S.R. Bommai vs Union Of India on 11 March, 1994

    CASE NO.:

Appeal (civil) 3645 of 1989

PETITIONER:

S.R. BOMMAI

RESPONDENT:

UNION OF INDIA

DATE OF JUDGMENT: 11/03/1994

BENCH:

S. Ratnavel Pandian & A.M. Ahmadi & Kuldip Singh & J.S.Verma & P.B. Sawant & K.
Ramaswamy & S.C. Agrawal & Yogeshwar Dayal & B.P. Jeevan Reddy

JUDGMENT:

JUDGMENT

Delivered by

S.R. PANDIAN J,

K. RAMASWAMY J,

JAGDISH SARAN VERMA J,

P.B.SAWANT J,

A.M. AHMADI J



S.RATNAVEL PANDIAN, J.

I have had the privilege of going through

the erudite and scholarly judgments of my learned brothers making an exhaustive
and in-depth 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 relations and throwing abundant
light on the controversial role of State Governors 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.

2. 1 find myself in agreement with the opinion of P.B. Sawant, J. on his
conclusions 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 brief opinion on
the constitutional question of substantial importance in relation to the powers
of the President to issue Proclamations under Article 356(1) of the
Constitution.

3. 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 Constitution is a
means to the achieving of this ideal.

4. To what extent we have been successful in achieving the constitutional 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 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 tile members seem to have expressed their conflicting opinions and different
reasoning and sentiments on every issue influenced and inspired by the political
ideology to which they were wedded. The two spinal 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 favoring the formation of a strong Central
Government insisted that the said Government should enjoy supreme power while
others supporting States' 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 deadlock on the key issue and
consequently the present form of Government, more federal in structure, came
into being instead of a unitary Government.

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established by the people of India for themselves for their own governance 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.

6. In regard to the Centre State relationship there are various reports
suggesting certain recommendations for the smooth relationship of both the
Governments without frequently coming into conflicts thereby creating
constitutional crisis. The reports suggesting recommendations are that of (1)
Administrative Reforms Commission 1969; (2) Rajmannar Committee 1969; and (3)
Sarkaria Commission 1987.

7. When the question with regard to the Centre State relations stands thus, the
publication issued by the Lok Sabha Secretariat giving an analytical 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
up to 1991, indicates the frequency of user of Article 356(1). It 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 occasions the President's Rule have been imposed in
Union Territories including erstwhile Union Territories which have become States
under Section 51 of the Government of Union Territories Act, 1963. All total up
to 95 times, of which on 23 occasions the assemblies were dissolved on the
advice of the Chief Ministers/or due to their resignations. It may be recalled
that on 18 occasions the assemblies suspended were subsequently revived. The
above statistics does not include the Proclamations which are 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, honorably bled and pathetically lost their legal
battle.

8. Since my learned brothers have elaborately dealt with the constitutional
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 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 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

67

time from his seat without properly discharging his constitutional obligations
and achieving the desired target in the interest of the State.

9. All the matters are disposed of accordingly with no order as to costs.

================================================================================
================================================ AHMADI, J.

I have had the advantage of perusing the views expressed by my esteemed
colleagues 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.

11. 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 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 socioeconomic imbalances, 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, 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 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 powers
becomes an imperative. Such emergency powers existed under the Government of
India Act, 1935, vide Sections 93 and 45 of that enactment. However, when
similar powers were sought to be conferred on the President 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 277-A. Dr Ambedkar pacified the members by stating :

       "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 would remain a dead letter. If at all, they are brought into
operation, I hope the President, who is endowed with all 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." (Constituent Assembly
Debates, Vol. IX, p. 177)

Dr. Ambedkar's hope that in rarest of rare cases only there will be an occasion
to invoke the emergency provisions was soon belied as we were

68

told at 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 enquiry into the circumstances leading to the
utilisation of this emergency power, but the fact remains that the President has
had to invoke 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.

12. Although the emergency provisions found in part XVIII of the Constitution
are more or less modeled on the pattern of similar provisions contained in the
Government of India Act, 1935, the exercise 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 different 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 Governments and those too could be taken away if it was
felt that the Government concerned could not be carried on in accordance
therewith. So also 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 setup as compared to that obtaining under the
Government of India Act, 1935. The constitutional philosophy of a free country
is totally different from the philosophy of a similar law introduced for the
governance of a country by its colonial masters. It is, therefore, unnecessary
to examine the case- law based on the exercise of similar powers under the
Government of India Act, 1935.

Federal Character of the Constitution

13. India, as the Preamble proclaims, is a Sovereign, Socialist, Secular,
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 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.

14. In order to understand whether our Constitution is truly federal, it 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,

69

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 States and the
distribution of powers between them. Federalism, therefore, essentially implies
demarcation of powers in a federal compact.

15. 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 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 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 appeal to the Supreme Court of the United
States. The interpretation of the Constitution is by the United States Supreme
Court.

16. We may now read some of the provisions of our Constitution. States." 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 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 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
be changed. Under Article 2 it is left to 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

70

affected by the proposal. All that the proviso to Article 3 requires is that in
such cases the President shall refer the Bill to the Legislatures of the States
concerned likely to be affected "to express their views". Once the views of the
States are known, it is left to Parliament to decide on the proposed changes.
Parliament can, therefore, without the concurrence of the State or States
concerned 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, Parliament is paramount. This scheme substantially differs from the
federal set-up established in the United States of America. The American States
were independent sovereign States and the territorial boundaries of those
independent States cannot be touched by the Federal Government. 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 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.

17. 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 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 strengthening the administrative control of the Union. It is in this
context that this Court in State of W.B. v. Union of India' observed : (SCR p.
397)

       "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 many respects
independent."

18. In Union of India v. H.S. Dhillon2 (SCC p. 789, para 15: AIR power was
pointed out, in that, under the Government of India Act, 1935, the residuary
power was not given either to the Union Legislature or to the provincial
legislatures, but under our Constitution, by virtue of Article 248, read with
Entry 97 in List 1 of the Vllth 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 States.

1 (1964) 1 SCR 37 1: AIR 1963 SC 1241

2 (1971) 2 SCC 779: AIR 1972 SC 1061: (1972) 2 SCR 33 71

19. The Preamble of our Constitution shows that the people of India had resolved
to constitute India into a Sovereign Secular Democratic 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 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 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 not, 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 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 a 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 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 purposes and as to the
construction, maintenance of means of communication declared to be of national
or military importance and for protection of railways. The States have to depend
largely 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 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 must
receive the sanction of the Central Government for its financial assistance
since discretionary power under Article 282 to make grants for public purposes
is vested in the 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 368 confers powers on 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

72

if the amendments are ratified by the legislatures of not less than one-half of
the States. This provision empowers Parliament to so amend the Constitution as
to curtail 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 America.

20. In State of Rajasthan v. Union of India3 Beg, C.J., observed in (AIR)
paragraph 51 as under: (SCC p. 62 1, para 56)

       "A conspectus of the provisions of our Constitution will indicate that,
whatever appearance 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 (AIR) paragraph 52, the learned Chief Justice proceeded to add (SCC
p. 622, para 57)

       "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 to be nationally integrated, politically and
economically coordinated, and socially, 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."

Pointing out that national planning involves disbursement of vast amount of
money collected as taxes 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 (AIR) paragraph 56 of the judgment
: (SCC p. 623, para 6 1) "If then our Constitution creates a Central Government
which is ,amphibian', in the sense that it can move either on the federal or
unitary plane, according to the needs of the situation and circumstances of a
case, the question which we are driven back to consider is whether an assessment
of the 'situation' in which the Union Government should move either on the
federal or unitary plane are matters for the Union Government itself or for this
Court to consider and determine."

When the Union Government issued a notification dated May 23, 1977 constituting
a Commission of Inquiry in exercise of its power under Section 3 of the
Commissions of Inquiry Act, 1952, to inquire into certain allegations made
against the Chief Minister of the 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 3 (1977) 3 SCC 592: AIR 1977
SC 1361: (1978) 1 SCR 1 73

State of Karnatakt v. Union of India4-Beg C.J., once again examined the relevant
provisions of the Constitution and the Commissions of Inquiry Act, 1952, and
observed in (AIR) paragraph 33 as under: (SCC p. 645, para 34) "In our country,
there is at the top a Central or the Union Government responsible to Parliament,
and there are, below it, 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 government.
And, in all States there is a system of local government in both urban and rural
areas, functioning under State enactments. Thus, we can speak of a three tier
system of Government in our country in which the Central or the Union Government
comes at the apex.......

It would thus seem that the Indian Constitution has, in it, not only features of
a pragmatic federalism which, while distributing legislative powers and
indicating the spheres of governmental powers of State and Central Governments,
is overlaid by strongly 'unitary' features, particularly exhibited by lodging in
Parliament the residuary legislative powers, and in the Central Government the
executive power of appointing certain constitutional functionaries including
High Court and Supreme Court Judges and issuing appropriate directions to the
State Governments and even displacing the State Legislatures and the Governments
in emergency situations, vide Articles 352 to 360 of the Constitution.

21. 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 agencies 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 which were too fresh to be
forgotten by our Constitution makers. It was perhaps for that reason that our
Founding Fathers thought that a strong Centre was essential to ward off
separatist tendencies and consolidate the unity and integrity of the country.

