S.R. Bommai v.

Union of India: Critique

In the following paragraphs, the author of the paper discusses the rule and approach of the
Supreme Court in S.R. Bommai v. Union of India[1] in deciding the scope and extent of judicial
review of the proclamation made by the President under Article 356. It is argued that the
Bommai decision falls short of proposing definite boundaries of judicial investigation. Further it
is put forth that in most instances other checks, legislative or executive, should take precedence
over judicial review so that there is no trespassing by either organ on the powers of the other.
Discretion means the power to decide or act according to ones own judgement. No modern
government can function without the discretionary powers. The phrases like in the opinion or
if satisfied are the phrases indicative of the subjective satisfaction of the administrator. But at
the same time the administrator cannot function according to his whims and fancies, his
satisfaction though subjective should be based on objective criteria. Courts through the exercise
of judicial review can look whether discretion administrative discretion exercised by authority to
which it was given and whether it has been exercised by the authority within the limits drawn by
the law. [2]
Article 356 of the Indian Constitution confers discretionary powers to the president to dissolve
the Legislature of the State if it cannot be carried in accordance with the provisions of the
Constitution.
Before 1977 the courts observed the policy of judicial hands off in the matter of executive
function. In State of Rajasthan v. Union of India[3] there was a marked shift in the judicial
policy particularly with regard to review of presidential proclamation issued under Article 356,
when the courts permitted a minimal area of judicial review. The Court held that if the
satisfaction is malafide or based on extraneous or irrelevant grounds, the court can examine the
existence of satisfaction. But the scope was narrowed by the bench by declaring the decision to
proclaim an emergency an executive decision based on various political considerations not fit for
judicial determination. It was unanimously held that the Article 74(2) disables the court from
inquiring into the very existence or nature or contents of ministerial advice to the President.[4]
In S.R. Bommai v. Union of India (hereinafter Bommai) the validity of the proclamation of
emergency in Karnataka, Nagaland, Meghalaya, Madhya Pradesh, Himachal Pradesh and
Rajasthan was heard collectively by the Supreme Court after appeals and transfer of writ
petitions. Bommai raised the important questions about the power of the President to issue a
Proclamation under Article 356 of the Indian Constitution and the courts power and extent of
reviewing it.
The majority judgments were delivered by Justices Sawant for himself and Kuldip Singh, Jeevan
Reddy for himself and S.C. Agrawal and S.R. Pandian. Minority judgments were given by
Justices Ahmadi, K. Ramaswamy and J.S. Verma for himself and Y. Dayal. The Supreme Court
in its judgment by majority declared the Karnataka, Meghalaya and Nagaland proclamations as
unconstitutional but the proclamations in Madhya Pradesh, Rajasthan and Himachal Pradesh as
valid.
Article 356 reached the court with a bad history. It had constantly been abused by the Union
Governments to dismiss the opposition parties. The article had been used 90 times when it
reached the Bommai bench and the court saw it as a threat to plural democracy and constitutional
balance.[5]
Though all the judges agreed that the federal powers in Indian Constitution are union biased due
to historical and practical reasons, they differed as to how the courts should interpret Article 356.
According to Sawant and Reddy, no construction of Article 356 should take place in a way
which would reduce the constitutional distribution of power between the State and Centre.
States are supreme in their sphere and not just appendages of the centre. Whereas Ramaswamy
and Ahmadi regarded States as subservient to the Centre and having no inherent sovereign power
which cannot be encroached upon by the Centre. Moreover it was stated that it is the duty of the
judiciary to remain true to the principle of quasi federalism envisioned by the Constitution. The
personal construction of federalism is reflected in the reasoning and conclusions of judges.
Majority Judgement
a) Scope of Judicial review Article 356
It was observed by Reddy that though Article 356 is found in Part XVIII, it is not exactly an
emergency provision. 356 creates an obligation for the President to preserve and protect the
Constitution. Unlike other discretionary powers of the President like defence and foreign affairs,
356 is not immune from judicial review.[6] The major issue placed before the Supreme Court
was not the existence but the extent of the judicial review of proclamation made under Article
356. Justice Sawant and Kuldip Singh were of the view that the scope of judicial review has to
be expanded to meet the changing circumstances. The contention that parameters of judicial
review in the administrative law were anti-thetical to that of constitutional law was rejected by
them. Justice Reddy and Aggarwal were of the view that since it is a question of examination of
a declaration by the highest constitutional authority, the test applicable in case of actions taken
by statutory authority developed in Barium Chemicals Ltd v. Company Law Board [7]is not
applicable. It is submitted that the conservative approach of Reddy is better since it clearly
defines the limitation of judicial investigation.
