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You Are Here : Home Case Analysis Case Analysis: S.R. Bommai V. Union Of India (1994) 3 SCC 1

Case Analysis: S.R.

Bommai v. Union of India
(1994) 3 SCC 1
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November 24, 2013

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Judicial Review
The power of the courts of a country to examine the actions of
the legislative, executive, and administrative arms of the
government and to determine whether such actions are
consistent with the constitution. Actions judged inconsistent are
declared unconstitutional and, therefore, null and void. The
institution of judicial review in this sense depends upon the
existence of a written constitution[1].
In law, judicial review is said to be the power of the court to
check the legal validity of the action taken by the legislature and
to limit the over use of the same.
Article 356: Background

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Dr. B.R. Ambedkar was of the view that the Constitution must
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 whatever
reason, where the government of a State 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 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 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 center 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 manner
but on the basis of a report from the Governor or on the basis of
other material in his possession, as the case may be.

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AN ANALYSIS OF ARTICLE 356:

The heading of Article 356 characterizes it as a provision
providing for failure of Constitutional machinery in State. Clause
(1), however, does not use the words failure of constitutional
machinery. Even so, the significance of the title of the Section
cannot be overlooked. It emphasizes 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 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 mentioned 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 arisen in which the government of the State cannot
be carried on in accordance with the provisions of the
Constitution; (d) the President may by proclamation, (1) assume

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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;
(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 anybody or authority in the State. (The proviso to Clause (1)
clarifies that nothing in the said clause shall authorize the
President to 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. Clause (3) provides that
every proclamation issued under Clause (1) (except a
proclamation revoking a previous proclamation) shall be laid
before each House of the Parliament and shallcease 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 proviso to Clause (3) provides
for a situation where the Lok Sabha is dissolved on the 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, 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 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.
Facts:

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Karnataka Facts
In the case of Karnataka, the facts were that the Janta Party
being the majority party in the State Legislature had formed the
Government under the leadership of Shri S.R. Bommai on August
30, 1988 following the resignation on August 1, 1988 of the
earlier Chief Minister Shri Hegde who headed the ministry from
March 1985 till his resignation. On 17th April, 1989 one legislator
presented a letter to the Governor withdrawing his support to the
Ministry. On the next day he presented to the Governor 19 letters
allegedly written by 17 Janta Dal legislators, one independent but
associate legislator and one legislator belonging to the BJP
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 Department and got
the authenticity of the signatures on the said letters verified. On
April 19, 1989, the Governor sent a report to the President stating
therein that there were dissensions in the Janta Party which had
led to the resignation of Shri Hegde and even after the formation
of the new party viz. Janta Dal, there were dissensions and
defections. He, therefore, recommended to the President that he
should exercise power under Article 356(1). The Governor did not
ascertain the view of Shri Bommai either after the receipt of the
19 letters or before making his report to the President. On the
next day i.e. April 20, 1989, 7 out of the 19 legislators who had
allegedly sent the letters to the Governor complained that their
signatures were obtained on the earlier letters by
misrepresentation and affirmed their support to the Ministry. The
State Cabinet met on the same day and decided to convene the
Session of the Assembly within a week i.e. on April 27, 1989. The
Chief Minister and his Law Minister met the Governor on the
same day and informed him about the decision to summon the
Assembly Session. The Chief Minister offered to prove his
majority on the floor of the House, even by pre-phoning the
Assembly Session, if needed. To the same effect, the Governor
however sent yet another report to the President on the same day
i.e. April 20, 1989, in particular, referring to the letters of seven
Members pledging their support to the Ministry and withdrawing
their earlier letters. In 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) of the Constitution. On that very day, the President issued
the Proclamation in dissolving the House. The Proclamation was
thereafter approved by the Parliament as required by Article

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356(3).

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A writ petition filed in the High Court challenging the validity of

dissolution was dismissed by a three Judge Bench inter alia
holding that the facts stated in the Governors report cannot be
held to be irrelevant and that the Governors satisfaction that no
other party was in a position to form the Government had to be
accepted since his personal bona fides were not questioned and
his satisfaction was based upon reasonable assessment of all
the relevant facts. The High Court relied upon the test laid down
in the State of Rajasthan case[2] and held that on the basis of
materials disclosed, the satisfaction arrived at by the President
could not be faulted.

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The main issues included in the case are-

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1) Whether the presidential proclamation issued under Art.

356(1) is amenable to judicial review or not? If, Yes then what is
the extent of the judicial reviews, adding further, what is the
nature of the presidential satisfaction? Is, it subjective or
objective.

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First of all it is essential to know that the nature of the power

conferred by Art. 356 to the president is a conditional power it is
not an absolute power. There are basic two conditions which
need to be fulfilled for the issuance of the presidential
proclamation; these conditions are imposed in Article 356 itself.
Article 356(1) reads as356. (1) If the President, on receipt of a report from the Governor
1*** of a State or otherwise[3], 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
may by Proclamation

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(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 2*** or anybody or authority in the State
other than the Legislature of the State;

(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 the
objects of the Proclamation, including provisions for suspending in
whole or in part the operation of any provisions of this Constitution
relating to anybody or authority in the State:

Provided that nothing in this clause shall authorize the President 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
provision of this Constitution relating to High Courts.