22. A Division Bench of the Madras High Court in M. Karunnanidhi v. Union of
India5 while 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 :

       "[T]here may be a federation of independent States, as it is in the case
of United States of America. As the name itself denotes, it is a Union of
States, either by treaty or by legislation by the concerned

       4 (1977) 4 SCC 608: AIR 1978 SC 68: (1978) 2 SCR 1

       5 AIR 1977 Mad 192: (1977) 1 MLJ 182

       74

       States. In those cases, the federating units gave certain powers to the
federal Government and retained some. To apply the meaning to the word
'federation' or 'autonomy' used in 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 rule till the framing of our
Constitution, the Court proceeded to add is 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 the powers of the State
Governments and the relations 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 governance of the country. The powers of the Centre and States are
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."

23. 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, 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
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 autonomous bodies
having definite independent rights of governance. In fact, as pointed out
earlier in certain circumstances the Central Government can issue directions to
States and 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 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 [Section 1(1),
14th Amendment], 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
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 for not less than five years
immediately preceding such commencement shall be a citizen of India. Article 9
makes it clear that if any person 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 Constitution. The concept of citizenship assumes some
importance in a federation because in a country 75

which recognises dual citizenship, the individual would owe allegiance both to
the Federal Government as well as the State 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.

24. Thus the significant absence of the expressions like 'federal' or
'federation' in the constitutional vocabulary, 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 1 of the VlIth 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 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. Wheare 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."

 Thus in the United States, the sovereign States enjoy their own 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' 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 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.

Secularism under the Constitution

25. 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, languages, religions and
customs. These diversities threw up their own 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 modem times
advocated to maintain national unity and integrity. The British policy of divide
and rule, 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 76

battle for independence against the mighty colonial rulers. As early as 1908,
Gandhiji wrote in Hind Swaraj: "India cannot cease to be one nation, because
people belonging to different religions live in it. ... In no part of the world
are one nationality and one religion synonymous terms; nor has it ever been so
in India."

Gandhiji was ably assisted by leaders like Pandit Jawaharlal Nehru, Maulana Abul
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 :

       "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." And this was
followed 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 and so on, but not my religion. That
is everybody's personal concern."

       26. 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 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 one religion should be accorded special privileges in national 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 arrogate to itself rights and
privileges which it denies to others. No person should suffer any form of
disability or discrimination because of his religion but all alike 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."

       (emphasis supplied)

       (Recovery of Faith, New York, Harper Brothers 1955, p. 202)

27. Immediately after we attained independence, the Constituent Assembly, aware
of the danger of communalism, passed the following resolution on April 3, 1948
"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 opinion that no communal Organisation which by its
constitution or by exercise of

       77

        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 bona fide religious, cultural, social and educational needs of
the community, and that all steps, legislative and administrative, necessary to
prevent such activities should be taken."

28. Since it was felt that separate electorates for minorities were responsible
for communal and separatist tendencies, the Advisory Committee resolved that the
system of reservation for minorities. excluding SC/ST, should be done away with.
Pursuant to the goal of secularism, the Constituent 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 above all for the majority community because they will
have to show that they can behave towards others in a enerous, 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
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 particular 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 tile 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 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."

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 notice the provisions in the Constitution.

29. Notwithstanding the fact that the words 'Socialist' and 'Secular' were added
in the Preamble of the Constitution in 1976 by the 42nd Amendment, the concept
of Secularism was very much embedded in our constitutional 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

78

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 Scheduled Castes and
Tribes, vide Articles 15 and 16. Article 25 next provided, subject to public
order, morality and health, that all persons 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 purposes and to manage its own
affairs in matters of religion. These two 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 tile proceeds thereof are intended to be
appropriated in payment of 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 worship in certain educational institutions. Then come Articles 29 and
30 which refer to the cultural and educational rights. Article 29 inter alia
provides that no citizen will be denied admission to an educational institution
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 institutions in the matter
of granting and. 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 IV-A entitled 'Fundamental
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 brotherhood amongst all the people of India
transcending religious, linguistic and regional or sectional diversities, and 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 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 79

the Constitution and till the 42nd Amendment. By the 42nd Amendment what was
implicit was made explicit. 30. After the demise of Gandhiji national leaders
like Pandit Nehru,Maulana Azad, Dr Ambedkar and others tried their best to see
that the secular character of the nation, as bequeathed by Gandhiji, was not
jeopardised. Dr Ambedkar, Chairman of the Drafting Committee, aware of the
undercurrents cautioned that India was not yet a consolidated and integrated
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
ethnic groups were not prejudiced. He carefully weaved Gandhiji's concept of
secularism and democracy into the constitutional fabric. This becomes evident
from a cursory look at the provisions of the Constitution referred to earlier.

Judicial Review and Justiciability

Constitution, the possibility of different political parties ruling at the
Centre and in one or more States cannot be ruled out. The Constitution clearly
permits it. Therefore, the mere defeat of the ruling party at the Centre cannot
by itself, without anything more, entitle the newly elected party which comes 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 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 basing the exercise of power under Article 356(1) on
considerations extraneous 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 justified in exercising power under Article 356(i) 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
programme which is destructive of the constitutional philosophy as such
functioning can never be in accordance with the provisions of the Constitution.
But where a State

80

Government is functioning in accordance with the provisions of the Constitution
and its ideology is consistent with the constitutional philosophy, the Central
Government would not be justified in 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 mala fide. The decision of this Court in State of Rajasthan v.
Union of' India3 to the extent it is inconsistent with the above discussion,
does not, in my humble view, lay down the law correctly.

32. 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 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 at 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 case3 in this behalf was correct and did
not require reconsideration while the counsel for the State Governments
concerned which were superseded by exercise of power under Article 356(1)
contending that the said decision required reconsideration.

33. Before I deal with the said issue I may dispose of the question whether the
provision of Article 74(2) of the Constitution permits withholding 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, entities him to require the Council of Ministers to reconsider its
advice if he has any doubts or reservation but once the 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 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. Of course the privilege available under the
Evidence Act, Sections 123 and 124, would stand on a different footing and can
be claimed dehors Article 74(2) of the Constitution. To the extent the decision
in Rajasthan case3 conflicts with this view, I respectfully disagree. 3 (1977) 3
SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1 81

34. That takes me to the question of the scope and extent of judicial review
i.e. the area of justiciability 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 security of India or
any part thereof, whether by war or external aggression or armed rebellion, the
President may make a declaration to that effect specifying the area of its
operation in the Proclamation. Notwithstanding 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 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 financial stability or credit of India 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 fiscal matters. These
provisions, therefore, shed light on the extent of judicial review.

35. 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 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-clauses (a), (b) and (c)
and (sic of) clause (1) thereof. This action he must take on receipt of a report
from the Governor of the State concerned or ,otherwise', if he is satisfied
therefrom about the failure of the constitutional machinery. Article 356(i)
confers extraordinary powers on the President, which he must exercise sparingly
and with great circumspection, only if he is satisfied from the Govern'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 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 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

82

down by this Court in Barium Chemicals Ltd. v. Company Law Board6 and 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 be equated to the power exercised in
administrative law field and cannot, therefore, be tested by the same yardstick.
Several imponderables would enter consideration and govern the ultimate
decision, which would be based, not only on events 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 on a par with the satisfaction recorded by executive officers in
the exercise of administrative control. The opinion which the President would
form on the basis of the Govern's report or otherwise 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 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 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 mala fide. Before
exercise of the court's jurisdiction sufficient caution must be 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. 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 timet 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 case3 as regards
the extent of review available in relation to a Proclamation issued under
Article 356 of the Constitution. In other words it can be challenged on the
limited ground that the action is mala fide or ultra vires Article 356 itself.

36. 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 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 developments that have taken place in that State
after fresh elections. I am, therefore, in 6 1966 Supp SCR 311: AIR 1967 SC 295:
(1966) 36 Comp Cas 639 3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1 83

respectful agreement with the final order proposed by Verma, J. and Ramaswamy,
J. I may also add that I agree with the view expressed by all the three learned
colleagues on the concept of secularism.

37. This also indicates the areas of agreement and disagreements with the views
expressed by Sawant and Reddy, JJ.

38. 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.

VERMA, J. (for himself and Yogeshwar Dayal, J.)-

This separate opinion is occasioned by the fact that in our view the area of
justiciability is even narrower than that indicated in the elaborate opinions
prepared by our learned brethren. The purpose of this separate note is merely to
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 concept of secularism 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 Parliament and the
subsequent electoral verdict.

40. 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
and the wide discretion which inheres in its exercise. This indication appears
also from the requirement of approval of the Proclamation by 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.

41. To determine the justiciable area, we prefer to recall and keep in view that
which was said in K. Ashok Reddy v. Government of India7 thus: (SCC pp. 315-16,
paras 21-23) "21. A useful passage from Craig's Administrative Law (Second Edn.,
p. 291) 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 GCHQ
case8. Their Lordships emphasised that the review ability of discretionary power
should be dependent upon the subject-matter thereof, and not whether its

       7 (1994) 2 SCC 303: JT (1994) 1 SC 401

       8 Council (of Civil Service Unions v. Minister for the Civil Service,
(1985) AC 374: (1984) 3 All ER 935

       84

       prerogative power would, because of their subject-matter, be less
justiciable, with Lord Roskill compiling the broadest list of such forbidden
territory. ...'

22. In Council of Civil Service Unions v. Minister for the Civil Service8 (GCHQ
case), Lord Roskill stated thus: (AC p. 418, All ER P. 956)

       , But I do not think that right of challenge can be unqualified. It must,
I think, depend upon the subject-matter of 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. Prerogative powers such as those relating to the making of
treaties, the defence of the realm, the prerogative of mercy, the grant of
honors, the dissolution of Parliament and the appointment of ministers as well
as others are not, I think, susceptible to judicial review because their nature
and subject-matter is such as not to be amenable to the judicial process. ...'

