Sri R. Venkataraman, the former
H President of India has affirmed this view in his Rajaji Memorial Lecture
S.R. BOMMAI v. U.0.1. [B.P. JEEVAN REDDY, J.) 871

(Hindustan Times dated February 24, 1994). A
Exceptional and rare situations may arise where because of aJJ per·
vading atmosphere of violence or other extraordinary reasons, it may not
be possible for the members of the Assembly to express their opinion
freely. But no such situation had arisen here. No one suggested that any
such violent atmosphere was obtaining at the relevant time. B

In this connection, it would be appropriate to notice the unanimous
report of the committee of governors appointed by the President of India.
The five Governors unanimously recommended that 11 the test of confidence
in the ministry should normally be left to a vote in the Assembly........ Where C
the Governor is satisfied by whatever process or means, that the ministry
no longer enjoys majority support, he should ask the Chief Minister to face
the Assembly and prove his majority within the shortest possible time. If
the Chief Minister shirks this primary responsibility and fails to comply,
the Governor would be in duty bound to initiate steps to form an alterna- D
tive ministry. A Chief Minister's refusal to test his strength on the floor of
the Assembly can well be interpreted as prima facie proof of his no longer
enjoying the confidence of the legislature. If then, an alternative ministry
can be formed, which, in the Governor's view, is able to command a
majority in the assembly, he must dismiss the ministry in power and ins.ta! E
the alternative ministry in office. On the other hand, if no such ministry is
possible, the Governor will be left with no alternative but to make a report
to the President under Article 356........ As a general proposition, it may be
stated that, as far as possible, the verdict as to majority support claimed
by a Chief Minister and his Council of Ministers should be left to the
legislature, and that it is only if a responsible government cannot be
F
maintained without doing violence to correct constitutional practice that
the Governor should resort to article 356 of the Constitution ........... What
is important to remember is that recourse to article 356 should.be the last
resort for a Governor tu seek ........ the guiding principle being, as already
stated, that the constitutional machinary in the state should, as far as G
possible, be maintained." (quoted from the Book "President's Rule in the
States", edited by Sri Rajiv Dhavan and published under the auspices of
the Indian Law Institute, New Delhi). It is a pity that the Governor of
Karnataka did not keep the above salutary guidelines and principles in
mind while making his report. H
872 SUPREME COURT REPORTS (1994] 2 S.C.R.

A Dr. G.S. Dhillon Speaker, Lok Sabha (in his address to the con-
ference of the Presiding Officers of legislative bodies in India) too affirmed
in clear words that "whether the ministery continued to command majority
support in the legislature, the doubt should as far as possible be left to be
resolved on the floor of the House and the Governor should not take upon
himself unenviable task of deciding the question himself outside the legis-
B
lature."

The High Court, in our opinon, erred in holding that the floor test
is not obligatory. If only one keeps in mind the democractic principle
underlying the Constitution and the fact that it is the legislative assembly
C that represents the will of the people - and not the Governor - the position
would he clear beyond any doubt. Jn this case, it may be remembered that
the council of ministers not only decided on April 20, 1989 to convene the
Assembly on 27th of that very month i.e., within seven days, but also offered
to pre-pone the Assembly if the Governor so desired. It pains us to note
D that the Governor did not choose to act upon the said offer. Indeed, it was
his duty to sumon the Assembly and call upon the Chief Minister to
establish that he enjoyed the confidence of the House. Not only did he not
do it but when the Council of Minister offered to do the same, he demurred
and chose instead to submit the report to the Pr".sident. In the circumstan-
ces, it cannot be said that the Governor's report contained, or was based
.E upon, relevant material. There could be no question of the Governor
making an assessment of his own. The loss of confidence of the House was
an objective fact, which could have beer; demonstrated, one way or the
other, on the floor of the House. In our opinion, wherever a doubt arises
whether the Council of Ministers has lost tl•e confidence of the House, the
F only way of testing it is on the floor of the House except in an extraordinary
situation whether because of all-pervasive violence, the Governor comes to
the conclusion - and records the same in his report - that for the reasons
mentioned by him, a free vote is not possible in the House.

We make it clear that what we have said above is confined to a
G situation where the incnmbent Chief Minister is alleged to have lost the
majority support or the confidence of the House. It is not relevant to a
situation arising after a general election where the· Governor has to invite
the leader of the party commanding majority in the House or the single
largest party/group to form the government. We need express no opinion
t
H reagrding such a situation.
S.R. BOMMAI v. U.0.1. [B.P. JEEVAN REDDY, J.] 873

We are equally of the opinion that the High Court was in error in A
"" holding that enactment/addition of Xth Schedule to the Constitution has
not made any difference. The very object of the Xth Schedule is to prevent
and discourage 'floor-crossing' and defections, which at one time had
assumed alarming proportions. Whatever may be his personal predilictions,
a legislator elected on the ticket of a party is bound to support that party
in case of a division or vote of confidence in the House, unless he is
B
prepared to forgo his membership of the House. The Xth Schedule was
designed precisely to counter-act 'horse-trading'. Except in the case of a
~
split, a legislator has to support his party willy- nilly. This is the difference
between the position obtaining prior to and after the Xth Schedule. Prior
to the said Amendment, a legislator could shift his loyalty from one party c
to the other any number of times without imperilling his membership of
the House - it was as if he had a property in the office.

Though the proclamation recites that the President's satisfaction was
based also on "other information received", the counter-affidavit of the D
Union of India does not indicate or state that any other informa-
...... -.,. lton/mater.Wl was available to the President or the Union Council of
Ministers other than the report of the Governor - much less disclose it. In
the circumstances, we must hold that there was no other information before
the President except the report of the Governor and that the word 'and
E
other information received by me' were put in the proclamation mechani-
cally. The Governor's report and the 'facts' stated therein appear to be the
only basis of dismissing the government and dissolving the Assembly under
Article 356(1). The proclamation must, therefore, be held to be not war-
ranted by Article 356. It is outside its purview. It cannot be said, in the
F
' '
circumstances, that the President (or the Union council of ministers) was
'satisfied' that the governmnt of the State cannot be carried on in accord-
ance with the provisions of the Consitutioin. The action was malajide and
unconstitutioinal. The proclamation is accordingly liable to be struck down
and we would have struck it down herewith but for the fact that the
elections have since been held to the Legislative Assembly of the State and G
a new House has come into being. The issuance of a writ at this juncture
would be a futile one. But for the said fact, we could certainly have
•-;. considered restoring the dismissed government to office and reactivating
the di'5olved Assembly. In any event, the judgment of Karnataka High
Court is set aside. H
874 SUPREME COURT REPORTS [1994] 2s.c.R..

A MEGHALAYA: (Transferred case Nos. 5 and 7 of 1992)

In March, 1990, Hill Peoples' Union, to which the petitioner, Gonald
Stone Massar, belonged and several other State political parties and certain
independent M.L.As. joined. together to form a 'front', known as
Meghalaya United Paliamentary Party (MUPP). This Front had a majority
B in the Assembly and formed the government headed by Sri B.B. Lyngdoh.
On July 25, 1991, the then Speaker of the House, Sri P.R. Kyndiah Arthree
was elected as the leader of the opposition group known as United
Meghalaya Parliamentary Forum (UMPF), which was led by the Congress
party to which Sri Kyndiah belonged. He claimed the support of the
C majority of members in the House and requested the Governor to invite
him to form the Government. Thereupon the Governor requested Sri
Lyngdoh to prove his majority on the floor of the House. On August 7,
1991, a special session of the Assembly was convened to pass a motion of
confidence in the ministry. On the motion being moved, thirty members
supported it and twenty seven voted against it. Before announcing the
D result, however, the Speaker announced that he had received a complaint
against five independent M.L.As. in the ruling coalition alleging dis-
qualification under the Anti-defection Law and that he was forthwith
suspending their right to vote. This resulted :n an uproar in the Assembly.
The session had to be adjourned. On August 11, 1991. the Speaker sent
E identical show-cause notices to the said five independent MLAs on the
basis of the complaint filed by one Sri H.S. Shylla. On August 16, the five
MLAs sent their replies deying that they have joined any of the parties as
alleged. They affirmed that they continue to remain independents. On
August 17, 1991 the Speaker passed on order disqualifying all the five
MLAs on the basis that four of them were ministers in the Lyngdoh
F ministry and one of them (Sri Chamberlain Marak) was the Deputy
Government Chief Whip. The disqualification, it may be noted, was not on •
the ground alleged in the show cause notice.

Meanwhile, on the Governor's advice, the Chief Minister summoned
G the session of the Assembly for September 9, 1991 for passing a vote of
confidence. The Speaker refused to send the notices of the session to the
five MLAs disqualified by him. He also made arrangements to ensure that
the said five membes are not allowed to enter the Assembly. On September
6, 1991, four of the said five MLAs approached this court and obtained an
interim order staying the operation of the orders of the Speaker dated
H August 7, 1991 and August 17, 1991, (one Member, Sri Ch. Marak, did not
S.R. BOMMAI v. U.0.1. [B.P. JEEVAN REDDY, J.] 875

obtain any such orders). On coming to know of the order of this Court, the A
Speaker issued a press statement saying that he does not accept any
interference by any court with his order dated August 7, 1991 disqualifying
five members. He issued strict instructions to the security guards not to
allow the said five members to enter the Assembly premisses. In this
explosive situation, the Governor adjourned the Assembly indefinitely by
an order dated September 8, 1991. After a brief interval and on the advice B
of the Governor, the Assembly was again summoned to meet on October
8, 1991. Meanwhile, a contempt petition was filed by the said four MLAs
in this court against the Speaker. They complained that his action in
preventing them from entering into the Assembly premises and from acting
as members of the Assembly was in violation of the orders of this court
dated September 6, 1991. On October 3, 1991, this court passed another
c
order affirming that all authorities of the State including the Governor must
ensure that the orders of this Court dated September 6, 1991 are imple-
mented. Accordingly, the said four independent MLAs were issued invita-
tion to attend the session on October 8, 1991. The agenda relating to the.
business of the House showed two items for consideration on that day (1.) D
.. a motion of confidence in the government and (2) a motion of no-con-
fidence in the Speaker.

On October 8, 1991, 56 MLAs apart from the Speaker attended the
session. The four MLAs who were disqualified by the Speaker but who had
obtained orders from this Court also attended but not Sri Ch. Marak who E
did not obtain any orders from any court. After the motion of confidence
in the government was put to vote, the Speaker declared that 26 voted for
the motion and 26 against. In counting the votes casts in favour of the
motion, he excluded the votes of the said four independent MLAs again.

.
Holding that there was a tie, he cast his vote against the motion and
declared the motion lost. He then adjourned the House sine die, evidently F
' with a view to ward off the passing of motion against himself. The thirty
MLAs (including the said four independent MLAs) however, continued to
stay in the House. They elected a Speaker from among themselves and
continued the business of the Assembly. The new Speaker found on a
scrutiny of the records relating to voting on the motion of confidence that G
actually 30 members have signed in favour of the motion and 26 against.
Accordingly, he declared that the motion of confidence in the government
was carried. They also passed the motion of no confidence in the Speaker,
Sri Kyndiah. The 26 members who had voted against the motion had, of
course, left the House by that time. The said 30 MLAs thereafter sent a
H
876 SUPREME COURT REPORTS [1994] 2 S.C.R.

A letter to the Governor affirming that they had voted in favour of the
government and also in favour of the motion of no confidence in the
Speaker. Inspite of all this, the Chief Minister received a letter dated
October 9, 1991 from the Governor advising him to resign in view of the
proceedings of the Assembly dated October 8, 1991. The Governor ob-
served in his letter that the dispute about the Speaker not taking cog-
B nizance of the orders of the Supreme Court was a matter between the
Speaker and the Supreme Court and in that view of the matter, the Chief
Minister should resign! Immediately, thereupon, the Chief Minister ap-
prised his advocate in the Supreme Court of the said letter of the Gover-
nor. The counsel brought the matter to the notice of this Court and at 4.00 '
C P.M. on the same day (October 9, 1991), this court passed the following
order: "Since the matter is extremely urgent, we deem it fit to pass this
further order asking the Governor while taking any decision on the ques-
tion whether the Government has lost the motion of confidence and lost
its majority in the House, to lake into account, the two earlier orders dated
6.9.1991 and 3.10.1991 of this Court and also to take into account how the
D aforesaid four appellant had cast their vote." No heed was paid to this
order and on October 11, 1991, the President of India issued a proclama-
tion under Article 356 of the Constitutioin declaring that he was satisfied ~- ·<! _
on the basis of a report from the Governor of Meghalaya and other
information received by him that a situation has arisen in which the
Government of the State cannot be carried on in accordacce ·\\ith the
E provisions of the Constitution He accordingly dismissed the government
and dissolved the Assembly. Before proceeding further, it may be men-
tioned that by an order dated October 12, 1991, a Constitution Bench of
thi, Court set aside the order of the Speaker dated August 17, 1989.

F Both Houses of Parliament duly met and approved the proclamation.

It is a matter of deep regret that the Governor of Meghalaya did not
think it his constitutional duty to give effect to the orders of this Court, not
even after a specific direction to that effect. He could not have been
G unaware of the obligation created by Article 144, viz., the duty of all
authorities, civil and judicial, in the territory of India to act in aid of the
Supreme Court and its orders. By order dated October 9, 1991, he was
specifically requested to lake into account the orders of this Court while
deciding whether the government has lost the confidence of the House and
yet he ignored the same and reported to the President that the Ministry
H has lost the confidence of the House. We are intrigued by the strange logic
S.R. BOMMAI v. U.O.l. [B.P. JEEVAN REDDY, J.] 877

of the Governor that obedience to the orders of this Court relating to the A
disqualification of members of the House is a matter between the Speaker
and the Supreme Court. Evidently, he invoked this strange logic to enable
him to say - as he wanted to say or as he was asked to say, as the case may
be - that the Speaker's decision that the Ministry has lost the confidence
of the House, is valid and effective - at any rate, so far as he is concerned.
The governor ought to have noted that this court had stayed the operation B
of the orders of the speaker disqualifying the four independent members,
which meant that the said four MLAs were entitled to participate in the
proceedings of the Assembly and to vote. They did vote in favour of the
motion expressing confidence in the government. The Speaker was, how-
ever, bent upon unseating the government by means fair or foul and with
tha view was openly flouting the orders of this Court. He managed to
c
declare that the government has lost the confidence of the House by
excluding the votes of the said four members in clear violation of the orders
of this Court. It is surprising that the Governor chose to turn Nelson's eye
upon the misdeds of the Speaker and also chose to refuse to take note of
the proceedings of the majority of members taken upon the Speakership D
of another member elected by them. It is equally curious that the Governor
chose to report that a situation has arisen where the government of the
State cannot be C\'rried on in accordance with the provisions of the
Consititution. The violation of the provisions of the constitution was by Sri
Kyndiah and not by the ministry in office and yet Article 356 was resorted
to by the President to dismiss the government on the basis of such a report. E
That even such an ex-facie unconstitutional proclamation was approved by
both Houses of Parliament shows up the inadequacy of the safeguard
envisaged in clause (3) - by which provision much store was laid by the
Counsel appearing for the Uni6n of India as well as those ·supporting the
impugned proclamations.
F
Jn this case too, the proclamation recites that the requisite satisfac-
tion was arrived at on the basis of the report of the Governor and the other
information received by the President but no such information or material
has been brought to our notice. We must conclude that there was none and G
that the recital to that effect is a mere mechanical one.

, '--,. We must say in fairness to Sri Parasaran, learned counsel appearing
for the Union of India that he did not seek to defend the proclamation in
this case. H
878 SUPREME COURT REPORTS [1994] 2 S.C.R.

A Accordingly, we hold the proclamation as unconstitutional. But for
the fact that since the date of proclamation, fresh elections have been held
to the Assembly and a new House has come into existence, we would have
certainly issued the writ and directed the restoration of the Lyngdoh
ministry to office and restored the Assembly as well.

B
NAGALAND:

Elections to the Nagaland Assembly were held in November, 1987.
The strength of the Assembly was 60. The position emerging from the
.,.
election was: Congress (1)-35, Naga national Democractic Party-13 and
C lndependents-7. The Congress (1) party formed the government with Sri
Hokishe Serna as the Chief Minister. In August, 1988, a split occurred in
the ruling party whose strength was 34 at that time, one member having
died. The particulars of the split in the party are the following: On July 28,
1988, 13 of the 34 MLAs informed the Speaker of the assembly' that they
D have dissociated from the ruling party and have formed a separate party
called "Congress Rulini: Party". They requested the Speaker for allotment
of separate seats f®r them in the Assembly, the session of which was to
commence on August 28, 1988. On July 30, 1988 the Speaker held that a
split had occurred within the meaning of the Xth Schedule of the Consitu-
tion in the ruling party. Sri Vamuzo was one among the said 13 MLAs. He
E informed the Governor on July 31, 1988 that he has secured the support
of 35 of the 59 members of the Assembly and was in a position to form the
ministry in the State. At this stage, the Chief Secretary to the Government
of Nagaland wrote to Sri Vamuzo on August 3, 1988 that according to the
information received by him, the group of 13 MLAs aforesaid were wrong-
fully confined by him. Sri Vamuzo denied the same and invited the Chief
F Secretary to come and verify the truth of the allegation from the said
members themselves. The members stated before the Chief Secretary that
they were free agents and were not confined by any one. On August 6, 1988
the Governor of Nagaland sent a report to the President of India about the
formation of Congress Ruling Party. He reported that in the past 25 years,
G eleven governments have been formed and that thirteen MLAs who had
dissociated t!:emselves from the Congress (1) party were allured with
money. He characterised the said weaning away of the thirteen members
as "incredible lack of political morality and complete disregard to the
wishes to the electorate on the part of the break-away congressmen". He
also stated that the said thirteen persons were kept in forcible confinement
H by Sri Vamuzo and another person and that the story of split in the party
S.R. BOMMAJ v. U.0.1. [8.P.JEEVAN REDDY.J.] 879

is not true. He characterised the recognition accorded to the said group of A
thirteen members by the Speaker .as hasty. He also spoke of political
' t-· y
'horse-trading' and machinations. He referred to the insurgency in
Nagaland and that indeed some of the members of the Assembly were
having contacts with the insurgent groups. He reported that the stability of
the State may suffer due to the said episode and further that if the present
affairs are allowed to continue) a serious development may ensue. B

The Chief Minister, Sri Hokishe Serna, probably finding that he has
lost the majority support in the House, submitted his resignation to the
Governor ar.d recommended the imposition of the President's rule. On
August 7, 1988, the President issued the proclamation under Article 356 C
assuming the functions of the government of the State of Nagaland. The
government was dismissed and the Assembly dissolved. The action was
challenged by Sri Vamuzo by way of a writ petition in the Guwahati High
Court being C.R. No. 1414 of 1988. The writ petition was heard by a
Divisioin Bench comprising the Chief Justice and Hansaria, J. Both the
learned Judges agreed that the validity of the proclamation can be ex- D
amined by the court and that the proclamation under Article 356 is not
immune from judicial scrutiny. But on the question of the effect and
operation of Article 74(2), they differed. The learned Chief Justice held :
11
the Union cannot be compelled to tender any information to this court
covered by Article 74 of the Constitution relevant to the dissolution of the E
Nagaland assembly. I am also of the view that the Union of India can legally
claim all documents relevant to the dissolution of the Nagaland assembly
as privileged documents and a 'class' documents under Section 123 of the
Evidence Act. Therefore, the objection that the courts do not have powers
to call for the information from the President of India in view of Article
74 (2) of the Constitutioin is sustained. Since the Nagaland legislative F
assembly is dissolved by the two Houses of Parliament, no relief can be
grant.ed in the circumstances of this case". Accordingly, he proposed to
dismiss the wit petition. Hansaria, J., however, took a contrary view. The
learned Judge held that the material which formed part of 'other
information' but has not been produced before the court, does not form G
part of the advice tendered by the council of ministers to the President.
The court is, therefore, entitled to sec the said material and for that
purpose the Union of India must be given ten days time for producing the
same. If, however, they decline to do so, the court would have no alterna-
-~ tive but to act upon the present ma.terial and the Union of India will have
H
880 SUPREME COURT REPORTS (1994] 2 S.C.R.

A to take the consequences of such a course. The learned judge did not
propose to dispose of the writ petition but to wait for ten days and then
pronounce the final orders. In view of the said difference of opinion, the
matter was referred to a third Judge,but before the third Judge could hear
the matter, the Union of India moved this Court for grant of special Leave.
Special L~ave was granted and the proceedings in the High Court stayed.
B
We have discussed the effect and scope of article 74(2) elsewhere.
In the light of the same, the view taken by Hansaria,J. (as he then was)
must be held to be the correct one and not the vir.w taken by the learned
Chief Justice. This Special Leave Petition is accordingly disposed of with
C the above direction. Inasmuch as fresh elections have since been held, the
High Court may consider the advisability of proceeding with the matter at
this point of time.

J\fADHYA PRADESH, RAJASTHAN AND Hil\fACHAL PRADESH;

D In the elections held in February, 1990, the BJP emerged as the
majority party in the Assemblies of Uttar Pradesh, Madhya Pradesh,
Rajasthan and Himachal Pradesh and formed the government therein.

On December 6,1992, the Ram Janambhoomi-Babri Masjid structure
E (disputed structutre) was demolished by the kar sevaks who had gathered
there in response to appeals by the B.J.P., V J.P.,Bajrang Dal, Shiv Sena
and some other organisation.

Following· the demolition at Ayodhya on 6th December, 1992, the
Government of Uttat Pradesh resigned. It was dismissed by the President
F and the Legislative Assembly dissolved by a proclamation under article 356
issued on the same day. The proclamation does not refer either to the
report of the Governor nor does it say that the President had received any
information otherwise. Be that as it may, the validity of the said proclama-
tion not being in issue before us, we need not express any opinion in that
G behalf.

The demolitioe of the disputed mosque·had serious repercussions all
over the country as also in some neighbouring countries. A number of
temples were reportedly demolished there. Serious disturbance to law and
order occurred in various parts of the country resulting in considerable loss
H of lives and property. By an order dated December 10,1992 issued under
-...........
S.R. BOMMAI v. U.O.L [B.P.JEEVAN REDDY,J.] 881

section 3(1) of the Unlawful Activities (Prevention) Act, 1967 (37 of 1967), A
the Government of India banned several alleged communal organisations
including RSS, VHP and Bajrang Dal.

MADHYA PRADESH:

B
On December 8,1992, the Governor of Madhya Pradesh sent a report
to the President setting out the "fast deteriorating law and order situation
in the State in the wake of wide-spread acts of violence, arson and looting".
He observed in his report that "the lack of faith in the ability of the State
Government to stem the tide primarily because of the political leadership's
overt and covert covert support to the associate communal organisations C
seem to point out that there is breakdown of the administrative machinery
of the state." He followed it up with another report on December 10, 1992
wherein he mentioned about the violence spreading to hither to peaceful
areas. On December 13, 1992, he sent his third report enclosing the
photocopy of a letter received from the executive Director, Bharat Heavy D
Electricals Limited (BHEL), Bhopal dated December 11, 1992. The said
leUer, said the Governor, indicated the "abject failure of the law and order
machinery to provide safety and security to life and property in the areas
in and around BHEL factory". The letter also spoke of ''the pressure
brought on the administration to accommodate the so called kar sewaks in
BHEL area". The Governor termed them as extremely serious develop- E
ments that deserve a high level probe. The third report further stated that
with lhe reported statement of the Chief Minister Sri Sunder Lal Patwa
that the decision of banning the RSS and VHP "'.as unfortunate, the State
Government's credibility to sincerely implement the Centre's direction in
lhe matter is under a cloud ... there is a question mark as to how BJP F
leaders like Sri Patwa who swore by the values and traditions of the RSS
will be able to implement the ban both in letter and spirit. The VHP's
decision to observe December 13 as 'Black Day' all over the country to
protest against the above mentioned ban and its decision to observe protest
week against these 'heinous laws' from December 14 to 20 are moves
fraught with danger, particularly in the present context". The Governor G
recommended that "considering this and looked in the background of the
RSS etc, contemplating on a fresh strategy to chalk out its future plan and
the possibility of the leaders of the banned organisations going under-
ground taking advantage of the soft reaction of the administration have
reasons to be convinced that there should not be any further delay in H
882 SUPREME COURT REPORTS [1994] 2 S.C.R.

A imposition of President's rule according to Article 356 of the Constitution
of India".

HIMACHAL PRADESH:

The Governor of Himachal Pradesh sent a report o.n December
B 15,1992 wherein he stated inter alia: "there is no dispute on the point that
the Chief Minister and his cabinet had instigated the kar sevaks from
Himachal Pradesh to participate in the kar seva on the 6th December,

..
1992. Some of the Ministers expressed their desire even openly, provided
the party High command permitted to do so. Consequently, a large number
C of kar sevaks including some BJP M.L.As.participated in the kar seva from
Himachal Pradesh. A member of the Vidhan Sabha publicly admitted that
he had participated in the demolition of the Babri Masjid (Indian Express
dated 15.12.1992, Chandigarh Edition). Though Sri Shanta Kumar met me
on December 13, 1992 and had informed me that he desired lo implement
the ban orders imposed by the Government of India on RSS, VHP and
D three other organisations and that he has already issued directions in this
regard but since the Chief Minister himself is a member of RSS, therefore,
he is not in a position to implement these directions honestly and effective-
ly. Most of the people of the state also feel alike ....As a matter of fact, when
the Chief Minister himself and some of the colleagues are members of the
E banned RSS, then it is not possible for the admini,trative machinery to
implement the ban honestly, especially when some of the Ministers are
openly criticising the ban on these communal organisations". He, therefore,
recommended imposition of the President's rule.

RAJAS THAN:
F
The report of the Governor of Rajasthan, recommending imposition
of the President's rule, stated the following facts: the government of ..
Rajasthan has played 'an obvious role' in the Ayodhya episode. The BJP
has control over RSS, VHP and Bajrang Dal which are now banned by the
centre. The said ban is not being implemented at all. Indeed, one of the
G Ministers had resigned and along with 22 MLAs and 15,500 BJP workers
had participated in the kar seva at Ayodhya on December 12, 1992. They
were given a royal send off and when they returned, they were given a
similar royal welcome by the influential people in the political set up
running the government. The law and order has been very bad for more
H than a week, the dominant character being the anti-minority on whom
S.R. BOMMAI v. U.0.1. [B.P. JEEVAN REDDY,J.] 883

largely atrocities have been committed. The administration could not func- A
tion effectively under the present political set up. He expressed the ap-
prehension that it would be extremely difficult to expect the administration
to function objectively, effectively and in accordance with the rule of law
and that a situation has arisen in which the government of the state cannot
be carried on in accordance with the provisions of the constitution.
B
On December 15, 1992, the President issued three proclamations
dismissing all the three government in Madhya Pradesh, Rajasthan and
Himachal Pradesh and dissolving their Legislative Assemblies. The action
was purported to be taken on the basis of the reports of the Governors
concerned as well as on the basis of other information received. The C
validity of the proclamations was challenged immediately by filing writ
petitions in the appropriate High Courts. The Madhya Pradesh High Court
allowed the same which is challenged by the Union of India in Civil Appeal
Nos. 1692, 1692A-1692C of 1993. The writ petitions relating to Rajasthan
and Himachal Pradesh were withdrawn to this Court and are numbered as
Transferred case No. 9 of 1993 and transferred case No. 8 of 1993 respec- D
lively.

The petitioners challenged the proclamation as ma/afide, vitiated by
extraneous considerations and an instance of political vendetta. It is sub-
mitted that incidents of disturbance to law and order cannot attract action
under Article 356. In any event, in Himachal Pradesh, there was not a E
single instance. All the three governments were faithfully implementing all
the Central and State laws. The impugned proclamations, it is submitted,
are the result of internal differences among the leaders of the Congress
party and are not supportable in law.
F
It is submitted by the learned counsel for the petitioners that the
imposition of the President's rule in the States of Madhya Pradesh, Rajas-
than and Himachal Pradesh was malafide, based on no satisfaction and was
purely a political act. Mere fact that communal disturbances and/or instan-
ces of arson and looting took place is nci ground for imposing the
President's rule. Indeed, such incidents took place in several Congress (I) G
- ruled States as well - in particular, in the State of Maharashtra - on a
much larger scale and yet no action was taken to displace those govern-
ments whereas action was taken only against B.J.P. governments. It is
pointed out that so far as Himachal Pradesh is concerned, there were no
communal disturbances at all. H
884 SUPREME COURT REPORTS [1994]2 S.C.R.

A There was no law and order problem worth the name. Even the
Governor's report did not speak of any such incidents. The governments
of Madhya Pradesh, Rajasthan and Himachal Pradesh, it is argued, cannot
be held responsible for what happened at Ayodhya on December 6, 1992.
For that incident, the Government of Uttar Pradesh had resigned owning
responsibility therefore and it was dismissed. That is not under challenge.
B But the Governments of these three States were in no way connected with
the said incident and could not have been dismissed on account of the said
incident. It is also pointed out that according to the report of the Governor
of Himachal Pradesh, the Chief Minister met him and indicated clearly that
he was desirous of and was implementing the ban and than some arrests
C were also made. In such a situation, there was no reason for the Governor
to believe, or to report, that the Chief Minister is not sincere or keen to
implement the ban on the said organisations. As a matter of fact, the
Tribunal under Unlawful Activities (Prevention) Act, 1967, has declared
the ban on R.S.S. as illegal and accordingly the ban has since been revoked.
The non-implementation of an illegal ban cannot be made the basis of
D action under Article 356. Assuming that there was such an inaction or
refusal, it cannot be made a ground for dismissing the State Government
and for dissolving the Assembly. The Union Government has also not
disclosed what other malarial/information they had received on the basis
of which the President had acted, though a recital to that effect has been •
made in the proclamations. The action taken by the President cannot be
E justified by producing the material gathered later. The respondents must
disclose the information that was before the President when he issued the
impugned proclamations. The White Paper now placed before the Court
was not in existence on December 15, 1992. The manifestos issued by the
B.J.P. from time to time cannot constitute the information referred to in
F the proclamations - not, in any event, legally relevant material. The counter
filed by the Union of India in Madhya Pradesh High Court in M.P. No.
237/93 (Sunder Lal Patwa & Ors. v. Union of India & Ors.) does not refer
to or disclose the other information received by the President. Even in the
counters filed in writ petitions questioning the proclamations relating the
Himachal Pradesh and Rajasthan, no such material is disclosed. It was the
G duty of the Union government to have disclosed to the Court the
materiaVinformation upon which the requisite satisfactioin was formed,
more so because the proclamations themselves do not refer to any such
material. Since they have failed to do so, an adverse inference should be
drawn against them. Article 74(2), it is argued, does not and cannot relieve
the Union of India of this obligation. The power and remedy of judicial
H
1 S.R. BOMMAI v. U.0.1. [B.P. JEEVAN REDDY, J.] 885

review, it is argued, cannot be rendered ineffective with reference to A
Article 74(2).

A counter affidavit was filed by the Union of India in the writ petition
filed in the Madhya Pradesh High Court questioning the Proclamation with
respect to that State. Apart from the legal contentions, the following facts
are stated therein: B

The reports of the Governor disclosed that the State Goverment had
miserably failed to protect the citizens and property of the State against
internal disturbance. On the basis of the said reports, the President formed
the requisite satisfaction. C

The circumstances in the State of M.P. were different from several
other States where too serious disturbance to law and order took place.
There is no comparisoon between both situations. "Besides Bhopal, over-all
situation in the State of M.P. was such that there was sufficient and cogent
reasons to be satisfied that the Government in the State could not be D
carried on in accordance with the provisions of the Consttution. It is denied
that there was no law and other situation in the State." The Governor's
reports are based upon relevant material and are made bonafide and after
due verification.
E
The allegations made against Sri Arjun Singh, Minister for Human
Resource Development are baseless. The decision was a collective decision
of the Council of Ministers. No comparison with regard to the State of
affairs in the State of Madhya Pradesh can be made with those States. The
Governor of Madhya Pradesh having reported that the Constitutional
machinery in the State had broken down, the proclamation of President's F
rule is justified and Constitutional."

In the count~r affidavit filed in the writ petition (Transferred Case
No. 8 of 1993) relating to Himachal Pradesh, the very same objections as
are put forward in the counter affidavit filed in the Madhya Pradesh case G
have been reiterated In the para-wise replies, it is stated that the events
of 6th December, 1992 were not the handiwork of few persons but that "the
public attitude and statements of various groups and political parties
including BJ.P. led to the destruction of the structure in question and
caused great damage to the very secular fabric of the country and created
communal c\iscord and disharmony all over the country including Himachal H.
886 SUPREME COURT REPORTS [1994) 2 S.C.R.

A Pradesh." It is stated that the repercussions of the event cannot be judged
by comparing the number of persons killed in different States. It is asserted
that the Council of Ministers and the President "had a wealth of material
available to them in the present case which are relevant to the satisfaction
formed under Article 356. They were also aware of the serious damage to
communal amity and harmony which has been caused in the State of
B Madhya Pradesh among others. They were extremely concerned with
repercussions which events at Ayodhya might still have in the States and
the ways and means to bring back normalcy not only in the law and order
situation but also communal amity and harmony which had so badly
damaged as a result of the activities, attitude and stand of inter a/ia the
party in power in the State." It is also stated that, according to the definite
c information available to the Government of India, members of the R.S.S.
were not only present on the spot at Ayodhya but actually participated in
the demolition and that they were responsible for promotion of communal
disharmony. It is for this reason that it was banned. It is also asserted that
the action was taken by the President not only on the basis of the report
D of the Governor but also on the basis of other information received by him.