More elaborately the two conditions areFirstly, the president should be fully satisfy himself that there is a
condition aroused in which the government of the state will not
be able to function in accordance with the provisions of the
constitution.
Secondly, the presidential satisfaction should be based on the
report of the governor or otherwise means that the
satisfaction of the president should based on the either of the
report of the governor or the president may otherwise have
information through accredited channel of communications and
have it in 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 on in accordance

with the provisions of the constitution or more briefly the
materials and record should be self satisfactory in themselves
for the issuance of such an proclamation which is referred as Dr.
Ambedkars dead letter[4] for the government of the state.

Analysis of the issues and relative reasoning

The whole Issue can be divided to two parts;

First part is related to the power and extent of courts to judicially
review the presidential proclamation.
Second part deals with the nature of the presidential satisfaction.
Dealing with the first part court broadened the purview of
the judicial review as discussed in the case of State of
Rajasthan v. Union of India[5] concluding thatYes, the proclamation made by the president can be judicially
reviewed, adding to the extent of the judicial power court says
that the proclamation is subjected to the judicial review, to an
extent of examining whether the conditions at the time of
issuance of the proclamation have been fulfilled or not and that
condition includes- whether there existed material for the
satisfaction of the president, that a situation has arisen in which
the government of the state could not be carried on in
accordance with the provisions of the constitution.

Moreover, if the proclamation is found to be in malafide or based

on wholly irrelevant grounds then the supreme court of the high
court can strike down the proclamation. The deletion of clause
(5) from Article 356, removes the clouds of reviewability of the
action. When called upon, the union of India has to produce the
material on the basis of which action was taken. Its enquiry is
limited to see whether the material was relevant to the action.
Moreover, if any advice was tendered to the president by the

council of ministers,[6] then the court will not interfere into the
matter that what advice was, but the material and record on
which the advice was tendered to the president.
Examples;
Malafide[7]/Bad Faith
Prof. de Smith in his book on bad faith stated that
The concept of bad faith eludes precise definition, but in
relation to the exercise of statutory powers it may be said to
comprise dishonestly (or fraud) and malice. A power is exercised
fraudulently if its repository intends to achieve an object other than
that for which he believes the power to have been conferred. His
intentions may be to promote another public interest or private
interest. A power is exercised maliciously if its repository is
motivated by personal animosity towards those who are directly
affected by its exercised.

So, if the material on records for such an proclamation is

influenced by any kind of malicious feeling including any kind of
political rivalry or irrelevant materials as in the case of State of
Rajasthan v. Union Of India[8]. Where the political party in the
power at the centre tendered such malafide advice against a
state governed by another political party to the president. But in
this case court due the enactment of 38th amendment which
includes clause (5) to article 356 which say that(5) The satisfaction of the president will be final and conclusive and
cannot be challenged before any cour[9]t
And decided the same and doesnt leave any scope of judicial
review. Subsequently, clause (5) of the article was struck down
by the enactment of the 44th amendment act. This opens the way
for the ray of light of judicial review to enter the prison of
presidential power under article 356(1) if the proclamation is
made under such malicious minds and irrelevant material on
records. This was subsequently seen in the case of S.R Bommai
v. Union of India[10]. In which the bench of nine judges by
majority of 5:4 broadened or say open up the scope of judicial

review.

Dealing with the second part of the issue court says that
the presidential satisfaction is a subjective one and it is
subjected to the materials and records and also the report
of the governor of the state. Moreover, court guided that
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, should
only be the ground of the satisfaction of the president.

The President cannot exercise these 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 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 is no basis or
justification 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.

CONCLUSION

The power conferred to the president by Article 356 is of grave

nature and should not be used very frequently as used till date
(over 100 times in more than 20 states). As the fear of the same

should take off the efficiency of the state governments as they

doesnt know that when the dead letter would reach them. Also,
they must be subjected to the judicial review to an extent of
checking the legal validity of the proclamation only. Also it is
submitted that though court have been provided with the power
but it also has to be limited. As it is said by Justice Kailash Nath
Katju, Divisional Manager, Aravali Golf Club and Anr. Vs.: Chander
Hass and Anr[11]thatJudges must know their limits and must not try to run the
Government. They must have modesty and humility, and not behave
like Emperors[12].
Lastly,Dr. Ambedkars stated that the constitution is a document
given by the people to govern themselves not the bodies formed
by the constitution. So, the main power should lies with the
citizens of the country.
The precedent of the case was followed subsequently in
Rameshwar Prasad v. Union of India[13].In this case the scope of
judicial review was broadened more.

[1] Britannica Encyclopedia

[2] AIR 1977 SC 1361
[3] C.A.D Vol IX p. 177
[4] C.A.D Vol IX p. 1970
[5] AIR 1977 SC 1361
[6] Article 74(1)
[7] HM Seervai, constitutional law of india,volume 3, p.3095
[8] AIR 1977 SC 1361
[9] Clause (5) added by 38th amendment(1975) and struck down
th

by the 44th amendment act(1978)

[10] (1994) 3 SCC 1
[11] 2007 (14) SCALE 1
[12] JUSTICE RUMA PAL, JUDICIAL OVERSIGHT OR
OVERREACH: THE ROLE OF THE JUDICIARY IN MODERN
INDIA,2008
[13] (2006) 2 SCC 1

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