23. The same indication of judicial self-restraint in such matters is to be
found in De Smith's Judicial Review of Administrative Action, thus: (p. 3 2)

       " 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 nonexistence of the state of affairs
on which the validity of its exercise 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.' "

42. It is also useful to refer to Puhlhofer v. Hillingdon London Borough
Council9 wherein Lord Brightman with whom the other Law Lords agreed, stated
thus: (All ER p. 474) "Where the existence or non-existence of a fact is left to
the 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."

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. 8 (1985) AC 374: (1984) 3 All ER 935

9 (1986) AC 484: (1986) 1 All ER 467

85

43. The question now is of the test applicable to determine the situation 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 are specified and their existence
is capable of objective determination. It is, therefore, reasonable to hold that
the cases falling under Article 365 are justiciable.

44. 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 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 scrutinising 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.

45. It 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
subjective political decision, judicial scrutiny of the same is not permissible
for want of judicially manageable standards. These political decisions call for
judicial hands off envisaging correction only by a subsequent electoral verdict,
unless corrected earlier in Parliament.

46. In other words, only cases which permit application of totally objective
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 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 correction for whatever its value in the existing
political scenario. This appears to be the constitutional scheme.

47. The test for adjudging the validity of an administrative action and the
grounds of its invalidity indicated in Barium Chemicals Ltd. v. Company Law
Board& and other cases of that category have no application for testing and
invalidating a Proclamation issued under Article 356. The test applicable has
been indicated above and the grounds of invalidity are those mentioned in State
of Rajasthan v. Union of India3.

48. Article 74(2) is no bar to production of the materials on which the
ministerial advice is based, for ascertaining whether the case falls within the
justiciable area and acting on it when the controversy, is found justiciable, 6
1966 Supp SCR 311: AIR 1967 SC 295: (1966) 36 Comp Cas 639

3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1 86

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 v. Union of India3 even though we agree that the
decision does not require any reconsideration on the aspect of area of
justiciability and the grounds of invalidity indicated therein.

49. 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; 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 Hollohan v.
Zachillhu10 it was stated thus: (SCC p. 711, para 110)

       "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 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 permissible. Nor would interference be permissible at an
interlocutory stage of the proceedings."

50. It is also clear that mere parliamentary approval does not have the effect
of excluding judicial review to the extent permissible. In Sarojini Ramaswami v.
Union of India11 it has been stated thus: (SCC pp. 560-61) "72. We may, however,
add that the intervention of the parliamentary part of the process, in case a
finding of guilty is made, which according to Shri Sibal would totally exclude
judicial review thereafter is a misapprehension since limited judicial review
even in that area is not in doubt after the decision of this Court in Keshav
Singhl2.

       73. At this stage, a reference to the nature and scope of judicial review
as understood in similar situations is helpful. In

       Administrative Law (Sixth Edition) by H.W.R. Wade, in the chapter
'Constitutional Foundations of the Powers of the Courts' under the heading 'The
Sovereignty of Parliament', the effect of Parliament's intervention is stated
thus: (at p. 29)

       'There are many cases where some

       administrative order or regulation is required by statute to be approved
by resolutions of 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.'

        3 (1977) 3 SCC 592 : AIR 1977 SC 1361: (1978) 1 SCR 1

       10 1992 Supp (2) SCC 651

       11 (1992) 4 SCC 506

        12 special Reference No.of 1964, (1965) 1 SCR 413 : AIR 1965 SC 745

       87

Later at p. 41 1, Wade has said that 'in accordance with constitutional
principle, parliamentary approval does not affect the normal operation of
judicial review'. At p. 870 while discussing 'Judicial Review', Wade indicates
the position thus:

       '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 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 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 of being intra vires".'

       74. The clear indication, therefore, is that mere parliamentary 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 permissible grounds."

51. Applying this principle, only the Meghalaya case is justiciable and that
Proclamation was invalid while those relating to Madhya Pradesh, Himachal
Pradesh, Rajasthan and Karnataka are not justiciable. There is rightly no
challenge 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,
therefore, there is no occasion to grant any substantial relief even in that
case,

52. It is to this extent our view differs on the question of justiciability. 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 Rajasthan v. Union of India3 does not require reconsideration.

SAWANT, J. (on behalf of Kuldip Singh, J. and himself)-

Article 356 has a vital bearing on the democratic parliamentary form of
Government 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 background 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 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 respect? and (c) What is the meaning of the
expression "a situation has arisen in which the 3 (1977) 3 SCC 592: AIR 1977 SC
1361: (1978) 1 SCR 1 88

Government of the State cannot be carried on in accordance with the provisions
of this Constitution" used in Article 356(1)?

   54. Article 356 reads as follows:

   "356. Provisions in case of failure of

       constitutional machinery in States.- (1) If the President, on receipt of
report from the Governor 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 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 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 authorise 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.

(2) Any such Proclamation may be revoked or varied by a subsequent 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 resolutions of both Houses of
Parliament

Provided that if any such Proclamation (not being a Proclamation 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 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.

89

(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
:

Provided that if and so often as a resolution approving the continuance 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,
but no such Proclamation shall in any case remain in force for more than three
years :

Provided further that if the dissolution of the House of the 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 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 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 :

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 first proviso to this clause to 'three years' shall be construed as a
reference to 'five years'.

(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 of issue of such
Proclamation shall not be passed by either House of Parliament unless-

       (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 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
issued under clause (1) on the 11th day of May 1987 with respect to the State of
Punjab."

55. 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 Constitution. The
article belongs to the family of Articles 352 to 360 which have been
incorporated in Part XVIII dealing with "Emergency Provisions" as the title of
the said part specifically declares. Among the preceding articles, Article

90

352 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 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. Explanation 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 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 expiration of that period it has been approved by resolutions of both
Houses of Parliament. It is not necessary for our purpose to refer to other
provisions of the said article. Article 353 refers to the effect of the
Proclamation of emergency. It states that while the Proclamation of emergency 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 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 enumerated in the Union
List. Article 354 gives power to the President to direct that Articles 268 and
269 which relate to the distribution 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 Government 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 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 the Constitution
while the Proclamation of emergency declaring that the security of India or any
part of the territory thereof is threatened by way or by external aggression, is
in operation. Such power, it appears, cannot be 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 2 1, shall remain suspended when a Proclamation of emergency is in
operation.

56. Article 355 makes an important provision. It casts a duty on the Union to
protect States against external aggression and internal disturbance, and to
ensure that the Government of every State is carried "in accordance 91

with the provisions of the Constitution". This article corresponds to Article
277-A of the Draft Constitution. Explaining the purpose 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 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, notwithstanding
the many provisions which are contained in it whereby the Centre has been given
powers to override the Provinces, nonetheless 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 the Centre to override any
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 provinces sovereign and
gives them plenary powers to make any law for the peace, order and good
government of the province, really speaking, the intervention of the Centre or
any other 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, 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 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 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 do is to add one more clause to the principle enunciated in the
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

       92

       field is done by the Centre it is in virtue of this obligation. It will
be an act in fulfillment 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 introduced Article 277A."
(Constituent Assembly Debates, Vol. IX, p. 133)

57. 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 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 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 "internal
disturbance" is certainly of larger connotation than " armed rebellion" and
includes situations arising out of "armed rebellion" as well. In other words,
while a Proclamation 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 Proclamation can be
issued under Article 356 unless the internal disturbance gives rise to a
situation in which the Government of tile 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 Government of
the State in accordance with the provisions of the Constitution. 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 expiration of two months unless it is approved
by the resolutions of both Houses of Parliament. We have thus emergency
provisions contained in other articles in the same part of the Constitution.

58. The common thread running through all these articles in Part XVIII relating
to emergency provisions is that the said provisions can 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 arises in the twin conditions stated therein.

93

59. 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 expressions in
Article 356(i) 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" "in accordance with the
provisions of this Constitution". The conditions precedent to the issuance of
the Proclamation, therefore, 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 which the Government 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 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 issues the Proclamation. Once such material is shown to
exist, the satisfaction 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 accordance with the provisions of the
Constitution, the Proclamation issued is open to challenge.

60. It is further necessary to note that the objective material before the
President must indicate that the Government of the State "cannot be carried on
in accordance with the provisions of this 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. It is not
every situation arising in the State but a situation which shows that the
constitutional Government has become an impossibility, 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 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 limitations, of
the judicial review.

61. 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
judicial review in the administrative law and the constitutional law. While in
the field of administrative law, the court's power extends to legal 94

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 constitutional law extends only to
preventing actions which are unconstitutional or ultra 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 infringements of the Fundamental Rights. The judicial power
has no scope in constitutional law beyond examining the said infringements. He
also contended 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.

62. 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 authority for
achieving a particular purpose and if the authority concerned under the guise of
attaining the said purpose, uses the powers to attain an impermissible object,
such use of power cannot be questioned. We have not been pointed out any
authority in support of these propositions. We also find that many of the
parameters of judicial review developed in the field of administrative law are
not antithetical 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.

63. We may now examine the principles of judicial review evolved in the field of
administrative law. As has been stated by Lord Brightman in Chief Constable of
the North Wales Police v. Evans" "judicial review, as the words imply, is not an
appeal from a decision, but a review of the manner in which 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 Service Unions v. Minister for the Civil Service8 (AC at p.
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 developments on a case
by case basis may not in course of time add further grounds" and has added that
"principle of proportionality" which is recognised in the administrative law by
several members of European Economic Community may be a possible ground for
judicial review for

13 (1982) 3 AlI ER 141:(1982) 1 WLR 1155

8 (1985) AC 374: (1984) 3 All ER 935

95

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 Diplock has explained the three heads of grounds. By
"illegality" he means that the decision-maker must understand correctly the law
that regulates its decision- making power and must give effect to it, and
whether he has or has not, is a justiciable question. By "irrationality" he
means unreasonableness. A decision may be so outrageous or in defiance of logic
or of accepted moral standards that 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 decision falls in the said category. By "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 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.