In the Counter affidavit filed in the writ petition relating to Rajasthan
(Transferred Case No. 9 of 1993) it is stated that after the demolition on
6th December, 1992, violence started in various parts of the country leading
to loss of life and property. It is asserted that it is not possible to assess
E the law and order situatin in different states only on the basis of casualty
figures. The situation in each State has to be assessed differently. The
averment of the petitioner that the State Government implemented the ban
on R.S.S. properly is denied. There is no requirement that the report of
the Governor should be addressed to the President. It can also be ad-
F dressed to the Prime Minister. Besides the report of the Governor, other
information was also available on which the President had formed his
satisfaction. The correctness, adequacy or sufficiency of the material con-
tained in the Governor's report is not justiciable and cannot be gone into
by the Court. The allegations of nzalafide, capricious and arbitrary exercise
of power arc denied. No irrelevant material was taken into consideration
G by the President and hence, it is averred, the satisfaction of the President
is not judicially reviewable.

The leanrned counsel for Union of India and other counsel support-
ing the impugned proclamations put their case thus: the main plank and
H the primary programme of B.J.P. was the construction of a Ram temple at
S.R. BOMMAI v. U.0.1. [B.P.JEEVAN REDDY . .!.] 887

the very site where the Bahri Masjid stood. The party openly proclaimed A
that they will remove - relocate, as they called it - the Babri Masjid
structure since according to them the Babri Masjid was super-imposc:d on
an existing Ram temple by Emperor Babar. The party came to power in
all the four States on the said plank and since then had been working
towards the said goal. It is the one single goal of all the leaders of BJ.P.,
their Ministers, Legislators and all cadres. For his purpose, they have been B
repeatedly gathering kar sevaks' from all corners at Ayodhya from time to
time. In the days imm•diately preceding December 6, 1992, their leaders
have been inciting and exhorting their followers to demolish the Babri
Masjid and to build the temple there. The Ministers in Madhya Pradesh,
Himachal Pradesh and Raj~sthan took active part in organising and
despatching kar sevaks to Ayodhya. When the karsevaks returned from
c
Ayodhya after demolishing the Masjid, they were welcomed as heroes by
those very persons. Many of the Ministers and Chief Ministers were
members of R.S.S. and were protesting against the ban on it. They could
not, therefore, be trusted to enforce the ban, notwithstanding the protes-
tations to the contrary by some of them. D
The manifesto issued by the BJP on the eve of May/June, 1991 mid-
term poll states that the BJ.P. "seeks the restoration of Ram Janmabhoomi
in Ayodhya only by way of a symbolic righting of historic wrongs, so that
the old unhappy chapter of acrimony could be ended, and a Grand
National Reconciliation effected." At another place under the head "Sri E
Ram Mandir at J anmasthan", the following statement occurs: "BJP firmly
believes that construction of Ram Mandir at J anmasthan is a symbol of the
vindication of our cultural heritage and national self-respect. For BJP it is
purely a national issue and it will not allow any vested interests to give it
a sectarian and communal colour. Hence, the party is com1nitted to build
Slzri Ra111 Mandir at Janmasthan by relocating super-in1posed Babri strncture F
11
with due respect. Standing by themselves, it is true, the above statements
may not mean that the programme envisaged unlawful or forcible demoli-
tion of the disputed structure. The said statement are also capable of being
understood as meaning that the party proposed to vindicate their stand in
Courts that the disputed structure was in fact the Ram Janmasthan which G
was forcible converted into a mosque by Emperor Babar and that only
thereafter they will relocate the said structure and build Ram Temple at
that site. But, says the counsel, if we read the above statements in the light
of the speeches and acts of the leaders of the B.J.P., referred to in the
White Paper issued by the Government of India, there would hardly be any
H
888 SUPREME COURT REPORTS [1994] 2 S.C.R.

A room for such beneficial interpretation. The "White Paper on Ayodhya"
issued by the Government of India in February, 1993, establishes the
complicity of the Bhartiya Janta Party as such in the demolition of the
disputed structure and its aftermath.

According to the statement of the Union Home Minister made in
B Rajya Sabha on December 21, 1992, the counsel pointed out, "all these kar
sevaks, when they returned, were received by the Chief Ministers and
Ministers 11 •

The counsel for the respondents argued further that what happened
on December 6, 1992 did not happen in a day. It was the culmination of a
c sustained campaign carried on by the BJP and other allied organisations
over the last few years. They had been actively campaigning for the
construction of Ram temple at the disputed site. They had been speaking
of relocating the disputed structure which only meant that they wanted the
disputed structure removed and a Ram temple constructed in that very
D place. The several speeches of the leaders of BJP and other allied parties,
referred to in the White Paper, do clearly establish the said fact. Indeed,
in the manifesto issued by the BJP in connection with the 1993 General r
. Elections, there is not a word of regret as to what happened on December
6, 1992. On the contrary, the following statement occurs under the heading
"Ayodhya":
E
"Ayodhya

In their actions and uttarances, the forces of pseudo-secularism
convey the unmistakable impression of a deep repugnance for all
F things Hindu. Indeed 1 in their minds 11 Hindu11 has come to be
associated with "communal". 'fhc controversy over the Ram Jan-
mabhoomi temple in Ayodhya is a powerful illustration of this
phenomenon. For them 11 Sahmat 11 is secular and 11 Saffron 11 com-
munal. Although the facts of the dispute are well known, certain
features merit repetition, first, it was always apparent that a vast
G majority of Hindus V!cre totally committed to the construction of
a grand temple for Lord Rama at the site where puja has been
performed uninterruptedly since 1948 and where besides, no
· namaz has been offered since 1936. The structure build by the
Moghul Emporer Babur was viewed by the Hindus as a symbol of
H national humiliation.
S.R. BOMMAI v. U.0.1. [B.P.JEEVAN REDDY,J.) 889

Second, the election of 1991 in Uttar Pradesh centred on the A
Ayodhya dispute. It was a vitual referendum on Ram Janmabhoomi
and the BJP with its promise to facilitate the construction the Ram
Temple won the election. However, this mandate did not prevent
the Congrees and other pseudo-secular parties from wilfully
obstructing the initiatives of the Uttar Pradesh government. Ever-
thing, from administrative subterfuge to judicial delay, was used
B
by the opponents of the temple to prevent the BJP government
from fulfilling its promise to the electorate.

On D.ecember 6, 1992 kar sevaks from all over India assembled
in Ayodhya to begin the reconstruction of the Rama Temple at C
the site adjoiring the garbha grina. Matters took an unexpected
turn when, angered by the obstructive tactics of the Narasimha
Rao government, inordinate judicial delays and pseudo-secularist
taunts, the kar seveks took matters into their own hands,
demolished the disputed structure and constructed a makeshift
temple for Lord Rama at the garbha griha. D
Owing responsibility for its inability to prevent the demolition,
the BJP-government headed by Shri Kalyan Singh submitted its
resignation. A disoriented Central Government was not content
with the imposition of President's rule in Uttar Pradesh. In viola- E
tion of democratic norms, the centre dismissed the BJP govern-
ments in Rajasthan, Madhya Pradesh and Himachal Pradesh.
Further, it banned the Rashtriya Swaymsevak Sangh, Vishwa
Hindu Parishad and Bajrang Dal.

Worst of all, in allusion with other rootless forces the govern- F
ment unleashed a vicious propaganda offensive aimed at belittling
the Hindus. The kar sevaks were denigrated as fascists, lumpens
and vandals, and December 6, was described as a 'national shame".
1

Recently, the CBI has filed chargesheets against leaders of the BJP
• and the Vishwa Hindu Parishad with the purpose of projecting G
them as criminals.

This relentless onslaught of the pseudo-secular forces against
the people of India had very serious consequences. For a stare, it
created a wide emotional gulf between the rulers and the people.
Ayodhya was a popular indictment of the spurious polities of H
890 SUPREME COURT REPORTS [1994] 2 S.C.R.

A double-standards. Far from recognising it as such, the Congress
and other anti-B.TP parties used it as pretext for furthering the
cause of unprincipled minorityism.

It is this minorityism that prevents the Congress, Janata Dal,
Samajvadi Party and the Communist Parties from coming out with
B an unambiguous declaration of intent on Ayodhya. This BJP is the
only party which is categorical is its assurance to facilitate the
construction of the Rama temple at the site of the erstwhile Babri
structure. That is what the People of what desire."-

c The counsel further pointed out the significance of the total inaction
on the part of the lop leaders of the B.J.P. present near the disputed
structure at Ayodhya on December 6,1992. They took no steps whatsoever
to stop the demolition. The kar sevaks had gathered there at their instance.
They had appealed to the kar sevaks to gather there from all corners of
D the country. Some of these leaders had been speaking of demolition of the
disputed structure to enable the construction of Ram temple at that very
place. Even assuming that the assault on the disputed structure was a
sudden move on the part of some kar sevaks, it is not as if the demolition
took place in a couple of minutes. It must have certainly taken a few hours.
If the BJP leaders present there really wanted to prevent it, they should
E have appealed to the people and ought to have taken other effective steps
to prevent the kar sevaks from demolishing the structure. There is no
allegation an~where in the writ petition or other material placed before the
court that they ever did so. If one reads the aforesaid statements in the
manifestos of 1991 and 1993 in the light of the above facts, if would be
clear,says the counsel, that the demolition of the disputed structure was the
F outcome of the speeches, programme and the several campaigns including
Rath Yatras undertaken by the leaders of the BJP. It is neither possible
nor realistic to dissociate the governments of Madhya Pradesh, Rajasthan
and Himachal Pradesh from the acts and deeds of their party. It is one
party with one programme. Kar sevaks were sent by and welcomed back
G by the Ministers and legislators (belonging to B.J.P.) of these three States •
as well.Thereby they expressed and demonstrated their approval of the
deed done by the kar scvaks. It is stated in the report of the Himachal
Pradesh Governor that the Chief Minister himself was a member of the
RSS. In the report of the Governor of Madhya Pradesh also, it is stated
that the Chief Minister and other ministers swore by the values and
H traditions of the RSS. The reports also indicate that these governments
S.R. BOMMAI v. U.0.1. [B.P. JEEVAN REDDY, J .] 891

actively participated in organising and despatching the kar sevaks to Ayod- A
- hya and welcomed them and praised when they came _back after doing the
deed. Thus, a common thread runs through all the four BJ .P. governments
and binds them together, say the counsel. All these four governments had
launched upon a course of action in tandem with top B.J.P, leaders,
which led to the demolition. Their actions and deeds were contrary t,o the
provisions of the Constitution. The minifestos of the party on the basis of .B
which these governments came to power coupled with their speeches and
actions clearly demonstrate a commora~ess, an inseperable unity of action
between the party and these four governments. The very manifestos and
the'r programme of action were such as to hurt the religious feelings of the
Muslim community. They negated the secular concept, a basic feature of C
our Constitution. The demolition of the disputed structure was no ordinary
event. The disputed structure had become the focal point, the bone of
contention between two religious communities. The process which resulted
in the demolition and the manner of in which it was perpetrated, dealt a
serious blow to the communal harmony and peace in the country. It had
adverse international repercussions as well. A number of Hindu temples D
were demolished in Pakistan and Bangladesh in reprisal of the demolition
at Ayodhya. It was difficult in this situation to ask the minorities in the four
States to have any faith in the neutrality of these four administrations. It
was absolutely necessary, say the counsel, to recreate the feeling of security
among the Muslims. They required to be assured of the safety and security
of their person and property. It was not possible with the BJ.P.govern- E
ments in power. They had to go. '

The learned counsel for the respondents submitted further that the
R.S.S.was banned on December 10,1992. The Chief Ministers of Himachal
Pradesh and Madhya Pradesh were said to be the members of the
R.S.S.and adhering to its tenets. In such circumstances, the respective F
Governors were of the opinion that the said Chief Ministers cannot be
expected to, or relied upon to, implement the ban sincerely. It cannot be
said to be an unreasonable or unfounded opinion. It was also necessary to
create a sense of confidence in the people in general and in the minorities,
in particular, that the governments would be acting promptly and sternly G
to prevent communal incidents. Following December 6 incident, there were
reports of destruction of a large number of temples in the adjoining
countries. These reports, it was apprehended, may add fuel to the fire. The
situation was deteriorating. What happened on December 6 was no ordi-
nary event. It had touched the psyche of the minority community. The
H
892 SUPREME COURT REPORTS [1994] 2 S.C.R

A entire nation was put in turmoil. Allowing a party which had consciously
and actively brought about such a situation to continue in office in these
three States would not have helped in restoring the faith of people in
general and of the minorities in particular in the resolve of the central
government to abide by and implement the constitutional values of equality,
peace and public order. It is no answer to say that disturbance took place
B on a much larger scale in certain states ruled by Congress (I) party (in
particular in Maharashtra) and that no action was taken against those
governments. Stating the proposition in such simplistic terms is neither
acceptable nor realistic. One should look at the totality of the picture,say
the counsel, and not to the isolated incidents which took place either before
or after the demolition. It is not even a question of punishing the govern-
c ments for what happened on December 6, 1992. The real question was who
created this turmoil in the life of the nation and who put the nation's soul
in torment. The immediate need was the restoration of the faith of the
people in the impartiality of the administration, in the secular credentials
of the nation and to ensure not only that the ban on the alleged communal
·D organisations is effectively implemented but also to ensure that the ad-
ministration acts promptly and impartially in maintaining· the law and
order. The center government, submitted the counsel, acted with this
perception and it cannot be said either that the said action was outside the
purview of Article 356 or that it was malafide or that there was no material
on which the President could be reasonably satisfied that the dismissal of
E these State Government was indeed called for, submitted the learned
counsel for Union of India and other respondents.

With a view to demonstrate his submission that judicial approach and
judicial processes are not appropriate to judge the various situations calling
for action under article 356, Sri Parasaran gave the following scenario: the
F Union Council of Ministers was apprehensive of the safety of the disputed
structure once the BJ.P. came to power in Uttar Pradesh. It was repeatedly
reminding the State Government in that behalf. All the time, the State
Government and its Chief Minister were assuring the Union of India, the
National Integration Council and even the Supreme Court, through state-
G ments, affidavits and representations that the State Government was com-
mitted to the safety of the disputed structure and that it would ensure that
no harm comes to it. The Central Gvernment was sceptical of these
assurances. But suppose it had taken action under Article 356, dismissed
the Government of Uttar Pradesh some time prior to December 6, 1992
on the ground that it did not have any faith in those assurances, the Court
could well have found fault with the action.The Court would have said that
S.R. BOMMAI v. U.0.1. [B.P. JEEVAN REDDY, J.] 893

there was no basis for their apprehension when the State government itself A
represented by the Chief Minister and other high officials was repeatedly
assuring everyone including the Supreme Court that they will protect the
structure. There was no reason no to believe the)n and that the action taken
under Article 356 is, therefore, unjustified, being based upon mere
suspicion. But, in the event, the Central Government did not take,action
and the disputed structure was demolished with enormous consequences B
and repercussions". This only shows, says Sri Parasaran, that these matters
cannot be weighed in golden scales and that judicial approach and assump-
tions are ill-suited to such situations.

Having given our earnest consideration to the matter, we are of the
opinion that the situation which arose in these three States consequent c
upon the demolition of the disputed structure is one which cannot be
assessed properly by the court. Sri Parasaran is right in his submission that
what happened on 6th December, 1992 was no ordinary event, that it was
the outcome of a sustained campaign carried out over a nun1ber of years
throughout the country and that it was the result of the speeches, acts and
deeds of several leaders of B.J.P. and other organisations. The event had D
serious repurcussions not only within the country but outside as well. It put
in doubt the very secular credentials of this nation and its government -
and those credentials had to be redeemed. The situation had many dimen-
sions, social, religious, political and international. Rarely do such occasions
arise in the life of a nation. The situation was an extraordinary one; its
repercussions could not be foretold at that time. Nobody could say with
E
definiteness what would happen and where? The situation was not only
unpredictable, it was a fast-evolving one. The communal situation was
tense. It could explode anywhere at any time. On the material placed
before us, including the reports of the Governors, we cannot say that the
President had no relevant material before him on the basis of which he F
could form the satisfaction that the B.J.P. governments of Madhya Pradesh,
I.) Rajasthan and Himachal Pradesh cannot dissociate themselves from the
action and its consequences and that these governments, contro11ed by one
and the same party, whose leading lights were actively campaigning for the
demolition of the disputed structure, cannot be dissociated from the acts
and deeds of the leaders of B.J.P. In the then prevailing situation, the G
Union of India thought it necessary to ban certain organisations including
R.S.S. and here were governments which were headed by persons who
swore by the values and traditions of the R.S.S." and were giving overt
11 11

and covert support to the associate communal organisation11 (vide report of
the Governor of Madhya Pradesh). The Governor of Himachal Pradesh
H
894 SUPREME COURT REPORTS [1994) 2 S.C.R.

A reported that "the Chief Minister himself is a member of R.S.S.". The
Governor of Rajasthan reported that the ban on R.S.S. and other organisa-
tions was not being implementeed because of the intimate connection
between the members of the government and those organisations.** The
three Governors also spoke of the part played by the members of the
government in sending and welcoming back the kar sevaks. They also
B expressed the opinion that these governments cannot be expected, in the
circumstances, to function objectively and impartially in dealing with the
emerging law and order situation, which had all the ominous makings of a
communal conflagration. If the President was satisfied that the faith of
these B.J.P. government in the concept of secularism was suspect in view
of the acts and conduct of the party controlling these governments and that
c in the volatile situation that developed pursuant to the demolition, the
government of these State cannot be carried on in accordance with the
provisions of the Constitution, we are not able to say that there was no
relevant material upon which he could be so satisfied. The several facts
stated in the counter affidavits and the material placed before us by the
D Union of India cannot be said to be irrelevant or extraneous to the purpose
for which the power under Article 356 is to be exercised. As pointed out
by us supra (under the heading 'Judicial Review') we cannot question the
correctness of the material produced and that even if part of its is not
relevant to the action, we cannot interfere so long as there is some relevant
material to sustain the action. If the President was satisfied that the
E governments, which have already acted contrary to one of the basic features
of the Constitution, viz., secularism, cannot be. trusted to do so in future,
it is not possible to say that in the situation then obtaining, he was not
justified in believing so. This is precisely the type of situation, which the
court cannot judge for lack of judicially manageable standards. The Court
could be well advised to leave such complex issues to the President and
F the Union Council of Ministers to deal with. It was a situation full of many
imponderables, nuances, implications and intricacies. There were too many
ifs and but's which are not susceptible of judicial scrutiny. It is not correct
to depict the said proclamations as the outcome of political vendatta by
the political party in power at the centre against the other political party
in power in some States. Probably in such matters, the ultimate arbiter is
G the people. The appeal should be to the people and to people alone. The
challenge to the proclamation relating to these three States is, therefore,
liable to fail.

The fact that the ban was held to be unsustainable later on by the appropriate Tribunal
is not relevant while judging the situation obtaining in the days following the den1oli- J~._
H tion.
S.R. BOMMAI v. U.0.1. [B.P.JEEVAN REDDY, J.] 895

We may summarise our conclusion now: A
(1) Article 356 of the Constitution confers a power upon the Presi-
dent 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 B
head. The satisfaction contemplated by the article is subjective in nature.

(2) 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 C
precondition. 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 D
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 Constitu- E
lion 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.

(4) The proclamation under clause (1) can be issued only where the F
situation contemplated by the clause arises. In such a situation, the govern-
ment 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.
G
(5) (a) 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 H
896 SUPREME COURT REPORTS [1994] 2 S.C.R.

A may have been kept in suspended animation gets re-activated. 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/Legislation Assembly or other competent ,.
authority.
B
(b) However, if the proclamation is approved by both the Houses
within two months, the govermnent (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
C clause (3), the Legislative Assembly does not revive on the expiry of the
period of proclamation or on its revocation.

(6) 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.
D 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
E Evidence Act cover different fields. It may happen that while defending
the proclamation, the minister or the concerned official may claim the
privilege under Section 123. If and when such privilege is claimed, it will
be decided on its own merits in accordance with the provisions of Section
123.
F
(7) The proclamation under Article 356(1) is not immnne from
judicial review. The Supreme court or the High court can strike down the
proclamation if it is found to be malafide or based on wholly irrelevant or
extraneous grounds. The deletion of clause (5) (which was introduced by
38th (Amendment) Act) by the 44th (Amendment) Act, removes the cloud
G 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. It's enquiry is
limited to see whether the material was relevant to the action. Even if part
H of the material is irrelevant, the court cannot interfere so long as there is ·
S.R. BOMMAI v. U.0.1. [B.P.JEEV AN REDDY, J.] 897

some material which is relevant to the action taken. A
(8) If the Court strikes down the proclamation, it has the power to
restore the dismissed government to office and revive and re-activate the
Legislative Assembly wherever it may have been dissolved or kept under
• suspension. In such case, the court has the power to declare that acts done,
orders passed and laws made during the period the proclamation was in B
force shall remain unaffected and be treatt:d 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.

(9) 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
c
supreme.

(10) 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 D
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. Polities and religion cannot be mixed. Any State govern-
ment which pursues unsecular policies or unsecular course of action acts
contrary to the constitutional mandate and renders itself amenable to.
E
action under Article 356.

(11) The proclamation dated April 21, 1989 in respect of Karnataka
(Civil Appeal No. 3645 of 1989) and the proclamation dated Octobe< 11,
1991 in respect of Meghalaya (Transferred Case Nos. 5 and 7 of 1992) are
unconstitutional. But for the fact that fresh elections have since taken place F
-· in both the states - and new Legislative Assemblies and governments have
come into existence - we would have formally struck down the proclarna-
tions and directed the revival and restoration of the respective governments
and Legislative Assemblies. The Civil Appeal No. 3645 of 1989 and
Transferred Case Nos. 5 and 7 of 1992 are allowed accordingly. Civil
Appeal Nos. 193 and 194 of 1989 relating to Nagaland are disposed of in
G
terms of the opinion expressed by us on the meaning and purport of Article
74(2) of the Constitution.
'
... "t
(12) The proclamations dated January 15, 1993 in respect of Madhya
Pradesh, Rajasthan and Himachal Predesh concerned in Civil Appeal Nos. H
898 SUPREME COURT REPORTS (1994] 2 S.C.R.

A 1692, 1692A- 1692C of 1993, 4627-4630 of 1990, Transferred Case (C) No.
9 of 1993 and Transferred Case No. 8 of 1993 respectively are not uncon-
stitutional. The Civil Appeals are allowed and the judgment of the High
Court of Madhya Pradesh in M.P. (C) No. 237 of 1993 is set aside. The
Transferred Cases are dismissed.

B In the light of the reasons given and conch'sions recorded
•
hereinabove, we find ourselves in agreement with the conclusions 1, 2 and
4 to 7 in the judgment of our learned brother Sawant, J. delivered on behalf

c
of himself and Kuldip Singh, J. We are also in broad agreement with
conclusion No. 8 in the said judgment.

No orders on Interlocutory Applications.
-
There shall be no order as to costs in these matters.

K. RAMASWAMY, J. The appeals and transferred cases raise ques-
D tions of far-reaching consequences in the working of the federal structure
under the Constitution of India. Whether the President of India can keep
fiddling like Emperor Nero while Roma was burning or like Hamlet, Prince
of Denmark of Shakespear keep the pendulum oscillating between "to be
or not to be" for the issuance of the proclamation under Article 356 of the
Constitution dismissing the State Government and dissolving the State
E Legislatures and to bring the administration of the State under his rule. If
he so acts, the scope and width of the exercise of the power and parameters
of judicial review, by this Court, as centinal quivive, under Art. 32 or Art.
136 or High Court under Article 226 to consider the satisfaction, reached
by the President under Art. 356: When the actions of one State Govern-
F ment found seismeic vibrations in other states governed by the same
political party, (in the language of S/Sri Parasaran and P.P. Rao, learned
senior counsel, 'common thread rule' are also liable to be brought under
the President Rule need to be critically examined and decided for success-
ful working of the democratic institutions set up by the suprema lex.
Though the need to decide these questions pratically became academic due
G to conducting elections to the State Assemblies and the new legislative
assemblies were constituted in the States of U.P., Rajasthan, Madhya
Pradesh and Himachal Pradesh, all the counsel requested us to decide the
questions regardless of the relief to be granted in this case. As stated
earlier since the decision on these questions is of paramount importance
H for successful working of the Constitution, we acceded to their prayer.
S.R. BOMMAI v. U.0.1. [K RAMASWAMY, J.] 899

In S.R. Bhommai's appeal the facts are that on March 5, 1985 A
elections held to the Karnataka State Legislative Assembly and the Jania
Dal won 139 seats out of 225 seats and the Congress Party was the next
largest party securing 66 seats. Sri R.K. Hedge was elected as the leader
of Jania Dal and became the Chief Minister. Due to his resignation on
August 12, 1988, Sri S.R. Bhommai's was elected as leader of the party and B
became the Chief Minister. As on February 1, 1989 the strength of J anta
Dal was 111 and the Congress was 65\nd Jania Party was 27, apart from
others. On April 15, 1989 his expanding the Ministry caused dissatisfaction
to some of the aspirants. One Kalyan Molakery and others defected form
Janta Dal and he wrote letters on April 17 and 18, 1989 to the Governor
enclosing the letters of 19 others expressing want of confidence in Sri C
Bhommai. On April 19, 1989 the Governor of Karnataka sent a report to
the President. On April 20, 1989, 7 out of 19 M.L.As. that supported
Kalyan Molakery, wrote to the Governor that their signatures were ob-
tained by misrepresentation and reaffirmed their support to Sri Bommai.
On the same day the cabinet also decided to convene the Assembly session D
on April 27, 1989 at 3.30 P.M. to obtain vote of confidence and Sri Bommai
met the Governor and requested him, to allow floor test to prove his
majority and he was prepared even to advance the date of the session. In
this scenario the Governor sent his second report to the President and
exercising the power under Art. 356 the President issued proclamation,
dismissed Bhommai Government and dissolved the Assembly on April 21, E
1989 and assumed the administr~tion of the State of Karnataka. When a
writ petition was filed on April 26, 1989, a special bench of three Judges
of the High Court of Kamataka dismissed the writ petition (reported in
S.R Bhommai & Ors. v. Union of India, AJR (1990) Karnataka p.5. Thus
this appeal by special leave. F
-<
In the elections held in February 1990, the Bhartiya Jania party, for
short BJP, emerged as majority party in the legislative assemblies of Uttar
Pradesh, Madhya Pradesh, Rajasthan and Hirnachal Pradesh and formed
the Governments in the respective states. Due of the programmes of the G
BJ.P. was to construct a temple for Lord Sri Rama at his birth place
Ayodhya. That was made an issue in its manifesto'for the elections to the
legislative assemblies. On December 6, 1992 Ram Janambhoomi Babri
Masjid Structure (there is a dispute that after destroying Lord Sri Rama
temple Babar, the Moghal invader, built Babri Masjid at the birth place of
Lord Sri Rama. it is an acutely disputed question as to its correctness.) H
900 SUPREME COURT REPORTS [1994] 2 S.C.R.

A However Ram Janambhoomi Bahri Masjid structure .was demolished by
the Kar Sewaks gathered at Ayodhya, as a result of sustained momentum
generated by BJP, Vishwa Hindu Parishad for short VHF, Rashtriya
Swayamsewak Sangh, for short RSS. Bajrang Dal for short BO. Shiv Sena
for short SS and other organisations. Preceding thereto when the dispute
was brought to this Court, the Govt. of India was made to act on behalf of
B the Supreme Court and from time to time directions were issued to the
State Government who gave an assurance of full protection to Sri Ram
Janambhoomi Babari Masjid Structure. On its demolition though the Govt.
of Uttar Pradesh, resigned, the President of India by proclamation issued
under Art. 356 dissolved the state legislature on December 6, 1992. The
C disasterous fall out of the demolition was in the nature of loss of precious
lives of innocents, and property throughout the country and in the neigh-
bouring countries. The President, therefore, exercised the power under
Art. 356 and by the proclamations of December 15, 1992, dismissed the
State Governments and dissolved the legislative assemblies of Rajasthan
D Madhya Pradesh and Himachal Pradesh and assumed administration of the
respective states.

Sri Soli Sorabjee, the learned senior counsel appearing for Sri Bum-
mai contended that power of the President under Art. 356 is not unfettered
nor unlimited; its exercise is dependent upon the existence of the objective
E fact, namely a situation has arisen in which the Govt. of the State cannot
be carried on in accordance with the provisions of the Constitution. This
condition precedent is sine quo non to exercise the power and issuance of '
the proclamation under Art. 356. The proclamation must set forth the
grounds and reasons for reaching the satisfaction supported with the
p materials or the gist of the events in support thereof. The grounds and
reasons should be cogent and credible and must bear proximate nexus to
the exercise of the power under Art. 356. The break down of the constitu-
tional machinery is generally capable of objective determination. The
power under Article 356 cannot be exercised on the basis of the report of
the Governor or otherwise of an inefficient or malfunctioning of the
G Government or mere violation of some provisions of the constitutions. It
could be exercised only when the Govt. misuses its power contrary to the
basic scheme and purpose of the constitution or for its inability to dis-
charge its basic constitutional duties and functions due to political or
economic crises which have led to completely paralysing the State ad-
H ministration.
S.R. BOMMAI v. U.O I. (K. RAMASWAMY, J.] 901

The federal character of the Constitution carries by its implication A
an obligation to exercise the power under Art. 356 only when there is a
total break down of the administration of the State. In interpretating Art.
356 the Court should need in view the legislative and constitutional history
of Ar\. 356 and corresponding provisions of Government of India Act 1935.
The exercise of the power under Art. 356 impinges upon federalism and
visits with great political consequences. Therefore, court should exercise B
the power of judicial review and interdict and restrict wide scope of power
under Article 356. The scope of judicial review would be on the same or
similar grounds on which the executive action of the state is challengeable
under constitutional or administrative law principles evolved by this court,
namely non-compliance with the requirements of natural justice, irrational C
or arbitrary, perverse, irrelevant to the purpose or extraneous grounds
weighed with the President, misdirection in law or ma/a fide or colorable
exercise of power, on all or some of the principle. The Petitioner has to
satisfy the court only prima facie that the proclamation is vitiated by any
one or some of the above grounds and burden then shifts on the Council
of Ministers to satisfy the Court of the legality and validity of the Presiden- D
tial proclamation issued under article 356. The prohibition of Article 74(2)
has to be understood and interpreted in that background. The legal im-
munity under art. 74(2) must be distinguished from the actions done by the
President in discharge of his administrative functions under Article 356.
The execntive cannot seek shelter under "or other information" mentioned
in Art. 356(1) as an embargo under Article361 to state reasons or as a E
shield to disclose all the materials in their custody preventing court to
exercise judicial review. Only the actual advice or part of the advice
tendered by the Minister or Council of Ministers alone would be beyond
the ken and scn1tiny of judicial review. The administrative decision taken
by the Council of Ministers is entirely different from the advice rendered F
to the President, and the later cannot be equated with the grounds or the
reasons for presidential proclamation. The former are not part of the
advice tendered to the President by the Council of Ministers.

Sri Shanti Bhushan, learned senior counsel, while adopting the above G
contentions argued that the exercise of the power under art. 356 must be
regarded as arbitrary when there was no constitutional break down. Every
act of the State Govt. cannot be regarded as violation of the provisions of
the constitution or constitutional break down. The power under Art. 356
must be exercised only when there was actual break down of the constitu-
tional machinery and not mere opinion in that behalf of the Council of H
902 SUPREME COURT REPORTS [1994] 2 S.C.R.

A Ministers. The Govt., to justify its action, must place all relevant materials
before the Court and only when court is satisfied that the cases relate to
actual break down of the constitutional machinery in the State the
proclamation may be upheld. The burden of proof is always on the Govern-
ment to establish the validity or legality of the proclamation issued under
Art. 356. Sri Ram Jethmalani tracing historical evidence from the debates
B that took place on the floor of the constituent assembly, contended that
the keywords for construction are ncannot be carried on!T and !!failure of
machinery". The provisions of Art. 356 would be strictly construed so as to
preserve the federal character of the constitution. The State is a sovereign
and autonomous entity in its own field and intervention by the Centre
C would be permissible only when there is no other way for the Centre to
perform its duties under Art. 356 It cannot be invoked for the sake of good
governance of the State or to prevent misgovernance of the State. The
words "cannot be carried on" are not to be confused with and are vitally
different from the words "is not being carried on." The significance of the
keyword gets accentuation from the marginal note of the Article "failure
D of the constitutional machinery" and the Legislative history of Sections 45
and 93 of the Government of India act must be kept in view for proper
construction of Art. 356. According to the learned counsel, Art. 356 gives
an indication that extreme step of proclamation under Art. 356 could be
invoked sparingly only when all the alternatives are exhausted. Secularism
part of the preamble is not a part of the constitution ~nd· Religion is
E fundamental right to every citizen who composes of a political party. The
election law prohibits election prospects on religious grounds if the other
candidate's religion is attacked. It cannot be tested on vague secularism •
nor be buttressed into religion right at particular to a political party. There
is no pleading founded by factual base in these cases that BJP bad used
Hindutva as a ground, or criticised Islamic faith. It used in its manifesto
F
the need for construction of Sri Ram Temple at his birth place by
demolishing Bahri Masjid with most respectful and dignified language.
Even otherwise s.29A and 123(3A) of R.P. Act. are ultra vires of Article
25. The consistent view of this court that corrupt practice on grounds of
religion is only of the other candidate and not of the petitioner much more
G so to a political party. Sri K. Parasanan, learned senior counsel for the
Union and Sri P.P. Rao, learned counsel for the State of Madhya Pradesh
refuted the contentions. ·

The crux of the question is the width of the President's power under
Article 356. It finds its birth from a family of emergency provisions in Part
H
S.R. BOMMAI v. U.0.1. [K. RAMASWAMY. J.] 903

XVIII of the Constitution. Article 355 imposes duty on the Union to A
protect States against external aggression and internal distJirbance and to
ensure that Govt. of every State is carried on in accordance with the
provisions of the Constitution. As a correlary when the Government of the
State is not being carried or in accordance with the provisions of the
Constitution, a constitutional duty and responsibility is put on the Union
to set it right. The foundational factual matrics is the report of the governor B
or other information in possession of the union received otherwise to reach
a satisfaction that a situation has arisen for the intervention by the Union
of India. Then comes the exercise of the power under Article 356 by the
President. On the receipt of a report from the Governor of a State or
otherwise if the President (the Council of Ministers with Prime Minister as
c
its head) is satisfied that a situation has arisen in which the Govt. of a State
cannot be carried on in accordance with the provisions of the Constitution,
the President may by proclamation: (a) assume to himself all or any of the
function of the Govt. of the State and all or any of the power vested in or
exercised by the Governor or any body or authority in the State other than
the Legislature of the State; (b) declare that the powers or the Legislature D
of the State shall be exercisable by or under the authority of Parliament;
(c) make such incidental or consequential provisions as appear to the
President to be necessary or desirable for given effect to the objects of the
proclamation including provisions for suspending in whole or in part the
operation of any provisions of the Constitution relating to any body or
authorities in the State. By operation of the proviso to Clause I of Article E
356, the President shall not assume to himself any of the powers vested in
or exercisable by a High Court or to suspend in whole or in part the
operation of any provisions for the Constitution relating to High Courts.