It was unanimously agreed that the judicial scope has been expanded by the deletion of Clause 5
of Article 356.[8] The court held that the conditions precedent to the issuance of an emergency
are that the there should be satisfaction and there should be a situation where the state cannot be
carried in accordance with the provisions of the constitution of India. The material on the basis
of which a conclusion is arrived at can be a report of the governor or otherwise but must be
objective. The proclamation is open to challenge if a prima facie case is made out that there
existed no material on which the proclamation was based.[9] The Court relied upon the decision
of Supreme Court of Pakistan in Muhammad Sharif v. Federation of Pakistan[10] and concurred
that there have to be certain facts and circumstances which can lead a person to form an
intelligent opinion to exercise discretion of such grave nature. It was further mentioned that the
court will not be entering the political thicket since they are performing the duty cast upon them
under the constitution.
If the material exists, the courts also have the right to judicially investigate whether the material
was relevant or whether the proclamation was issued in the mala fide exercise of the power.
Sawant and Singh came to the conclusion that the proclamation is not the personal opinion, view
or ipse dixit of the President but a legitimate inference drawn form the material placed before
him which is relevant for the purpose. The court can review the legitimacy of this inference even
if the sufficiency or otherwise of the material cannot be questioned.[11] As per Reddy and
Aggarwal, the court will not go into the correctness of the material or its adequacy. Its enquiry
is limited to see whether the material was relevant to the action and if a certain part of the
material is relevant it does not matter if the rest is irrelevant.[12] The power of bringing the
legislature back to life, even if the Parliament has approved the proclamation, is ancillary to the
powers of judicial review.
b) Article 74(2) Article 74(2) prohibits the court from inquiring into the advice tendered by
Ministers to the President. The Bommai Bench considerably narrowed down the scope of this
article. All nne judges concurred that the matter and documents placed before the President for
his consideration do not come under the purview of Article 74(2). Since the Government will be
obliged to disclose the material in front of the Parliament by virtue of 356(3), secrecy of the
material cannot be claimed. Sawant J. rightly concluded that the court is only barred from
inspecting whether the President has followed the advice of the council of ministers. As per
Reddy J. Article 74(2) protection is rendered to the discussions of the President with his council
of ministers i.e. the process to arrive at the conclusion is immune but not the conclusion itself
(the acts and orders).
The Court did endorse the view of Rajasthan that the proclamation of emergency can be declared
invalid on the grounds of malafide intention and irrelevant and extraneous consideration but
found some of the proposition of Rajasthan as problematic. Jeevan Reddy disagreed that it is
within the rights of the Centre to control the rein of State government and the satisfaction of the
President is out of the purview of the Courts (Beg CJ). The court differed from the argument
there were no judicially discoverable and manageable standards by which the Court could
examine the correctness of the satisfaction of the President (P.N. Bhagwati and A.C. Gupta,
JJ). Bommai bench overruled the closed interpretation of Article 74(2) by Rajasthan and
concluded that the heavy loss of the major ruling party in Lok Sabha elections is no grounds for
the dissolution of assembly.
Minority Judgement
As pointed out earlier the conclusions and interpretation of Article 356 was influenced by the
idea of federalism in India. The reasoning of the minority judges was similar
to Rajasthan regarding the scope and ambit of judicial review i.e. the judicial review should be
limited to cases where the action is malafide or ultra vires. Justice Ramaswamy held that the
satisfaction required under Article 356 is not judicially manageable.[13] A strong and cogent
prima facie case has to be made out to challenge the proclamation.[14] They unanimously agreed
that extraordinary powers granted under the emergency provisions cannot be measured by the
same yardstick of judicial review in administrative law. The minority judges held that the
proclamation of emergency is a highly political question and difficult to adjudicate, so the
governor reports and actions should be given credence.