64. It was observed by Donaldson, L.J. in R. v. Crown Court at Carlisle, ex p
Marcus-Moore 1 4 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 judiciary or of individual judges for that of the
authority constituted by law to decide the matters in issue. In R v. Panel on
Take-overs and Mergers, ex p Guinness plc15 (LR at p. 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 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 of legality. 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 could have
reached or abused its powers.

65. Lord Roskil in Council of Civil Service Unions v. Minister for the Civil
Service8 (AC at p. 414), opined that the phrase "principles of natural justice"
"be better replaced by speaking of a duty to act fairly. ... It is not for the
courts to determine whether a particular policy or particular decisions taken in
fulfillment of that policy are fair. They are only concerned with the

14 (1981) Times 26 (October, DC)

15 (1987) QB 815: (1989) 1 All ER 509

8 (1985) AC 374: (1984) 3 All ER 935

96

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".

66. In Puhlhofer v. Hillingdon London Borough Council9 Lord Brightman stated:
(AC p. 518: All ER p. 474) "Where the existence or non-existence of a fact is
left to the 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."

       67. In Leech V. Dy. Governor of Parkhurst Prisonl6 Lord Oliver stated:
(AC p. 583: All ER p. 512)

       "... the susceptibility of a decision to the supervision of the courts
must depend, in the ultimate analysis, on the nature and

       consequences of the decision and not on the personality or individual
circumstances of the person called upon to make the decision."

68. 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 language of the
provisions of the relevant articles of the Pakistan Constitution is not couched
in the same terms. In Muhammad Sharif v. Federation of Pakistan 17 the question
was whether the order of the President dissolving the National Assembly on May
29, 1988 was in accordance with the powers conferred 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 discretion where,
in his opinion,.

       (a)

       (b) a situation has 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 provisions of Article 48(2) are as follows:

       "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 not be called in question on any ground
whatsoever)." 9 (1986) AC 484: (1986) 1 All ER 467

       16 (1988) AC 533: (1988) 1 All ER 485

       17 PLD (1988) Lah 725

       97

       The Presidential Order read as follows:

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

       And whereas 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 loss of property; And whereas the life, property, honour and security of the
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 unprecedented level;

       And whereas in my opinion a situation has 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.

       Now therefore, 1, General Muhammad Zia-ul-Haq, President of Pakistan in
exercise of the powers conferred on me by clause (2)(b) of Article 58 of the
Constitution of the Islamic Republic of Pakistan hereby dissolve the National
Assembly with immediate effect and in consequence thereof the Cabinet also
stands dissolved forthwith."

69. 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 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 dissolve the Assembly, the validity
thereof cannot be questioned on any ground whatsoever as provided for under
Article 48(2). Dealing with the first argument, the learned Chief Justice Salam
stated as follows:

       "Whether it is 'subjective' or 'objective' satisfaction of the President
or it is his 'discretion' or 'opinion', this much is quite clear that the
President cannot exercise his 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 be no basis or justification for the order under the Constitution, the
Courts will have to

       98

       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:

       "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 be said to be redundant or non-existent
under any principle of construction of Constitutions. The argument may be
correct in 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 Article 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 govern the
situation. This will also avoid

       redundancy. Courts' power whenever intended to be excluded is expressly
stated; otherwise it is presumed to be there in Courts of record. ... Therefore,
it is not quite right to contend that since it was in his 'discretion', on the
basis of his 'opinion' the President could dissolve the 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 justifiable reason to exercise his 'discretion' in his
'opinion' but does not wish to disclose, he may say so and may be believed or if
called 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 officeholder 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 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 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.

       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 Federation cannot be
carried on in accordance with the provisions of the Constitution. The expression
'Government of the Federation' is not limited to any one particular function,
such as the executive, the

       99

       legislative, or the judicial, but includes the whole functioning of the
Federation Government in all its ramifications."

70. We may now refer to the decisions of this Court on the subject. In Barium
Chemicals Ltd. v. Company Law Board6 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-Company
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, misfeasance 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 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 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 business of the 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. Hidayatullah J., as he then was, in this connection
stated that the power under Section 237(b) is discretionary power and the first
requirement for its exercise is the honest formation of an opinion that 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 proved at least
prima facie. It is not sufficient to assert that the circumstances exist, and
give no clue to what they are, because the circumstances must be such as to lead
to conclusions of certain definiteness. Shelat, J. commenting on the same

6 1966 Supp SCR 31 1: AIR 1967 SC 295: (1966) 36 Comp Cas 639

100

issue, stated that although the formation of opinion is purely subjective
process and such an opinion cannot be challenged in a court on the ground of
propriety, reasonableness or sufficiency, the authority concerned is
nevertheless required to arrive at such an opinion from circumstances suggesting
what is set out in sub-clauses (i), (ii) or (iii) of Section 237(b). The
expression "circumstances suggesting" cannot support the construction that even
the existence of circumstances is a matter of subjective opinion. 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 permitted the
authority to say that it has formed the opinion on circumstances which in its
opinion exists and which in its opinion suggest an intent to defraud or a
fraudulent or unlawful purpose. If it is shown that the circumstances do not
exist or that they are such that it is impossible for anyone to form an opinion
therefrom suggestive of the matters enumerated in Section 237(b), the opinion is
challengeable 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 of the
statute.

71. In M.A. Rasheed v. State of Kerala18 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 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" or when "it
appears to them" or when "in their opinion" a certain state of affairs existed,
or when powers enable public authorities to take "such action as they think fit"
in relation to a subjectmatter, 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 courts can inquire whether a reasonable man could have come to the decision
in question without misdirecting himself or the law or the facts in a material
respect. The standard of reasonableness to which the administrative body is
required to conform may range from the court's opinion of what is reasonable to
the criterion of what a reasonable body might have decided; and courts 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.

72. In State of Rajasthan v. Union of India3 Bhagwati, J. on behalf of Gupta, J.
and himself, while dealing with the "satisfaction of the President"

18 (1974) 2 SCC 687: (1975) 2 SCR 93

3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1 101

prior to the issuance of the Proclamation under Article 356(1) stated as
follows: (SCR pp. 80-83: SCC pp. 661, 662- 63, paras 149 and 150)

       "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 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 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.

       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 Article 356, clause (1) is
that the President should be satisfied that a situation has arisen where the
Government of the State cannot be carried on in accordance with the provisions
of 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. 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 Government
of the State cannot be carried on in accordance with the provisions of the
Constitution. It is not a decision which can be based on what the Supreme Court
of the United States has

       described as 'judicially discoverable and manageable standards'. It would
largely be a political judgment based on assessment of diverse and varied
factors, fast changing situations, potential consequences, public reaction,
motivations and responses of different classes of people and their anticipated
future behaviour and a host of other 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 modem
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
satisfaction of the Central Government which is best in a position to decide it.
The court cannot in the circumstances, go into the question of correctness or
adequacy of the facts and circumstances on which the satisfaction of the Central
Government is based. ... But one thing is certain that if the satisfaction is
mala fide or is based on wholly extraneous and irrelevant grounds, the court
would have jurisdiction to examine it, because in that 102

       case there would be no satisfaction of the President in regard to the
matter on which he is required to be satisfied. The satisfaction of the
President is a condition precedent to the exercise of power under Article 356,
clause (1) and if it can be shown that there is no satisfaction of the President
at all, the exercise of the power would be constitutionally invalid. ... It must
of course be conceded that in most cases it would be difficult, if not
impossible, to challenge the exercise of power under Article 356, clause (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, the
existence of the satisfaction can always be challenged on the ground that it is
mala fide or based on wholly extraneous and irrelevant grounds. ... This is the
narrow minimal area in which the exercise of power under Article 356, clause (1)
is subject to judicial review and apart from it, cannot rest with the court to
challenge the satisfaction of the President that the situation contemplated in
that clause exists."

73. In Kehar Singh v. Union of India19 it is held that the President power under
Article 72 of the Constitution dealing with the grant of pardons, reprieves,
respites, remissions of punishments or suspensions, remissions or commutations
of sentences 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 strict limitations defined in Maru Rain v. Union of
India2O. Those limitations are whether the power is exercised on considerations
or actions which are wholly irrelevant, irrational, discriminatory or mala fide.
Only in these rare cases the court will examine the exercise of the said power.

74. From these authorities, one of the conclusions which may safely be drawn 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 necessarily involve the
scrutiny as to whether there existed material for the 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 the Government 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 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

19 (1989) 1 SCC 204: 1989 SCC (Cri) 86: 1988 Supp 3 SCR 1102 20 (1981) 1 SCC
107: 1981 SCC (Cri) 112: (1981) 1 SCR 1196 103

in the article is "if the President ... is satisfied". The word "satisfied" has
been defined in Shorter Oxford English Dictionary (3rd Edn. at p. 1792) :

       "4. To furnish with sufficient proof or information, to set free from
doubt or uncertainty, to convince; 5. To answer sufficiently (an objection,
question); to fulfill 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 dixit of
the President dehors 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 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 certainly open to
judicial review.

75. 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 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 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
the same does not empower the issuance of the Proclamation. The word "cannot"
emphatically connotes a situation of impasse. In Shorter Oxford Dictionary, 3rd
Edn., at page 255, the word "can" is defined as "to be able; to have power or
capacity". The word "cannot", therefore, would mean "not to be able" or "not to
have the power or capacity". In Stroud's Judicial Dictionary, 5th Edn., the word
"cannot" is defined to include a legal inability as well as physical
impossibility. Hence 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 the Proclamation
under the article.