Clause 2 of Article 356 controls the President's exercise of power, if F
the proclamation is not revoked or varied by a subsequent proclamation in
other words, the President, through the Council of Ministers have been
given full play to reconsider the question and may revoke it before the
Parliament's approval is sought. It shall remain in operation for a period
of two months unless it is either revoked by another proclamation or
approved by the Parliament. Clause 3 guarantees built in check and control G
on the exercise of the power. It postulate that every proclamation issued
under Clause I shall be laid before each house of Parliament and shall,ex-
cept where it is a proclamation revoking a previous proclamation, ceases
to operate at the expiration of two months unless before the expiration of
that period it has been approved by a resolution of both Houses of H
904 SUPREME COURT REPORTS [1994] 2S.C.R.

A Parliament. In other words, The question of the operation of the proclama-
tion issued by the President was limit.ed only for a period of two months
from the date of issue of such proclamation.

Unless it is revoked or disapproved by the Parliament in the
B meanwhile. It costs an obligation to lay the proclamation on the floor of
both Houses of Parliament in accordance with the provisions of the Con-
stitution and the business rules. This clearly meant that it was to operate
upto the time of two months and when it was in force it carries with its
necessary implication that all acts done or actions taken under the
proclamation during the period are legal and valid.
c
Under the proviso to Clause 3 of Article 356 if any such proclamation
not being a proclamation revoking a previous proclamation is issued at a
time when House of People is dissolved or the dissolution of the House of
people takes place during the period of of two months referred to in the
D clause and if a resolution approving the proclamation has been passed by
the Council of State but no resolution with respect to such proclamation
has been passed by the House of People before the expiry of that period,
the proclamation shall cease to operate at the expiration of 30 days from
the date on which the House of People first sits after its reconstitution
unless before the expiration of the said period of 30 days a resolution
E approving the proclamation.has been also passed by the House of people.

By operation of Clause 4 of Article 356 a proclamation so approved
under proviso to Clause 3 shall, unless revoked, cease to operate on the
expiration of a period of six months from the date of issue of proclamation · r
F provided that if and so often as a resolution approving the continuance in
force of such proclamation is passed by both Houses of Parliament, the
proclamation shall unless revoked continue in force for a further period of
six months from the date on which it would otherwise have ceased to operate
and no such proclamation shall in any case remain in force for more than
only year with second approval. The second proviso adumberates that if the
G resolution of the House of People takes place during any such period of six
months and a resolution approving the continuance in force of such
proclamation has been passed by the Council of States but no resolution with
respect to the continuance in force•of such proclamation has been passed by
the House of People during the said date the proclamation shall cease to
H operate at the expiration of 30 days from the date on which the House of the
S.R. BOMMAI v. U.0.1. [K, RAMASWAMY,J.] 905

People first sits after the reconstitution unless before the expiration of the A
said period of 30 days a resolution approving the continuance in force of the
proclamation have also been passed by the House of the People. The third
proviso is not material for. the purpose of this case. Hence omitted under
Clause 5 for continuance of the proclamation beyond one year and not more
than three years, two conditions are necessary i.e. (1) existence of emergency B
issued under Article 352 in the whole of Indian or whole or part of the State
at the time of passing the resolution and (11} the Certificate of the Election
Commissioner of its inability to hold elections to the Assembly of that State.
Article 357 provides the consequential exercise of legislative power by the
Parliament or delegation thereof to the president to exercise them under
~~ill~ c
FEDERALISM AND ITS EFFECT BY ACTS DONE UNDER
ARTICLE 356

The polyglot Indian society of wide geographical dimensions habiting D
by social milieu, ethnic variety or cultural diversity, linguistic multiplicity,
hierarchical caste structure among Hindus, .religious pluralism, majority of
rural population and minority urban habitus, the social and cultural diver-
sity of the people furnish a manuscript historical material for and the
founding fathers of the Constitution to lay federal structure as foundation
to integrate India as an united Bharat. Federalism implies mutuality and· E
common purpose for the aforesaid process of change with continuity
between the Centre and the States which are the structural units operating
on balancing wheel of concurrence and promise to resolve problems and
promote social. economic and cultural advancement of its people and to
create fraternity among the people. Article 1 is a recognition of the history F
that Union of Indian's territorial limits are unalterable and the States are
creatures of the Constitution and they are territorially alterable con-
stituents with single citizenship of all the people by birth or residence with
no right to cessation. Under Articles 2 and 4 the significant feature is that
while the territorial integrity of India is fully ensured and maintained, there
is a significant absence of the territorial integrity of the Constituent States G
under Article 3. Parliament may by law form a new State by separation of
territory from any State or by uniting two or more States or. part of States
or uniting any territory to a part of any State or by increasing area of any
State or diminishing the area of any State or alter the boundary of any
State. H
I

906 SUPREME COURT REPORTS (1994] 2 S.C.R.

A IN RE: THE BERUBARI UNION AND EXCHANGE OF
ENCLAVE REFERENCE UNDER ARTICLE 143 OF THE CON-
STITUTION OF INDIA - (1960] 3 SCR 250 & 285 Gajendragadkar, J.
speaking for (8 Judges Bench) held that:

"Unlike otherlfederations, the Federation embodied in'the said Act
B was not the result of a pack or union between separate and
independent communities of States who came together for certain
common purposes and surrendered a part of their sovereignity.
The constituent units of the federation were deliberately created
and it is significant that they, unlike the units of other federations,
c had no organic roots in the past. Hence, in the India Constitution,
by contrast with other Federal Constitutions, the emphasis on the
preservation of the territorial integrity of the constituent States is
absent. The makers of the Constitution were aware of the peculiar
conditions under which, and the reasons for which, the States
(originally Provinces) were formed and the.ir boundaries were
D defined, and so they deliberately adopted the provisions in Article
3 with a view to meet the possibility of the redistribution of the
said territories after the integration of the India States. In fact is
is well-known that as a result of the states Reorganisation Act,
1965 (Act XXXVII of 1956), in the place of the original 27 States
E and one Area which were mentioned in part in the first Schedule
to the constitution, there are now onin4 states and 6 other areas
which constitute the Union Territory mentioned in the first
Schedule. The changes thus made clearly illustrate the working of
the peculiar and striking feature of the Indian Constitution."

F The same was reiterated in State of West Bengal v. Union of India, (1964]
1 SCR 321 and State of Karanataka v. union of India, (1976] 2 SCR 1.

Union and States Relations under the Constitution Tagore Law
Lectures by M.C. Setalwad at page JO stated that:
)•
G ".............. one notable departure from the accepted ideas underlying '
a federation when the power in the Central Government to redraw
the boundaries of States or even to destroy them.

The Constitution decentralises the governance of the States by a
H four tier administration i.e. Central Government. State Government, Un!~n
S.R. BOMMA! v. U.0.l. [K. RAMASWAMY, JJ 907

territories, Municipalities and Panchayats. See Constitution for A
f'.iunicipalities and Panchayats: Part IX (Panchayats) and Part IX-A
(Municipalities) introduced through the Constitution 73rd Amendment
Act, making the peoples participation in the democratic process from grass
root level a reality. Participation of the people in governance of the State
is sine qua non of fuoctional democracy. Their surrender of ·rights to be B
governed is to have direct encounter in electoral process to choose their
representatives for resolution of common problems and social welfare.
Needless interference in self- governance is betrayal of their faith to fulfil
self-governance and their democratic aspirations. The constitutional cul-
ture and political morality based on healthy conventions are the fruitful soil
to nurture and for sustained groy,th of the federal institutions set down by C
the Constitution. In the context of the Indian constitution federalism is not
based on any agreement between federating units but one of integrated
whole as pleaded with vision by Dr. B.R. Ambedkar on the floor of the
constituent assembly at the very inception of the deliberations and the
Constituent Assembly unanimously approved the resolution of federal D
c structure. He poignantly projected the pitfalls flowing from the word
"federationn.

The federal state is a political convenience intended to reconcile
national unity and integrity and power with maintenance of the state's right.
The end aim of the essential character of the Indian federalism is to place F
the nation as a whole under control of a national Government, while the
states are allowed to exercise their sovereign power within its legislative
and co- extensive exec~1tive and administrative sphere. The common inter-
• est is shared by the centre and the local interests are controlled by the
state. The distribution of the legislative and executive power within limits F
and coordinates authority of different organs are delineated in the organic
law of the land, namely the constitution itself. The essence of the
fedetalism, therefore, is distribution of the force of the state among its
coordinate bodies. Each is organised and controlled by the constitution.
The division of the power between the union and the states is made in such
a way that whatever has been the power distributed, legislative and execu- G
tive, be exercised by the respective units making each a wvereign in its
sphere and the rule pf law requires that there should be a responsible
Government. Thus the state is a federal status. The state qua the centre
has qua.si-foderal unit. In the language of Prof. KC. Wheare in his Federal
Government, 1963 Edition, at page 12 to ascertain the federal character, H
908 SUPREME COURT REPORTS [1994) 2 S.C.R.

A the important point is, "whether the powers of the Government are divided
between coordinate independent authorities of not", and at page 33 he ·•
stated that " the systems of Government embody predominantly on division
of powers between centre and regional authority each of which in its own
sphere is coordinating with the other independent as of them, and if so is
that Govt. federal?"
B
Salmond in his Jurisprndence. 9th edition brought about the distinc-
tion between unitary type of Govt. and federal form of Govt. According to
him a unitary or a simple state is one which is not made up of territorial
division which are states themselves. A composite state on the other hand '
C is one which is itself an aggregate or groups of constituent states. Such
composite states can be called as imperial, federal or confederate. The
Constitution of India itself provided the amendments to territorial limits
from which we discern that the federal structure is not obliterated but
regrouped with distribution of legislative powers and their scope as well as
the co-extensive executive and administrative powers of the Union and the
D States. Articles 245 to 255 of the Constitution deal with relative power of
the Union and the States legislature read with Schedule Seven of the
Constitution and tbe entries in List I preserveu exclusively to the Parlia- "
ment to make law and List II confines solely to the state legislature and
List III concurrent ]i,t in which both the Parliament as well as the state
legislature have concurrent jurisdiction to make law in the occupied field,
E with predominance to the law made by the Parliament, by operation of
proviso to Clause (2) of Art. 254. Art. 248, gives residuary legislative
powers exclusively to the parliament to make any law with respect to any
matters not enumerated in the concurrent list of the state list including
making any law, imposing a tax not mentioned in either of those lists. The
F relative importance of entries in the respective lists to the Seventh Schedule
assigned to the Parliament or a State Legislature are neither relevant nor
decisive though contended by Sri K. Parasaran. Indian federalism is in
contra distinction to the federalism prevalent in U.S.A., Australia and
Canada.

G In regard to distribution of executive powers constitution itself made
demarcotion the Union and the States. Article 73(1) read with proviso and
Art. 162 read with proviso bring ou~ this demarcation. The executive
power of the Union and the State are co-extensive with their legislative
powers. However, during the period of emergency Arts. 352 and 250
H envisaged certain contingencies in which the executives power of the
S.R. BOMMAI v. U.O.l. [K RAMASWAMY, J.) 90~

concerned state would be divested and taken over by the Union ol India A
which would last upto a period of 6 months, after that emergency in that
~ area is so lifted or ceased.

The administrative relations are regulated by Arts. 256 and 258A for
effective working of the Union executive without in any way impeding or
impairing the exclusive and permissible jurisdiction of the State within the B
territory. Articles 268 and 269 enjoin the Union to render financial assis-
.... lance to the states. The Constitution also made the Union to depend on
the States to enforce the union law within concerned states. The composi-
tion of Rajya Sabha as laid down by Art. 80 makes the legislature of the
' state to play its part including the one for ratifying the constitutional c
amendments made by Art. 368. The election of the President through the
elected representative of the State legislature under Art. 54 makes the
legislature of federal unit an electral college. The legislature of the state
has exclusive power to make laws for such state or any part thereto with
respect to any of the enumerated matters in List JI of the Seventh Schedule
by operation of Art. 246(3) of the Constitution.
D

The Union of India by operation of Arts. 340 and 245, subject to the
~

provisions of the Constitution, has power to make laws for the whole or
f ,,
any part of the territory of India and the said law does not eclipse, nor
become invalid on the ground of extra- territorial operation. In the national E
interest it has power to make law in respect of entries mentioned in List
JI. State List, in the penal fi~ld, as indicated in Art. 249. With the consent
of the state, it has power to make law under Art. 252. The Union judiciary,
the Supreme Court of India, has power to interpret the constitution and
decide the disputes between Union and the states and the states inter se. F
The law laid down by the Supreme Court is the law of the land under Art.
.., 141. The High court has judicial power over territorial jurisdiction over the
area over which it exercises power including control over lower judiciary.
Article 261 provides full faiths and credit to the proceedings of public acts
or judicial proceedings or the union and of the States throughout the
territory of India as its fulgrum. Indian judiciary is unitary in structure and G
operation. Articles 339, 344, 346, 347, 353, 358, 360, 365 and 371-C(2) give
power to the Union to issue directions to the States. Umier Article 339(2)
the Union has power to issue directions relating tribal welfare and the state
is enjoined to implement the same. In an emergency arising out of war or
-· 't
aggression or armed rebellion, contemplated under Arts. 352 or emergency H
910 SUPREME COURT REPORTS [1994] 2 S.C.R.

A due to failure of the Constitutional machinery in a state envisaged under
Arts. 356 or emergency in the event of threat to the financial stability or
credit of India. Art. 360 gives dominant power to the Union. During the
operation of emergency Art. 19 of the Constitution would become inopera-
tive and the Centre assumes the legislative power of a State unit. Existence
of All India Services under Article 312 and establishment ·of inter-state
B councils under Art. 263 and existence of financial relations in part 12 of
the Constitution also indicates the scheme of distribution of the revenue
and the primacy to the Union to play its role. Establishment of financial
Commission for recommendations to the President under Art. 280 for the
distribution of the revenue between the Union and the States and alloca-
C tion of the respective shares of such inter- state trade and commerce
envisaged in Part 13 of the Constitution and primacy to the law made
therein bring out, though strongly in favour of unitary character, but
suggestively for balancing operational federal character between the Union
and the States make the constitution a quasi-federal.
D
As earlier stated, the organic federalism designed by the founding
fathers is to suit the parliamentary from the the Govt. to suit the Indian
conditions with the objective of promoting mutuality and common purpose
rendering social, economic and political justice, equality of status and
opportunity; dignity of person to all its citizens transcending regional,
E religious, sectional or linguistic barriers as complimentary units in working
the Constitution without confrontation. Institutional mechanism aimed to
avoid friction to promote harmony to set constitutional culture on firm
foothold for successful functioning of the democratic institutions, to bring
about matching political culture adjustment and distribution of the roles in
F the operational mechanism are necessary for national integration and
transformation of stagnant social order into vibrant egalitarian social order
with change and continuity economically, socially and culturally. In the
State of West Bengal v. Union of India, [1964] 1 SCR 371, this court laid
emphasis that the basis of distribution of powers and between union and
the States is that only those powers and authorities, which are concerned
G with the regulation of local problems are vested in the state and those
which tend to maintain the economic nature and commerce, unity of the
nation are left with the Union. In Shamsher Singh v. Union of India, [1975]
1 SCR 814, this court held that parliamentary system of quasi-federalism
was accepted rejecting the substance of Presidential style of executive. Dr.
H Ambedkar stated on the floor of the Constituent Assembly that the Con-
S.R. BOMMAI v. U.0.1. [K. RAMASWAMY, J. J 911

stitution is. "both unitary as well as federal according to the requirement A
... of time and circumstances". He also further stated that the Centre would
work for common good and for genera] interest of the country as a whole
while the states work for local interest. He also refuted the plea for
exclusive autonomy of the States. It would thus appear that the overwhelm-
ing opinion of the founding fathers and the law of the land is to preserve
the unity and territorial integrity of the nation and entrusted the common
B
wheel to the Union insulating from future divisive forces or local zealotrds
to disintegrating India. It neither leaned heavily in favour of wider powers
in favour of the Union while maintaining to preserve the federal character
• of the States which are integral part of the Union. The constitution being
the permanent and not self destructive, the Union of India is indestruc- c
table. The democratic form of Govt. should nurture and work within the
constitutional parameters provided by the system of law and balancing
wheel has been entrusted in the hands of the union judiciary to harmonise
the conflicts and adopt constitutional construction to subserve the purpose
envisioned by the Constitution.
D
ROLE OF THE GOVERNOR

The key actor in the Centre-State relations is the Governor, a bridge
between the Union and the State. The founding fathers deliberately
avoided election to the office of the Governor, as is in vogue in U.S.A. to E
insulate the office from linguistic chauvinism. The President has been
empowered to appoint him as executive head of the state under Art. 155 .
in Part VI. Chapter II. The executive power of the State is vested in him
by Art. 154 and exercised by him with the aid and advice of the Council of
• Ministers, the Chief Minister as its head. Under Art. 159 the Governor
shall discharge his functions in accordance with the oath "to protect and F
defend the constitution and the law". The office of the Governor, therefore,
is intended to ensure protection and sustenance of the constitutional
process of the working of the constitution by the elected executive and
given him an umpire's role. When a Gandhian economist Member of the
Constituent Assembly wrote a letter to Gandhiji of his plea for abolition
G
of the office of the Governor, Gandhiji wrote to him for its retention, thus:
"t "The Governor had been given a very useful and necessary place in the
scheme of the team. He would be an arbiter when there was a constitu-
tional dead-lock in the State and he would be able to play an impartial
role. There would be administrative mechanism through which the con-
stitutional crises would be resolved in the State." The Governor thus should H
912 SUPREME COURT REPORTS [1994] 2 S.C.R.

A play an important role, in his dual undivided capacity as an head of the
State he should impartially assist the President. As a constitutional head of ~.
the State Govt. in times of constitutional crisis he should bring about
soberiety. The link is apparent when we find that Art. 356 would be put
into operation normally based on Governor's report he should truthfully
and with high degree of constitutional responsibility, in terms of oath,
B inform the President that a situation has arisen in which the constitutional
machinery in the State has failed and the Government of State cannot be
carried on in accordance with the provisions of the constitution, with
necessary detailed factual foundation. The report normally is the founda-
tion to reach the satisfaction by the President. So it must furnish material
C with clarity for later fruitful discussion by the parliament. When challenged
in a constitutional court it gives insight into the satisfaction reached by the
President. The Governor therefore, owes constitutional duty and respon-
sibility in sending the report with necessary factual details and it does
require the approval of the council of ministers; equally not with their aid
and advice.
D
DEMOCRACY AND SECULARISM

Democracy stands for freedom of conscience and belief. tolerance
and mutual respect. India being a plural society with multi- religious faiths,
diverse creeds, castes and cultures, secularism is the bastion to build
E fraternity, and amity with dignity of person as its constitutional policy. It
allows diverse faiths to flourish and make it a norm for tolerance and
mutual respect between various sections of the people and to integrate
them with dignity and fulfilment of cravings for self-realisation of religious
belief with larger national loyality and progress. Rule of law has been
F choosen as an instrument for social adjustment in the event of clash of
interests. In a tree society. law interacts between competing claims in a
continuing process to establi'h under with stability. Law should not only
reflect social and religious resciellence but has also to provide a lead by
holding forth the norms for continuity for its orderly march towards an
ideal egalitarian social order envisioned in the preamble of the Constitu-
G tion. the culture of the law, in the Indian Democratic Republic, should be
on secular lines. A balance, therefore, has to be struck to ensure an
atmosphere of full faith and confidence. Charles Broadlaugh in Seven-
teenth century for the first time used secularism as antagonistic to religious T -
dogma as ethical are moral finding force. This western thought, in course
H of time gained humanistic acceptance. The word secularism defined in
S.R. BOMMAI v. U.O.l. [K. RAMASWAMY,J.j 913

Oxford dictionary means that "morality should be based solely in regard to A
the well-being of the mankind in the present life to the exclusion of all
considerations drawn from the belief in God or a future study11 : In En-
11
cyclopaedia Britanica secularism is defined as branch of totalitcrian ethics,
it is for the physical, moral and social improvement of mankind \Vhich
neither affirms nor denies theastic problems of religion". Prof.
Goethinysem of the Berlin University writing on secularism in the En-
B
cyclopeadia of the Social Sciences (1939 ED.) defined it as "the attempt to
establish autonomous sphere of Knowledge purged of supernatural, fi<leis-
tic pre-suppositions 11 • He described it, in its philosophical aspect, rras a
revolt against theological and eventually against metaphysical absolutes aud
' universals". He pointed out that "the same trend may be charted out in the C
attitudes towards social and political institutions'\ so that men in general
broke away from their dependence upon the Church which was regarded
as the guardian of an eternal welfare which included that. in this world as
well as that in the next, and , therefore, was considered entitled to primacy
or supremacy ()Ver transient secular authorities. He indicates ho\V this D
movement expanded in the second half of the eighteenth century, into a
secularised universalism, described as "Enlightenment", which conceived
of man on earth as the source of all really significant and verifiable
knowledge and the light. It was increasingly realised that man depended
for his welfare in this world uµon his own scientific knowledge and wisdom
and their applications and upon a socio-economic system of which, willy- E
nilly, he found himself a part. He had, therefore, argued that the man has
to take the responsibility for and bear the consequence of his own follies
and inequities and not look upon them as a part of some inscrutable design
of external powers or beings controlling his destiny. G.L. Holyoake, and
associate of Charles Broadlaugh in his "Principles of Secularism" in 1859 F
advocated for secularism which received approval and acceptance by
celebrated political philosopher J.B. Mill. Jeremy Bentham's Principles of
Legislation formulated in the eighteenth century stand on moral based
politics and defined law from the point of view of human welfare sought
through democratic liberal channels and intended to attain "the greatest
happiness of the greatest nurnber11 , a maxim bear to democratic utilitarian G
political philosophers.

Secularism became means and consciously pursued for full practical
necessities of humau life to liberate the human spirit from bondage, ig-
norance, superstition which have held back humanity. The goal of every H
914 SUPREME COURT REPORTS [1994] 2 S.C.R.

A civilised democratic society is the fnaximumisatio~ of human welfare and
happiness which would be best served by a hobby organisation.

Freedom of faith and religion is an integral part of social structure.
Such freedom is not a bounty of the State but constitutes the very founda-
tion on which the state is erected. Human Liberty sometimes means to
B
satisfy the human needs in one's own way. Freedom of religion is imparted
in every free society because it is a part of the general structure of the
liberty in such a society and secondly because restrictions imposed by one
religion would be an obstacle for others. In the past religious beliefs have
become battle grounds for power and root cause for supression of liberty.
c Religion has often provided a pretext to have control over vast majority of
the members of the society. Democratic society realises folly of the vigour
of religious practices in society. Strong religious consciousness not only
narrows the vision but hampers rule of law. The founding fathers of the
Constitution, therefore, gave unto themselves "we the people of India" the
D fundamental rights and Directive Principles as State policy to establish an
egalitarian social order for all sections of the society inn the supreme law
of the land itself. Though the concept of the "secularism" was not expressly
engrafted while making the constitution, its sweep, operation and vigibility
are apparent from fundamental rights and directive principles and their
related provisions. It was made explicit by amending the preamble of the
E Constitution 42th Amendment Act. The concept of secularism of which
religious freedom is the foremost appears to visualise not only of the
subject of God but also an understanding between man and man.
Secularism in the Constitution is not anti-God and it is sometimes believed
to be a stay in a free society. Matters which are purely religious are left
F personal to the individual and the secular part is taken charge by the State
on grounds of public interest, order and general welfare. The State guaran-
tee individual and corporate religious freedom and dealt with an individual
as citizen irrespective of his faith and religious belief and does not promote
any particular religion nor prefers one against another. The concept of the
secular State is, therefore, essential for successful working of the
G democratic form of Government. There can be no democracy if anti-
secular forces are allowed to work dividing followers of different religious
faith flying at each other's throats. The secular Government should negate
the attempt and bring order in the Society. Religion in the positive sense,
is an active instrument to allow citizen for full development of his person,
H not merely in the physical and material but in the non-material and non-
S.R. BOMMAI v. U.0.I. [K RAMASWAMY, J.] 915

secular life. A

Prof. Goethinysem in his Article referred to hereinbefore outlined
the process of secularism to life and thoughts by which religious sec-
taranism comes into contact in daily social and economic spheres of life
and he summarises with "the ideal of human and social happiness through B
secularisation of life all the groups of people in the country striving by most
enlightened methods to establish the maximum of social justice and welfare
in the world. According to Pt. Jawaharlal Nehru democracy necessarily
implies rigorous self-discipline without which democracy cannot succeed,
Swami Vivekanand explaining the Vedantic ideas of God and religion in
comparison v.ith western thoughts stated that the religious attitude is C
always to seek the dignity inside of his ownself as a natural characteristic
of Hindu religion and religious attitude is always presented by making the
subject close his eye looking inward. Dr. Thouless ii!. his ''Introduction to
the Psychology of Religion" after analysing diverse elements and definitions
of religion defined religion as "a felt practical relationship with what is D
believed in a super human being or beings". The process of secularisation
of life and thought consistently increasing the withdrawal and separation
of religion properly so called from other spheres of life and thought which
are governed by independent. form above rules and standards. According
lo Sir James Freezer in his "Golden Bough" religion consists· largely of not
only of methodological and rituals dominated by all aspects of his life, E
social, economic, political, legal, cultural, ethical or moral, but also tech-
nological. The interaction of religion and secular factors in ultimate
analysis is to expose the abuses of religion and of belief in God by purely
partisan, narrow or for selfish purpose to serve the economic or political
interest of a particular class or group or a country. The progress of human F
... history is replete with full misuse of religious notions in that behalf. But
the scientific and analytical spirit characterises the secularism as saviour of
the people from the dangers of supposed fusion of religion with political
and economic activities and inspire the people. The secularism, therefore,
represents faiths born out of the exercise of rational faculities. It enables G
people to see the imperative requirements for human progress in all
aspects and cultural and social advancement and indeed for human survival
itself. It also not only improves the material conditions of human life, but
also liberates the human spirit from bondage of ignorance, supression,
. irrationality, injustice, fraud, hypocracy and oppressive exploitations. In
other words, through the whole course of human history discloses an H
916 SUPREME COURT REPORTS [1994] 2 S.C.R.

A increasing liberation of mankind, accomplished thought, all is covered by
the term secularism. Trever Ling's Writing on Bhudhism spoke of it as a
secular religion, which teaches eight-fold path of his mastery and virtueous
conduct of ceaseless, self critical endeavour for right belief, right aspira-
tion, right speech, right conduct, right modes of livelihood, right efforts,
right mindedness and right scrupture. Bhudhism rationalises the religion
B and civilisation to liberate individual from blind fold adherence to religious
belief to rationalisation, in the language of Trever Ling "flat alluvial expan-
sion of secularism". Dr. Ambedkar believed that Bhudhism is the best
religion suited to the Indian soil. Mahatma Gandhiji, father of the nation,
spoke for the need of religion thus, "the need of the mankind is not one of
c religion, but mutual respect and tolerance of the devotees of different
religions. We want to reach not a data level, but unity in diversity. The soul
of all religion is one, but it is encased in the multitude of forms. The latter
will persist to the end of the time."

D Dr. S. Radhakrishnan, the Philosopher, former President of India,
in his Discovery of Faith stated that the religious impartiality of the Indian
state is not to be confused with the secularism or ethism. Secularism as
defined here is in accordance with the enormous religious traditions of
India. It is for living in harmony with each other. This fellowship is based
on the principle of diversity in unity which alone has all quality of creative-
E ness. In his foreword to Dr. Abid Hussain's "The National Culture of
India", Dr. S. Radhakrishnan remarked that the secularism does not mean
licence or a thrust of material comfort. It lays thrust on universal of the
supreme fellow which may be attained by variety of ways. Indian concept
of secularism means 11 the equal status to all religions 11 • He said that "no~one
F religion should be given preferential status or unique distincition and that
no-one religion should be accorded special privileges in national life". That
would be violative of basic principles of democracy. No group of citizen
can so arrogate itself the right and privilege which he denies to others. No
person shall suffer any form of disability or discrimination because of his
religion, but also alike should be free to share to the fullest degree in the
Q_ common life. This is the basic principle in separation of religion and the
State. Granvelle Austin in his "The Indian Constitution the cornerstone of
a Nation" stated that the constitution makers were intended to secure
secular and socialist goals envisaged in the preamble of the Constitution.
In Ziyauddin Burhamuddin Bukhari v. Brijmohan Ramdass Mehra & Ors.,
H [1975] Suppl. SCR 281 at 297, this court held that:
S.R. BOMMAI v. U.0.1. [K. RAMASWAMY,J.j 917

"The Secular State rising above all differences of religion, attempts A
' to secure the good of all its citizens irrespective of their religious
beliefs and practices. It is neutral or impartial in extending its
benefits to citizens of all castes and creeds. Maitland had pointed
out that such a state has to ensure, through its laws, that the
existence or exercise of a political or civil right or the right or
capacity to occupy any office or position under it or to perform
B
any public duty connected with it does not depend upon the
profession or practice of any particular religion."

It was further pointed out:
11
0ur Constitution and the laws framed thereunder leave citizens
c
free to work out happy and harmonious relationships between their
religions and the quite separable secular fields of law and politics.
But, they do not permit an unjustifiable invasion of what belongs
to one's sphere by what appertains really to another. It is for courts
to determine in a case of dispute, whether any sphere was or was D
not properly interfered with, in accordance \vith the Constitution,
even by a purported law."

Thereby this court did not accept the wall of separation between law and
the religion with a wider camouflage to impress control of what may be
E
described exploitative parading under grab of religion. Throughout ages
endless stream of humans of diverse creeds, cultures and races have come
to India from outside regions and climate and contributed to the rich
cultural diversity. Hindu religion developed resillience to accommodate
and imbibe with tolerance the culture richness with religious assimilation
and became.a land of religious tolerance. F
Swami Vivekanand stated that right of religious system and ideals is
the same morality; one thing is only preached: Myself, say "Om"; others one
says 11Johova" another " Allaha ho Mohammad", another cries 11 Jesus 11 •
Gandhiji recognised that all religions are imperfect and because they are
imperfect they require perfecting themselves rather than conducting in- G
dividually. He stated: 'the separate religions - Hinduism, Islam, Chris-

- ...
tianity, Budhism are different rights converging on the same point even as
the tree has the single trunk but many branches and leaves so there one
perfect religion but it becomes many as it passes through the human
medium. The Allaha of Muslims is the same as the God of Christians and H
918 SUPREME COURT REPORTS (1994] 2 S.C.R.

A lshwara of Hindus".

Making of a nation state involves increasing secularisation of society
and culture. Secularism operates as a bridge to across over fro~ tradition
to modernity. The Indian state opted this path for universal tolerance due
to its historical and cultural background and multi-religious faiths.
B
Secularism in the Indian context bears positive and affirmative emphasis.
Religions with secular craving for spiritual tolerance have flourished more
and survived for linger period in the human history than those who claimed
to live in a non·human existent world of their own. Positive secularism.,
therefore, separates the religious faith personal to man and limited to
c material, temporal aspects of human life. Positive secularism believes in the
basic values of freedom, equality and fellowship. It does not believe in hark
back either into country's history or seek shelter in its spiritual or cultural
identity de hors the man's need for his full development. It moves mainly
around the state and its institution and, therefore, is political in nature. At
D the same time religion does not include other socio·economic or cultural
social structure. The state is enjoined to counteract the evils of social force,
maintaining internal peace and to defend the nation from external aggres-
sion. Welfare State under the constitution is enjoined to provide means for
well-being of its citizens; essential services and amenities to all its people.
Morality under positive secularism is a pervasive force in favour of human
E freedom or secular living. Prof. Holyoake as stated earlier, who is the father
of modern secularism stated that "morality should be based on regard for
well being or the mankind in the person, to the exclusion of all considera-
tions drawn from the belief in God or a future state." Morality to him was
a system of human duty commencing from man and not from God as in
F the case of religion. He distinguished his secularism from christianity, the
living interest of the world that is prospects of another life. Positive
secularism gives birth to biological and social nature of the man as a source
of morality. True religion must develop into a dynamic force for integration
without which the continued existence of human race itself would become
G uncertain and unreal. Secularism teaches spirit of tolerance, catholacity of
outlook, respect for each other's faith and willingness to abide by rules of
self-discipline. This has to be for both as an individual and as a member +
of the group. Religion and secularism operate at different planes. Religion
is a matter of personal belief and mode of worship and prayer, personal to
the individual while secularism operates, as stated earlier, on the temporal
H aspect of the state activity in dealing with the people professing different
S.R. BOMMAI v. U.0.l. [K. RAMASWAMY, J.] 919

religious faiths. The more a devoted person in his religious belief, the A
greater should be his sense of heart, spirit of tolerance, adherence of
secular path Secularism, therefore, is not anti-thesis of religious devout-·
ness. Swami Vivekanand and Mahatma Gandhiji, though greatest Hindus,
their teachings and examples of lives give us the message of the blend of
religion and the secularism for the good of all the men. True religion does B
not teach to hate those professing other faiths. Bigotory is not religion, nor
can narrow minded favouritism be taken to be an index of one's loyalty to
his religion. Secularism does not contemplate closing each other voices to
the sufferings of the people of other community nor it postulates keeping
mum when his or other community make legitimate demands any group of
people are subjected to hardship or sufferings, secularism always requires C
that one should never remain insensitive and aloof to the feelings and
sufferings of the victims. At moments of testing times people rose above
religion and protected the victims. This cultural heritage in India shaped
that people of all religious faith, living in different parts of the country are
to tolerate each other's religious faith or beliefs and each religion made its D
contribution to enrich the composite Indian culture as a· happy blend or
synthesis. Our religious tolerance received reflections in our constitutional
creed.