Criticism
It was recognized by both minority and majority judges that the Indian federalism is different
from that of USA or Australia. In reality Indian federalism is organic federalism where the state
functions in its own independent sphere as an organ of the state. This view was adopted by the
framers of the Indian Constitution with progress and development in mind. It is submitted that
organic federalism holds much more relevance today in development and strengthening the
nation. But that does not give the right to central government to dismiss the state government
without justifiable reasons. The power to undo the will of people cannot be without checks and
balance. It is necessary to impose certain duties on the Executive which can be enforced by the
Courts. Article 356 should only be brought in force to preserve the parliamentary form of
democracy from internal subversion or a deliberate deadlock created by parties or from a
deadlock created by indecisive electoral verdict which makes the carrying on government
practically impossible.[15] It should not be called into operation for want of good governance,
massive defeat by the ruling party, allegations of corruptions etc.[16] The Governor should
exhaust all the steps to induct or maintain a stable government before declaring a constitutional
breakdown.[17] The non-compliance or violation of a provision should be such that it would
give rise to a situation where the government cannot be carried on with accordance of the
Constitution. The author concurs with the submission of Seervai that to prevent the constant
abuse of the power under Article 356 the Constitution should be amended to make the tenure of
the office of Governor a fixed tenure subject to his removal from office by impeachment by the
State Legislature.[18] A compulsory floor test, prior warning to the erring state, opportunity for
the State to answer the contention of the Central government are consideration for Union
government before resorting to Article 356. It is submitted instead of focussing at the validity of
the emergency, the court should see if the Union government has used all the measures and was
left with no other recourse.
The existence of the otherwise cannot be ignored even if it is not put forward before the court.
It is not difficult to envisage a situation where the otherwise might be too sensitive to disclose, so
it becomes imperative for the court to view the existence of otherwise on a case by case basis.
Justice Reddy observed that there cannot be a uniform rule applicable to all cases. A situation
can be complex and too political for judicial prognosis.[19] It is necessary to determine the
dominant purpose of the proclamation for determining its validity.[20] It is added that that
judiciary might not be in the possession of certain specific documents and facts and thus will not
be able to understand reasons, which would have lead to the proclamation of emergency. The
competency of the court to evaluate certain materials and consideration can also be
questioned.[21]
While examining the material placed in front of the court, there is a thin line between the
adequacy and relevancy of the material. The judgement of Sawant which enunciate a wide rule
for judicial review should not be read as judiciary substituting its judgement for that of the
executive because the article speaks of the satisfaction of the President and not that of the Court.
Thus it is not for the court to determine the correctness of the inference or arrive at a conclusion
based on the material as rightly pointed by Jeevan Reddy.[22]
Conclusion
Many things have been left inconclusive in Bommai. The judges by pronouncing six separate
judgements do not seem to have made things clear; neither is there a clear cut order signed by all
judges indicating the majority and minority. The exercise of determining the ratio of the case was
rendered difficult because though the conclusions of Justice Jeevan Reddy and Agrawal were
similar to those of Sawant and Singh, the reasoning differed. Justice Pandian selectively concurs
with some of the conclusions reached by Justices Sawant and Kuldip Singh, and agrees with the
reasoning and other conclusions arrived at by Justices Jeevan Reddy and Agrawal.[23]
Post Bommai it became difficult to invoke Article 356.[24] The Article was recently brought
again in question when Supreme Court in Rameshwar Prasad v. Union of India[25] was asked to
decide whether the proclamation in Bihar under Article 356 is illegal and unconstitutional. Chief
Justice Y.K. Sabharwal and Justice K.G. Balakrishnan their opinions affirmed the principle
enunciated in Bommai and adopted the reasoning given by Justice Reddy. The bench disagreeing
with Sawant J. and Singh J. held that the principles of judicial review which are applicable when
an administrative action is challenged cannot be applied stricto sensu. Rameshwar
Prasad correctly accepts the majority view of Jeevan reddy and narrows down few wide
proposition of the rule.
The forgone discussion indicates that the Bommai judgment is certainly a landmark judgement in
keeping a check on the discretionary powers of the Executive. But the power of the executive in
declaring emergency should not be restricted extremely by extending the scope of judicial
review. The separation of powers forms the basic structure of the Constitution since it is vital for
democratic functioning of the society.