76. It has also to be remembered that a situation contemplated under the article
is one where the Government of the State cannot be carried on "in accordance
with the provisions of this Constitution". The expression indeed envisages
varied situations. Article 365 which is in Part XIX entitled "Miscellaneous",
has contemplated one such situation. It states that:

104

       "Where any State 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 State cannot be
carried on in accordance with the provisions of this Constitution."

77. 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 with the provisions of this Constitution". 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:

       "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 like to draw his attention to the article contained in the American
Constitution, where the duty of the United States is definitely expressed to be
to maintain the Republican form of the Constitution. 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 that the form of the constitution prescribed in this Constitution must be
maintained. Therefore, so far as that point is concerned we do not think that
the Drafting Committee has made any departure from an established principle."
(Constituent Assembly Debates, Vol. IX, pp. 175-76)

78. As pointed out earlier, more or less similar expression occurs in Article
58(2)(b) of the Pakistani Constitution. The expression there is that the
"Government of the Federation cannot be carried on in accordance with provisions
of the Constitution and an appeal to the electorate is necessary". Commenting
upon the said expression, Shafiur Rahman, J. in Khaja Ahmad Tariq Rahim v.
Federation of Pakistan2l (PLD at p. 664) observed: "It is an extreme power to be
exercised where there is actual or 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 extensive, 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-
Constitutional."

       21 PLD (1992) SC 646, 664

       105

       79. 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 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 Government, it would not
constitute a valid ground."

80. The expression and its implication have also been the subject of 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
cannot be carried on in accordance with the provisions of the Constitution', is
couched in wide terms. It is, therefore, necessary to understand its true import
and ambit. In the day-to-day administration 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 all the provisions of the Constitution. Should every such breach
or infraction of a constitutional provision, irrespective of its significance,
extent and effect, be taken to constitute a 'failure of the constitutional
machinery' within the contemplation of Article

       356. In our opinion, the answer to the question must be in the negative.
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 breakdown of the constitutional machinery
of the State. Any abuse or misuse of this drastic power damages the fabric of
the Constitution, whereas the object of this article is to enable the Union to
take remedial action consequent upon breakdown of the constitutional machinery,
so 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 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 of the power under Article 356 must be limited to rectifying a
'failure of the constitutional machinery in the State'. The marginal heading of
Article 356 also points to the sam e

       construction.

       6.3.24 Another point for consideration is, whether 'external aggression'
or 'internal disturbance' is to be read as an indispensable element of the
situation of failure of the constitutional machinery in a State, the existence
of which is a prerequisite for the exercise of the

       106

       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' 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'.

       6.4.01 A failure of constitutional

       machinery may occur in a number of ways. Factors which contribute to such
a situation are diverse and imponderable. It is, therefore, difficult to give an
exhaustive catalog of all situations which would fall within the sweep of the
phrase, 'the Government of the State cannot be carried on in accordance with the
provisions of this Constitution'. Even so, some instances of what does and what
does not constitute a constitutional failure within the

       contemplation of this article, may be grouped and discussed under the
following heads:

       (a) Political crises.

       (b) Internal subversion.

       (c) Physical breakdown.

       (d) Non-compliance with constitutional directions of the Union Executive.

       It is not claimed that this categorisation is comprehensive or perfect.
There can be no watertight compartmentalisation, as many situations of
constitutional failure will have elements of more 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."

81. The Report then goes on to discuss the various occasions on which the
political crisis, internal subversion, physical breakdown and noncompliance 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 "the Government of the State cannot be carried on in
accordance with the provisions of this Constitution", and are of the view that
except in such and similar other circumstances, the provisions of Article 356
cannot be pressed into service.

82. It will be convenient at this stage itself, also to illustrate the
situations which may not amount to failure of the constitutional machinery 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 constituted
Ministry enjoying majority support in the Assembly, is in office. Imposition of
President's rule in such a situation will be

       107

       extraneous to the purpose for which the power under Article 356 has been
conferred. It was made indubitably clear by the Constitution- framers that this
power is not meant to be exercised for the purpose of securing good Government.

       (ii) Where a Ministry resigns or is dismissed on losing its majority
support in the Assembly and the Governor recommends, imposition of President's
rule without exploring the possibility of installing an alternative Government
enjoying such support or ordering fresh elections.

        (iii)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 'floor test', recommends its supersession and
imposition of President's rule merely on his subjective assessment that the
Ministry 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 Assembly on the sole
ground that, in the General Elections to the Lok Sabha, the ruling party in the
State, has suffered a massive defeat.

       (v) Where in a situation of 'internal disturbance', not amounting 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 the
illustrations given in the preceding paragraphs 6.4.10, 6.4.11 and 6.4.12, the
President gives no prior warning 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, will lead to disastrous consequences.

       (vii) Where in response to the prior warning or notice or to an 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 in
which the Government of the State cannot be carried on in accordance with 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
differences or intra-party problems of the ruling party would not be

       constitutionally correct.

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

       108

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

       (xi) The exercise of this power, for a purpose extraneous or irrelevant
to the one for which it has been conferred by the Constitution, would be
vitiated by legal mala fides."

We have no hesitation in concurring broadly with the above illustrative
occasions where the exercise of power under Article 356(1) would be improper and
uncalled for.

83. It was contended on behalf of the Union of India that since the 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 tile Proclamation also stands
barred. This contention is fallacious for 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 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.

84. 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 Section 52(3) as follows:

       "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 otherwise than in
accordance with that advice:"

85. 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 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

109

the Council of Ministers (Re: Shamsher Singh v. State of Punjab22.) 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-by. However, it only emphasises that
the said rule can be invoked in appropriate cases.

86. 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 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 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 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 U. P. v. Raj Narain23 observed as follows: (SCR p. 360: SCC p. 454,
para 74)

       "To justify a privilege, secrecy must be indispensable 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 compulsory disclosure. In how many transactions of
official business is there ordinarily such a secrecy? If there arises at any
time a genuine instance of such otherwise inviolate secrecy, let the necessity
of maintaining it be determined on its merits."

87. Since further the Proclamation 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 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 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 Government to satisfy that

22 (1974) 2 SCC 831: 1974 SCC (L&S) 550: (1975) 1 SCR 814 23 (1975) 4 SCC 428:
(1975) 3 SCR 333

110

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 material would be on the Union Government.

88. A further question which has been raised in this connection is whether the
validity of the Proclamation issued under Article 356(1) can be under clause (3)
of Article 356. There is no reason to make a distinction between the
Proclamation so approved and a legislation enacted by Parliament. If the
Proclamation is invalid, it does not stand validated merely because it is
approved of by 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 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 Edn.: "There are many cases where some

       administrative order or regulation is required by statute to be approved
by resolutions of 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)

       parliamentary approval does not affect the normal operation of judicial
review. (p. 411) 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 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 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 of
being intra vires'." (p. 870)

89. In this connection a reference may also be made to R v. H.M. Treasury ex p
Smedley24 from which decision the learned author has extracted the aforesaid
observations.

90. We may also point out that the deletion of clause (5) 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 of the President
under clause (1) of Article 356, was always judicially reviewable. The clause
read as follows: 24 (1985) QB 657: (1985) 2 WLR 576 (CA)

111

       "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 ground."

91. 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 reviewable and the
judicial review was not barred on account of the presence of the clause. In this
connection, we may usefully refer to the decision of this Court in State of
Rajasthan v. Union of India3 where it was unanimously 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: (SCR pp. 72, 82:
SCC pp. 653, 663, paras 143, 150) "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. Of course by
reason of clause (5) of Article 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 that there is no satisfaction at all. In such a case it is
not the satisfaction arrived at by the President which is challenged, but the
existence of the satisfaction itself."

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

93. In A.K. Roy v. Union of India25 (SCC p. 297: SCR p. 297) the Court has
observed that "clause (5) has been deleted by the 44th Amendment and, therefore,
any observations made in the State of Rajasthan case3 on the basis of that
clause cannot any longer hold good". These observations imply that after the
deletion of clause (5), the judicial review of the Proclamation issued under
Article 356(1) has become wider than indicated in the State Of Rajasthan case3.

94. In Kihoto Hollohan v. Zachillhu10 the Court has observed that: (SCC p. 708,
para 101)

       "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 ground of an error committed in the exercise of
jurisdiction vested in the authority because such an action cannot be said to be
an action without jurisdiction." 3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1
SCR 1

       25 (1982) 1 SCC 271: 1982 SCC (Cri) 152: (1982) 2 SCR 272

       10 1992 Supp (2) SCC 651

       112

95. Again in Union of India v. Jyoti Prakash Mitter26 and Union of India clause
restricting the scope of judicial review, the judicial review would be confined
to jurisdictional efforts 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.

96. 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 and
subvert the entire constitutional 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 rules of interpretation, if the interpretation is alive to the other
equally important provisions 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 we may place 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 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 will also be within the judicially discoverable and manageable
standards.