The preamble of the Constitution inter alia assures to every citizen
liberty of thought, expression, belief, faith and worship. Article 5 guaran- E
tees by birth citizenship to every Indian. No one bargained to be born in a
particular religion, cast or region. Birth is a biological act of parents.
Article 14 guarantees equality before the law or equal protection of laws.
Discrimination on grounds of religion was prohibited to by Article 15.
Article 16 mandates equal opportunity to all citizens in matters relating to F
employment or appointment to any office or post under the State and
prohibits discrimination on grounds only of inter alia religion. Article 25
while reassuring to all persons freedom of conscience and the right to freely
profess, practice and propagate his religion, it does not affect the operation
of any existing law or preventing the State from making any law regulating G
or restricting any social, financial, political or other secular activity which
may be associated with the religious practice. It is subject to provide a
social welfare and reform or throwing open all Hindu religious institutions
of public character to all classes of citizens and sections of Hindus. Article
26 equally guarantees freedom to manage religious affairs, equally subject
to public Glder, mmality and health. Article 27 reinforces the secular H
920 SUPREME COURT REPORTS [1994] 2 S.C.R.

A character of Indian democracy enjoining the State from compelling any
person or making him liable to pay any tax, the proceeds of which are
specifically prohibited to be appropriated from the consolidated fund for
the promotion or maintaining or any particular religion or religious
denomination. Taxes going into consolidated funds should be used general-
ly for the purpose of ensuring the secular purposes of which only some are
B mentioned in Articles 25 and 26 like regulating social welfare etc. Article
28(1) maintains that no religious instruction shall be imparted in any
educational institutions wholly maintained out of the State funds or receiv-
ing aid from the State. Equally no person attending any educational institu-
tion recognised by the state or receiving aid from the State funds should
c be compelled to take part in any religious instruction that may be imparted
in such institution or to attend any religious worship that may be conducted
in such institution or in any premises attached thereto unless person or in
the case of a minor person his guardian has given his consent thereto. By
Article 30(2) the State is enjoined not to discriminate, in giving aid to an
D educational institution, on the ground that it is a minority institution
whether based on religion or language. It would thus be clear that Con-
stitution made demarcation between religious part personal to the in-
dividual and secular part thereof. The State does not extend patronage to
any particular religion, state is neither pro particular religion nor anti .,
particular religion. It stands aloof, in other words maintains neutrality in
E matters of religion and provide equal protection to all religions subject to
regulation and actively acts on secular part.

In Ratilal Pannachand Gandhi v. State of Bombay, [1954] SCR 1035.
this Court defined the religion that it is not necessarily atheistic and , in
F fact, there are well-known religions in India like Budhism and Jainism
which do not believe in the existence of God or caste. A religion undoub-
tedly has different connotations which are regarded by those who profess
that religion to be conducive to their spiritual well-being but it would not
be correct to say or seems to have been suggested by the one of the learned
brothers therein that matters of religion are nothing but matters of religious
G faith and religious belief. The religion is not merely only a doctrine or belief
as it finds expression in acts as well. In Con1n1issioner of lvladras v. Sri
Lakshmindra Thirtha Swamiar, [1954] SCR 1005, know as Sirurmath case,
this Court interpreted religion in a restricted sense confining to personal
beliefs and attended ceremonies or rituals. The restriction contemplated in
H Part-Ill of the Constitution are not the control of personal religious prac-
(

S.R. BOMMA! v. U.0.1. [K RAMASWAMY,J.] 921

-l
tices as such by the State but to regulates their activities which are secular A
• in character though associated with religions, like management of property
attached to religious institutions or endowment on secular activity which
are amenable to such regulation. Matters such as offering food to the deity
etc. are essentially religious and the State does not regulate the same,
leaving to the individuals for their regulation. The caste system though
B
formed the Kernal of Hinduism, and as a matter of practice, for millinium
l/4lh of the Indian population (Scheduled castes and Scheduled Tribes)
· were prohibited entry into religious institutions like temples, maths etc. on
grounds of untouchability; Article 17 outlawed it and declared such prac-
·~
tice an offence. Article 25 and 26 own open all public places and all places
of public to all Hindu religious denominations or sects for worship offering c
prayers or performing any religious service in the places of public worship
and no discrimination should be meted out on grounds of caste or sect or
religious denomination. In Keshevanand Bharati's case [1973] Suppl. 1 SCR
II and Indira Gandhi v. Raj Narain, [1976] 2 SCR 347, this Court held that
secularism is a basic feature of the constitution. It is true that Schedule-Ill
D
of the Constitution provided the form of oath being taken in the name of
God. This is not in recognition that he has his religion or religious belief
in God of a particular religion but he should be bound by the oath to
administer and to abide by the constitution and laws as a moral being, in
accordance with their mandate and the individual will ensure that he will
not transgress the oath taken by him. It is significant to not that the Oath's E
Act. 1873 was repealed by Oath's Act, 1966 and was made consistent with
the constitutional scheme of secularism in particular, Sections 7 to 11.

Equally admission into an educational institution has been made a
fundamental right to every person and he shall not be discriminated on
F
grounds only of religion or caste. The education also should be imparted
in the institutions maintained out of the State fund or receiving aid only
on secular lines. The State, therefore, have a missionary role to reform the
Hindu society, Hindu social order and dilute the beliefs of caste hierarchy.
Even in matters of entry into religious institutions on places of public resort
prohibition of entry only on grounds of caste or religion is outlawed. G

..
r1.

-+
Dr. S. Radhakrishnan, stated that "Religion can be identified with
emotion, sentiments, intensity, cultural, profession, conscious belief of
faith". According to Gandhiji "By religion 1 do not mean formal religion or
customary religion but that religion which underlies all religions". The H
922 SUPREME COURT REPORTS (1994] 2 S.C.R.

_A religion to him was spiritual commitment just total but intentionally per-
sonal. In other words, it is for only development of the man for the
absolution of his consciousness in certain direction which he considered to
be good. Therefore, religion is one of belief to the Individual which binds
him to his conscience and the moral and basic principles regulating the life
B of a man had had constituted the religion, as understood in our Constitu-
tion. Freedom of conscience allows a person to believe in particular
religious tenets of his choice. It is quite distinct from the freedom to
perform external acts in pursuance of faith, freedom of conscience means
that a person cannot be made answerable for rights of religion. lJndoub-
C tedly, it means that no man possess a right to dictate to another what
religion he believes in; what philosophy he holds, what shall be his politics
or what views he shall accept etc. Article 25(1) protects freedom of
conscience and reli1,>ion of members of only of an organised system of belief
and faith irrespective of particular affiliations and does not march out of
concern itself as a part of the right to freedom of conscience and dignity
D of person and such beliefs and practices which are reasonable. The Con-
stitution, therefore, protects only the essential and integral practices of the
religion. The religious practice is subject to the control of public order,
morality and health which includes economic. financial or other secular
activities. Could the religious practice control over members tc vote or not
E to vot_e, to ignore the national flag, national anthem, national institutions?
Freedom of conscience under Article 25 whether guarantees people of
different religious faiths the right to religious procession to antagonise the
people of different religious faiths or right to public worship? It is a fact
of social and religious history in India that religious processions are known
F to ignite serious communal riots, disturb peace, tranquillity and public
order. The right to free profession of religion and exercising right to
organise religious congregations does not carry with it the right to make
intlarnatory speeches, nor be a licence to spread violence, nor speak
religious intolerance as an aspect of religious faiths. They are subject to
G the State control. In order to secure constitutional protection, the religious
practices should not only be an essential part but should also be an
integral part of proponent's religion but subject to state's control. Other-
wise even purely secular practices which are not an essential or an integral
part of religion are apt to be quoted as religious form and make a claim
for being treated as religious practices. Law as social engineer provides the
H
t
S.R. BOMMAI v_ U.O.L [K RAMASWAMY, J.] 923

means as well as lays down the rules for social control and resolution of A
conflicts of all kinds in a human society. But the motive force for social,
economic and cultural transformation comes from individuals who com-
• prise the society. They are the movers in the mould of the law as the
principle instrument of an orderly transient to a new socio- economic order
or social integration and fraternity among the people. The Constitution has B
chosen secularism as its vehicle to establish an egalitarian social order. I
respectfully in agreement with our brethern Sawant and Jeevan Reddy, JJ.
in this respect. Secularism, therefore, is part of the fundamental law and
basic structure of the Indian political system to secure to all its people
socio-economic needs essential for man's excellence and of moral well
being, fulfilment of material prosperity and political justice.
c
SEPARATION OF POLITICS AND RELIGION

Black's Law Dictionary (6th Edn.) page 1158: defined politics as
pertaining or relating to the policy or administration of the Government, D
State or national; pertaining to or incidental to exercise all the functions
vest in those with the conduct of the Government; relating to the manage-
ment of State as political force all are pertaining to exercise the rights and
privileges or the consensus by which the individuals of a State seek to
determine or control its public policy having to do with the kind of
individual parties or interest they seek to control and action of those who E
manage affairs of a State. Political Party was defined as an association of
individuals for Parliamentary purpose to promote or accomplishing elec-
tions or appointments to public offices, positions or jobs. A political party,
association or organisation which makes contributions for the purpose of
influencing or attempt to influence the electoral process of any individual F
or political party whose name is presented for election to any State or local
elected public office, whether or not such individual is elected. Politics in
• positi~ely secular State is to get over their religion, in other words, in
politics a political party should neither invoke religion nor be dependent
on it for support or sustenance. Constitution ensures to the individual to
protect religion right to belief or propagate teachings condusive for secular G
living, later to be controlled by the State for betterment of human life and
progress. Positive secularism concerns with such aspects of human life. The
political conduct in his "Political Thought by Dr. Ambedkar compiled by
R.K. Kshcrsagar, Intellectual Public House Edition 1992 at page 155, stated
that: In India the majority is not a political majority. The majority is born H
924 SUPREME COURT REPORTS
----
[1994] 2 S.C.R.

A but not made, that is the difference between a communal majority and a
political majority. A political majority is not a purely majority, it is the
majority which is always made, unmade and remade. A communal majority
is unalterable majority in its ethics, its attitudes. "Whether the Hindu
communal majority was prepared to accept the views of the minorities
•
whether it was prepared to conceive the Constitutional safeguards to the
B minorities". The problems according to Dr. Ambedkar should be solved by
adopting right principles which should be evolved and applied equally
without fear or favour. According to him the majority community should
accept a relative majority and it should not claim absolute majority. Com-
munal majority is not a political majority and in politics the principle of
c one vote one value should be adopted irrespective of related considera-
tions. According to Abdul Kalam Azad: "India is a democracy secular
where every citizen whether he is Hindu, Muslim or Sikh has equal rights
and privileges. Rise of fundamentalism and communalisation in national or
regional politics are anti- secular and tends to encourage separatist and
D divisive forces laying the seeds to disintegrate the Parliamentary
democratic system. The political parties or candidates should be stopped -
to run after vote banks and judicial process must promote the citizens'
active participation by interpretation of the Constitution and the laws in
proper perspective in order to maintain the democratic process on an even
keel.
E
For a political party or an organisation that seeks to influence the
electorates to promote of accomplishing success at an election for gover-
nance of Parliamentary form of Government, the principles are those
embedded in the Directive Principles of the Constitution vis-a-vis the
F fundamental rights and the fundamental duties in Part IV(A) and should
abide by the Constitution and promote tolerance, harmony and the spirit
of commonness amongst all the people of India transcending religious,
linguistic regional or sectional diversities and to preserve the rich heritage
of our composite culture, to develop humanism, spirit of reformation and
G to abstain violence. Therefore, the manifesto of a political party should be
consistent with these fundamental and basic features of the Constitution,
secularism, socio-economic and political justice, fraternity, unity and na-
tional integrity.

H Under section 29A of the Representation of Peoples' Act, 1951 for ...
S.R. BOMMAI v. U.0.1. [K RAMASWAMY,J.] 925

short 'R.P. Act' registration of a political party, or a group of individual A'_
citizens of India calling itself a political party has been given right to make
an application to the Election Commission constituted under Article 324
\
for its registration as political party with a copy of the memorandum or
rules or regulations of the association of the body signed by its Chief
Executive Officer. The applicant shall contain a specific provision that the
B
association or the body shall bear true faith and allegiance to the Constitu-
tion of India as by law established and its members shall be bound by the
socialism, secularism and democracy and would uphold the sovereignity
and integrity of India. It is, therefore, a mandatory duty of very political
party, body of individuals or association and its members to abide by the
Constitution and the laws; they should uphold secularism, socialism and c
democracy, uphold sovereignity and integrity of the nation. Section 123(3)
prohibits use of religion or caste in politics and declares that promotion or
attempt to promote violence and hatred between different classes of
citizens of India on groups of religion and caste for the furtherance of the
prospect at the el.ection of the candidate or for effecting the election of D
any candidate was declared to be a corrupt practice. As per Sub-section
3A of section 123 the promotion of, or attempt to promote feeling of
enemity or hatred between different classes of India citizens, on grounds
of religion, etc. by a candidate, his election agent or any person with his
consent to further the election prospects of that candidate or for prejudi-
cial:y affecting the election of any candidate was declared as corrupt E
practice. A political party, therefore, should not ignore the fundamental
features of the constitution and the laws. Even its menifesto with all
sophistication or felicity of its language, a political party cannot escape
constitutional _mandate and negates the abiding faith and solemn respon-
sibility and duty undertaken to uphold the Constitutional and laws after it f
was registered under s.29A. Equally it/they should not sabotage the same
basic features of the Constitution either inOuencing the electoral process
or working the Const;•·1tion or the law. The political party or the poHical
executive securing the governance of the State by securing majority in the
legislature through the battle of ballot throughout its tenure by its acthns
and programmes, it is required to abide by the Constitution and the laws G
in letter and spirit.

Article 25 inhibits the Government to patronise a particular religion
as State religion overtly or covertly. Political party is, therefore, positively
f enjoined to maintain neutrality in religious beliefs and prohibit practices H
926 SUPREME COURT REPORTS [1994) 2 S.C.R.

A derogatory to the constitution and the laws. Introduction of religion into
politics is not merely in negation of the Constitutional maudates but also
a positive v0lation of the Constitutional obligation, duty, responsibility and
positive prescription of prohibition specially enjoined by the Constitution
and the R.P. Act. A political party that seeks to secure power through a
religious policy or caste orientation policy disintegrates the people on
B
grounds of religion and caste. It divides the people and disrupts the social
structure on grounds of religion and caste which is obnoxious and anthema
to the constitutional culture and basic features. Appeal on grounds of
religion offends Secular Democracy.

C An appeal to the electorates on the grounds of religion offends secular
democracy. In S. Veerabadran Chettiar v. E. V. Ramaswami Naicker & Ors.,
[1959) SCR 1211 at 1217 & 1218, this Court held that the Courts would be
cognizant to the suspetabilities of class of persons to which the appeal to
religious suspetiblity is made and it is a corrupt practice. Interpreting
Section 123(3A) this Court held that "the section has been intended to
D respect the religions irrespective of persons of different religions or groups
......... very circumspect in such matters and to pay due regards to feelings
of different class of persons with different beliefs irrespect of the Constitu-
tion whether or not they share those beliefs or whether the revisionary or
otherwise".
E
This Court in Shubnath Deogram v. Ramnarain Prasad, [1960) 1 SCR
953 at 959, held that:

"it would appear that the pleasure of the deities is indicated
through the cock taking the food that is given to it and that the
F deities only thereafter accept the sacrifice of the cock. Therefore,
when the leaflet stated that food should be given to the cock in
the shape of votes what was meant was that the deities would be
pleased if votes were cast in the box with the cock symbol."

G In Z.B. Bukhari v. Brijmohan, f1975] Suppl. SCR 281 at 288, this court held
thus:

11
0ur Constitution-makers certainly intended to set up a Secular
Democratic Republic the binding spirit of which is summed up by
the objectives set forth in the Preample to the Constitution. No
H democratic political and social order in ivhich the conditions of
>-··.

S.R. BOMMAI v. U.O.L [K. RAMASWAMY. .I.] 927

• freedom and their progressive expansion for an make srimc A
regulation of all activities imperative, could endure without an
agreement on the basic essentials which could unite and hold
_, citizens together despite all the differences of religion, race, caste,
community, culture, creed and language. Our political lzi.rtol)' nzade
it pa1ticularZv nLcessa1y that these diff<~rences, ~vhich can generate
poweiful emotion deptiving people of their powers of rational thought
B
and action, should not be pennitted to be exploited lest the imperative
conditions for the prese1vation of de1nocratic freedonzs are disturbed."

In another case S.. Harclzaran Singh v. S. Sajjan Singh, [1985] 2 SCR 159,
This Court fully discussed the question of what constitutes an appeal on C
grounds of religion falling within the scope of s.123(3) and s.123(3A) of the
R.P. Act, when there is an appeal on the ground of religion. Section 123(3)
of R.P. Act should not be permitted to be circumvented to resort to
technical arguments as to interpretation of the Section as our Constitution
is one of secular den1ocracy. Jn S. Veerabadran Chettiar's case this court held D
thus :

11
In our opinion, placing such restricted interpretation on the words
of such general import) is against all established cannoqs of con-
struction. Any object, however, trivial or destitute of real value in
itself, if regarded as sacred by any class of people would come E
within the meaning of the .penal section. Nor is it absolutely
necessary that the object, in order to be held sacred, should have
been actually worshiped. An object may be held sacred by a class
of persons without being worshipped by them. It is clear, therefore,
that the courts below were rather cynical in so lightly brushing F
aside the religious susceptibilities of that class of persons to which
the complainant claims to belong. The Section has been intended
to respect the religious susceptibilities of persons of different religious
persuations or creeds. Courts have got to be very circumspect in
such matters, and to pay due regard to the feelings and religious
emotions of different classes of persons with different beliefs, G
irrespective of the consideration whether or not lhey share those
beliefs. or whether they are rational or otherwise, in the opinion
of the court."

In Sri Muilapudi Venkata Krishna Rao v. Sri Vedula Suryanarayana H
928 SUPREME COURT REPORTS [1994] 2 S.C.R.

A (1993) 2 Scale 170 at 172 this court held thus:

"There is no doubt in our mind that the offending posted is a
religious symbol. The depiction of anyone, be it N.T. Rama Rao
or any other person, in the attire of Lord Krishna blowing a
'shanku' and quoting the words from the Bhagavad Gita addressed
B by Lord Krishna to Ar.iuna that his incarnation would be born upon
the earth in age after age to restore dhrama is not only to a Hindu
by religion but to every Indian symbolic by the Hindu religion. The
use by the candidate of such a symbol coui:;led with the printing
upon it of words derogatory of rival political party must lead to
c the conclusion that the religious symbol was used with a view to
pre.iudicialiy affect the election of the candidate of the rival politi-
cal party."

The contention of Sri Ram Jethmalani that the interpretation and
applicability of sub-<s. (3) & (3A) of s.123 of R.P. Act would confined to
D only cases in which individual candidate offends religion of rival candidate
in the election contest and the ratio therein cannot be extended when a
political party has espoused, as part of its manifesto a religious cause is
totally untenable. This court laid the Jaw though in the context of the
contesting candidates, that interpretation lends no licence to a political
E party to influence the electoral prospects on grounds of religion. In a
secular democracy, like ours, mingling of religious with politics is uncon-
stitutional, in other words a flagrant breach of constitutional features of
secular, democracy. It is, therefore, imperative that the religious and caste
should not be introduced into politics by any political party, association or
an individual and it is imperative to prevent religious and caste pollution
F of politics. Every political party, association of persons or individuals
contesting election should abide by the constitutional ideals, the Constitu-
tion and the laws thereof. I also agree with my learned brethren Swant and
J eevan Reddy, JJ., in this behalf.

G Rise of fundamentalism and communalisation of politic...;; are anti-
sccularism. They encourage separatist and divisive forces an<l become
breeding grounds for national disintegration and fail the Parliamentary
democratic system and the constitution. Judicial process must promote
Citizens active participation in electoral process uninfluenced by any cor-
rupt pr<Jctice to exercise their free and fair franchise. Correct interprcta-
H tion in proper perspective would be in the defence of the democracy and
S.R. BOMMAI v. U.0.1. [K RAMASWAMY,J.] 929

) to maintain the democratic process on an even keel even in the face of A
possible friction, it is but the duty of the Court to interpret the constitution
to bring the political parties within the purview of constitutional parameters
for accountability and to abide by the Constitution, the laws for their strict
adherence.

SCOPE OF JUDICIAL REVIEW OF ARTICLE 356 B

~
In the judicial review in the field of administrative law and the
constitutional law, the courts are not concerned with the merits of the
decision, but with the manner in which the decision was taken or order was
made. Judicial review is entirely different from an ordinary appeal. The c
purpose of judicial review is to ensure that the individual is given fair
treatment by the authority or the Tribunal to which he has been subjected
to. It is no part of the duty or power of the Court to substitute its opinion
for that of the Tribunal or authority or person constituted by law or
administrative agency in deciding the matter in question. Under the thin
D
guise of preventing the abuse of power, there is a lurking suspecion that
the court itself is guilty of usurping that power. The duty of the court,
therefore, is to confine itself to the question of legality, propriety or
regularity of the procedure adopted by the Tribunal or authority to find
whether it committed an error of law or jurisdiction in reaching the
decision or making the order. The judicial review is, therefore, is a protec- E
tion, but not a weapon. The Court with an. avowed endeavour to render
justice, applied principles of natural justice with a view to see that the
authority would act fairly. Therefore the grounds of illegality, irrationality,
unreasonableness, procedural impropriety and in some cases propor-
tionality has been applied, to test the validity of the decision or order apart
froll,1 its ultra vires, ma/a fides or unconstitutionality. Initially in the process F
of judicial review the court tested the functions from the purview of the
11
source of powern. In the course of evolution of judicial review it tested on
the "nature of the subject matter", 11 the nature of the power" "the purpose11
or "the indelible effect" of the ''order or decision on the individual or public.
The public element was evolved, confining initially judicial review to the
G
actions of State, Public authority or instrumentality of the State but in its
due course many a time it entrenched into private law field where public
element or public duty or public interest is created by private person or
' corporate person and relegated purely private issues to private law remedy.
This court relaxed standing in favour of bona fide persons or accredited
Associations to espouse the cause on behalf of the under privileged or H
930 SUPREME COURT REPORTS (1994) 2 S.C.R.

A handicapped groups of persons. Interpreting Articles 14 and 21, tested
administrative orders or actions or process on grounds of arbitrariness,
irrationality, unfairness or unjustness. It would thus be apparent that in
exercising the power of judicial review, the constitutional Courts in India
testing the constitutionality of an administrative or constitutional acts did
not adopt any rigid formula universally applicable to all occasions. There-
B fore, it serves no useful purpose to elaborately consider various decisions
or text-books referred to us during the course of hearing. Suffice to state
that each case should be considered, depending upon the authority that
exercises the power, the s9urce the nature or scope of the power and
indelible effects it generates in the operation of law or effects the individual
c or society without laying down any exhaustive or catalogue of principles.
Lest it would itself result in standardised rule. To determine whether a
particular policy or a decision taken in furtherence thereof is a fulfilment
of that policy or is a accordance with the constitution or the law, many an
imponderable feature will come into play including the nature of the
decision, the relationship of those involved on either side before the
D decision was taken, existence or non-existence of the factual foundation on
which the decision was taken or the scope of the discretion of the authority
or the functionary. Supervision of the court, ultimately, depend upon the
analysis of the nature of the consequences of the decision and yet times
upon the personality of the authority that takes decision or individual
circumstances in which the person was called upon to make the decision;
E acted on and the decision itself.

The scope of judicial review of the presidential proclamation under
Article 356 was tested for the first time by this court in State of Rajasthan
v. Union of India [1978] 1 SCR 1. In that case clause (5) inserted by the
Constitution 38th Amendment Act prohibited judicial review of the
F presidential proclamation, which was later on substituted by the Constitu-
tion 44th Amendment Act, was called into operation. Before its substitu-
tion the constitutionality of the letter issued by the Home Minister and
dissolution of the Assemblies of Northern India States were in question.
The reason for the dissolution was that the Congress party was routed
G completely in 1977 Parliamentary elected in all those states and thereby the
people's mandate was against the legitimacy of the Governments of the
States represented by the Congress Party to remain in office. Suits under
Articles 133 and Article so were filed in this Court. In that context this
Court held that though the power of the judicial review was excluded by
Clause (5) of Article 356, as then stood, judicial review was open on limited
H
S.R. BOMMAI v. U.0.1. [K. RAMASWAMY,J.] 931

grounds, namely ma/a [ides, wholly extraneous or irrelevant grounds A
withoui nexus between power exercised and the reasons in support thereof.
The contention of Sri Parasaran, learned counsel for the Union, as stated
earlier, is that though judicial review is available, he paused and fell upon
the operation of Article 74{2), and contended that the Union of India need
not produce the records; burden is on the writ petitioners to prove that the
orders are unconstitutional or ultra vires; the exercise of power by the B
President under Article 356 is constitutional exercise of the power life one
under Article 123 or Legislative Process and the principles evolved in the
field of administrative law are inapplicable. It should be tested only on the
grounds of ultra vires or unconstitutionality. The reasons in support of the
satisfaction reached by the President are part of the advice tendered by C
the Council of Ministers. Therefore, they are immuned from judicial
scrutiny though every order passed by the President does not receive the
protection under Article 74(2) or Section 123 of the Evidence Act.

The question, therefore, is what is the scope of judicial review of the
presidential proclamation under Article 356. Though the arm of the Court D
is long enough to reach injustice wherever it finds and any order or action
is not beyond its ken, whether its reach could be projected to Constitutional
extraordinary functionary of the coordinate branch of the Government, the
highest executive, when it records subjective satisfaction to issue proclama-
tion under Article 356. The contention of S/Sri Shanti Bhushan. Soli Sorabji
and Ram Jethmalani that all the principles of judicial review of administra- E
tive action would stand attracted to the presidential proclamation under
Article 356 cannot be accepted in toto. Equally the wide proposition of law
canvassed by Sri Parasaran also is untenable. At the cost of repetition it is
to reiteration that judicial review is the basic feature of the Constitution.
This court has constitutional duty and responsibility, since judicial review F
having been expressly entrusted to it as a constituent power, to review the
acts done by the co-ordinate branches, the executive or the legislature
under the Constitution, or .under law or administrative orders within the
parameters applicable to a particular impugned action. This court has duty
and responsibility to find the extend and limits of the power of the
co-ordinate authorities and to find the law. It is the province and duty of G
this Court, as ultimate interpreter of the Constitution, to say what the law

.... is. This is a delicate task assigned to the Court to determine what power
Constitution has conferred on each branch of the Government. Whether it
is limited to and if so what are the limits and whether any action of that
H
932 SUPREME COURT REPORTS (1994] 2 S.C.R.

A branch transgresses such limits. The action of the President under Article ;

356 is a constitutional function and the same is subject to judicial review.
Sri T.R. Andhyarujina the learned Advocate General of Maharashtra,
contended that though the presidential proclamation is amenable to judi- ,
cial review, it is in the thicket of political question and is not generally
B justiciable. Applying self imposed limitations this Court may be refrained
to exercise judicial review. This contention too need to be qualified and
circumscribed.

Judicial review must be distinguished from justiciability. The two
concepts are not synonymous. The power of judicial review goes to the
C authority of the Court, though in exercising the power of judicial review,
the Court in an appropriate case may decline to exercise the power as
being not justiciable. The Constitution is both the source of power as well
as it limits the power of the an authority. Ex necissitate. Judiciary has to
decide the source, extent, limitations of the power and legitimacy in some
D cases of the authority exercising the power. There is no hard an fast fixed
rules as to justiciability of a controversy. The satisfaction of the President
under Article 356(1) is basically subjective satisfaction based on the
material on record. It may not be susceptible to scientific verification
hedged with several imponderables. The question, therefore, may be
looked at from the point of view of common sense limitation, keeping
E always that the Constitution has entrusted the power to the highest execu-
tive, the President of India, to issue proclamation under Article 356, with
the aid and advice of the Council of Ministers, again further subject to his
own discretion given in proviso to Article 74(1). Whether the question has
raised for decision is judicially based on manageable standards? The
F question relating to the extents scope and power of the President under
Article 356 though wrapped up with political thicket, per se it does not get
immunity from judicial review.

However, a distinction be drawn between judicial review of the inter-
pretation of the order or the extent of the exercise of the power by the
G President under Article 356. In the latter case the limits of the power of the
President in issuing the proclamation under Article 356 and the limits of
judicial review itself are to be kept in view. The question of justiciability
would in either case mutually arise for decision. In this behalf, the question
would be whether the controversy is amenable to judicial review in a limited
H area but the later depends upon the nature of the order and its contents. The
S.R. BOMMAI v. U.0.1. [K. RAMASWAMY, J.] 933

\ question may be camoflauged with a political thicket, yet since the Constitu- A
tion entrusted that delicatetask in the scheme of the Constitution itself to this
court, in an appropriate case, the Court may unwrap the dressed up ques-
tion, to find the validity thereof. The doctrine of political thicket is founded
on the theory of separation of powers between the executive, the legislature
and the judiciary. The Constitution of the United States of America, gave no
express power of judicial review to the Supreme Court of USA. Therefore,
B
the scope of political question, when came up for consideration in Baker v.
Ca" (1962) 2 7 L.Ed. 2nd 663 at 686, It was held in a restricted sense, but
the same was considerably watered down in later decision of that Court. Vide
Gillegan v. Morgan (1973), 37 L.Ed. 2nd 407 at 416. But in deciding the
political question the Court must keep in forefront whether the Court has c
judicially discoverable and manageable standards to decide the particular
controversy placed before it, keeping in view that the subjective satisfaction
was conferred in the widest term to a co-ordinated political department, by
the Constitution itself.

D
Jn the State of Rajasthan's case Chandrachud, J., as he then was, held
at p.61 that "probing at any greater dept. into the reasons given by the Home
Minister is to enter a field from which Judges must scrupulously keep away.
The field is reserved for the politicians and the Courts must avoid tresspass-
ing into it". Bhagwati. J., as he then was, speaking per himself as Gupta, J .,
held at p.81 that "it is not a decision which can be based on what the Supreme E
Court of United States has described as judicially discoverable and manage-
able standards. It would largely be a political judgement based on assessment
of diverse and varied factors, fast changing situation, potential consequen-
ces, public reaction, motivations and responses of different classes of people
and their anticipated future behaviour an a host of other considerations in F
the light of experience of public affairs and pragmatic management of com-
plex and often curious adjustments that go to make up the highly sophisti-
cated mechanism of a modern democratic Government. It cannot, therefore,
by its very nature be a fit subject matter for judicial determination and hence
it is left to the subjective legislation of the Central Government which is best
in a position to decide it." Utwalia. J., at p.94 laid down that "Even if one G
were to assume such a fact in favour of the Plaintiff or the Petitioner, the
facts disclosed undoubtedly lie in the field or an area purely of a political
- 't nature which are essentially non-justiciable. It would be legitimate to char-
acterise such a field as prohibited area in which it is neither permissible for
the Courts to enter, nor should they ever take upon themselves the hazardous H
934 SUPREME COURT REPORTS [1994] 2 S.C.R.

A task of entering into such an area." Fazal Ali, J. reiterating the same view
held, that "it is manifesty clear that the Court does not possess resources
which are in the hands of the Government to find out the political needs that
they seek to subserve and the feelings or the aspirations of the nation that
require a particular action to be taken at a particular time. It is difficult for
the Court to embark on an enquiry of that type." Beg, C.J. at p.26 held that
B
"In so far as Article 356 ( 1) may embrace matters of political and executive
policy and expediency, Courts cannot interfere with these unless and until it
is shown what constitutional provision the President is going to contravene."

