S.R Bommai v. Uoi (L)

extent and scope of judicial scrutiny would depend on individual cases based on
- the nature of subject matter, nature of right affected, character of legal and
constitutional provisions applicable and so on - While acting in exercise of
power of judicial scrutiny, Court was not concerned with correctness of
decision which was being scrutinised unless of course decision in question was
patently perverse - Court was primarily concerned with question of decision
making process - If decision making process in reaching decision in question
was not tainted with any illegality, Court must fold its hands and must not try
to alter decision
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 towards the latter
Said Prof. K.C. Where in his work 'Federal Government'
What makes one doubt that the Constitution of India is strictly 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.
(a) the interpretation of the expression in Article 356, namely "a situation has
arisen in which the government of the State cannot be carried on in
accordance with the provisions of this Constitution"; (b) the scope and
area of judicial review in case of a Presidential proclamation issued under
Article 356 and the grounds for judicial interference; (c) whether the
norms and yardstick applied in adjudging the validity of administrative or
executive action are also applicable in determining the constitutionality of
a Presidential proclamation; (d) the correct construction and ambit of
Article 74(2); (e) whether the power of dissolving legislative assemblies
can be exercised only after the Presidential proclamation is approved by
both Houses of Parliament under Article 356(3) and not before; (f) whether
it is permissible to take over some of the functions and powers of the State
government while at the same time keeping the State government in
office; (g) the correct interpretation of Article 365 of the Constitution; (h)
whether the doctrine of basic structure can be invoked for exercising
power under Article 356; (i) whether secularism is a basic feature of the
Constitution; (j) whether under our Constitution no party or organisation
can simultaneously be a political and a religious party; (k) the requirement
of a warning by the Centre to the State before issuing a Presidential
proclamation; (l) the necessity of holding a floor test in order to determine
whether the Ministry enjoys the confidence of the House or has lost it; (m)
the status of the Sarkaria Commission report and the weight to be
attached to its recommendations
Interpretation of Article 356(1)
Situations contemplated by Article 356 must be such where the governance

of the State is not possible to be carried on in accordance with the provisions
of the Constitution. The word "cannot" emphatically connotes a situation of

impasse.55 Accordingly situations 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 a Presidential
proclamation under the Article
In reaching the above Scope and extent of judicial review of Presidential proclamation
issued under Article 356
every member of the nine-judge bench agreed that a

Presidential proclamation issued under Article 356 of the
Constitution is not completely beyond judicial review
All the judges are also agreed that mala fides provides a
ground for judicial interference. The main zone of disagreement
has been about the area and extent of judicial review and
justiciability of the Presidential proclamation.
The most expansive scope of judicial review is in the judgment
of Justices Sawant and Kuldip Singh. Their Lordships held that
the President's satisfaction has to be based on objective
material and further that the objective material available either
from the Governor's report or from other information or both
must indicate that the government of the State cannot be
carried on in accordance with the provisions of the
Constitution. Consequently, 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. Once such material is shown to
exist, the satisfaction of the President based on the material is
not open to question.
"even if part of the material is irrelevant, the court cannot
interfere so long as there is some material which is relevant to
the action taken
State of Rajasthan v Union of India brought by some state governments against the
Janata governments dissolution of state legislatures broke new ground. It upheld the
courts right to strike down a proclamation imposing Presidents rule if the action was
mala fide or based on extraneous or irrelevant considerations, but, ordinarily court would
keep away from political questions, in particular substituting its own judgement for that of
executive.
Minority Opinion: The issue of a Presidential proclamation

entails a political question and hence the Courts should refrain
from entering into the political thicket and in the words of
Justice Verma "these political decisions call for judicial hands
off"
State legislative assembly cannot be dissolved merely upon
issue of Presidential proclamation and before Parliamentary
approval is accorded as required by Article 356(3).
Criterion for determining strength of the Ministry : Floor test
proper method for testing the strength of the Ministry and to

determine whether it has lost or still retains the confidence of
the House?
The assessment of the strength of the Ministry 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 principle, apart from being open
to serious objections of personal mala fides.
"In all cases where the support of the Ministry is claimed to
have been withdrawn by some legislators," Justices Sawant and
Kuldip Singh held, "the proper course for testing the strength of
the Ministry is holding the test on the floor of the House." "The
assessment of the strength of the Ministry is not a matter of
private opinion of any individual be he the Governor or the
President" (emphasis added). Justices Jeevan Reddy and
Agarwal underlined the floor test procedure: "Whenever 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" (emphasis as in the original). The sole
exception to this will be a situation of "all-pervasive violence
where 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."
No floor test was held by the Governors in Karnataka and

Nagaland before dissolving the legislative assemblies and the
Presidential proclamation was based on the personal
assessment of the Governors about loss of confidence by the
ministries in these States. Consequently the Presidential
proclamations were struck down.
Reliefs
What are the reliefs that can be granted in case of actual or threatened exercise of
power under Article 356?
The majority view expressed by Justices Sawant and Kuldip
Singh is that Court can exercise this power to avoid judicial
review "being rendered fruitless"
As regards the grant of substantive main relief the majority
view is that if the proclamation issued is declared invalid it will
be open to the Court to "restore the dismissed government to
office and revive and reactivate the legislative assembly
wherever it may have been dissolved or kept under
suspension.
Article 356 and the basic structure doctrine
Consensus - secularism is a basic feature of the Constitution.

violation of a basic feature of the Constitution, including the
secular features of the Constitution, is a valid ground for exercise
of power under Article 356.
limited the constitutional power vested in the Central
Government to dismiss a State government, but upheld
the dismissal of four BJP Governments for going against
the constitutional philosophy and provisions that were
secular.
Judgement:
The Proclamation of emergency u/art 356 is subject to Judicial Review. The

relevancy and the need of such proclamation shall be struck down by the concerned
court if found malafide.
1.
The Power of President under 356 is subject to restrictions. The

opinion is formed is based on the report of the Governor and not sole
satisfaction.
2.
The Supreme Court can struck down the proclamation even if both
the houses of Parliament passes the same on Malafide grounds.

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extent and scope of judicial scrutiny would depend on individual cases based on

That is why the Constitution of India is differently described, more appropriately

Interpretation of Article 356(1)

Situations contemplated by Article 356 must be such where the governance

of the Constitution. The word "cannot" emphatically connotes a situation of

every member of the nine-judge bench agreed that a

Minority Opinion: The issue of a Presidential proclamation

proper method for testing the strength of the Ministry and to

No floor test was held by the Governors in Karnataka and

Consensus - secularism is a basic feature of the Constitution.

The Proclamation of emergency u/art 356 is subject to Judicial Review. The

The Power of President under 356 is subject to restrictions. The

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