97. 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 India shall be a Union of States. Thus the States are
constitutionally recognised units and not mere convenient administrative
divisions. Both the Union and the States have sprung from the provisions of the
Constitution. The learned author, H.M. Seervai, in his commentary Constitutional
Law of India (p. 166, 3rd Edn. _ 5.36) 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:t

       "(a) It is no objection to our Constitution being federal that the States
were not independent States before they became parts of a Federation. A federal
situation existed, first, when the British Parliament

       26 (1971) 1 SCC 396: (1971) 3 SCR 483

       27 (1985) 3 SCC 398: 1985 SCC (L&S) 672: 1985 Supp 2 SCR 131

             Ed.: See in 4th Edn. at p. 301 s 5.34

       113

       adopted a federal solution in the G.I. Act, 1935, and secondly, when the
Constituent Assembly 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 federal principle, but in fact it is not Parliament
which has, on its own, 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 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) External sovereignty is not relevant to the federal nature of a
Constitution, for such sovereignty must belong to the country as a whole. But
the division of internal sovereignty by a distribution of legislative 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 States and the Commonwealth, whereas List 11, Schedule
VII of our Constitution confers exclusive powers of legislation on the States,
thus emphasising the federal nature of our Constitution;

       (e) The enactment in Article 352 of the emergency power arising 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 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 to the States and to take corresponding executive action. The Emergency
Provisions, therefore, do not dilute the principle of Federalism, although the
abuse of those provisions by continuing the emergency when the occasion which
caused it had ceased to exist does detract from the principle of Federal
Government. The amendments introduced in Article 352 by the 44th Amendment have,
to a considerable extent, reduced the chances of such abuse. And by deleting the
clauses which made the declaration and the continuance of emergency by the
President conclusive, the 44th Amendment has provided opportunity 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 th e

       wholly unjustified Proclamation of emergency issued in 1975 to protect
the personal position of the Prime Minister;

       114

       (f) The power to proclaim an emergency 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, as we have seen
exists in indisputably federal constitutions. Deb Sadhan Roy v. State of W.B.28
has established that internal violence would ordinarily interfere with the
powers of the federal Government to enforce its own laws 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 Article 355 imposing a duty on the Union to protect
a State against external aggression and internal disorder are not inconsistent
with the federal principle. The war power belongs to the Union in all Federal
Governments, 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 case28 shows that the absence of an application by the State does
not materially affect the federal principle. Such

       application has lost its importance in the United States and in
Australia;

       (h) Since it is of the essence of the federal principle that both federal
and State laws operate on the same individual, it must follow that in case of
conflict of a valid federal law and a valid State law, the federal law must
prevail and our Constitution so provides in Article 254, with an exception noted
earlier which does not affect the 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 power to
take appropriate executive action under federal 'laws in the State, including
the enforcement of those laws. Whether this is done by setting up in each State
a parallel federal machinery of law enforcement, or by using the existing State
machinery, is a matter governed by practical expediency which does not affect
the federal principle. In the United States, a defiance of Federal law can be,
and, as we have seen, 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 States. Our Constitution has adopted the method
of empowering the Union Government to give directions to the States to give
effect to the Union law and to prevent obstruction in the working of the Union
law. Such a power, though different in form, is in substance 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 violate the federal
principle;

       (j) Article 356 (read with Article 355) which provides for the failure of
constitutional machinery was based of Article 4, Section 4 of the U.S.
Constitution and Article 356, like Article 4, Section 4, is not inconsistent
with the federal principle. As stated earlier, these provisions were meant to be
the last resort, but have been gravely abused and can therefore be

       28 (1972) 1 SCC 308: 1972 SCC (Cri) 45: AIR 1972 SC 1924

       115

       said to affect the working of the Constitution as a Federal Government.
But the recent amendment of Article 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 mala fide or improper exercise of the power to impose a President's
rule, unfettered by the American doctrine of the political question;

       (k) The view that unimportant matters were assigned to the States cannot
be sustained in face of the very important subjects assigned to the States in
List 11, and the same applies to taxing powers of the States, which are made
mutually exclusive of the taxing powers of the Union so that ordinarily the
States have independent source of revenue of their own. The legislative entries
relating to taxes in List 11 show that the sources of revenue available to the
States are substantial and would increasingly become more substantial. In
addition to the exclusive taxing powers of the States, the States become
entitled either to appropriate taxes collected by the Union or to a share in the
taxes collected by the Union."

98. 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 notwithstanding the fact that
there are many provisions in the Constitution whereunder 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 field which is left to them. They
have a plenary authority to make any law for the peace, order and good
Government of the State.

99. The above discussion thus shows that the States have an independent
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 in certain other eventualities their powers are overridden or
invaded by the Centre is not destructive of the essential federal nature of our
Constitution. The invasion of power in such circumstances 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.

100. 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
question that arises in the present context, viz., whether the powers under
Article 356(1) can be exercised by the President arbitrarily and unmindful of
its consequences to the governance in the State concerned. So long as the States
are not mere administrative units but in their own right constitutional 116

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 Centre, it cannot be argued that merely
because (and assuming it is correct) the Constitution is labeled unitary or
quasi-federal or a mixture of federal and unitary structure, the President has
unrestricted power of issuing Proclamation 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 the concerned material.

101. It must further not be forgotten that in a representive 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 be held, it involves for the public exchequer an
enormous expenditure and consequently taxes the public. The machinery and the
resources of the State are diverted from other useful work. The expenses of
contesting elections which even otherwise 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
democratic principle by making the election-contest the exclusive preserve of
the affluent. 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 of life itself. History warns us that the
frustration with democracy has often in the past, led to an invitation to
fascism and dictatorship of one form or the other.

102. The Presidential power under Article 356(1) has also to be viewed from yet
another and equally important angle. Decentralisation of power is not only
valuable administrative device to ensure closer scrutiny, accountability and
efficiency, but is also an essential part of democracy. It is 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 panchayats and endow them with such powers and authorities as may be
necessary to enable them to function as units of self governance. The
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, 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 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 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-govemance, according to the wishes
expressed by the people, the occasions to interfere with the self- govemance
should both be rare and demonstrably compelling. 117

103. In this connection, a very significant and special feature of our society
has to be constantly kept in mind. Our society is, among other things,
multilingual, 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
organised broadly on linguistic, ethnic and cultural basis. The people in every
State desire to fulfil their own aspirations through self-govemance within the
framework of the Constitution. 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 the democratic
principle which runs through our Constitution.

104. What is further and this is an equally if not more important aspect of our
Constitutional law we have adopted a pluralist democracy. 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 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 at the national level.
Consequently, situations may arise, as indeed they have, when the political
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 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 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, objectionable and
unsound grounds. So far the power under the provision has been used on more than
90 occasions and in almost all cases against 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, judiciary in the
circumstances is the only institution which can act as the saviour of the system
and of the nation.

105. It is for these reasons that we are 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 case3 to have taken such a view.

3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1 118

This is particularly so since it is observed in the judgment that: (SCR pp.
84-85: SCC pp. 664-65, para 153) "Now, we have no doubt at all that merely
because the ruling party in a State suffers defeat in the elections to the Lok
Sabha or for the matter of that, in the panchayat elections, that by itself can
be 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 Legislative
Assembly, while at the same time electing a majority 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 anything more would be no 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
Constitution contemplates that ordinarily the will of the electorate shall be
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
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."

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 concerned ground cannot be
available for invoking power under Article 356(1). It has no relevance to the
conditions precedent for invoking the said power, viz., the breakdown of the
constitutional machinery in the State.

106. 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 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 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. In this connection, we may
refer to what Dr Ambedkar had to say in reply to the apprehensions expressed by
the other Hon'ble Members of the Constituent Assembly, in this context which
also bring out the concerns weighing on the mind of the Hon'ble Members: 119

       "In regard to the general debate which has taken place in which it has
been suggested that these articles are liable to be abused, I may say that I do
not altogether deny that there is a possibility of these articles being abused
or employed for political purposes. But that objection applies to every part of
the Constitution which gives power to the Centre to override the Provinces. In
fact I share the sentiments expressed by my honorable 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 at all they
are brought into operation, I hope the President, who is endowed with thes e

       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 that warning fails, the second thing for him to do will be to order an
election allowing 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 articles were imported in vain or that the President
had acted wantonly." (Constituent Assembly Debates, Vol. IX, p. 177)

107. The extract from the Report of the Sarkaria Commission which has been
reproduced in paragraph 82 above will show that these hopes of Dr Ambedkar and
other Hon'ble Members of the Constituent Assembly have not come true.

108. 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 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 constitutional 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 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 anybody or
authority in the State under Article 356(1)(a). The excessive use of power also
amounts to 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 dissolution 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-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 120

of the Legislative Assembly is not an automatic consequence 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 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 anybody 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
of the powers of the Legislature of the State by or under the authority of
Parliament. What is further, the assumption of only some of the functions of the
Government and the powers of the Governor or of anybody 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 of the State and the Governor or anybody 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 legislature, the
upper house, i.e., the 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". Legislature includes both the lower house and the upper
house, i.e., the Legislative Assembly and the Legislative Council. It has also
to be noted that when the powers of the Legislature of the State are declared to
be exercisable by or under the authority of 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, to any other authority to be specified by him.
The authority so chosen may be the Union or officers and authorities thereof.
Legally, therefore, it is permissible under Article 356(1), firstly, only to
suspend the political executive or anybody 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 of the functions of the
political executive or of anybody or authority of the State other than the
Legislature while neither suspending nor removing them. The fact 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). In this connection, we may refer to what Dr Ambedkar had to say on the
subject in the Constituent Assembly. The relevant extract from his speech is
reproduced in paragraph 106 above. Hence it is possible for the President to use
only some of the requisite powers vested in him under Article 356(1) to meet the
situation in question. He does not have to use all the powers to meet all the
situations whatever the kind and degree of the failure of the constitutional
machinery in the State. To that extent, the contention is indeed valid. However,
whether in a particular situation the extent of powers used is proper and
justifiable is a question which would remain debatable and beyond judicially
discoverable and manageable 121

standards unless the exercise of the excessive power is so palpably irrational
or mala fide 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 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" objection sticks more easily in such
circumstances. Although, 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 power.