We respectfully agree that the above approach would be the proper
C course to tackle the problem. Yet another question to be disposed of at
this stage is the scope of Article 74 (2). Jn the cabinet system of the
Government the Council of Ministers with the Prime Minister as the head
would aid and advise the President to exercise the functions under the
Constitution except where the power was expressly given to the President
D to his individual discretion. The scope thereof was considered vis-a-vis the
claim of privilege under s. 123 of the Evidence Act. At the outset we say
that s. 123 of Evidence Act is available to tbe President to claim privilege.
In R.K Jain v. Union of India, [1993] 4 SCC 119, in paragraph 23 at page
143 it was held that the President exercises his executive power through
the Council of Ministers as per the rules of business for convenient
E transaction of the Government business made under Article 77(3). The
Government of India (Transaction of Business) Rules, 1961 provides the
procedure in that behalf. After discussing the scope of the cabinet system
of Government'in paragraphs 24 to 28 it was held that the cabinet known
as Council of Ministers headed by the Prime Minister is the driving and
F steering body responsible for the governance of tbe country. They enjoy
the confidence of the Parliament and remain on office so long as they
maintain the confidence of the majority. They are answerable to the
Parliament and accountable to the people. They bear collective respon-
sibility. Their executive functions comprises of both the determination of
the policy as well as carrying its executive, the initiation of legislation,
G maintenance of order, promotion of social and economic welfare and
direction of foreign policy. In short the carrying on or supervision of the
general administration of the affairs of the Union which includes political 1'" .,
activity and carrying on all trading activities, etc. and they bear collective
responsibility of the Constitution. It was also held therein that subject to
H the claim of privilege under s. 123 of the Evidence Act, the Minister was ·
S.R. BOMMAI v. U.0.1. [K. RAMASWAMY, J.J 935

constitutionally bound under Article 142 to assist the court in producing A
the documents before the court and the court has to strike a balance
between the competing interest of public justice and the interest of the
)
State before directing to disclose the documents to the opposite party. But
the documents shall be places before the court for its perusal in camera.

Article 74(2) provides that the question whether any, and if so what, B
service was rendered by Ministers lo the President shall not be inquired
into in any Court. In other words it inte.nds to give immunity to the Council
of Ministers lo withhold production of the advice for consideration by the
Court. In other words it is a restrictive power. Judicial review is a basic
and fundamental feature of the Constitution and it is the duty and respon- c
sibility of the constitutional court tc:> exercise the power of judicial review.
Article 142, in particular, gives power to this court in its excercise of the
jurisdiction to make any necessary order "for doing complete justice in any
cause or matter pending before it" and shall be enforceable throughout the
territory of India is such manner as prescribed by or under any law made D
· by the Parliament and subject to such law. The said restriction is only in
matter of procedure and does not effect the power under Article 142. This
court has all or every power to make any order to secure the "attendance
of any person, discovery or production of any documents or "investigation".
Thereby the power of this court to secure or direct production of any
document or discovery is a constitutional power. The restrictive clause E
under Article 74(2) and the wider power of this court under t\.rticle 142
need to be harmonised.

In R.K. I uin 's case it was held that the court is required to consider
whether public into is so strong to over-ride the ordinary right and interest F
of the litigant that he shall be able to lay before a c~urt of justice the
relevant evidence in balancing the competing interest. It is the duty of the
court to see that there is a public interest and that harm shall not be done
to the nation or to the public service by disclosure of the document and
there is a public interest that the administration of justice shall not be
frustrated by withholding the documents which must be produced, if justice G
is to oe done. It is, therefore, the paramount right and duty of the court,
not of the executive, to decide whether the document will be produced or
withheld. The court must decide which aspect of the public interest
predominates, in other words which public interest requires that the docu-
ment whether should be produced for effectuating justice and meaningful H
936 SUPREME COURT REPORTS [1994) 2 S.C.R.

A judicial review performing its function and/or should it not be produced.
In some. cases, therefore, the court must, in a clash of competing public
interests of the State and administration 0f justice, weigh the scales and
decide where the balance lies. The basic question to which the court would,
therefore, has to address itself for the purpose of deciding the validity of
B the objection would be, whether the document relates to · affairs of the
State, in other words, is of such a character that is disclosure would be,
against the interest of the State or the public service and if so whether
public interest in its non-disclosure is so strong that it must prevail over
the public interest in administration of justice. On that account it should
not be allowed to be disclosed. (vide paras 16 & 17)
c
When public interest immunity against disclosure of the State docu-
ments in the transaction of lhe business by the Council of Ministers of a
class character was claimed, in the clash of this interest, it is the right and
duty of the court to ·~e~~·l the balance in that case also and that the harm
shall not be done to the nation or the public service and in the administra-
· o tion of justice each case must be considered on its backdrop.

The President has no implied authority under the ·Constitation to
withhold the document. On the other hand it is his solemn constitutional duty
to act in aid of the court to effectuate judicial review. {Vide paragraphs 54
E and 55). That was a case of statutory exercise of power, in accordance with
the business rules in appointing the President of CEGAT and considering -
the facts in that case, it was held that it was not necessary to direct disclosure
of the documents to the other side. In view of the scheme of the Constitution
and paramount judicial review to be complete justice it must be considered
F in each case whether record should be produced. But by operation of Article
74(2) only the actual advice tendered by the Council of Ministers gets
immunity from production and the court shall not incurred into the question
whether and if so what advice was rendered by the Minister. In other words,
the records other then the advice tendered by the Minister to the President,
if found necessary, may be required to be produced before the constitutional
G court. This restrictive interpretation would subserve the wider power under
Article 142 given to this court and the protection accorded by Article 74(2)
maintaining equl-balance.

Article 74(2) creates bar of enquiry and not a claim of privilege for
H decision in the exercise of the jurisdiction whether and, if so, what advice
S.R.BOMMAI v. U.0.1,,[K.RAMASWAMY,J.) 937

was tendered by the Council of Ministers to the President. The power of A
Article 74(2) applied only to limited cases where the matter has gone to
the President for his orders on the advice of the Council of Ministers.
' Exercise of personal discretion calling the leader of a political party that
secured majority to form the Government or the leader expressing his
inability, to explore other possibilities is not liable to judicial scrutiny. B
Action based on the aid and advice also restricted the scope, for instance,
the power of the President to grant pardon or appointing a Minister etc.,
is the discretion of the President. Similarly prorogation of the Parliament
or dissolution of the Parliament done under Article 85 is not liable to
Judicial review. The accountability is of the Prime Minister to the people
though the President acts in his discretionary power, with the aid and C
advice of the Prime Minister. Similarly, the right of the President to address
and send message to the Lok Sabha and Rajya Sabha as under Article 86
are also in the area of the discretion with the aid and advice of the Council
of the Ministers. The power of President to promulgate an ordinance under
Article 123 an<1 the assent of the Bills under Article 200, are reserved for D
consideration under Article 201. As stated earlier, the discretion of the
President on the choice of the Prime Minister is his personal discretion
though paramount consideration in the choice would be of the person who
should command the majority in the House. Equally when the Government
has lost its majority in the House and refuse to lay down the office, it is
his paramount duty to dismiss the Government. Equally as said earlier, the E
dissolution of the Lok Sabha would be on aid and advice of the Prime
Minister, the President while dissolving the Lok Sabha without getting
involved in politics would exercise his discretion under Article 85, but the
ultimate responsibility and the accountability for such advice is of the
Prime Minister and the President would act consistant with the conventions
F
with an appeal to the people of the necessity to dissolve the House and
their need to express their will at the Polls. In this area the communication
of the aid and advice whether receives confidentiality and bar the enquiry
as to the nature of the advice or the record itself. Therefore, the enquiry
under Article 74 (2) is to the advice and if so, what advice was tendered
to the President would be confined to limit power but not to the decision G
taken on adn\inistrative routine though expressed in the name of the
President under Article 73 read with Article 71 of the Constitution.

The matter can be looked at from a different perspective that under
Article 361. the President shall not be answerable to any Court for the H
~
'
938 SUPREME COURT REPORTS [1994] 2 S.C.R.

A exercise or the performance of his power and duty of his office or for any
act purported to have been done by him in the exercise and performance
of those powers and duties. When the President acts not necessarily on the
(
aids and advice of the Council of Ministers but only "or otherwise i.e. "on
any other information" under Article 356(1) his satisfaction is a subjective
one that a situation has arisen in which the Government of the State cannot
B
be carried on in accordance with the provisions of the Constitution and
issues the proclamation required under Article 356(1) of the Constitution.
When it was challenged and asked to give his reasons, he is immuned from
judicial process. The Union of India will not have a say for the exercise or
the satisfaction reached by the President on otherwise self satisfaction:" for
c his issuing his proclamation under Article 356. Then no one can satisfy the
Court the grounds for the exercise of the powers by the President. There-
fore, we are of the considered view that the advice and, if so, what advice
was tendered by the Council of Ministe" for exercise of the power under
Article 356(1) would be beyond the judicial enquiry under Article 74(2) of
the Constitution. Nevertheless, the record on the basis of which the advice
D
was tendered constitute the material. But, however, the material on record,
the foundation for advice or a decision, does not receives total protection
under Article 74(2). Normally the record may not be summoned by "rule
nisi11 or 11discovery order nisin. Even if so summoned it may not be looked
into unless a very strong case is made out from the pleadings, the order of
E proclamation if produced and other relevant material on record. If the
court after due deliberation and, reasoned order by a High Court, issues
"discovery order nisi" the record is liable to be reproduced pursuant to
discovery order-nisi issued by this Court or the High Court subject to the
claim under s.123 of Evidence Act to examine the record in camera.
F
At this juncture we are to reiterate that judicial review is not con-
cerned with the merits of the decision but with the decision making ~

process. This is on the premise that modern democratic system has choosen
that political accountability is more important than other kinds of account-
ability and the judiciary exercising its judicial review may be refrained to
G do so when it finds that the controversy is not based on judicially dis-
coverable and manageable standards. However, if a legal question
camouflaged by political thicket has arisen, the power and the doors, of
constitutional Court are not closed, nor can they be prohibited to enter in t

the political field under the grab of political thicket in particular, when the
H Constitution expressly has entrusted the duty to it. If it is satisfied that a -r -
S.R. BOMMAI v. U.0.1. [K RAMASWAMY, J.] 939

judicially discoverable and manageable issue arises, it may be open to the A
court to issue discovery order nisi and consider the case and then issue
' rule nisi. It would thus be the duty and responsibility of this Court to
determine and found law as its premise and lay the law in its duty entrusted
by the Constitution, as ultimate interpretator of the Constitution, though
it is a delicate task and issue appropriate declaration. This Court equally
B
declare and determine the limit, and whether the action is in transgression
of such limit.

Interpretation of the Constitution and Scope of value orientation.

Before discussing the crucial question it may be necessary to preface C
that the constitution is intended to endure for succeeding generations to
come. The best of the vision of the founding fathers eould not visualise the
fitfalls in the political governance, except the hoary history of the working
of the emergency provisions in the Government of India Act and Wished
that Article 356 should 'not be "put to operation" or be a 'dead latter' and D
at best "sparingly" be used. In working the Constitution, Article 356 has
been used 90 times so far a daunting exercise of the power. Bnt it is settled·.
law that in interpretating the Constitution neither motives nor bad faith nor
abuse of power be presumed unless in an indi;,;dual case it is assailed and
arise for considerat;on on that premise. Section 114 (e) of the Evidence
Act raises statutory presumption that official acts have been" regularly E
performed.

Prof. Bork in his "Neutral Principles and Some First Amendments
Problems", 47 Ind. Law Journal, p. 1 at p. 8, 1971 Edn. st.ated that the
choice of fundamental values by the courts cannot be justified. When F
constitutional materials do not clearly specify the value to be preferred,
there is no principle weighing to prefer any claimed human value to any
other. The Judge must stick close to the text and the history and their fair
implications and not to constant new rights. The same ·'Neutral Principle
was preferred by Prof. Hans Linde in his Judges ·"Critics and Realistic
Traditions" 82 Yale -Law Jo>1rnal 127 at 254, (1972) that "the judicial G
responsibility begins and ends with determining the present scope and
meaning of a decision that the nation, at an earlier time, articulated and
. .,. enacted into constitutional text. Prof. Ely in his "Wages of Crying Wolf' a
comment on the Rea v. Ved, (1982) Yale Law Journal, 1920 at (1949) and
(1973) stated that a neutral principle if it lacks connection with any value, H
940 SUPREME COURT REPORTS [1994) 2 S.C.R.

A the constitution marks it as special. It is not a constitutional principle <!fid,
the court has no business in missing it. In Encyclopedia of the American
Constitution by Leonard W. Levy at p. 464 it is stated that "the Constitution
is a political document it serye~'· political ends; its interpretations are
political acts." Any theory of constitutional interpretation therefore pre-
B supposes a normative theory of the Constitution itself- a theory, for ex'
ample, about the constraints that the words and intentions of the adopters
should impose on those who apply or ioterpret the Constitution. As Ronald
Dworkin observed. "Some parts of any constitutional theory must be inde-
pendent of the intentions or beliefs or indeed the acts of the people the
C theory designates as Framers. Some part must stand on its own political or
moral theory; otherwise the theory would be wholly circular". The conrts
an interpreters are called upon to fill was significant constitutional gaps io
variety of ways. The conrt should vigorously describe, as determiners, of
public values as and small revolution and principles. Their sonrce of moral
foundation, available at the time when momentus issues based on ethical
D or moral principles arise. What is left for the other social decision makers,
the state, the legislative and the executive? Where does the non-original
political process fit in? Prof. Neil K. Komuser in his "The Features of
Interpreting Constitution" North Western Law Review. (1986-87) p. 191 at
p. 202 to 210 stated that the non-originalist ioterpreterists leave the above
E questions largely unanswered. He says, they seem or busy of timiog to
convince the world that one cannot and should not have a non narrow
originalist approach" nor that one or another branch of philosophy of
language should prevail for they have failed to address an essential-to my
miod, the essential question of constitutional law. Who decides? None of
the non-originalists vaguely phrased assignments for the judiciary, such as
F "search for public or traditional values 11 , or 11protection of principles 11 or
"evolution of morals" tell us what the courts should do or hold or describe,
what they actually do." The judiciary can be seen as doing everything or
nothing under these schemes. If the judiciary is meant merely to list values
or principles that might be considered by political process, the judicial role
G is toothless. The list of values or priociples that might be justiciably
considered is virtually iofinite. Anyone with the slighest sophistication can
find some benefit, value or justiciable priociples virtually in any legislation.
That is how the minimal scrutiny or rational review techniques of judicial
review generally have been employed. This level of review is no review at
H all. On the other hand one close up to the tenor of the arguments that the
S.R. BOMMAI v. U.0.1. [K. RAMASWAMY, J.] 941

non-originalists can be seen as giving the judicial task of balancing the A
) conflicting public values for proclamation which principles triumph. Here
the judiciary becomes the central societal decision makers. The resolution

-
of conflicts among public values is co-terminous with social decision
making. It is what the legislature, the executive and even the judiciary do.
Put simply, the value formulations of the non-originalists do not address B
the essential issue raised by the earlier discussions. How shall responsibility
for decisions be allocated in a word of highly imperfect decision makers?
How would these scholars have judiciary (let alone the other institution)
·,
face such terms as distrust, uncertainity and ignorance? One does not have
to be hostile to a substantial r@le for judicial review to be concerned when
so much constitutional scholarship skirts so central an issue. Indeed, one C
could allow for significantly more judicial activism than our constitutional
history reveals without approaching the limits inherent in the nebulous
formulations of the vari~us non-originalists positions. As a general matter
even in the most activist spirit, for example 'the Lochner and Warrah's
Courts Eras", the judiciary seems to have decided, not to decide more D
questions leaving the discovery of the public values or moral evolution in
more areas to otlter societal decision makers. Although such things are
within the measures, it seems that there is legislative, executive and to a
greater extent administrative agencies, interpreters, have actively in-
fluenced only a small percentage of public decision making. This it seems
to me the non-originalists literature threatens to be largely irrelevant to E
constitutional analysis" so long as it doe~ not consider with greater care:
11

under what circumstances the usually passive mode of judicial interpreta-
tionis to be replaced by the less common, but more important active m&de.
Bennion on statutory interpretation at p. 721 stated that since con.sti~utional
law is the framework or the state it is not to be altered by a side wind. A F
caveat is needed to be entered here. In interpreting the constitution, to give
effect to personal liberty or rights of a section of the society, a little play
proVides teeth to operate the law or filling the yearning gaps even 'pur-
posive principle" would be adaptable which may seek ,to serve the law. But
we are called to interpret the constitutional operation in political field,
whether it would be permissible is the question. G

SATISFACTION OF THE PRESIDENT AND JUSTICIABILITY

The satisfaction of the President that a situation has arisen in which
the Government of the State cannot be carried out in accordance with the H
942 SUPREME COURT REPORTS [1994) 2 S.C.R.

A of the Constitution is founded normally upon from the Governor or any
other information which the President ha' in possession, in other words,
the 11Council of Ministers", "the President 11 reached a satisfaction. Normally,
the report of the Governor would form basis. It is already stated that the
Governor's report should contain material facts relevant to the satisfaction
reached by the President. In an appropriate case where the Governor was
...
B not inclined to report to the President of the prevailing situation con-
templated by Article 356. the President' may otherwise have information
through accredited channels of communications and have it is their custody
and on consideration of which the President would reach a satisfaction that •·
a situation has arisen in which the Government of a State cannot be carried
C on in accordance with the provisions.

"OTHERWISE"

The word "otherwise" in Article 356(i) was not originally found in the
D Draft Article 278, but it was later introduced by an amendment. Dr.
Ambedkar supported the amendment on the floor of the Constituent
Assembly stating that, "the original Article merely provided that the presi-
dent could on the report of the Governor, "or otherwise' was not there.
Now it is felt that in view of the facts that Article 277A (now Artide 355)
which precedes the Article 278 (Article 356 imposed a duty and obligation
E upon the Centre. That it would not be proper to restrict and confine action
of the President which undoubtedly he will be taking in the fulfillment of
the duty, the report made by the Governor of the province. It may be that
the Governor does not make the report. I think as a necessary consequence
to the effectuation of Article 277A we must give liberty to the President to
F act even when there is no report of the Governor and when the President
got certain facts even from his knowledge that he thinks he ought to have
acted in fulfillment of his duty.' The width of the power is very wide, the
satisfaction of the President is subjective satisfaction. It must be based on
relevant materials. The doctrine that the satisfaction reached by an ad-
ministrative officer based on irrelevant and relevant grounds and when
G some irrelevant grounds were taken into account, the whole order gets
vitiated has no application to the action under Article 356. Judicial review
of the Presidential procla.'llation is not concerned with the merits of the
decision, but to the manner in which the decision had been reached. The
satisfaction of the President cannot be equated with the discretion con-
,H [erred upon an administrative agency of his subjective satisfaction upon
S.R. SOMMA! v. U.0.1. [K. RAMASWAMY,J.] 943

objective material like in detention cases administrative action or by sub- A
ordinates legislation. The analogy of the provisions in the Government of
) India Act or similar provision in the Constitution of Pakistan and the
interpretation put upon it by the Supreme Court of Pakistan do not assist
us. The exercise of the power under Article 356 is with the aid and advice
of the Council of Ministers with the Prime Minister as its head. They are
answerable to the Parliament and accountable to the people.
B

To test the satisfaction reached by the President there is·no satisfac-
tory criteria for judicially discoverable and manageable standards that what
grounds prevailed. with the President to reach his subjective satisfaction.
There may be diverse. varied and variagated considerations for the Presi- c
dent to reach the satisfaction. The question of satisfaction basically a
political one, practically it is an impossible question to adjudicate on any
judicially manageable standards. Obviously the founding fathers entrusted
that power to the highest executive. The President of India, with the aid
and advice of the Council of Ministers. The satisfaction of the President D
being subjective, it is not judicially discoverable by any manageable stand-
ards and the court would not substitute their own satisfaction to that of the
President. The President's satisfaction would be the result of his com-
prehending in his own way the facts and circumstances relevant to the
satisfaction that the Government of the State cannot be carried on in
accordance with the provisions of the constitution. There may be wide E
range of situations and sometimes may not be enumerated, nor there be
any satisfactory criteria, but on a conspectus of the facts and circumstances
the President may reach the satisfaction that the Government of the State
cannot be carried on in accordance with the provisions of the constitution.
Therefore, the subjective satisfaction is not justiciable on any judicially F
manageable standards. Moreover, the executive decision of the President
receives the flavour of the legislative approval after both Houses of the
Parliament approved the proclamation and executive satisfaction ceases to
be relevant. Article 100 of the Constitution protects the parliamentary
approval from assailment on any ground. The judicial review becomes
unavailable, that apart a writ petition under Article 226, if is maintainable G
to question the satisfaction, equally a declaration that a situation has arisen
in the state to clamp emergency or to declare President Rule by judicial
order is permissible and cannot be wished away. Could it be done?

The use of the world "may" in clause (1) of Article 356 discerns H
944 SUPREME COURT REPORTS [1994) 2 S.C.R.

A discretion vested in the President (Council of Ministers) to consider
whether the situation contemplated under Article 356 has arisen and
discernable from the report submitted by the Governor or other informa- (
lion otherwise had necessitated to dismiss the State Government and
dissolve the Assembly to take over the administration of a State or any
one of the steps envisaged in sub-clauses (a) to (c) of Clause 1. The
B issuance of proclamation is subject to approval which includes (disapproval
in inappropriate case) by both Houses of Parliament. In other words, the
issuance of the proclamation and actions taken in furtherance thereof re
subject to the Parliamentary control which itself is a check and safeguard
to protect the Federal character of the State and democratic form of
·C Government. The President is not necessarily required to approve the
advice given by the Council of Ministers to exercise the power under
Article 356. The proviso to sub-Article (i) of Article 74, brought by
Constitution 44th Amendment Act, itself is a further assurance that it was
issued after due and great deliberations. It also assures that the President
D actively applied his mind to the advice tendered and the material placed
before him to arrive at his subjective satisfaction. In an appropriates case
be may require the Council of Ministers to reconsider .such advice, either
generally or he may himself suggest an alternative course of action to the
proposed advice tendered by the Council of Ministers. By necessary im-
plication it assures that the President is an active participant nor merely
E acted as a constitutional'head under Article 73, but also active participent
in the decision making process and the proclamation was issued after due
deliberations. The court cannot, therefore, go behind the issue of
proclamation under Article 356 and substitute its own satisfaction for that
of the President.
F "CANNOT BE CARRIED ON'' - MEANING AND SCOPE

We are to remind ourselves that application of 'principle of the
source" from Part 18, the family of emergency provisions conveniently
employed or the grammarian's rule would stultify the operation of Articles
G 356 wisely incorporated in Constitution. Instead placing it in the spectrum
of "purposive operation' with prognosis would yield its efficacy for succeed-
ing generations to meet diverse situations that may arise in its operation.
The phrase 'cannot be carried on' in Clause 1 of Article356 does not mean
that it is impossible to carry on the Government of the State. It only means
H that a situation has so arisen that the Gover~ent of the State cannot be ;-·
S.R. BOMMAI v. 1.).0.1. (K. RAMASWAMY, J.] 945

carried on its administration in accordance with the provisions of the A
Constitution. It is not the violation of one provision or another of the
Constitution which bears no nexus to the object of the action under Article
356. The key word in the marginal note of Article 356 that "the failure of
Constitutional machinery" open up its mind of the operational area of Art.
356(1) Suppose after general elections held, no political party or coalition B
of parties or groups is able to secure absolute majority in the legislative
assembly and despite the Governor's exploring the alternatives, the situa-
tion has arisen in which no political party is able to form stable Govern-
ment, it would be a case of completely demonstrable inability of any
political party to form a stable Government commanding the confidence
of the majority members of the legislatures. It would be a case of failure
c
of constitutional machinery. After formation of the ministry, suppose due
to internal dissentions, a deliberate dead-lock was created by a party or a
group of parties or members and the Governor recommends to the Presi-
dent to dissolve the assembly, situation may be founded on imponderable
variable opinions and if the President satisfied that the Government of the D
State cannot be carried on and dissolved the assembly by prociamation
under Article 356, would it be judicially discoverable and based on
manageable standard to decide the issued? On a ministry is voted by
motion of no confidence but the Chief Minister refuses to resign or he
resigns due to loss of support and no other political party is in a position E
to form an alternative Government or a party having majority refuses to
form the Ministry would not a constitutional dead-lock be created ? When
in situ_ations the Governor reported to the President, and President issued
proclamation could it be said that it would be unreasonable or ma/a fides
exercise of power ? Take another instance where the Government of a F
State, although enjoying the majority support in the assembly, it has
deliberately conducted, over a period of time, its administration in dis-
regara of the constitution and the law and while ostensibly acting withih
the constitutional form, inherently flouts the constitutional principles and
conventions as a responsible Government or in secret collaboration with G
the foreign powers or agencies creates subvertive situation, in all the cases
each is a case of failure of the constitutional machinery.

While it is not possible to exhaustively catalogue diverse situation
when the constitutional break down may justifiably be inferred from, for
instance (i) large scale break down of the ·law and order or public order H
946 SUPREME COURT REPORTS (1994] 2 S.C.R.

situation; (ii) gross mismanagement of affairs by a State Government; (iii)
corruption or abuse of its power; (iv) danger to national integration or
security of the state or aiding or abetting national disintegration or a claim '
for independent sovereign status, and (v) subversion of the constitution
while professing to work under the Constitution or creating disunity or
disaffection among the people to disintegrate democratic social fabrics.
B
The Constitution itself provides indication in Article 365 that on the
failure of the State Government to comply with or to give effect to any
directions given by the Union Government in exercise of its executive
powers and other provisions of the Constitution it shall be lawful for the ,
C President to hold. that a situation has arisen in which the Government of
the State cannot be carried on in accordance with the provisions of the
Constitution. For instance, the State failed to preserve the maintenance of
means of communication declared to be of national or material 1neans
envisaged under Art. 257(2) of the Constitution and despite the directions,
D the State Govt. fails to comply with the same. It would be an instance
envisaged under Art. 356. Similarly protection of the railways within 'the
State is of paramount importance. If a direction issued under Art. 257(3)
was failed to be complied with by the State to protect the railways, it would
be another instahce envisaged under Art. 365. In these or other analogous
E situations the warning. envisaged by Dr. Ambedkar need to be given and
failure to comply with the same would be obvious failure of the constitu-
tional machinery. During proclamation of emergency under Art, 352 if
directions issued under Art. 353A were not complied with or given effect
to, it would also be an instance under Art. 365. Equally directions given
under Art. 360(3) as to observance of financial propriety or the proclama-
F tion as to financial emergency is yet another instance envisaged by Art. 365.
The recent phenomena that the Chief Minister gets life size photo publish-
ed in all national and regional dailies everyday at great public expenditure.
Central government has responsibility to prevent such wasteful .expendi-
ture. Sufficient warning given yielded no response nor the Chief Minister
G desisted to have it published it is not a case for action under Article 356?
These instances would furnish evidence as to the circumstances in which
the President could be satisfied that the Government of the State cannot
be carried on in accordance \vith the provisions of the Constitution. These
instances appear to be of curative in nature. In these cases forward may
H be called for before acting under Art. 356.
S.R. BOMMAJ v. U.0.1. [K. RAMASWAMY, J.] 947

Take another instance that under Article 339{2) of the Constitution A
the Union of India gives direction to the State to draw and execute the
schemes specified therein for the welfare of the Scheduled Tribes in that
state and allocated funds for the purpose. The state, in defiance, neither·
grew the plans nor execute the schemes, but diverted the finances allocated
for other purposes. It would be failure of the constitutional machinery to
elongate the constitutional purpose of securing socio-economic justice to
B
the tribals envisaged in the directive principles warranting the President to
reach his satisfaction that the Government of the state is not carried on in
accordance with the provisions of the constitution. Where owing to armed
., rebellion or extra-ordinary natural calamity, like earth-quake, the Govern-
ment of the State is unable to perform its duty in accordance with the C
·.• provisions of the Constitution, then also satisfaction of the president that
the government of the State is unable to perform as a responsible Govern-
ment in accordance with the provisions of the Constitution is, not justici-
able.
D
Conversely, on the resignation of the Chief Minister the Governor
without attempting or probing to form an alternative Government by an
opposition party recommends for dissolution of the Assembly, it would be
an obvious case of highly irrational exercise of the power. Where the Chief
Minister himself express inability to cope with his majority legislators,
recommends to the Governor for dissolution, and dissolutiqn accordingly E
was made, exercising the power by the President, it would also be a case
of highly irrational exercise of the power. Where the Governor recom-
mends to the President to dissolve the Assembly on the ground that -the
Chief Minister belongs to a particular religion, caste on creed, it would also
be a case that the President reached satisfaction only on highly irrational p
consideration and does not bear any nexus or correla!ion to the ap-
proximate purpose of the Action. It is clearly unconstitutional. Take an
instance that national language is Hindi. Centre directs a non-Hindi speak-
ing state to adopt Hindi in the Devnagari script as state language, though
predominantly 95% of the population do not know Hindi, nor have need
to adopt it as lingua franca, the violation of the directives does not entail G
with imposition of President rule.

The exercise of power under Article 356 by the President through
Council of Ministers Places a great responsibility on it and inherent therein
are the seeds of empittemess between the Union of India and the states. H
948 SUPREME COURT REPORTS [1994] 2 S.C.R.

A A political party with people's mandate of requisite majority or of coalition
with value based principles or programmes and not of convenience are
entitled to form Government and carry on administration for its full term
unless voted down from power in accordance with the Constitution. We
have multi-party system and in recent past regional pa~ties are also emerg-
ing. So one political party would be in power at the Centre and another at
B the State level. In particular, when the Union of India seeks to dismiss a
State Ministry belonging to a different political party, there bound to exist
friction. The motivating factor for action under Article 356( 1) should never
be for political gain to the party in power at the Centre, rather it must be
only when it is satisfied that the constitutional machinery has failed. It is ,.
c to reiterate that the federal character of the Government reimposes the
belief that the people's faith in democratically elected majority or coalition
government would run its full term, would not be belied unless the situation
is otherwise unavoidable. The frequent elections would belie the people's
belief and faith in parliamentary form of Government, apart from enour-
D mous election expenditure to the State and the candidates. It also generates
disbelief in the efficacy of the democratic process which is a death knell to
the parliamentary system itself. It is, therefore, extremely necessary that the
power of proclamation under Article 356 must be used with circumspection
and·in a non-partisan manner. It is not meant to be invoked to serve
political pain or to get rid of an inconvenient State Governments for good
E or bad governance. but only in cases of failure .of the constitutional
machinery of the State Government.

As stated earlier, the constitutional and political features should be
nurtured and set conventions be laid by consensus among the political
F parties either by mutual agreement or resolution passed in this behalf. It
is undoubted that Sarkaria Commission appointed by the Union of India
and Rajamannar commission appointed by the State Govt. of Tamilnadu
suggested certain amendments to Art. 356, distinguished Judges gave
guidelines. Though they bear weight, it is for the consideration of the
political parties or Governments, but Judicially it would not be adapted as
G guidance as some of them would be beset with difficulties in implementa-
tion. However, their creases could be ironed out by conference or by
consensus of the political parties. As regards horse-trading by the legis-
lat<Jrs, there are no judicially discoverable and manageable standards to
decide in judicial review. A floor test may provide impetus for corruption
H and rank force and violence by muscle men or wrongful confinement or
S.R. BOMMAI v. U.0.1. [K. RAMASWAMY, J.] 949

volitional captivity of legislators occur till the date of the floor test in the A
House to gain majority on the floor of the House.

At some quarters it is believed that power under Article 356 was
mis-used. We are not called to examine each case. A bird's eye view of the
proclamations issued by the president under article 356 it would appear
that on three occasions the Speaker if the legislative assembly created B
dead-lock to pass the financial bills. The power was used to resolve the
deadlock. When there was break down of law and order and pnblic order
due to agitations for creation of a separate states for Telangana and
Andhra; the Andhra Pradesh legislative assembly was dissolved and the
., Congress Ministry itself was dismissed while the same party was in power C
at the centre. Similar instance would show that the power under Article
356 was used when constitutional machinery failed. This would establish
that the width of the power under Article 356 cannot be cut down, clipped
or crapped. Moreover, the elected representatives from that State repre-
sent in the Parliament and do participate in the discussion of the presiden-
tial proclamation when its approval was sought and the transaction of D
legislative business concerning that state and express their dissent when it
was mis-used. though temporarily the democratic form Government was
not in the governance of that State. The basic feature of the Constitution,
namely democracy is not affected for the governance by the elected execu-
tives temporarily at times maximum period of three years.
E
The President being the highest executive of the State, it is imper-
missible to attribute personal ma/a [ides or bad faith to the President. The
proviso to Article 74(1) presumptively prohibits such a charge unless
established by unimpeachable evidence at the threshold. For the exercise
the power under Article 356 the Prime Minister and his Council of Mini- F
sters, ·he/they are collectively responsible to the Parliament and account-
able to the people. The only recourse, in case of misuse or abuse of power
by the President, is to take either impeachment proceedings under Article
61 against the President or seek confidence of the people at the polls.

G
These conclusions do not reach the journey's end. However, it does
not mean that the court can merely be an onlooker and a helpless spec-
tator to exercise of the power und_er Art. 356. It owes duty and respon-
sibility to defend the democracy. If the court, upon the material placed
before it finds that the satisfaction reached by the President is unconstitu-
tional, highly irrational or without any nexus, then the court would consider H
950 SUPREME COURT REPORTS. [1994] 2 S.C.R.

A the contents of the proclamation or reasons disclosed therein and in
extreme cases the material produced pursuant to discovery order nisi to
find the action is wholly irrelevant or bears no nexus between purpose of
the action and the satisfaction reached by the President or does not bear
any rationale to the proximate purpose of the proclamation. In that event
the court may declare that the satisfaction reached by the President was
B either on wholly irre.levant grounds or colourable exercise of power and
consequently proclamation issued under Article 356 would be declared
unconstitutional. The court cannot go into the question of adequacy of the
material or the circumstances justifying the declaration of the President
Rule. Roscoupoun in his Development of the Constitutional Guarantees of
C liberty, 1963 Edn. quoted Jahering that, "Form is sworn enemy of caprice,
the twin sisters of liberty, fixed forms are the school of discipline and order
and thereby of liberty itself'. The exercise of the discretion by the President
is hedged with the constituitional constraint to obtain approval or the
Parliament within two months from the date of the issue, itself is an
assurance of proper exercise of the power that the President exercises the
D power properly and legitimately that the administration of the state is nor
carried on in accordance with the provisions of the Constitution.

SCOPE OF REINDUCTJON OF THE DISMISSED GOVERNMENT,
RENOTIFICTJON AND REVIVAL OF DISSOLVED ASSEMBLY AND
ITS EFFECT
E
Contention was raised that until all avenues of preventing failure of
the machinery by appropriate directions by the Central Government failed
or found it absolutely impossible for the State Govt. to carry on the
administration in accordance with the provisions of the Constitution or by
F dual exerGise of the power partly by state and partly by the President or
alternatively with dissolution of the Assembly should be deferred till ap-
proval by the Parliament is given and stay the operation of the Presidential
proclamation till that time have been convassed by the counsel for the
States. It is already considered that warnings are only in limited areas in
the appropriate cases of financial mismanagement, but not in all the other
G situations.

CONSTITUTIONAL CONVENTIONS PROVIDE FLESH WHICH
CLOTHES DRY BONES OF LAW

H Eversince Article 356 was put in operation convention has been
S.R. BOMMAI v. U.O.l. [K. R~ASWAMY, J.] 951
' developed that the legislative Assembly is dissolved, the State Government A
) is removed and the executive power assumed by the President is entrusted
to the Governor to carry on the executive actions with the aid and advice
of the appointed Advisors. The Parliament exercises the legislative powers
of the entries in List II of the Schedule and delegates legislative power to
the President. The President makes incidental and consequential
provisions. The Government of the State is· thus under the administration
B
of the Union Government. The Constitution though provided an elaborate
procedure with minute details, that in the event of the Parliament did not
approve the proclamation issued under Article 356, the contingency of
restitution of removed government and restoration of dissolved Assembly,
obviously with the fond hope that Article 356 would remain a "dead letter" c
or it wiJI 11not be put to operation", or at best 11 sparingly" used. Dr. Ambed-
kar in his closing speech in the constituent Assembly stated that "The
Conventions and political morality" would held successful working of the
constitution. Constitution cannot provide detailed rules for every even-
tuality. Conventions are found in all established Constitutions. The CQn- D
ventions are meant to bring about Constitutional development without
formal change in the law. Prof. K.C. Wheare in his book "the Statute of
Westminister and Dominion status" (fourth Edition) defined the conven-
tionsthus:

"The definition of conventions may thus be amplified by saying that E
their purpose is to define the use of constitutional discretion. To
put this in slightly different words, it may be said that conventions
are non-legal rules regulating the way in which legal rules shall be
applied."

Sir W. Ivon Jennings, in his "Law and the Constitution" (Fifth Edition) · F
elaborated the constitutional convention:

"Thus within the framework of the law there is room for the
development of rules of practice, rules which may be followed as
consistently as the rules of law, and which determine the procedure G
which the men concerned with government must follow." · ·

The Constitutional conventions provide the flesh which clothes the
dry bones of the law; they make the constitution work; they keep it in touch
with the growth of ideas. A constitution does not work itself; it has to be
worked by men. It is an instrument of national cooperation which is as H
952 SUPREME COURT REPORTS [1994] 2 S,C.R

A necessary·as the. instrument. The conventions are the rules elaborated for
effecting that cooperation. Convention enirust power granted in. the Con-
stitution from one person to the other when the law is exercised by whom
they are granted, they are in practice by some other person or body of
persons. The primary role of conventions i.s to regulate the exercise of the
discretion facing that irresponsible abuse of power.
B
K.C. Wheare in his book ''Modem Constitutional" (1967 edition)
stated that : "flie conventions not only give discretionary powers to the
Government but also in executive governance and a legislature or executive ,·
relations, where such rules and practice operate. They may be found in
C other spheres of constitutional activities also". He stated that: 'A course of
conduct may be persisted over a period of time and gradually attain first
pursuasive and then obligatory force. A convention may arise much more
quickly than that. There may be an agreement among the people concerned
to work in a particular way and to adopt a particular rule of conduct''. Sir
D W. Ivor Jennings had stated that "The law provides only a framework; these
who put the laws into operation give the framework a meaning and fill in
the interstices. Those who take decisions create precedents which otll.ers
tend to follow, and when they have been followed long enough they acqu)re
the sanctity and the respectability of age. They not only are followed but
they have to be followed." One of us, learned brother Kuldip Singh. J. had
E elaborately considered the scope of conventions which obviated the need
to tread the path once over and held in the Supreme Court Adw,>cates on
Record Association and Ors. v. Union of India, JT (1993) 5 SC 479 that:

"The Written Constitution. cannot provide for every eventuality.
F Constitutional institutions are often cre~ted by lhe provisions
which are generally worded. Such provisions are interpreted with
the help of conventions which grow by the passage of time. c9n-
ventions are vital in so far a they fill-up the gaps in the Constitution
itseff, help, solve problems of interpretation and allow for the
futme development of the Constitutional frame work. Whatever
G the nature of the Constitution, a great deal may be left unsaid in
legal rules allowing enormous discretion to the constitutional
functionaries. Conventions regulate the exercise of that discretion".

The conventien in working Art. 356 of the Constitution has been
H established and became the constitutional law filling the interstices of
S.R. BOMMAI v. U.0.1. [K. RAMASWAMY,J.] 953

legislative process. The actions done by the President in accordance with A
) the choice left to him by Sub- clauses (a) to (c) of Article 356 and by
Parliament under Art. 357, i.e. dissolution of the legislative assembly,
removing the State Government, assumption of administration and entrust-
ment of the administration and the executive power to the Governor of that
State with the aid and advice of the appointed Advisors and to take over · B
legislative fµnctions by the Parliament and the power of promulgation of
Ordinance by the President,etc. by operation of Article 357 and making all
incidental and consequential provisions for convenient administration of
executive Government of the State attained status of constitutional law.
This constitutional convention firmly set the working of the Constitution on
smooth working base and is being operated upon all these years. We hold C
that that upsetting the settled convention and the law and adopting value
oriented interpretation would generate uncertainty and create constitution-
al crises in the administration and the Government and would lead to
failing the Constitution itself.

PRESIDENTIAL PROCLAMATION -SO FAR PARLIAMENT DID NOT D
DISAPPROVE

The proclamation issued under Article 356 requires to be laid before
each House of Parliament within two months from the date of its issue.
Unless it receives the approval, it shall cease to operate at the expiration E
of two months. The legal consequences of the proclamation, as stated
earlier, is that the State Government is removed, the legislative Assembly
is dissolved and in exercising the power mentioned in. sub-clauses (a)(b) &
(c) of Clause (1) of Article 356 the.President takes either steps mentioned
therein and the Parliament exercises the power under Article 357 confer-
ring the Legislative power on the President and arrangement for con- F
venient administration made while. exercising legislative powers. in the
entries in-List II of Schedule VII of the Constitution·. The contention is that
till ei<piry of two months the _legislative assembly should not be dissolved
and on the approval received from both the Houses of Parliament the
President should dissolve it. If the President fails to get the approval then G
the dissolved Assembly must be revived and the dismissed Ministry should
be reinducted into office. We find it difficult to give acceptance to this
contention and if given acceptance it would beset with grave incongruities

. '" and result in operational disharmony. The Parliament did not disapprove
any proclamation so far issued. There is no express provision engrafted in
the Constitution to fill in this contingency. In Rajasthan's case this Court H
)

954 SUPREME COURT REPORTS [1994] 2 S.C.R.

A considered the contingency and held that dissolution ·of the Legislative
Assembly is part of the same proclamation or by a subsequent order and ,
that even if the Parliament does not approve the proclamation the dissolved
Assembly and the removed Ministry cannot be restored. We respectfully
agree with the view for the reasons we independently give hereinunder.

B FUNCTIONAL INCONGRUITY AND DISHARMONY

The executive power of the Union or the State is co-extensive with
their legislative powers respectively. When the President assumed ad-
ministration of the State under Article 356, without dissolving the Legisla·
C tive Assembly could the President discharge the executive powers without
legislative powers being armed with by the Parliament? Could the Presi-
dent discharge the duties under the directions of the State Legislature, if
need arises for passing appropriate legislative sanctions. By camera! opera-
tion of the legislative and executive powers both by the State legislature
D and Parliament in List II of VII Schedule is an anthema to the democratic
principle and constitutional scheme, The question of conflict of parliamen-
tary supremacy and executive over-bearing is more imaginary than actual
or real.

The reinduction of the government of the State also besets with
/E
several incongruities. It cannot be assumed that the President lightly
removed the State government. It must be for formidable grounds, though
not judicially discoverable nor discernable to strict judicial scrutiny. All the
proclamations so far issued were not disapproved by the Parliament. The
dismissed Government, if restituted into power, may violate ~th impunity
F the provisions of the Constitution and Laws for the balance period taking
advantage of majority in the legislature and full scale corruption or other
unconstitutional acts will have their free play. The political party itself and
all their members of the legislature should collectively own responsibility
for the removal of their Government and their unconstitutional governance
writes its own death warrant. Restitution thereby puts a premium on failing
G the Qbnstitiltion. The political party must seek afresh mandate from the
electorates .an<festablish their credibility by winning majority seats. The
existence oL.tlie legislative council which is not dissolvable, like Rajya
Sabha, cannot by itself transact any business, in particular the finance bills
or appropriate bills or annual financial statements. Therefore, its con-
H tinuance shall render no criteria to the continuance of legislature or to
S.R. HOMMA! v. U.0.1. [K. RAMASWAMY, l.] 955

assume it be not dissolved on grammarian rule to reconstitute the dissolved A
legislative assembly of which the majority members belong to the same
party. No doubt dissolution of the legislature literally would include legis-
lative council but not every State has a council. No distinction between two
types of States, one with Council and another without Council and the
former would be eligible for revival and later per force would not be, was
not meant by the Constitution. Grammarian rules carries no consistance.
B
Moreover this problem could also be tested from the expediency and
functional efficacy. The possibility of reinduction creates functional hiatus.
Suppose the court grants stay till the Parliament approves the proclama-
tion, if urgent ne~d arose to issue ordinance or transact legislative or
financial business, who would do it? The suspended Assembly cannot do C
nor the Parliament. The dismissed Ministry cannot transact the legislative
business. Even if permitted to function and ultimately the proclamation is
approved by the Parliament, what would happen to the validity of the
executive and legislative acts done in the intreghum. As stated, is there no
possibility of large scale abuse of office for personal or political gain? If D
the orders ate issued by the Courts on value based opinion, where is the
finality and at what point a stop is to be put? If stay is granted, by a High
Court and writ petition is not disposed of and the term of the legislative
Assembly expires what would happen to the Ministry in office? Whether it
would continue by order of the Court? How elections are to be conducted
by the Election Commission? Is it under the orders of the Court or by the E
Exercise of the power under Article 324. Is day to day executive, legislative
and administrative actions are to be done under the writ of the Court? If
a High Court issues a direction to allow the dissolved assembly its. full
course of balance period including the suspended period what would
happen? Is it not violative of Article 172? ·whether it could be prevented F
to be done? If such Order is not complied with, is not the President liable
to contempt of the Court and if so what happens to the protection of
Art.361? Instead of solving the problems, does not the writ of the court
creates constitutional crisis? Giving deep and anxious consideration and
visualising the far reaching constitutional crisis, we are firmly of the view
that the self restraint constitutions us to express no value opinion, leaving G
to the Parliament to ponder over and if deemed necessary amend Art. 356
suitably.

The Constitution was amended more than 77 times and Article 356
itself was amended six times through the Constitution s.38th Amendment H
956 SUPREME COURT REPORTS (1994] 2 S.C.R.

A Act; 42nd Amendment Act: 44th Amendment Act; 59th Amendment Act;
64th Amendment Act and 68th Amendment Act. Apart from the Congress
Party, three non congress political parties were in power at the centre
during these 44 years and no amendment was brought to Article 356 {3)
that on disapproval of the proclamation by the Parliament the dissolved
Assembly stands revived and removed Government stood reinducted. The
B statutory construction fortifies this conclusion.

CASUS OMISSUS - WHETHER PERMISSIBLE.TO SUPPLY

The question, further arises whether by interpretative process, would
C it be permissible to fill in the gaps. Though it is settled law that in working
the law and finding yearning gaps therein, to give life and force to the
legislative intent, instead of blaming the draftsman, the Courts ironed out
the creases by appropriate technique of interpretation and infused life into
dry bones of law. But such an interpretation in our respectful view is not
D permissible, when we are called upon to interpret the organic Constitution
and working the political institutions created therein. When Parliament has
had an opportunity tq consider what exactly is going wrong with the
political sy~tem designed by the Constitution but took no steps to amend
the Constitution in this behalf, it is a principle of legal policy, that the law
E should be altered deliberately, rather than casually by a sidewind only, by
major and considered process. Amendment of the Constitution is a serious
legislative business and change in the basic law, carefully workout, more
fundamental changes are brought out by more through going and indepth
consideration and specific provisions should be made by which it is imple-
mented. Such is the way to contradict the problem by the legislative process
F of a civilised State. It is a well established principle of construction that a
statute is not to be taken as affecting Parliamentary alteration in the
general law unless it shows words that are found unmistakably to that
conclusion. No motive or bad faith is attributable to the legislature. Ben-
nion at page 336 extracting from the Institute of the Law of Scotland vol.
G 3 Page 1 of The Practice by David Maxwell at page 127 abstracted that I
"where a matter depends entirely on the construction of the words of a
statute, there cannot be any appeal to the nobile officium.' He stated at
page 344 that "where the literal meaning of the enactment goes narrower
than the object of the legislator, the court may be required to apply a
H rectifying construction. Nowadays it is regarded as not in accordance with
S.R. BOMMAI v. U.0.1. [K. RAMASWAMY, J.] 957

public policy to allow a draftsman' s ineptitude to prevent justice being A ..
' done. This was not always the case". Where the language of a statute is
clear and unambiguous, there is no room for the application either of the
doctrine of. i:qsus omissus or of pressing into service external aid, for in
such a case the words used by the Constitution or the statute speak for
themselves and it is not the function of the court to add words or expres- B
sions merely to suit what the courts .think is the supposed intention of the
legislature. In American .Jurisprudence 2d Series, vol. 73 at page 397 in
, para 203 it is stated that, "It is a general rule that the courts may not, by
construction insert words or phrases in a statute or supply a casus omissus
by giving force 1md effect to the language of the statute when applied to a C
subject about which nothing whatever is said, and which, to all appearan-
ces, was not in the minds of the legislature at the time of the enactment of
the law". Under such circumstances new provisions or ideas may not be
interpolated in a statute or ingrafted thereon. At page 434 in para 366 it
is further stated that "While it has been held th~t it is duty of the courts to
interpret a statute as they find it without.reference to whether its provisions D
are expedient or unexpedient. It has also been recognised that where a
statute is ambiguous and subject to more than one interpretation, the
expediency of one constitution or the other is properly ~nsidered. Indeed,
where the arguments are nicely balanced, expediency may tip the scales in
favour of a particular construction. It is not the function of a court in the· E
intepretation of statutes, to vindicate the wisdom of the law. The mere fact
that statute leads to unwise l'f'SUlts is not sufficient to justify the court in
rejecting the plain meaning of unambiguous words or in giving to a statute a
meaning of which its language is not susceptible, or in restricting the scope of
a statute. By Jhe same taken, an omission or failure to provide for contingen• F
cies, which it may seem wise to have provided for specifically, does not justify
any judicial addition to the language of the statute. To the contrary, it is the
duty of the courts to intepret ti statute as they find it without reference to
whether its provisions are wise or unwise, necessary or unnecesslll)'; ap-
propriate or inappropriate, or well or ill conceived".
G
Craies on Statute Law, 7th Edition, at page 69 states that the second
consequence of t.he rule of casus omissus is that the statute inay not be
extended to meet a case for which provision has clearly and undoubtedly
not been made. In Construction of Statutes by Crawford at page 269 in
lI
958 SUPREME COURT REPORTS [1994] 2 S.C.R.

A paragraph 169 it is stated that omissions in a statute cannot, as a general
rule, be supplied by construction. Thus, if a particular case is omitted from
the terms of a statute, e,ven though such a case is within the obvious
purpose of the statute and the omission appears to have been due to
accident or inadvertence, the court cannot include the omitted case by I
supplying the omission. This is equally true where the omission was due to
B the failure of the legislature to foresee the missing case. As is obvious, to
permit the court to supply the omissions in statutes, would generally
constitute an encroachment upon the field of the legislature. In construing
the constitution we cannot look beyond the letter of the constitution to .. r
adopt something which would command itself to our minds as being
C implied from the context. In State of Tasmania v.The Commonwealth of
Australia and State of Victoria, [1904] 1 CLR 329, 358-59, Connor. J. dealing
with the question observed thus:

"It appears to me the only safe rule is to look at the Statute itself
D and to gather from it what is its intention. If we depart from that
rule we are apt to run the risk of the danger described by Pollack,
O.B., in Mille v. Sa/omons., If he says, 'the meaning of the language
be plain and clear, we have nothing to do but to obey it is to ,,
administer it as we find it; and , I think, to take a different course
is to abandon the office of Judge, and to assume the province of
E legislation. Some passages were cited by Mr. Glynn from Black on
the 'Interpretation of laws', which seem to imply that there might
be a difference in the rules of interpretation _to be applied to the
Constitution and those to be applied to any other Act of Parlia-
ment, but there is no foundation for any such distinction. The
F intention of the enactment i' to be gathered from its word. If the
words are plain, affect must be given lo them; if they are doubtful,
the intention of legislature is to be gathered from the other
provisions of the statute aided by a consideration of surrounding
circumstances. In all cases in order to discover the intention you
may have recourse to contemporaneou~ circumstances - to the
G history of the law, and you may gather from the instrument itself
the object of the Legislature in passing it. In considering the history
of the law, you may look into previous legislation, you must have
regard to the historical. facts surrounding the bringing of law into
existence. In the case of a Federal Constitution the field of inquiry
H is naturally more extended than in the case of a State Statute, but
S.R. BOMMAI v. U.0.1. [K. RAMASWAMY, J.] 959

the principles to be applied are the same. You may deduce the A
intention of the Legislat:Jre from a consideration of the instrument
itself in the light of these facts and circumstances, but you cannot
)
go beyond it. If that limitation is to be applied in the interpretation
of an ordinary act of Parliament, it should at least be as stringently
applied in the interpretation of an instrument of this kind, which
B
not only is a statutory enactment, but also embodies the compact
by which the people of the several colonies of Australia agreed to
enter into an indissoluble Union."

In Encyclopedia of the American Judicial System the Constinaional
Interpretation by Craig R. Ducat it is stated that the standard for assessing C
constitutionality must be the words of the Constitution, not what the judges
would prefer the Constitution to mean. The constitutional supremacy neces-
sarily assumes that a superior n1le is what the Constitution says it is not 1vhat
1

the judges prefer it to be, vide page 973,. (emphasis supplied) In j11dicial
tributes balancing the competing interest Prof. Ducat quoted with approval D
the statement of Bickel at page 798 trust:

"The judicial process is top principle-phone and principle-pound
- it has to be, there is no other justification or explanation for the
role it plays, it is also too remote from conditions, and deals, case
by case, with too narrow a slice of reality. It is not acessible to all E
the varied interests that are in play in any decision of great
consequence. It is, very properly, independent. It is passive. it has
difficulty controlling the stages by which it approaches a problem.
It rushes forward too fast, on it lags, its pace hardly even seems
just right. For all these reasons, it is, in a vast,° complex, changeable F
society, a most unsuitable instrument for the formation of policy. 11

In the Modes of Constitutional Interpretation by Craig R. Ducat, 1978
Edition at p.125. he stated that the judges decision ought to mean society
values not their own. He quoted Cardozo's passage from the Nature of
Judicial process at page 108 that, "a judge,"! think would err if he were to G
impose upon the community as a rule of life his own idiosyncracies of
conduct or belief." The court when caught in a paralysis of dilema should
adopt self-restraint, it must use the judicial review with greatest caution. In
clash of political forces in political statement the interpretation should only
be in rare and auspicious occasions to nullify ultra vires orders in highly H
---(.
960 SUPREME COURT REPORTS (1994] 2 S.C.R.

A arbitrary or wholly irrelevant proclamation which does not bear any nexus
to the pte-dominant purpose for which the proclamation was issued, to
delcare it to be unconstitutional and no more.
(

Frankfurter, J. Says in Dennis v. United States,341VS494, 525. (1951]
thus:
B
"But how are competing interests to be assessed? Since they are
not subject to quantitative ascertainment, the issue necessarily
resolves itself into asking, who is to make the adjustment?--who is
to balance the relevant factors and ascertain which interest is in ,.
c the circumstances to prevail? Full responsibility for the choice
cannot be given to the courts. Courts are not representative bodies.
They are not designed to be a good reflex of a democratic society.
Their judgment is best informed, and therefore most dependable,
0 within narrow limits. Their essential quality is detachment, founded.
on independence. History teaches that the independence of the
D
judiciary is jeopardized when courts become embroiled in the
passions of the day and assume primary responsibility in choosing
between competing political. economic and social pressures

E Regionalism, lingualism and religious fundamentalism have become
divisive forces to weaken the unity and integrity of the country. Lingualistic
chaunism aiding its fuel to keep the people poles apart. Communalism and
castism for narrow political gains are creating foul atmosphere. The seces-
sionist forces are working from within and out side the country threatening
F national integration. To preserve the unity and integrity of the nation, it is
necessary to sustain the power of the president to wisely use Article 356
to stem them out and keep the Government of the state function in
accordance with the provisions of the Constitution. Article 356 should,
therefore, be used spraingly in only cases in which the exercise of the power
is called for. It is not possible to limit the scope of action under Article .
G 356 to specific situations, since the failure of the constitutional machinery
may occur in several ways due to diverse causes be it political, internal
subversion or economic causes and no straight- jacket formula would be
possible to evolve. The founding father. s thus confided the exercise.:Jc.gf the .
power in the highest executive, the President of India, through his Council
H _,.of Ministers headed by the Prime Minister of the country who is account,
S.R. BOMMAI v. U.0.1. [K. RAMASWAMY, J.] 961

able to the people of the country. A
STAY OF ELECTIONS WHETHER COULD BE MADE:

Under Article 168 for every State there shall be Legislative Assembly
afld in some states legislative council. Article 172(1) provides that every B
Legislative Assembly of every State, unless sooner dissolved shall continue
for five years from the date appointed for its first meeting and "no longer"
and the expiration of such period of five years shall operate as dissolution
of the Assembly. The proviso to Clause (1) or Sub- clause (2) are not
) relevant. It is thereby declared the constitutional policy that five years
tenure of the Legislature starts running from the date appointed for its first C
meeting and expiration of the period operates constitutionally as date of
dissolution of the Assembly. The phrase " no longer" reinforces its man-
datory character. Article 324(1) enjoins the Election Commission to con-
duct elections to the Parliament and to the Legislature of every State, etc.
The R.P. Act, Rules and the instructions prescribes the procedure to D
conduct and complete elections four months before the expiry of the date
of dissolution. Article 329(b) issues an injunction that "no election to either
House of Parliament or to the House of the Legislature of a State shall be
called in question" except by an election petition presented to such
authority and in such manner as may be provided for by or under any law
made byJhe appropriate Legislature. In other words, the election process E
once set in ihotion should run its full course and all election disputes shall
be resolved in accordance with the procedure established by R.P. Act.

In N.P. Ponnuswami v. Returning Officer, Namakkal Constituency,
(1952] SCR 2181. at the earliest Constitution Bench of this Court held that F
having regard to the important functions which the legislatures have to
perform in democratic countries, it has always been recognised to be a
· matter of first importance that elections shall be concluded as early as
possible according to the time schedule and all controversial matters and
all di<putes arising out of elections should be postponed till after the G
elections are over, so that the election proceedings may not be unduly
retarched or protracted. In Lakshmi Charan Sen v. A.KM Hassan Uz-
zaman, (1985] Suppl. 1 SCR 493, another Constitution Bench considered
the effect of interim stay of general elections to West Bengal legislative
Assembly granted by the Calcutta High Court in a writ proceeding, held
that the High Court must observe self imposed limitation on their power H
962 SUPREME COURT REPORTS [1994] 2 S.C.R.

A to act under Article 226 by refusing to pass orders or giving directions
which wiU inevitably result in an indefinite postponement of elections to
legislative bodies, which are the very essence of the democratic foundation
and functioning of our Constitution. That limi.tation ought to be observed
irrespective of the fact whether the preparation and publication of electoral
rolls are a part of the process of election within the meaning of Article
B 329(b) of the Constitution. It is the duty of the court to protect and
preserve the integrity of the Constitutional institutions which are devised
to foster democracy and when the method of their functinning is ques-
tioned, which is open to the citizen to do, the court must examine the
aUegations with more than ordinary care. Vary often the exercise of juris- r
c diction especially the writ jurisdiction involves questions of propriety rather
than of power. The fact that the court has power to do a certain thing does
not mean that it must exercise that power regardless of consequences.
Holding the elections to the legislatures and holding them according to law
are both matters of paramount importance and is the constitutional obliga-
D tion imposed by Article 168. The pragmatic approach was couched at 523
thus:

"................ .India is an oasis of democracy, a fact of contemporary
History which demands of the Courts the use of wise statesmanship
in the exercise of their extraordinary powers under the Constitu-
E tion. The High Courts must observe a self-imposed limitation on
their power to act under Art. 226, by refusing to pass order or give
directions which will inevitably result in an indefinite postpone-
ment of elections to legislative bodies, which are the very essence
of the democratic foundation and functioning of our Constitution.
That limitation ought to be observed irrespective of the fact
F
whether the preparation and publication of electoral rolls are a
part of the process of 'election' within meaning of article 329(b)
of the Constitution ........... "

There are plethora of precedents in this behalf, but suffice for the limited
G purpose to say that the exercise of the power either under Article 226 or
Article 32 or Article 136 staying the elections to the dissolved Assembly
under Article 356 not only flies in the face of the constitutional mandates
and the law laid down by this court, but creates uncertainty and constitu-
tional crises as stated hereinbefore. Enlightened public opinion both inside ·~

H or outside the Parliament, informed public objective criticism, objective
S.R. BOMMAI v. U.0.1. [K. RAMASWAMY,J.] 963

assessment of the ground realities would inhibit misuse of power and A
hinder highly irrational exercise of the power.
)
The question, finally emerges is whether issuance of the proclamation
under article 356 without affording a particular Chief Minister to test hi,
majority support of his party in the Legislatures of Janta Dal or coalition B
on the floor of the House is arbitrary and bears no reasonable nexus or
irrational. Having given our anxious consideration to the facts inBommai's
case and in the light of the discussion made hereinbefore that the fluid
situation prevailing during the relevant period appears to have persuaded
the president that he had constitutional duty to maintain the purity of the
' democratic process and required to stamp out horse-trading among the C
Legislatures which had resulted in the failure of the constitutional
machinery, satisfied himself that necessitated to issuance of the proclama-
tion under Article 356. Though the majority strength of the ruling party or
coalition in the legislative Assembly may be tested on the floor of the
House and may be a salutary principle as recommended by the Conference D
of the governors, it would appear that in its working there emerged several
fitfalls and so it was not found enforceable as a convention. It is for the
political parties or the Chief Ministers conference to take a decision in that
behalf and it is not judicially manageable for the Court to give any decla-
ration in this behalf. In regard to dissolution of U.P. Assembly, though
there is no writ petition filed, since the Government machinery of that E
Government had failed to prevent destruction of Sri Ram J anambhoomi-
Babri Masjid disputed structure and failed to protect the religious proper-
ty, be it belong to Hindus or Muslims and in that surged atmosphere when
it was done, it cannot be concluded that the President acted unconstitu-
tionally or that there is no proximate nexus between the action and the F
demolition to exercise the power under Article 356. Equally regarding
dissolution of Legislative Assemblies of Madhya Pradesh, Rajasthan and
Himachal Pradesh, the reports of the Governors do disclose that some of
the Ministers and some Chief Ministers actively associated or encouraged
Kar Sewaks to participate in the demolition of Ram Janambhoomi-Babri
.. Masjid disputed ·structure and also criticised the imposition of ban on G
R.S.S. The law and order situation or public order situation do not appear
to have been brought under control. The common thread of breach of
secularism ban through the events and with prognosis action was taken.
. ~
Our learned brother Jeevan Reddy, J. elaborately considered the pleadings
of the parties and arguments by the respective counsel He also deduced H
964 SUPREME COURT REPORTS (1994] 2 S.C.R.

A the conclusions. The need for discussion once over is thereby redundant.
We respectfully agree with him and in case of Meghalaya also. We con-
clude that the satisfaction reached by the President cannot be adjudicated
with any judicially discoverable and manageable standards, but one stark
fact that emerged is that due to sustained campaign by the BJP and other
organisations Sri Ram Janambhoomi-Babri-Masjid disputed structure was
B
destroyed. Consequential situation that has arisen due to which the Presi-
dent satisfied that Governments of the States of Madhya Pradesh , Rajas-
than and Himachal Pradesh cannot be carried on in accordance with the
provisions of the Constitution and they breached the basic features of the
Constitution, namely secularism. Therefore the satisfaction reached by the
C President cannot be said to be irrelevant warranting interference. As ,.
regards Meghalaya is concerned, though a declaration may possibly be
made on the validity of the Presidential proclamation, since the elections
have already been held; Its need became fiat accompli.

CONCLUSIONS
D
Federalism envisaged in the Constitution of India is a basic feature
in which the Union of India is permanent within the territorial limits set in
Article 1 of the Constitution and is indestructible. The state is the creature
of the Constitution and the law made by Articles 2 to 4 with no territorial
E integrity, but a permanent entity with its boundaries alterable by a Jaw
made by the Parliament. Neither the relative importance of the legislative
entries in Schedule VII, List I and II of the Constitution, nor the fiscal
control by the Union per se are decisive to conclude that the Constitution
is unitary. The respective legislative powers are traceable to Articles 245
F to 254 of the Constitution. The state qua the Constitution as federal in
structure and independent in the exercise of legislative and executive
power. However, being the creature of the constitution the State has no
right to secede or claim sovereignity. Qua the union, State is quasi-federal.
Both are coordinating institutions and ought to exercise their respective
powers with adjustment, understanding and accommodation to render
G socio-economic and political justice to the people, to preserve and elongate
the constitutional goals including secularism.
.'

The preamble of the Constitution is an integral pari of the Constitu-
tion. Democratic form of Government, federal structure. Unity and in-
H tegrity of the nation, secularism, socialism, social justice and judicial review " .
S.R. BOMMAI v. U.0.1. [K. RAMASWAMY,J.] 965

are basic features of the Constitution. A
The office of the Governor is a vital link and a channel of impartial
)
and objective communication of the working of the Constitution by the
State Government to the Preside11t of India. He is to ensure protection and
sustenance of the constitutional process of the working of the Constitution
in the State playing an impartial role. As head of the executive he should B
truthfully with high degree of constitutional responsibility inform the Presi-
dent that a situation has arisen in which the constitutional machinery has
failed and the State cannot be carried on in accordance with the provisions
of the Constitution with necessary factual details in a non-partisan at-
titude. c
The Union of India shall protect the State Government and as
corollary under Article 356 it is enjoined that the Government of every
state should be carried on in accordance with the provisions of the Con-
stitution. On receipt of a report from the Governor or otherwise the
President (Council of Ministers) on being satisfied that a situation has L
arisen in which the Government of a State cannot be carried on in accord-
ance with the provisions of the constitution, is empowered to issue
proclamation under Article 356( 1) and impose President rule in the State
in the manner laid down in Clauses (a) to (c) of Article 356(1) of the
Constitution. E
The exercise of the power under Article 356 is an extra-ordinary one
and need to be nsed sparingly when the situation contemplated by Article
356 warrants to maintain democratic form of Government and to prevent
paralysing of the political process. Single or individual act or acts of
violation of the Constitution for good, bad or indifferent administration F
does not necessarily constitute failure of the constitutional machinery or
characterises that a situation has arisen in which the Government of the
State cannot be carried on in accordance with the provisions of the
Constitution. The exercise of power under Art. 356 should under no
circumstance be for a political gain to the party in power in the Union G
Govt. It should be used sparingly and with circumspection that the Govt.
of the State function with responsibility in accordance with the provisions
of the Con5titution.

· Rule of law has been chosen as an instrument ofsoci31 adjustment
and resolution of conflicting soi:~ .P,Ioblein~ to integrate diverse sectio~ H
. '
'
966 SUPREME COURT REPORTS (1994) 2 S.C.R.