109. An allied question which arises in this connection is whether,
notwithstanding the fact that a situation has arisen where there is a breakdown
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 Proclamation under Article
356(1) is admittedly a drastic step, there is a corresponding obligation on the
President to resort to other measures before the step is taken under Article
356(1). This is all the more necessary considering the principles of federal and
democratic polity embedded in our Constitution. In this connection, we may refer
again to what Dr Ambedkar himself had to say on the subject. We have quoted the
relevant extract from his speech in paragraph 77 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 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 which Dr
Ambedkar referred as a preliminary to the resort to Article 356(1). We should
have thought that the elections to the Legislative Assembly are a last resort
and if they are held, there is nothing further to be done by exercising power
under Article 356(1). We may, therefore, ignore the said suggestion made by him.
But we respectively endorse the first measure viz. of warning to which 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 are of the view that 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 of its
Report. It is not necessary to quote them here. We endorse the said
recommendations.

122

110. 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 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 what is the legal
consequence of the actions taken by the President, (a) if the Proclamation is
valid, yet, it is approved by both Houses of Parliament; (b) if the Proclamation
is invalid and not approved by either or both Houses of Parliament; and (c) if
the Proclamation is valid but not approved by either or both Houses of
Parliament. The other question that arises in this connection is, whether the
legal consequences differ in these three classes of cases, depending upon the
nature of the action taken by the President.

111. The Proclamation falling under classes (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 Parliament and the State Legislature by legislation, may
validate those acts of the President which are capable of being validated. As
far as Parliament is concerned, such acts will not 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 power to Parliament. That
power is given exclusively to the Governor under Articles 164(1) and 174(2)(b)
respectively. It is this power, among others, which the President is entitled to
assume under Article 356(1)(a). 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 the
Legislative Assembly should not stand restored as a consequence of the
invalidation of the Proclamation, the same being the normal legal effect of 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. 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 Proclamation 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 read as an exception to judicial review. Such
an interpretation is neither possible nor permissible. Hence the necessary
consequence of the invalidation 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 123

Mian Muhammad Nawaz Sharif v. President of Pakistan29. The Court there held that
the impugned 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 that the
National Assembly, Prime Minister and the Cabinet stood restored and entitled to
function as immediately before the impugned order was passed. The Court further
declared that all steps taken pursuant to the impugned order including the
appointment of caretaker Cabinet and caretaker Prime Minister were also of no
legal effect. The Court, however, added that all orders passed, acts done and
measures taken in the meanwhile, by the caretaker Government which had been
done, taken and given effect to in accordance with the terms of the Constitution
and were required to be done or taken for the ordinary and orderly running of
the State, shall be deemed to have been validly and legally done.

112. As regards the third class of cases where the Proclamation is held valid
but is not 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 Parliament before the expiration of two months
or where it is revoked after its approval by Parliament or ceases to operate on
the expiration of a period of six months from the date of its issue, or of the
further permissible period under clause (4) of Article 356. It does not,
however, appear from the provisions of Article 356 or any other provision of the
Constitution, that mere nonapproval of a valid Proclamation by Parliament or its
revocation or cessation, will have the effect either of restoring the Council of
Ministers 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 State. 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 (2) of Article 357.

113. It is therefore, necessary to interpret clauses (1) and (3) of Article 356
harmoniously since the provisions of clause (3) are obviously meant to be a
check by Parliament (which also consist of members from the States concerned) on
the powers of the President under clause (1). The check would become meaningless
and rendered ineffective if the President 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 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 Govern's
power of dissolving the Legislative 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 Parliament under clause (3) of the said article will be per se
invalid. The 29 PLD (1993)SC473

124

President may, however, have the power of suspending the Legislature under sub-
clause (c) of clause (1) of the said article.

114. Our conclusion therefore firstly is that 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. Secondly, the court may invalidate the Proclamation
whether it is approved by Parliament or not. The necessary consequence of the
invalidation of the Proclamation could be to restore the status quo ante and,
therefore, to restore the 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 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 of the 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 discretionary
jurisdiction of the court.

115. 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 depend
upon various circumstances including the expeditiousness with which the court is
moved, the prima facie case with regard to the invalidity 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 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 taking
into consideration the public interests involved. The possibility of a delay in
the disposal of the challenge cannot be a ground for frustrating the
constitutional right and defeating the constitutional provisions. It has,
however, to be made clear that the interlocutory relief that may be granted on
such challenge is to prevent the frustration of the constitutional remedy. It is
not to prevent the constitutional authority from exercising its powers and
discharging its functions. 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 timet action have
no relevance in matters pertaining to the challenge to the Proclamation. To
conclude, the court in appropriate cases will not only be justified in
preventing holding of fresh elections but would be duty-bound 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.

125

116. 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 parameters of
judicial review and of the quia timet 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 facts are being discussed to
find out 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 and Rajasthan.

KARNATAKA

C.A. No. 3645 of 1989

117. Taking first the challange to the Proclamation issued by the President on
April 21, 1989 dismissing the Government of Karnataka and dissolving 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 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. In September
1988, the Janata Party and Lok Dal (B) merged into a new party called Janata
Dal. The Ministry was expanded on April 15, 1989 with addition of 13 members.
Within two days thereafter, i.e., on April 17, 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 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 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 Janata Party which had led to the 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 view of the withdrawal of the support by the said
legislators, the Chief Minister, Shri Bommai did not command a majority in the
Assembly and, hence, it was inappropriate under the Constitution, to have the
State administered by an Executive consisting of Council of Ministers which did

126

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 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 written the said letters to the Governor sent letters to him
complaining 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 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
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 his majority on the floor of the House even by preponing the
Assembly Session, if needed. To the same effect, he sent a telex message to the
President. 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 7
members pledging their support to the Ministry and withdrawing their earlier
letters. He, however, opined in the report that the letters from the 7
legislators were obtained by the Chief Minister by pressurising them and added
that horsetrading was going on and atmosphere was getting vitiated. 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). On that very day, the President issued the Proclamation in question with
the recitals already referred to above. The Proclamation was, thereafter
approved by Parliament as required by Article 356(3). Shri Bommai and some other
members of the Council of Ministers challenged the validity 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 report could not be held to be irrelevant and
that the Governor's 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 court also held that recourse to floor-test was neither
compulsory nor obligatory and was not a prerequisite to sending the report to
the President. It was also held that the Govern's report could not be challenged
on the ground of legal mala 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 case3 and held that on the basis of
the material disclosed, the satisfaction arrived at by the President could not
be faulted.

3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1 127

118. In view of the conclusions that we have reached with regard to the
parameters of the judicial review, it is clear that the High Court had committed
an error in ignoring the most relevant fact that in view of the conflicting
letters of the 7 legislators, it was improper on the part of the Governor to
have arrogated to himself the task of holding, firstly, that the earlier 19
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 legislators, but had
merely got the authenticity of the signatures verified through the Legislatures
Secretariat. Secondly, he also took upon himself the task of deciding that the 7
out of the 19 legislators had written the subsequent letters on account 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. Thirdly, it is not known from
where the Governor got the information that there was horse-trading going on
between the legislators. Even assuming that it was so, the correct and the
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 April 27, 1989, 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 with 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 result of the floor- test in the House. We are
of the view that this is a case where all cannons of propriety were thrown to
the wind and the undue haste made by the Governor in inviting the President to
issue the Proclamation under Article 356(1) clearly smacked of mala fides. The
Proclamation issued by the President on the basis of the said report of the
Governor and in the circumstances so obtaining, therefore, equally suffered from
mala 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. The action of the Governor was more objectionable since
as a high constitutional functionary, he was expected to conduct himself more
firmly, cautiously and circumspectly. 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.

119. In this connection, 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 the House. That alone is the constitutionally ordained forum for
seeking openly and objectively the claims and counterclaims in that behalf. 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. It is capable of being
demonstrated and ascertained publicly in the 128

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. It is
possible that on some rare occasions, the floor-test may be impossible, although
it is difficult to envisage such situation. Even assuming that there arises one,
it should be obligatory on the Governor in such circumstances, to state in
writing, the reasons 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 prerequisite to sending the report to the
President recommending action under Article 356(1). Since we have already
referred to the recommendations of the Sarkaria Commission in this connection,
it is not necessary to repeat them here.

120. The High Court was further wrong in taking the view that the facts stated
in the Govern's report were not irrelevant when the Governor without
ascertaining either from the Chief Minister or from the 7 MLAs whether 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 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
installing the Government belonging to a minority party, the Governor was duty-
bound to opt for it so long as the Government could enjoy the confidence of the
House. That is also the recommendation of the five-member Committee 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 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 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, invalid.

121. 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 normally be left to a
vote in the Assembly ... where 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 alternative ministry. A Chief

       129

        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 ministr y

       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 instal 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 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 to seek.

       the guiding principle being, as already stated, that the constitutional
machinery in the state should, as far as possible,

       be maintained."