A of the society professing multi-religious faiths, creed, caste or region foster-
ing among them fraternity, transcending social, religious, linguistic or
regional barriers. Citizenship is either by birth or by domicile and not as a
member· of religion, caste, sect, region or language. Secularism has both
positive and negative contents. The Constitution struck a balanc~ between
temporal parts confining it to the person professing a particular religious
B
faith or belief and allows him to practice, profess and propagate his
religion, subject to public order, morality and health. The positive part of
secularism has been entrusted to the State to regulate by law or by an
executive order. The State is prohibited to patronise any particular
religion as State religion and is enjoined to observe neutrality. The State
c strikes a balance to ensue an atmosphere of full faith and confidence
among its people to realise full growth of personality and to make him a
rational being on secular lines, to improve individual excellence, regional
growth, progress and national integrity. Religion being suspectible to the
individuals or groups of people professing a particular religion, antagonis-
D tic to another religion or groups of persons professing different religion,
brings inevitable social or religious frictions. If religion is allowed to
over-play, social disunity is bound to erupt leading to national disintegra-
tion. Secularism is a part of the basic features of the Constitution. Political
parties, group of persons or individual who would seek to influence elec-
toral process with a view to come to political power, should abide by the
E Constitution and the laws including secularism, sovereignity, integrity of the
nation. They/he should not mix religion with politics. Religious tolerance
and fraternity are basic features and postulates of the Constitution as a
scheme for national integration and sectional or religious unity. Program-
mes or principles evolved by political parties based on religion amounts to
recognising religion as a part of the political governance which the Con-
F
stitution expressly prohibited it. It violates the basic features of the Con-
stitution. Positive secularism negates such a policy and any action in
furtherance thereof would be violative of the basic features of the Constitu-
tion. Any act done by a political party or the Government of the State run
by that party in furtherance of its programme or policy would also be in
G violation of the Constitution and the law. When the President receives a
'·
report from a Governor or otherwise had such information that the
Government of the State is not being carried on in accordance with the
provisions of the Constitution, the President is entitled to consider such
report and reach his satisfaction in accordance with law.
·~ .
S.R. BOMMAI v. U.0.1. [K. RAMASWAMY, J.] 967

A person who challenges the presidential proclamation must prove A
strongprima facie case that the presidential proclamation is unconstitution-
al or invalid and not in accordance with law. On the Court's satisfying that
the strong prima facie case has been made out and if it is a High Court, it
1
should record reasons before issuing "discovery order nisi 1, summoning the
records from the Union of India. The Government is entitled to claim
privilege under Section 123 of the Indian Evidence Act and also the claim
B
under Article 74(2) of the Constitution. The Court is to consider the
records in camera before taking any further steps in the matter. Article
74(2) is not a barrier for judicial review. It only places limitation to examine
whether any advice and if so what advice was tendered by the Council of
Ministers to the President. Articles 74(2) receives only this limited protec- c
tive canopy from disclocure, but the material on the basis of which the
advice was tendered by the council of Ministers is subject to judicial
scrutiny.

The Union of India, when discovery order nisi is issued by this Court, D
would act in aid of the Court under Article 142(2) and is enjoined to

.. produce the material, the foundation for action under Art. 356. As held
earlier before calling upon the Union to produce the material, the Court
must first find strongprima facie case and when the records are produced
they are to be considered in camera.
E
Judicial review is a basic feature of the Constitution. This Court/High
Courts have constitutional duty and responsibility to exercise judicial
review as centinal quevive. Judicial review is not concerned with the merits
of the decision, but with the manner in which the decision was taken. The
exercise of the power under Article 356 is a constitutional exercise of the F
power, the normal subjective satisfaction of an administrative decision on
objective basis applied by the Courts to administrative decision by subor-
dinate officers or quasi-judicial or subordinate legislation does not apply
to the decision of the President under Article 356.

Judicial review must be distinguished from the justiciability by the G
Court. The two concepts are not synonymous. The power of judicial review
is a constituent power and cannot be abdicated by judicial process of
. ., interpretation. However, justiciability of the decision taken by the President
is one of exercise of the power by the Court hedged by self-imposed judicial
restraint. It is a cardinal principle of our Constitution that no-one, how- H
.--<
'

%8 SUPREME COURT REPORTS [1994] 2 S.C.R.

A soever lefty, can claim to be the sole judge of the power given under the
Constitution. Its actions are within the confines of the powers given by the
Constitution.

This court as final orbiter in interpreting the Constitution, declares
what the law is. Higher judiciary has been assigned a delicate task to
B determine what powers the Constitution has conferred on each branch of
the Government and whether the actions of that branch transgress such
limitations, it is the duty and responsibility of this court/High court to lay
down the law. It is the constitutional duty to uphold the constitutional
values and to enforce the constitutional limitations as the ultimate inter-
C preter of the Constitution. The Judicial review, therefore, extends to ex-
amine the constitutionality of the procla~ation issued by the President
under Article 356. It is a delicate task, though loaded with political over-
tones, to be exercised with circumspection and great care. In deciding
finally the validity of the proclamation, there cannot be any hard and fast
rules or fixed set of rules or principles as to when the President's satisfac- '
D tion is justiciable. and valid.

Justiciability is not a legal concept with a fixed content, nor is it
siisceptible of scientific verification. Its. use is the result of many pressures
or variegated reasons. J usticiability may be looked at from the point of view
E of common sense limitation. Judicial review may be avoided on questions
of purely political nature, though pure legal questions camouflaged by the
political questions are always justiciable. The Courts must have judicially
manageable standards to decide a particular controversy, Justiciability on
a subjective satisfaction confered in the widest terms to the political
F co-ordinate executive branch created by the constitutional. scheme itself is
one of the considerations to.· be kept in view in exercising• judicial review.
There is an initial presumption that the acts have been regularly performed
by the President.

The provision to Article 74(1) re-enforces that on the advice
G tendered by the Council of Ministers to the President, the latter actively
applies his mind and reaches the satisfaction that a situation has arisen in
which the Government of the State cannot be carried on in accordance
with tlie provisions of the Constitution. The word "otherwise" enlarges the
Width and ambit of satisfaction reached by the President. In some cases
H such satisfaction lacks judicially manageable standards for resolution. The
I

S.R. BOMMAI v. U.O.l. [K. RAMASWAMY, J.] 969

abuse of the power by high constitutional functionaries cannot be assumed, A
but must be. strictly proved. It also cannot be assumed that the presidential
proclamation was lightly issued. The exercise of discretionary satisfaction
may depend on diverse varied and variegated circumstances. The constitu-
tion confided exercise of the power under Article 356 io the highest
executive of the land, the President of India aided and advised by the
B
Council of Mioisters at its head by the Prime Minister. The Prime Minister
and his Council of Ministers are collectively and individually responsible
to the Parliament and accountable to the people. Confidence reposed on
the highest executive itself is'a circumstance to be kept in view in adjudging
whet.her the sati,faction reached by the President is vitiated by law. It is
impermissible to attribute bad faith or personal ma/a fides to the President c
in the face of constitutional prohibition of answerability by Article 361. But
if the proof of ma/a fide abuse of power is available, appropriate remedy
would be available in the Constitution under Article 61.

The decision can b~ tested on the ground of legal ma/a fides, or high D
irrationality in the exercise ofJhe discretion to issue presidential proclama-
tion. Therefore, the satisfaction reached by the President for issuing the
proclamation under Article 356 must be tested only on those grounds of
unconstitutionality, but not on the lirounds that the material which enabled
him to reach the satisfaction was not sufficient or ioadequate. The traditional
parameters of judicial review, therefore, cannot be extended to the area of E
exceptional and extra-ordinary powers exercised under Article 356. The
doctrine of proportionality cannot be extended to the power exercised under
Article 356. The ultimate appeal over the action of the President is to the
electorate and judicial self-restraint is called in aid, io which event the faith
of the people in the efficacy of the judicial review would be strengthened and
F
the judicial remedy becomes meaningful.

Under Article 356 as soon as the proclamation was issued, under
sub-clause (3) of Article 356, the President shall seek its approval from
both Houses of Parliament within two months from the date of its issue
unless it is revoked in the meanwhile. A consistent constitutional conven- G
tion has been established that on issuing the proclamation the President on

. ., his assumption of the function of the Government of the State directs the
Governor to exercise all the executive functions of the Government of the
State with the aid and advice of the appointed Advisors. He declares that
the po.wer of the legislature of the state shall be exer-cisable by or under H
'
970 SUPREME COURT REPORTS [1994) 2 S.C.R.

A the authority of the Parliament and makes incidental and consequential
provisions necessary to give effect to the object of proclamation by
suspending whole or any part of the operation of any provision of the
Constitution relating to any body or authority of the State which includes
dissolution of the Legislative Assembly and removal of the State Govern-
ment. The Parliament exercises the legislative power thereon under Article
B 357 and in turn it confers on the President the powers relating to entries
in List II of the Vil Schedule. The governor of the State with the aid and
advice of the advisors exercise the executive functions on behalf of the
President. The convention attained the status of law. This consistent law
has been operating without any constitutional hiatus. Granting of stay of
C operation of presidential proclamation creates constitutional and ad-
ministrative hiatus and incongruity. The Union and the State simultaneous-
ly cannot operate the legislative a\ld executive powers in List II of Schedule
7 of the Constitution. Thereby the simultaneous bycameral functions by the
Union and the State is an anthema to the democratic principle and
D constitutional scheme. It would lead to incongruity and incompatability.

There is no express provision in the Constitution to revive the As-
sembly dissolved under the Presidential proclamatiLn or to reinduct the
removed Government of the State. In interpreting the constitution on the
working of the democratic institutions set up under the Constitution, it is
E impermissible to fill the gaps or to give directions to revive the dissolved
assembly and to reinduct the dismissed government of the State into office.
Equally stay cannot be granted of the operation of the presidential
proclamation till both Houses of Parliament approve the presidential
proclamation. The suspension without dissolution of the legislative As-
F sembly of the State also creates functional disharmony leading to constitu-
tional crisis. The grant of stay of elections to the legislative assembly,
occasioned pursuant to the presidential proclamation, also creates con-
stitutional crisis. Therefore, the courts should not issue such directions
leaving it to the Parliament to amend the Constitution if need be.

G The floor lest, may be one consideration which the Governor may
keep in view. But whether or not to resort to it would depend on prevailing
situation. The possibility of horse trading also to be kept in view having
regard to the prevailing political situation. It is not po;sible to formulate ,. .
or comprehend a set of rules for the exercise of the power by the Governor
H to conduct floor test. The Governor should be left free to deal with the
S.R. BOMMAI v. U.0.1. [VE[\MA, J.] 971

situation according to his best judgment keeping in view the Constitution A
and the conventions of the Parliamentary system of Government. Though
Sarkaria Commission and Rajamanner Commission, headed by two distin-
guished Judges of this land, recommended floor test, it could only mean
that is consideration which must cross the mind of the Governor. It would
be suffice to say that the Governor should be alive to the situation but the
sole Judge on the question whether or not conditions are conducive to
B
resort to floor test.

The satisfaction reached by the President in issuing presidential
proclamation and dissolving the legislative assemblies of Madhya Pradesh,
Rajasthan and Himachal Pradesh cannot be faulted as it was based on the C
fact of violation of the secular features of the constitution which itself is a
ground to hold that a situation has arisen in which the Government of the
concerned states cannot be carried on in accordance with the provisions
of the Constitution. Therefore, the satisfaction cannot be said to be unwar-
ranted. The appeals of the Union from the judgment of the Madhya D
Pradesh High Court is allowed accordingly and the judgment of the High
Court is set aside. The dissolution of the Meghalaya Assembly though
vulnerable to attack as unconstitutional, it has become infructuous due to
subsequent elections and the newly elected state legislature and the
Government of the State of Meghalaya are functioning thereafter. There-
fore, no futile writs could be issued as the court does not act in vain. The E
appeal of Bommai's and the transferred petitions are accordingly dis-
missed, but in the circumstances without costs.

VERMA, J. This separate opinion is occasioned by the fact that in
our view the area of justiciability is even narrower than lhat indicated in F
the elaborate opinions prepared by our learned brethren. The purpose of
this separate note is merely indicate the area of such difference. It is
unnecessary to mention the facts and discuss the factors which must guide
the exercise of power under Article 356 which have been elaborately
discussed in the other opinions. Indication of these factors including the G
concept of seculafism for proper exercise of the power does not mean
necessarily that the existence of these factors is justiciable. In our view,
these factors must regulate the issuance of a proclamation under Article
356 to ensure proper exercise of the power but the judicial scrutiny thereof
is available only in the limited area indicated hereafter, the remaining area
being amenable to scrutiny and correction only by the Parliament and the H
972 SUPREME COURT REPORTS [1994] 2 S.C.R.

A subsequent electoral verdict.
There is no dispute that the proclamation issued under Article 356
is subject to judicial review. The debate is confined essentially to the scope
of judicial review or the area of justiciability in that sphere. It does appear
that the area of justiCiability is narrow in view of the nature of that power
B and the wide discretion which inheres its exercise. This indication appears
also from the requirement of approval of the proclamation by the Parlia-
ment which is a check provided in the Constitution of scrutiny by political
process of the decision taken by the Executive. The people's verdict in the
election which follow is intended to be the ultimate check.
c To determine the justiciable area, we prefer to recall and keep in
view that which was said in K. Ashok Reddy v. The Government of India
Or.i., JT (1994) 1 S.C. 401 thus:

"21. A useful passage from Craig's Administrative Law (Second
D Edition) is as under:

"The traditional position was that the courts would control the
existence and extent of prerogative power, but not the manner of
exercise thereof, ....... The traditional position has however now
been modified by the decision in the G.C.H.Q. case.· Their
E Lordships emphasised that the reviewability of discretionary power
should be dependent upon whether its source was statute or the
prerogative. Certain exercises of prerogative power would, because
of their subject-matter, be less justiciable, with Lord Roskill com-
piling the broadest list of such forbidden territory ............. "
F (at page 291)

22. In Council of Civil Service Unions and Others v. Minister for the
Civil Service, {1985) AC. 374 [G.C.H.Q.], Lord Roskill stated thus:

"But I do not think that that right of challenge can be unqualified.
G It must, I think, depend upon the subject matter or the prerogative
power which is exercised. Many examples were given during the
argument of prerogative powers which as at present advised I do
not think could properly be made the subject of judicial review.
Prerog3.tive powers such as those relating to the making of treaties,
H The defence of the realm, the prerogative of mercy, the grant of

•
S.R. BOMMAI v. U.O.l. [VERMA, J.] 973

honours, the dissolution of Parliament and the appointment of A
ministers as well as others are not, I think, susceptible to judicial
review because their nature and subjCct matter are such as not to
be amenable to the judicial process ......... " (at page 418)

23. The same indication of judicial self-restraint in such matters is
to be found in De Smith's Judicial Review of Administrative Action, B
thus:

11
Judicial self-restraint was still more marked in cases where
attempts were made to impugn the exercise of discretionary powers
by alleging abuse of the discretion itself rather than alleging non-
existence of the state of affairs on which the validity of its exercise
c
was predicated. Quite properly, the courts were slow to read
implied limitations into grants to wide discretionary powers which
might have to be exercised on the basis of broad considerations of
national policy ........... "(at page 32)
D
It is also useful to refer to Puhlhofer and Anr. v. Hi/lingdon London
Borough council, (1986) Appeal Cases 484, wherein Lord Brightman with

.. whom the other Law Lords agree, stated thus:
11
Where the existence or non existence of a fact is left to the
E
judgment and discretion of a public body and that fact involves a
broad spectrum ranging from the obvious to the debatable to the
just conceivable, it is the duty of the court to leave the decision of
that fact to the public body to whom Parliament has entrusted the
decision-making power save in a case where it is obvious that the
public body, consciously or unconsciously, are acting pe.rver.sely. 11
F
In our view, this principle is equally applicable in the present case to
determine the extent to which alone a proclamation issued under Article
356 is justiciable.

The question now is of the test applicable to determine the situation G
in which the power of judicial review is capable of exercise or, in other
words, the controversy is justiciable. The deeming provision in Article 365
is an indication that cases falling within its ambit are capable of judicial
scrutiny by application of objective standards. The facts which attract the
legal fiction that the constitutional machinery has failed arc specified and H
974 SUPREME COURT REPORTS [1994] 2 S.C.R.

A, their existence is capable of objective determination. It is, therefore,
reasonable to hold 'that the cases falling under Article 365 are justiciable.

The expression 'or otherwise' in Article 356 indicates the wide range
of the materials which may be taken into account for the formation of
opinion by the President. Obviously, the materials could consist of several
B imponderables including some matter which is not strictly legal evidence,
the credibility and authenticity of which is .incapable of being tested in law.
courts. The ultimate opinion formed in such cases, would be mostly a
subjective political judgement. There are no judicially manageable stand-
ards for scrutinising such materials and resolving such a controversy. By its
c very nature such controversy cannot be justiciable. It would appear that all
such cases are, therefore, not justiciable.

lt would appear that situations wherein the failure of constitutional
machinery has to be inferred subjectively from a variety of facts and
circumstances, including some imponderables and inferences leading to a
D subjective political decision, judicial scrutiny of the same is not permissible
for want of judicially manageable standards. These political decisions call
for judicial hands of envisaging correction only by a subsequent electoral
verdict, unless corrected earlier in Parliament.

In other words, only cases which permit application of totally objec-
...
E
tive standards for deciding whether the constitutional machinery has failed,
are amenable to judicial review and the remaining cases wherein there is
any significant area of subjective satisfaction dependent on some im-
ponderables or inferences are not justiciable because there are no judicially
manageable standards for resolving that controversy; and those cases are
F subject only political scrutiny and correction for w~a!ever its value in the
existing political scenario. This appears to be the constitutional scheme.

The test for adjudging the validity of an administrative action and the
grounds of its invalidity indicated in 77ie Barium Chemicals Ltd. and Anr.
G v. 77ie Company Law Board and Ors., (1966] Supp. SCR 311, and other
cases of that category have no application for testing and invalidating a
proclamation issued under Article 356. The test applicable has been indi-
cated above and the grounds of invalidity are those mentioned in State of
Rajasthan & Ors. Etc. Etc. v. Union of India Etc. Etc., [1978] 1 SCR l.

H Article 74(2) is no bar to production of the materials on which the
S.R. BOMMAI v. U.0.1. [VERMA, J.) 975

ministerial advice is based, for ascertaining whether the case falls within A
the justiciable area a!ld acting on it when the controversy, is found justici-
able, but that is subject to the claim of privilege under Section 123 of the
Evidence Act, 1872. This is considered at length in the opinion of Sawant,
J. We, therefore, regret our inability to concur with the different view on
this point taken in State of Rajasthan & Ors. v. Union of India etc. etc.,
(1978] 1 SCR 1, even though we agree that the decision does not require
B
any reconsideration on the aspect of area of justiciability and the grounds
of invalidity indicated therein.

In the above view, it follows that no quia timet action would be
permissible in such cases in view of the limited scope of judicial review: C
and electoral verdict being the ultimate check, courts can grant substantive
relief only if the issue remains live in cases which are justiciable. In Kihoto
Hol/ohan v. Zachil/hu and Ors., [1992] Supp. SCC 651, it was stated thus:

"In view of the limited scope of judicial review that is available on
account of the finality clause in Paragraph 6 and also having regard D
to the constitutional intendment and the status of the repository
of the adjudicatory power i.e. Speaker/Chairman, judicial review
• cannot be available at a stage prior to the making of a decision by
the Speaker/Chairman and a quia timet action would not be per-
missible. Nor would interference be permissible at an interlocutory E
stage of the proceedings."

It is also clear that mere parliamentary approval does not have the
effect of excluding judicial review to the extent permissible. In Sarojini
Ramaswami (Mrs.) v. Union of India & Ors., (1992] 4 SCC 506, it has been
stated thus: F

"72. We may, however, add that the intervention of the parliamen-
tary part of the process, in case a finding of guilty is made, which
according to Shri Sibal would totally exclude judicial review there-
after is a misapprehension since limited judicial revie\l<' even in that G
area is not in doubt after the decision of this Court in Keshav
Singh.11

73. At this stage, a reference to the nature and scope of judicial
review as understood in similar situations is helpful. In Administra-
tive Law (Sixth Edition) by H.W.R. Wade, in the chapter "Con- H
976 SUPREME COURT REPORTS [1994] 2 S.C.R.

A stitutional Foundations of the Powers of the Courts" under the
heading 'The Sovereignty of Parliament', the effect of Parliament's
intervention is stated thus: (at page 29)

"......There are many cases where some administrative order or
regulation is required by statute to be approved by resolutions of
B the Houses. But this procedure in no way protects the order or
regulation from being condemned by the court, under the doctrine
of ultra vires, if it is not strictly in accordance with the Act. Whether
the challenge is made before or after the Houses have given their
approval is immaterial. 11
c Later at p. 411, Wade has said that "in accordance with constitu-
tional principle, parliamentary approval does not affect the normal
operation of judicial review''. At p. 870 while discussing 'judicial
Review', Wade indicates the position thus:

D 'As these cases show, judicial review is in no way inhibited by
1

the fact that rules or regulations have been laid before Parliament
and approved, despite the ruling of the House of Lords that the
test of unreasonableness should not then operate in its normal way.
The Court of appeal has emphasised that in the case of subordinate
•
legislation such as in Order in council approved in draft by both
E
House;1the Courts would without doubt be competent to consider
whether or not the order was properly made in the sense of being
intra vires '."

74. The clear indication, therefore, is that mere parliamentary
F approval of an action or even a report by an outside authority when
without such approval, the action or report is ineffective by itself,
does not have the effect of excluding judicial review on the per-
11
missihle grounds.

Applying this principle, only the Meghalaya case is justiciable and
G that proclamation was invalid while those relating to Madhya Pradesh,
Himachal Pradesh, Rajasthan and Karanataka are not justiciable. There
is rightly no challenge to the proclamation relating to U ttar Pradesh.
However, in view of the subsequent elections held in Meghalaya, that is no
longer a live issue and, thirefore, there is no occasion to grant any
H substantial relief, even in that case.
S.R. BOMMAI v. U.0.1. [AHMADI,J.] 977

It is to this extent our view differ's on the question of justiciability. A
On this view, it is unnecessary for us to express any opinion on the
remaining matters. According to us, except to the extent indicated, the
decision in State of Rajastha11 & Ors. Etc. Etc. v. Union of India Etc. Etc.,
[1978] 1 SCR 1, does not require reconsideration.

B
AHMADI, J. I have had the advantage of perusing the views ex-
pressed by my esteemed colJeagues P.B. Sawant, K. Ramaswamy and B.P.
Jeevan Reddy. JJ. and while I am largely in agreement with the
'conclusions' recorded by K. Ramaswamy, J. I would like to briefly indicate
.,
the area of my agreement.
c
In a country geographically vast, inhabited by over 850 million people
belonging to different religions, castes and creeds, majority of them living
in villages under different social orders and in abject poverty, with a
constant tug of war between the organised and the unorganised sectors, it
is not surprising that problems crop up time and again requiring strong D
and at times drastic state action to preserve the unity and integrity of the
country. Notwithstanding these problems arising from time to time on
account of class conflicts, religious intolerance and socio- economic im-
balances, the fact remains that India has a reasonably stable democracy.
The resilience of our Republic to face these challenges one after another
has proved the peoples' faith in the political philosophy of socialism, E
secularism and democracy enshrined in the Preamble of our Constitution.
Yet, the fact remains that the nation has had from time to time with
increasing frequency to combat upheavals occasioned on account of
militancy, communal and class conflicts, politico religious turmoils, strikes,
bandhs and the like occurring in one corner of the country or the other, at F
times assuming ugly proportions. We are a crisis-laden country; crisis
situations created by both external and internal forces necessitating drastic
State action to preserve the security, unity and integrity of the country. To
deal with such extraordinarily difficult situations exercise of emergency
power becomes an imperative. Such emergency powers existed under the
Government of India Act, 1935, vide Sections 93 and 45 of that enactment. G
However, when similar powers were sought to be conferred on the Presi·
dent of India by the Constitution, there was a strong opposition from many
members of the Constituent Assembly, vide constituent assembly Debates
on draft Articles 277 and 277A. Dr. Ambedkar pacified the members by
stating: H
07g SUPREME COURT REPORTS [1994] 2 S.C.R.

A "In fact I share the sentiments expressed ....... that the proper thing
we ought to expect is that such Articles will never be called into
operation and that they will remain a dead letter. If at all, they are
brought into operation, I hope the President who is endowed with
all these powers will lake proper precautions before actually
suspending the administration of the provinces. I hope the first
B thing he will do would be to issue a clear warning to a province
that has erred that things were not happening in the way in which
they were intended to happen in the Constitution".
,.
Dr. Ambedkar's hope that in rarest of rare cases only there will be an
C occasion to invoke the emergency provisions was soon belied as we were
told al the Bar that the provisions of Article 356 of the Constitution have
had to be invoked over ninety times by now. What was, therefore expected
to be a 'dead letter' has in fact become an oft-invoked provision. This is
not the occasion to embark on an inquiry into the circumstances leading
D lo the utilisation of this emergency power, but the fact remains that the
President has had to invoked the power quite frequently. This may be on
account of the degradation in the political environment of the country.
Since I am not probing into the circumstances in which the said power had
to be invoked, I do not express myself on the question whether or not there
existed adequate justification for resorting to this emergency power.
E
Although the emergency provisions found in Part XVIII of the
Constitution are more or less modelled on the pattern of similar provisions
contained in the Government of India Act, 1935, the cxcrt:ise of that power
under the said provisions cannot be compared with its exercise under the
Constitution for the obvious reason that they operated under totally dif-
F ferent conditions. Under the Government of India Act, 1935, the Governor
General and the Governor exercised as representatives of the Crown near
absolute powers, only limited powers were given to the elected govern-
ments and those too could be taken away if it was foll that the concerned
Government could nol be carried on in accordance therewith. So also
G reference to the British Joint Parliamentary Report is inapposite for the
simple reason that the situation under the constitution is not comparable
with that which formed the basis for the Report. The Power conferred on
the President of India under Article 356 has to be exercised in a wholly
different political set up as compared to that obtaining under the Govern-
ment of India Act, 1935. The constitutional philosophy of a free country is
H totally different from the philosophy, of a similar law introduced for the
S.R. BOMMAI v. U.0.1. [AHMADI, J.] 979

. governance of a country by its colonial masters. It is, therefore, unnecessary A
to examine the case law based on the exercise of similar powers under the
Government of India Act, 1935.

FEDERAL CHARACTER OF THE CONSTITUTION

India, as the Preamble proclaims, is a Sovereign, Socialist, Secular, B
Democratic Republic. It promises liberty of thought, expression, belief,
faith and worship, besides equality of status and opportunity. What is
paramount is the unity and integrity of the nation. In order to maintain the
' unity ·and integrity of the nation our founding fathers appear to have leaned
in favour of a strong centre while distributing the powers and functions C
between the Centre and the States. This becomes obvious from even a
cursory examination of the provisions of the Constitution. There was
considerable argument at the Bar on the question whether our Constitution
could be said to be 'Federal' in character.

In order to understand whether our Constitution is truly federal, it D
is essential to know the true concept of federalism. Dicey calls it a political
contrivance for a body of states which desire Union but not unity.
Federalism is, therefore, a concept which unites separate States into a
Union without sacrificing their own fundamental political integrity.
Separate States, therefore, desire to unite so that all the member-States E
may share in formulation of the basic policies applicable to all and par-
ticipate in the execution of decisions made in pursuance of such basic
policies. Thus the essence of a federation is the existence of the Union and
the States and the distribution of powers between them. Federalism, there-
fore, essentially implies demarcation of powers in a Federal compact.
F
The oldest federal model in the modem world can be said to be the
Constitution of the United States of America. The American federation
can be described as the outcome of the process of evolution, in that, the
separate States first formed into a Confederation (1781) and then into a
Federation (1789). Although the States may have their own Constitutions,
the Federal Constitution is the suprema-lex and is made binding on the G
States. That is because under the American constitution, amendments to
the Constitution are required to be ratified by three-fourths of the States.
. • Besides under that constitution there is a single legislative list enumerating
the powers of the Union and, therefore, automatically the other subjects
are left to the States. This is evident from the Tenth Amendment. Of H
980 SUPREME COURT REPORTS [1994] 2 S.C.R.

A course, the responsibility to protect the States against invasion is of the
Federal Government. The States are, therefore, prohibited from entering
into any treaty, alliance, etc., with any foreign power. The principle of dual
sovereignty is carried in the judicial set up as well since disputes under
federal laws are to be adjudicated by federal courts, while those under
State Laws are to be adjudicated by State Courts, subject of course to an
B appeal to the Supreme Court of the United States. The interpretation of
the Constitution is by the United States Supreme Court.

We may now read some of the provisions of our Constitution. Article
1 of the Constitution says: India, that is Bharat, shall be a Union of States.
C Article 2 empowers Parliament to admit into the Union, or establish, new
States on such terms and conditions as it thinks fit. Under Article 3
Parliament can by law form a new State by separation of territory from any
State or by uniting two or more States or parts of States or by uniting any
territory to a part of any State; increasing the area of any State; diminishing
D the area of any State; altering the boundaries of any State; or altering the
name of any State. The proviso to that Article requires that the Bill for the
purpose shall not be introduced in either House of Parliament except on
the recommendation of the President and unless, where the proposal
contained in the Bill affects the area, boundaries or name of any of the
States, the Bill has been referred by the President to the Legislature of that
E State. for expressing its views thereon. On a conjoint reading of these
Articles, it becomes clear that Parliament has the right to form new States,
alter the areas of existing States, or the name of any existing State. Thus
the Constitution permits changes in the territorial limits of the States and
does not guarantee their territorial integrity. Even names can he changed.
F Under Article 2 it is left to the Parliament to determine the terms and
conditions on which it may admit any area into the Union or establish new
States. In doing so, it has not to seek the concurrence of the State whose
area, Boundary or name is likely to be affected by the proposal. All that
the proviso to Article 3 requires is that in such cases the President shall
G refer the Bill to the legislatures of the concerned states likely to be affected
'to express their views'. Once the views of the States ~re known, it is left
to Parliament to decide on the proposed changes. The Parliament can,
therefore, without the concurrence of the concerned state or States change
the boundaries of the State or increase or diminish its area or change its
name. These provisions show that in the matter of constitution of States,
H . Parliament is paramount. This scheme substantially differs from the federal
S.R. BOMMAI v. U.0.1. [AI·IMADl,J.] 981

set up established in the United States of America. The American States A
were independent sovereign States and the territorial boundaries of those
independent States cannot be touched by the Federal Oovernment. It is
these independent sovereign units which together decided to form into a
Federation unlike in India where the States were not independent
sovereign units but they were formed by Article 1 of the Constitution and
their areas and boundaries could, therefore, be altered, without their
B
concurrence, by Parliament. It is well- known that since independence, new
States have been created boundaries of existing States have been altered,
States have been renamed and individual States have been extinguished by
Parliamentary legislation;
c
2. Our founding fathers did not deem it wise to shake the basic
structure of Government and in distributing the legislative functions they,
by and large, followed the pattern of the Government of India Act, 1935.
Some of the subjects of common interest were, however, transferred to the
Union List, thereby enlarging the powers of the Union to enable speedy D
and planned economic development of the nation. The scheme for the
distribution of powers between the Union and the States was largely
maintained except that some of the subjects of common interest were
transferred from the Provincial List to the Union List thereby strengthen-
ing the administrative control of the Union. It is in this context that this
Court in 'State of West Bengal v. union of India, (1964] 1 SCR 371 at E
397,observed:

"The exercise of powers, legislative and executive, in the allotted
fields is hedged in by the numerous restrictions so that the powers
of the States are not co-ordinate with the Union and are not in F
many respects independent."

· In Union of India v. H.S. Dhillon, AIR (1972) SC 1061 at 1067
(Paragraph 14) = (1972] 2 SCR 33, another feature in regard to the
distribution of Legislative power was pointed out, in that, under the
Government of India Act, 1935, the residuary power was not given either G
to the Union Legislature or to the provincial Legislatures, but under our
Constitution, by virtue of Article 248, read with Entry 97 in List I of the
VII Schedule, the residuary power has been conferred on the Union. This
arrangement substantially differs from the scheme of distribution of powers
in the United States of America where the residual powers are with the H
982 SUPREME COURT REPORTS [1994] 2 S.C.R.

A States.

The Preamble of our Constitution shows that the people of India had
resolved to constitute India into a Sovereign Secular Democrati_c Republic
and promised to secure to all its citizens Justice, Liberty and Equality and
to promote among them all Fraternity assuring the dignity of the individual
B
and the unity and integrity of the Nation. In the people of India, therefore
vests the legal sovereignty while the political sovereignty is distributed
between the Union and the States. Article 73 extends the executive power
of the Union to matters with respect to which Parliament has power to
make laws and to the exercise of such rights, authority and jurisdiction as '
c are exercisable by the Government of India by virtue of any treaty or
agreement. The executive power which is made co-extensive with
Parliament's power to make laws shall nat, save as expressly provided by
the Constitution or in any law made by Parliament, extend in any State to
matters with respect to which the Legislature of the State also has power
D to make laws. Article 162 stipulates that the executive power of a State
shall extend to matters with respect to which the Legislature of the State
has power to make laws provided that in any matter with respect to which
the legislature of State and Parliament have power to make laws, the
executive power of the State shall be subject to, and limited by, the
executive power expressly conferred by the Constitution or by any law
E made by Parliament upon the Union or authorities thereof. It may also be
noticed that the executive power of every State must be so exercised as not
to impede or prejudice the exercise of the executive power by the Union.
The executive power of the Union also extends to giving such directions to
a State as may appear to the Government of India to be necessary for those
F purposes and as to the construction, maintenance of means of communica-
tion declared to be of national or military importance and for protection
of railways. The States have to largely depend on financial assistance from
the Union. Under the scheme of Articles 268 to 273, States are in certain
cases allowed to collect and retain duties imposed by the Union; in other
cases taxes levied and collected by the Union are assigned to the States
G and in yet other cases taxes levied and collected by the Union are shared
with States. Article 275 also provides for the giving of grants by the Union
to certain States. There is, therefore, no doubt that States depend for
financial assistance upon the Union since their power to raise resources is
•
limited. As economic planning is a concurrent subject, every major project
H must receive the sanction of the Central Government for its financial ·
S.R. BOMMAI v. U.0.1. [AHMADl,J.] 983

assistance since discretionary power under Article 282 to make grants for A
public purposes is vested in lhe Union or a State, notwithstanding that the
purpose is one in respect to which Parliament or State Legislature can
make laws. It is only after a project is finally sanctioned by the Central
Government that the State Government can execute the same which
demonstrates the control that the Union can exercise even in regard to a
matter on which the State can legislate. In addition to these controls Article
B
368 confers powers on the Parliament to amend the Constitution, albeit by
a specified majority. The power extends to amending matters pertaining to
the executive as well as legislative powers of the States if the amendments
are ratified by the legislatures of not less than one-half of the States. This
provision empowers Parlian1ent to so amend the Constitution as to curtail c
the powers of the States. A strong Central Government may not find it
difficult to secure the requisite majority as well as ratification by one-half
of the legislatures if one goes by past experience. These limitations taken
together indicate that the Constitution of India cannot be said to be truly
federal in character as understood by lawyers in the United States of D
America.

In State of Rajasthan v. Union of India, A.LR. (1977) S.C. 1361
[1978] 1 S.C.R. 1 Beg. C.J., observed in paragraph 51 as under :-

"A conspectus of the provisions of our Constitution will indicate E
that whatever appearances of a federal structure our Constitution
may have, its operations are certainly, judged both by the contents
of power which a number of its provisions carry with them and the
use that has been made of them, more unitary than federal."·

Further, in paragraph 52, the learned Chief Justice proceeded to add :- F
11
In a sense, therefore, the Indian Union is federal. But, the extent
of federalism in it is largely watered down by the needs of progress
and development of a country which has tq be nationally in-
tegrated, politically and economically co-ordinated, and socially, G
intellectually and spiritually uplifted. In such a system, the States
cannot stand in the way of legitimate and comprehensively planned
development of the country in the manner directed by the Central
Government. 11
•
Pointing out that national planning involves disbursement of vast amount H
984 SUPREME COURT REPORTS [1994] 2 S.C.R.

A of money collected as taJCes from citizens spread over all the States and
placed at the disposal of the Central Government for the benefit of the
·states, the learned Chief Justice proceeds to observe in paragraph 56 of
the judgment :-

"If then our Constitution creates a Central Government which is
B 'amphibian' in the sense that it can move either on the federal or
unitary plane, according to the needs of the situation and cir-
cumstances of a case, the question which we are driven back to
consider is whether on assessme.nt of the 'situation' in which the
Union Government should move either on the Federal or Unitary
c plane are matters for the Union Government itself or for this Court
to consider and determine. 11

When the Union Government issued a notification dated 23rd May, 1977
constituting a Con1mission of Inquiry in exercise of its power under section
3 of the Commissions of Inquiry Act, 1952, to inquire into certain allega-
D tions made against the Chief Minister of •he State, the State of Karnataka
instituted a suit under Article 131 of the Constitution challenging the
legality and validity of the notification as unjustifiable trespass upon the
domain of State powers. While dealing with the issues arising in that suit
The State of Kamataka v. Union of India A.I.R. (1978) S.C. 68 = (1978] 2
E S.C.R. 1 - Beg, C.J., once again examined the relevant provisions of the
Constitution and the Commission of Inquiry Act, 1952, and observed in
paragraph 33 as under :-

11
In our country, there is, at the top, a Central or the Union
Government responsible to Parliament, and there are, below it,
F State Governments, responsible to the State Legislatures, each
functioning within the sphere of its own powers which are divided
into two categories, the exclusive and the concurrent. Within the
exclusive sphere of the powers of the State Legislature is local
Qovernment. And, in all States there is a system of local Govern-
ment in both Urban and Rural areas, functioning under State
G
enactments. Thus, we can speak of a three tier system of Govern-
ment in our country in which the Central or the Union Government
comes at the apex..... .11

It would thus seem that the Indian Constitution has, in it, not only features
H of a pragmatic federalism which, while distributing legislative powers and
•
S.R. BOMMAI v. U.0.l. [AHMADI,J.) 985

indicating the spheres of Governmental powers of State and Central A
Governments, is overlaid by strongly 'unitary' features, particularly ex-
hibited by lodging in Parliament the residuary legislative powers, and in the
Central Government the executive power of appointing certain Constitu-
tional functionaries including High Court and Supreme Court Judges and
issuing appropriate directions to the State Governments and even displac-
ing the State Legislatures and the Government in emergency situations,
B
vide Articles 352 to 360 of the Constitution.

It is common knowledge that shortly after we constituted ourselves
into a Republic, the Princely States gradually disappeared leading to the
" unification of India into a single polity with duality of governmental agen- c
cies for effective and efficient administration of the country under Central
direction and, if I may say so, supervision. The duality of governmental
organs on the Central and State levels reflect demarcation of functions in
a manner as would ensure the sovereignty and integrity of our country. The
experience of partition of the country and its aftermath had taught lessons
D
which were too fresh to be forgotten by our Constitution-makers. It was
perhaps for that reason that our founding fathers thought a strong centre
~
was essential to ward off separatist tendencies and consolidate the unite
and integrity of the country.

A Division Bench of the Madras High Court in N.Karnnanidhi v. E
Union of India, A.I.R. {1977} Madras 192, w_hile dealing with the contention
that the Constitution is a federal one and that the States are autonomous
having definite powers and independent rights to govern, and the Central
Government has no right to interfere in the governance of the State,
observed as under :- F
11
There may be a federation of independent States, as it is in
••••••••••

the case of the United States of America. As the name itself
denotes, it is a Union of States, either by treaty or by legislation
of the concerned States. In those cases, the federating units gave
certain powers to the federal Government and retained some. To G
apply the meaning to the word 'federation' or 'autonomy' used in
"1
the context of the American Constitution, to our Constitution will
be totally misleading."
•
After tracing the history of the governance of the country under the British H
986 SUPREME COURT REPORTS [1994] 2 S.C.R.

A rule till the framing of our Constitution, the court proceeded to add as
follows:-

"The feature of the Indian Constitution is the establishment of a
Government for governing the entire country. In doing so, the
Constitution prescribes the powers of the Central Government and
B the powers of the State Governments and the relationship between
the two. In a sense, if the word 'federation' can be used at all, it
is a federation of various States which were designated under the
Constitution for the purpose of efficient administration and gover-
nance of the country. The powers of the Centre and the States are
c demarcated under the Constitution. It is futile to suggest that the
States are independent, sovereign or autonomous units which had
joined the federation under certain conditions. No such State ever
existed or acceded to the Union."

D Under our Constitution the State as such has no inherent sovereign power
or autonomous power which cannot be encroached upon by the Centre.
The very fact that under our Constitution, A. tide 3, Parliament may by law
form a new State by separation of territory from any State or by uniting
two or more State or parts of States or by uniting any territory to a part of .
any State, etc., militates against the view that the States are sovereign or
E autonomous bodies having definite independent rights of governance. In
fact, as pointed out earlier in certain circumstances the Central Govern-
ment can issue directions to States znd in emergency conditions assume
far-reaching powers affecting the states as well, and the fact that the
President has powers to take over the administration of states demolishes
F the theory of an independent or autonomous existence of a State. It must
also be realised that unlike the Constitution of the United States of
America which recognises dual citizenship (Sec.1 {1), Fourteenth Amend-
ment), the Constitution of India, Article 5, does not recognise the concept
of dual citizenship. Under the American Constitution all persons born or
naturalised in the United States, and subject to the jurisdiction thereof, are
G citizens of the United States and of the State wherein they reside whereas
under Article 5 of the Indian Constitution at its commencement, every
person domiciled in the territory of India and (a) who was born in the
territory of India; or (b) either of whose parents was born in the territory
of India; or {c) who has been ordinarily resident in the territory of India
H for not less than five years immediately preceding such commencement
S.R. BOMMAI v. U.0.1. [AHMADI, J.] 987

. shall be a citizen of India. Article 9 makes it clear that if any person A
.., voluntarily acquires the citizenship of any foreign country, he will cease to
be a citizen of India. These provisions clearly negative the concept of dual
citizenship, a concept expressly recognised under the American Constitu-
tion. The concept of citizenship assumes some importance in a federation
because in a country which recognises dual citizenship, the individual
would owe allegiance both to the federal Government as well as the State
B
Government but a country recognising a single citizenship does not face
complications arising from dual citizenship and by necessary implication
negatives the concept of State sovereignty.

Thus the significant absence of the expressions like 'federal' or C
'federation' in the constitutional vocabulary, the Parliament's powers under
Articles 2 and 3 elaborated earlier, the extraordinary powers conferred to
meet emergency situations, the residuary powers conferred by Article 248
read with Entry 97 in List I of the VII Schedule on the Union, the power
to amend the Constitution, the power to issue directions to States, the D
concept of a single citizenship, the set up of an integrated judiciary, etc.,
etc., have led constitutional experts to doubt the appropriateness of the
appellation 'federal' to the Indian Constitution. Said Prof. K.C. Where in
his work 'FederaJ Government'

"What makes one doubt that the Constitution of India is strictly E
and fully federal, however, are the powers of intervention in the
affairs of the States given by the Constitution to the Central
Government and Parliament."

Thus in the United States, the sovereign States enjoy their own F
separate existence which cannot be impaired; indestructible States having
constituted an indestructible Union. In India, on the contrary, Parliament
can by law form a new State, alter the size of an existing State, alter the
name of an existing State, etc., and even curtail the power, both executive
and legislative, by amending the Constitution. That is why the Constitution
of India is differently described, more appropriately as 'quasi-federal' G
because it is a mixture of the federal and unitary elements, leaning more
towards the latter but then what is there in a name, what is important to
.i bear in mind is the thrust and implications of the various provisions of the
Constitution bearing on the controversy in regard to scope and ambit of
the Presidential power under Article 356 and related provisions. H
988 SUPREME COURT REPORTS [1994] 2 S.C.R.

A SECULARISM UNDER THE CONSTITUTION

India can rightly be described as the world's most heterogeneous
society. It is a country with a rich heritage. Several races have converged
in this sub-continent. They brought with them their own cultures, lan-
guages, religions and customs. These diversities threw up their own
B problems but the early leadership showed wisdom and sagacity in tackling
them by preaching the philosophy of accommodation and tolerance. This
is the message which saints and sufis spread in olden days and which
Mahatma Gandhi and other leaders of modern times advocated to main-
tain national unity and integrity The British policy of divide and rule,
•·
C aggravated by separate electorates based on religion, had added a new
dimension of mixing religion with politics which had to be countered and
which could be countered only if the people realised the need for national
unity and integrity. It was with the weapons of secularism and non-violence
that Mahatma Gandhi fought the battle for independence against the
mightly colonial rulers. As early as 1908, Gandhiji wrote in Hind Swaraj:
D
"India cannot cease to be one nation, because people belonging to
different religions live in it ..........Jn no part of the world are on
nationality and on religion synonymous terms; nor has it ever been
so in India."
E
Gandhiji was ably assisted by leaders like Pandit Jawaharlal Nehru,
Maulana Abu! Kalam Azad and others in the task of fighting a peaceful
battle for securing independence by uniting the people of India against
separatist forces. In 1945 pandit Nehru wrote:

F "I am convinced that the future government of free India must be
secular in the sense that government will not associate itself directly
with any religious faith but will give freedom to all religious
functions."

G And this was foEowed up by Gandhiji when in 1946 he wrote in
Harijan:

" I swear by my religion. I will die for it. But it is my personal affair.
The State has nothing to do with it. The State will look after your ..
secular welfare, health, communication, foreign relations, currency
H and so on, but not my religion. That is everybody's personal
S.R. BOMMAI v. U.0.1. [AHMADI, J.] 989

concern. 11 A
The great Statesman-Philosopher Dr. Radhakrishnan said:

'When India is said to be a secular State, it does not mean that
we reject reality of an unseen spirit or the relevance of religion to
' life or that we exalt irreligion. It does not mean that Secularism B
itself becomes a positive religion or that the State assumes divine
prerogatives. Though faith in the Supreme is the basic principle of
the Indian tradition, the Indian State will not identify itself with or
be controlled by any particular religion. We hold that no one religion
should be given preferential status, or unique distinction, that no C
one religion should be accorded special privileges in naiional life or
international relations for that would be a violation of the basic
principles of democracy and contrary to the best interests of
religion and government. This view of religious impartiality, of
comprehension and forbearance, has a prophetic role to play
within the national and international life. No group of citizens shall D
arrogate to itself rights and privileges which it denies to others. No
person should suffer any form of disability or discrimination be-
cause of his religion but all like should be free to share to the
fullest degree in the common life. This is the basic principle
involved in the separation of Church and State." E

(Recovery of Faith, New york, Harper brothers 1955, p. 202)
(Emphasis supplied.)
Immediately after we attained independence, the Constituent Assembly,
aware of.the danger of communalism, passed the following resolution on F
April 3, 1894-:

11
Whereas it is essential for the proper functioning of democracy
and growth of national unity and solidarity that communalism
should be eliminated from Indian life, this Assembly is of the G
opinion that no communal organisation which by its Constitution
or by exercise of discretionary power vested in any of its officers
and organs admits to, or excludes from, its membership persons
on grounds of religion, race and caste, or any of them should be
permitted to engage in any activities other than those essential for
the bonafide religious, cultural, social and educational needs of the H
990 SUPREME COURT REPORTs [1994] 2 S.C.R.

A community, and that all steps, legislative and administrativ.e, neces-
sary to prevent such activities should be taken."

Since il was felt that separate electorates for minorities were respon-
sible for communal and separatist tendencies, the Advisory Committee
resolved that the systen• of reservation for minorities, excluding SC/ST,
B should be done away with. Pursuant to the goal of secularism, the Con-
stituent Assembly adopted clauses 13, 14 and 15 roughly corresponding to
the present Articles 25, 26 and 27. During the debates Prime Minister
Jawaharlal Nehru declared that secularism was an ideal to be achieved and
that establishment of a secular state was an act of faith, an act of faith
c above all for the majority community because they will have to show that
they can behave to others in a generous, fair and just way. When objection
was sought to be voiced from certain quarters, Pandit Laxmikantha Mitra
explained:

"By Secular State, as I understand, it is meant that the state is not
D going to make any discrimination whatsoever on the ground of
religion or community against any person professing any particular
form of religious faith. This means in essence that no particular
religion in the state will receive any state patronage whatsoever.
The state is not going to establish, patronize or endow any par-
E ticular religion to the exclusion of or in preference to others and
that no citizen in the state will have any preferential treatment or
will be discriminated against simply on the ground that he
professed a particular form of religion. In other words, in the
affairs of the State the preferring of any particular religion will not
be taken into consideration at all. This I consider to be the essence
F of a secular State. At the same time we must be very careful to
see that in this land of ours we do not deny to anybody the right
not only to profess or practice but also propagate any particular
religion. 11

G This in brief was the notion of secularism and democracy during the )
pre-independence era and immediately before we gave unto ourselves the
Constitution. We may now very briefly not,ce the provisions in the Con-
stitution.

Notwithstanding the facl that the words 'Socialist', and 'Secular' were
H added in the Preamble of the Constitution in 1976 by the 42nd Amend-
~··

S.R.BOMMAI v. U.0.1. [AHMADl,J.) 991

ment, the concept of Secularism was very much embedded in our Constitu- A
. tional philosophy. The term 'secular' has advisedly not been defined
presumably because it is a very elastic term not capable of a precise
definition and perhaps best left undefined. By this amendment what was
implicit was made explicit. The Preamble itself spoke of liberty of thought,
expression, belief, faith and worship. While granting this liberty the
Preamble promised equality of status and opportunity. It also spoke of
B
promoting fraternity, thereby assuring the dignity of the individual and the
unity and integrity of the Nation. While granting to its citizens liberty of
belief, faith and worship, the Constitution abhorred discrimination on
grounds of religion etc., but permitted special treatment for Schedule
Castes and Tribes, vide Articles 15 & 16. Article 25 next provided, subject c
to public order, morality and health, that all person shall be entitled to
freedom of conscience and the right to profess, practice and propagate
religion. Article 26 grants to every religious denomination or any section
thereof, the right to establish and maintain institutions for religious pur-
poses and to manage its own affairs in matters of religion. These two D
articles clearly confer a right to freedom of religion. Article 27 provides
that no person shall be compelled to pay any taxes, the proceeds whereof
are specifically appropriated in payment of expenses for the promotion or
maintenance of any particular religion or religious denomination. This is
an important article which prohibits the exercise of State's taxation power
if the proceeds thereof are intended to be appropriated in payment of E
expenses for the promotion and maintenance of any particular religion or
religious denomination. That means that State's revenue cannot be utilised
for the promotion and maintenance of any religion or religious group.
Article 28 relates to attendance at religious instructions or religious wor-
ship in certain educational institutions. Then come Articles 29 and 30
F
which refer to the cultural and educational rights. Article 29 inter alia
provides that no citizen will be denied admission to an educational institn-
tion maintained wholly or partly from State funds on grounds only of
religion, etc. Article 30 permits all minorities, whether based on religion or
language, to establish and administer educational institutions of their
choice and further prohibits the State from discriminating against such G
institutions in the matter of granting aid. These fundamental rights
enshrined in Articles 15, 16 and 25 to 30 leave no manner of doubt that
they form part of the basic structure of the Constitution. Besides, by the
42nd Amendment, Part IVA entitled 'Fundamental Duties' was introduced
H
992 SUPREME COURT REPORTS (1994) 2 S.C.R.

A which inter a/ia casts a duty on every citizen to cherish and follow the noble
ideals which inspired our national struggle for freedom, to uphold and
protect the sovereignty, unity and integrity of India, to· promote harmony
and the spirit of common brotherhood amongst all the people of India
transcending religious, linguistic and regional or sectional diversities, and
B to value and preserve the rich heritage of our composite culture. These
provisions which I have recalled briefly clearly bring out the dual concept
of secularism and democracy, the principles of accommodation and
tolerance as advocated by Gandhiji and other national leaders. I am,
therefore, in agreement with the views expressed by my learned colleagues
Sawant, Ramaswamy and Reddy, JJ, that secularism is a basic feature of
C our Constitution. They have elaborately dealt with this aspect of the matter
and I can do no better than express my concurrence but I have said these
few words merely to complement their views by pointing out how this
concept was understood immediately before the Constitution and till the.
42nd Amendment. By the 42nd Amendment what was implicit was made
D explicit.

After the demise of Gandhiji national leaders like Pandit Nehru,
Maulana Azad, Dr. Ambedkar and others tried their best \o see that the
secular character of the nation, as bequeathed by Gandhiji, was not jeop-
ardised. Dr. Ambedkar, Chairman of the Drafting Committee, aware of the
E undercurrents cautioned that. India was not yet a consolidated and in-
tegrated nation but had to become one. This anxiety was also reflected in
his speeches in the Constituent Assembly. He was, therefore, careful while
drafting the Constitution to ensure that adequate safeguards were provided
in the constitution to protect the secular character of the country and to
keep divisive forces in check so that the interests of religious, linguistic and
F
ethnic groups were not prejudiced. He care fully weaved Gandhiji's con·
cept of secularism and democracy into the constitutional fabric. This
becomes evident from a cursory look at the provisions of the Constitution
referred to earlier.

G JUDICIAL REVIEW AND JUSTICIABILITY:

Having noticed the nature of the federal structure under the Con-
stitution, the possibility of different political parties ruling at the centre and
in one or more States cannot be ruled out. The Constitution clearly permits
H it. Therefore, the mere defeat of the ruling party at the centre cannot by
\

S.R. BOMMAI v. U.0.1. (AHMADI, J.] 993

itself, without anything more, entitle the newly elected party which comes A·
to power at the centre to advise the President to dissolve the Assemblies
of those States where the party in power is other than the one in power at
the centre. Merely because a different political party is elected to power
at the Centre, even if with a thumping majority, is no ground to hold that
'a situation has arisen in which the Government of the State cannot be
carried on in accordance with the provisions of this Constitution', which is
B
the requirement for the exercise of power under Article 356(1) of the
Constitution. To exercise power under the said provision and to dissolve
the State Assemblies solely on the ground of a new political party having
come to power at the centre with a sweeping majority would, to say the
least, betray intolerance on the part of the Central Government clearly c
basing the exercise of power under Article 356(1) on considerations ex-
traneous to the said provision and, therefore, legally ma/afide. It is a matter
of common knowledge that people vote for different political parties at the
centre and in the State and , therefore, if a political party with an ideology
different from the ideology of the political party in power in any State D
comes to power in the centre, the Central Government would not be
justified in exercising power under Article 356(1) unless it is shown that
the ideology of the political party in power in the State is inconsistent with
the constitutional philosophy and, therefore, it is not possible for that party
to run the affairs of the State in accordance with the provisions of the
Constitution. It is axiomatic that no State Government can function on a E
programme which is destructive of the Constitutional philosophy as such
functioning can never be in accordance with the provisions of the Constitu-
tion. But where a State Government is functioning in accordance with the
provisions of the Constitution and its ideology is consistent with the con-
stitutional philosophy, the Central Government would not be justified in F
resorting to Article 356(1) to get rid of the State Government 'solely' on
the ground that a different political party has come to power at the centre
with a landslide victory. Such exercise of power would be clearly ma/afide.
The decision of this Court in The State of Rajasthan v. The Union of India,
[1978] 1 SCR 1, to the extent it is inconsistent with above discussion, does
not, in my humble view, lay down the law correctly. G

.Since it was not disputed before us by the learned Attorney General
as well as Mr. Parasaran, the learned counsel for the Union of India, that
a proclamation issued by the President on the advice of his Council of
Ministers headed by the Prime Minister, is amenable to judicial review, the H
994 SUPREME COURT REPORTS [1994] 2 S.C.R.

J.. controversy narrows down to the determination of the scope and ambit of
judicial review i.e. in other words, to the area of justiciability. The debate
al the Bar was limited to this area; the learned Attorney General as well
as Mr. Parasaran contending for the view that the law laid down in the
Rajasthan case in this behalf was correct and did not require reconsidera-
tion while the counsel for the concerned State Governments which were
B superseded by exercise of power under Article 356(1) contending that the
said decision required reconsideration.

Before I deal with the said issue I may dispose of the question
whether the provision of Article 74(2) of the Constitution permits withhold-
C ing of the reasons and material forming the basis for the ministerial advice
tendered to the President. Article 74(1) ordains that the President 'shall'
act in accordance with the advice tendered by the Council of Ministers.
The proviso, however, entitles him to require the Council of Ministers to
reconsider its advice if he has any doubts or reservation but once the
D Council of Ministers has reconsidered the advice, he is obliged to act in
accordance therewith. Article 74(2) then provides that 'the question
whether any, and if so what, advice was tendered to the President shall not
be inquired into in any Court'. What this clause bars from being inquired
into is 'whether any, and if so what, advice was tendered' and nothing
beyond that . This question has been elaborately discussed by my learned
E colleagues who have examined in detail its pros and cons in their judgments
and therefore, I do not consider it necessary to traverse the same path. It
would suffice to say that since reasons would form part of the advice, the
Court would be precluded from calling for their disclosure but I agree that
Article 74(2) is no bar to the production of all the material on which the
ministerial advice was based. Ofcourse the privilege available under the
F
Evidence Act, sections 123 and 124, would stand on a different footing and
can be claimed de hors Article 74(2) of the Constitution. To the extent the
decision in Rajasthan case conflicts with this view, I respectfully disagree.

That takes me to the question of the scope and extent of judicial
G review i.e. the area of justieiability insofar as the subjective satisfaction of
the President under Article 356(1) of the Constitution is concerned. Part
XVIII, which deals with Emergency Provisions provides for exercise of
emergency powers under different situations. Article 352 provides that 'if
the President is satisfied' that a grave emergency exists threatening the
H security of India or any part thereof, whether by war or external aggression
S.R. BOMMAI v. U.0.1. [AHMADI, J.] 995

or armed rebellion, the President may make a declaration to that effect A
specifying the area of its operation in the Proclamation. Notwithstar.ding
., the use of the language 'if the President is satisfied' which suggests that the
decision would depend on the subjective satisfaction of the President,
counsel agreed that such a decision cannot be made the subject matter of
judicial scrutiny for the obvious reason that the existence or otherwise of B
a grave emergency does not fall within the purview of judicial scrutiny since
the Courts are ill- equipped to undertake such a delicate function. So also
under_ Article 360 the exercise of emergency power is dependent on the
satisfaction of the President that a situation has arisen whereby the finan-
cial stability or credit of India or any part thereof is threatened. The C
decision to issue a proclamation containing such a declaration is also based
on the subjective satisfaction of the President, i.e. Council of Ministers, but
the Court would hardly be in a position to x'ray such a subjective satisfac-
tion for want of expertise in regard to fiscal matters. These provisions,
therefore, shed light on the extent of judicial review.
D
The marginal note of Article 356 indicates that the power conferred
by that provision is exercisable 'in case of failure of constitutional
machinery in the States'. While the text of the said article does not use the
same phraseology, it empowers the PreSident,on his being satisfied that, 'a
situation has arisen' in which the Government of the State 'cannot' be E
carried on in accordance with the provisions of the Constitution, i.e. on the
failure of the constitutional machinery; to take action in the manner
provided in sub-clause (a), (b) and (c) and clause (1) thereof. This action
he must take on receipt of a report from the Governor of the concerned
State or 'otherwise', if he is satisfied therefrom aoout the failure of the
constitutional machinery. Article 356(1) confers extra-ordinary powers on F

-· the President, which he must exercise sparingly and with great circumspec-
tion, only if he is satisfied from the Governor's report or otherwise that a
situation has arisen in which the Government of the State cannot be carried
out in accordance with the provisions of the Constitution. The expression
'otherwise' is of very wide import and cannot be restricted to material G
capable of being tested on principles relevant to admissibility of evidence
in courts of law. It would be difficult to predicate the nature of material
which may be placed before the President or which he may have come
across before taking action under Article 356(1). Besides, since the Presi-
H
996 SUPREME COURT REPORTS [1994] 2 S.C.R.

A dent is not expected to record his reasons for his subjective satisfaction, it
would be equally difficult for the court to enter 'the political thicket' to
ascertain what weighed with the President for the exercise of power under
the said provision. The test laid down by this Court in The Barium Chemi-
cals Ltd. v. The Company Law Board & Ors., (1966] Suppl. SCR 311 and
B subsequent decisions for adjudging the validity of administrative action can
have no application for testing the satisfaction of the President under
Article 356. It must be remembered that the power conferred by Article
356 is of an extraordinary nature to be exercised in grave emergencies and,
therefore, the exercise of such power cannot he equated to the power
exercise in administrative Jaw field and cannot, therefore, be tested by the
C same yardstick. Several imponderables would enter consideration and •
govern the ultimate decision, which would be based, not only events that
have preceded the decision, but would also depend on likely consequences.
to follow and, therefore, it would be wholly incorrect to view exercise of
the President's satisfaction on par with the satisfaction recorded by execu-
D tive officers in the exercise of administrative control. The opinion which
the President would form on the basis of the Governor's report or other-
wise would be based on his political judgment and it is difficult to evolve
judicially manageable norms for scrutinising such political decisions. It,
therefore, seems to me that by the very nature of things which would govern
E the decision making under Article 356, it is difficult to hold that the
decision of the President is justiciable. To do so would be entering the
political thicket and questioning the political wisdom which the Courts of
law must avoid. The temptation to delve into the President's satisfaction
may be great but the courts would be well advised to resist the temptation
p for want of judicially manageable standards. Therefore, in my view, the
Court cannot interdict the use of the constitutional power conferred on the
President under Article 356 unless the same is shown to be malafide.
Before exercise of the Court's jurisdiction sufficient caution must be ad-
ministered and unless a strong and cogent prima fade case is made out,
G the President i.e. the executive must not be called upon to answer the
charge. In this connection I agree with the observation of Ramaswamy, J.
I am also in agreement with Verma, J. when he says that no quia time/
action would be permissible in such cases in view of the limited scope of
judicial review in such cases. I am, therefore,in respectful agreement with
the view expressed in the Rajasthan case as regards the extent of review
H
S.R BOMMAI v. U.0.1. [S.R. PANDIAN, J.] 997

available m relation to a proclamation issued under Article 356 of the A
. Constitution. In other words it can be challenged on the limited ground
that the action is malafide or ultra vires Article 356 itself.

Applying the above test I am in agreement with the view that the
proclamations issued and consequential action taken against the States of
Madhya Pradesh, Himachal Pradesh, Rajasthan and Karnataka are not B
justiciable while the proclamation issued in connection with Meghalaya
may be vulnerable but it is not necessary to issue any order or direction in
that behalf as the issue is no more live in view of the subsequent develop-
ments that have taken place in that State after fresh election. I am,
therefore, in respectful agreement with the final order proposed by Verma C
and Ramaswamy, JJ. I may also add that I agree with the view expressed
by all the three learned colleagues on the concept of secularism.

This also indicates the areas of agreement and disagreements with
the views expressed by Sawant and Reddy, JJ. D
Before concluding , I must express my gratitude for the excellent
assistance rendered by the learned Attorney General and all the learned
counsel who appeared for the contesting parties.

S. RATNAVEL PANDIAN, J. I have had the privilege of going E
through the erudite and scholarly judgments of my learned brothers making
an exhaustive and indepth analysis, evaluating the constitutional mechanism
and exploring the whole realm of constitutional imperatives as envisaged
by the founding fathers of the Indian Constitution on Central-State rela-
tions and throwing abundant light on the controversial role of State Gover- F
nors inviting President's Rule and the mode by which the Union Cabinet
and Parliament discharged their responsibility in this regard with reference
to Articles 74(2), 163, 355, 356, 357 and the other allied constitutional
provisions.

I find myself in agreement with the opinion of P.B. Sawant, J. on his G
conclusion 1, 2 and 4 to 8 with which B.P. Jeevan Reddy, J. concurs in his
judgment (speaking for himself and on behalf of S.C. Agrawal, J.) but so
far as the reasoning and other conclusions are concerned, I agree fully with
the judgment of B.P. Jeevan Reddy, J. Yet I would like to give my a brief
opinion on the constitutional question of substantial importance in relation HJ
998 SUPREME COURT REPORTS [1994] 2 S.C.R.

.\ to the powers of the President to issue proclamations under Article 356(1)
of the Constitution.

The Indian Constitution is both a legal and social document. It
provides a machinery for the governance of the country. It also contains
the ideals expected by the nation. The political machinery created by the
3
Constitution is a means to the achieving of this ideal.

To what extent we have been successful in achieving the Constitu-
tional ideals is a question with a wide spectrum which needs an elaborate
debate. Harking back to the question involved in this case. The framers of
the Constitution met and were engaged for months together with the
formidable task of drafting the Constitution on the subject of Centre-State
relationship that would solve all the problems pertaining thereto and frame
a system which would ensure for a long time to come. During the debates
and deliberations, the issues that seemed to crop up at every point was the
•) States' rights vis-a-vis the Central rights. Some of the members seem to
have expressed their conflicting opinions and different reasonings and
sentiments on every issue influenced and inspired by the political ideology
to which they were wedded. The two spinai issues before the Constituent
Assembly were (1) what powers were to be taken away from the States;
and (2) how could a national supreme Government be formed without
completely eviscerating the power of the State. Those favouring the forma-
tion of a strong Central Government insisted that the said Government
should enjoy supreme power while others supporting States' rights expos-
tulated that view. The two sides took turns making their representations
but finally realising that all might be lost, they.reached a compromise that
resolved the dead look on the key issue and consequently the present form
of Government, more federal in structure, came into being instead of a
unitary Government.

It is and undeniable fact that the Constitution of India was ordained
and established by the people of India for themselves for their own gover-
nance and not for the governance of individual States. Resultantly, the
Constitution acts directly on the people by means of power communicated
directly from the people.

In regard to the Central-State relationship there are various reports
S.R. BOMMAI v. U.0.1. [S.R. PANDIAN,J.] 999

suggesting certain recommendations for the smooth relationship of both A
' ..,
,/
the Governments without frequently coming into conflicts thereby creating
constitutional crisis. The reports }\JJggesting recommendations are that of
(1) Administrative Reforms Commission Report 1969; (2) Rajmanner
Committee Report 1969; and (3) Sarkaria Commissiou Report 1987.
B
When the question with regard to the Centre-State relations stands
thus, the publication issued by the Lok Sabha Secretariat giving an analyti-
cal tabular form with significant details pertaining to the President's
proclamation made under Article 356(1) of the Constitution and under
Section 51 of the.Government of Union Territories Act 1963 during the
last 41 years of the Republic, that is upto 1991, indicates the frequency of C
us.:r of Article 356(1). IL appears from the summary table given in the
tabular form (Appendix IV) that on 82 occasions the President's Rule in
States have been imposed by invoking or resorting to Article 356(1) and
on 13 occasion the President's Rule have been imposed in Union Ter-
ritories including erstwhile Union Territories which have become States D
under Section 51 of the Government of Union Territories Act. 1963. All
to.ta! upto 95 times, of which on 23 occasions the assemblies were dissolved
on the advice of the Chief Ministers/or due to their resignations. ff may be
recalled that on 18 occasions the assemblies suspended were subsequent!y
revived. The above statistics does not include the proclamations which are E
presently under challenge before us. We may hasten to add that the
proclamations were made on different occasions on the advice of the
Council of Ministers of the Central Government belonging to different
political complexions. Some of the States, dissolved valiantly fought,
honourably bled and pathetically lost their legal battle.
F
Since my learned brothers have elaborately dealt with the constitu-
tional provisions relating to the issue of the proclamation and as I am in
agreement with the reasoning given by B.P. Jeevan Reddy, J. it is not
necessary for me to make further discussion on this matter except saying
• that I am of the firm opinion that the power under Article 356 should be G
used very sparingly and only when President is fully satisfied that a situation
has arisen where the Government of the State cannot be carried on in

.,
;
accordance with the provisions of the Constitution. Otherwise, the frequent
use of this power and its exercise are likely to disturb the Constitutional
balance. Further if the proclamation is freely made, then the Chief Minister H
1000 SUPREME COURT REPORTS [1994] 2 S.C.R.

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.

All the matters are disposed of accordingly with no order as to costs.

G.N.