    MEGHALAYA

       T. C. Nos. 5 and 7 of 1992

122. In this case the challenge is to the Proclamation dated October 11, 1991
issued under Article 356(1). The facts are that the writ petitioner G.S. Massar
belonged to a front known as Meghalaya United Parliamentary Party (MUPP) 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 July 25, 1991, one
Kyndiah Arthree who was at the relevant time, the Speaker of the House, was
elected as the leader of the opposition group known as United Meghalaya
Parliamentary Forum (UMPF). The majority in this group belonged to the Congress
Party. On his election, Shri Arthree claimed support of majority of the members
in the Assembly and requested the Governor to invite him to form the Government.
Thereupon, the Governor asked the then Chief Minister Shri Lyngdoh to prove his
majority on the floor of the House. Accordingly, a special session of the
Assembly was convened on August 7, 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 5 independent MLAs of
the ruling coalition front alleging that they were 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 ensued in the
House and it had to be adjourned. On August 11, 1991, the Speaker issued show-
cause notices to the alleged

130

defectors, the 5 independent MLAs on a complaint filed by one of the legislators
Shri Shylla. The 5 MLAs replied to the notice denying that they had joined any
of the parties and contended that they had continued to be independent. On
receipt of the replies, the Speaker passed an order on August 17, 1991,
disqualifying the 5 MLAs on the ground that 4 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 September 9, 1991 for passing a vote of confidence in the
Ministry. The Speaker however, refused to send the notices of the session to the
5 independent MLAs disqualified by him and simultaneously made arrangements to
prohibit their entry into the Assembly. On September 6, 1991, the 5 MLAS,
approached this Court. This Court issued interim order staying the operation of
the Speaker's orders dated August 7, 1991 and August 17, 1991 in respect of four
of 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 August 17, 1991. The
Governor, therefore, prorogued the Assembly indefinitely by his order dated
September 8, 1991. The Assembly was again convened at the instance of the
Governor on October 8, 1991. In the meanwhile, the 4 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 October 8, 1991, this Court passed another order
directing that all authorities of the State should ensure the compliance of the
Court's interim order of September 6, 1991. Pursuant to this direction, 4 of the
5 independent MLAs received invitation to attend the session of the Assembly
convened on October 8, 1991. In all, 56 MLAs including the 4 independent MLAs
attended the session. After the motion of confidence in the Ministry was put to
vote, the Speaker declared that 26 voted for the motion and 26 against it and
excluded the votes of the 4 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 4 independent MLAs who had voted for the motion, continued to stay in
the House and elected the Speaker from amongst themselves to conduct the
business. The new Speaker declared that the motion of confidence in the Ministry
had been carried since 30 MLAs had voted in favour of the Government. They
further proceeded to pass a motion of no-confidence in the Speaker. The 30 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 October 9, 1991, the Governor wrote a letter to the Chief
Minister asking him to resign in view of what had transpired in the Session on
October 8, 1991. Unfortunately, the Governor in the said letter also proceeded
to observe that the non-cognisance 131

by the Speaker of the Supreme Court's orders relating to the 4 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 October
9, 1991, among other things, asked the Governor to take into consideration the
orders of this Court and votes cast by the 4 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 October 11, 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 carried on in accordance with the provisions of the
Constitution. The Government was dismissed and the Assembly was dissolved. This
Court by an order of October 12, 1991, set aside the order dated August 17, 1991
of the then Speaker. However, thereafter, both the Houses of Parliament met and
approved the Proclamation issued by the President.

123. 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 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 mala fides. The Proclamation was, therefore,
invalid.

     NAGALAND

C.A. Nos. 193-94 of 1989

124. The Presidential Proclamation dated August 7, 1988 was issued under Article
356(1) imposing President's rule in the State of Nagaland. At the relevant time,
in the Nagaland Assembly consisting of 60 members, 34 belonged to Congress 1, 18
to Naga National Democratic Party, one belonged to Naga Peoples Party and 7 were
independent. Shri Sema, the leader of the ruling party was the Chief Minister
heading the State Government. On July 28, 1988, 13 out of the 34 MLAs of the
ruling Congress I Party informed the Speaker of the Assembly that they had
formed 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 August 28, 1988. By his decision of July 30, 1988, the Speaker held that
there was a split in the party within the meaning of the Tenth Schedule of the
Constitution. On July 31, 1988, Shri Vamuzo, one of the 13 defecting MLAs who
had formed a separate party, informed the Governor that he commanded the support
of 35 out of the then 59 members in the Assembly and was in a position to form
the Government. On October 1988, the Chief Secretary of the State wrote to Shri
Vamuzo that cording to his information, Shri Vamuzo had wrongfully confined the

132

MLAs who had formed the new party. Shri Vamuzo denied the said allegation and
asked the Chief Secretary to verify the truth from the members themselves. On
verification, the members told the Chief Secretary that none of them was
confined, as alleged. On August 6, 1988, the Governor sent a report to the
President of India 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 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 horse-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 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 recommended 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 new group challenged the validity of the Proclamation in the Gauhati 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 before the third
learned Judge could hear the matter, the Union of India moved this Court for
grant of special leave which was granted and the proceedings in the High Court
were stayed. It may be stated here that the Division Bench was agreed that the
validity of the Proclamation 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 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. This was particularly so because the Chief Minister, Shri Sema 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 political morality and complete 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 Vamuzo to prove his strength on the floor
of the House as claimed by him and to form the Ministry, the Proclamation issued
was unconstitutional.

133

125. We may now deal with the cases of the States of Madhya Pradesh, Rajasthan
and Himachal Pradesh. The elections were held to the Legislative Assemblies in
these States along with the elections to the Legislative 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.

126. Following appeals of some organisations including the BJP, 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 December 6, 1992 and eventually some of them demolished the
disputed structure. Following the demolition, on the same day the Uttar Pradesh
Government resigned. Thereafter, on the same day the President issued
Proclamation under Article 356(1) and dissolved the Legislative Assembly of the
State. The said Proclamation is not challenged. Hence we are not concerned in
these proceedings with its validity.

127. As a result of the demolition of the structure which was admittedly a
mosque standing at the site for about 400 years, there were violent reactions in
this country as well as in the neighbouring countries where 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
organisations including Rashtriya Swayamsevak Sangh (RSS), Vishva Hindu Parishad
(VHP) and Bajrang Dal which had along with BJP given a call for kar sevaks to
march towards Ayodhya on December 6, 1992. The ban order was issued on December
10, 1992 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 under Article
356(1), all on December 15, 1992.

         MADHYA PRADESH

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

128. The Proclamation was a consequence of three reports sent by the Governor to
the President. The first was of December 8, 1992. It referred to the fast
deteriorating law and order situation in the wake of widespread acts of the
State Government to stem the tide primarily because of the political
leadership's "overt and covert support to the associate communal organisations"
which seemed to point out that there was a breakdown of the administrative
machinery of the State. This report was followed by second report on December
10, 1992 which referred to the spread of violence to the other till then
peaceful areas. Yet another report was sent by him on December 13, 1992 along
with a copy of a letter dated December 11, 1992 received by him from the
Executive Director, Bharat Heavy Electricals Ltd., 134

Bhopal (BHEL). This letter had 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 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 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 13th December as blackday to protest against the ban and to
observe protest week against the "heinous law" from December 14 to 20, 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 Administration, the situation demanded immediate
issuance of the Proclamation. Hence the Proclamation.

HIMACHAL PRADESH

T. C. No. 8 of 1993

129. The Proclamation issued by the President succeeded the report of the
Governor of Himachal Pradesh which was sent to him on December 15, 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 to participate in
the kar seva on December 6, 1992 at Ayodhya. Not only that, but some of the
Ministers had expressed their desire publicly 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 demolition of the Babri Masjid. The Governor then added
that Chief Minister, Shri Shanta Kumar had met him on December 13, 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 directions
in that behalf'. The Governor, however, opined that since the Chief Minister
himself was a member of RSS, he was not in a position to 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
Ministers and some of his colleagues in the Ministry were members of the RSS, it
was not possible for the administrative machinery to 135

implement the ban honestly and effectively. It is on the basis of this report
that the Proclamation in question was issued.

RAJASTHAN

T. C. No. 9 of 1993

130. The President 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 organisations, and the ban was not being implemented
at all. One of the 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 and the
dominant feature of the breakdown 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 accordance with the provisions of the
Constitution.

131. 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 Legislative
Assembly was allowed by the High Court and the appeal against the decision of
the High Court is preferred in this Court by the Union of India. By its order
dated April 16, 1993, the writ petitions challenging the Proclamations in
respect of the Governments and the Legislative Assemblies of Rajasthan and
Himachal Pradesh which were pending in the respective High Courts, stood
transferred to this Court.

132. It is contended that the imposition of the President's rule in the States
of Madhya Pradesh, Rajasthan and Himachal Pradesh was mala 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 State of
Maharashtra on a much larger scale and yet no action was taken to displace those
Government whereas action was taken only against BJP Governments. It is pointed
out that so far as Himachal Pradesh is concerned, here were no communal
disturbances at all. 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 therefor. It
also pointed out that according to the report of the Governor of Himachal

Ed.: Sunderlal Patwa v. Union of India, 1993 Jab LJ 387 (FB) 136

Pradesh, the Chief Minister met him and indicated I 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 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 manifestos issued by
the BJP from time to time cannot constitute the information referred to in the
Proclamations not, in any event, legally relevant material.

133. 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 was issued on
the satisfaction of the President that the 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 Government 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.
The Proclamation under clause (1) has been approved by both Houses of
Parliament. In such a situation the court ought not to entertain the writ
petition to scrutinise the wisdom or otherwise of the Presidential Proclamation
or of the approval of Parliament.

134. 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. "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 made bona fide, and
after due verification.

135. In the counter-affidavit filed in the writ petition (TC No. 8 of 1993)
relating to Himachal Pradesh, it is stated that the events of December 6, 1992
were not the handiwork of few persons. It is "the public attitude and 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 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.

137

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 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 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 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 information
received by him.

136. In the counter-affidavit field in the writ petition relating to Rajasthan
(TC No. 9 of 1993), it is stated that after the demolition on December 6, 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
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 allegations of mala 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.

137. The learned counsel for Union of India and other counsel supporting the
impugned Proclamations argued that the main plank and the primary programme 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 Babri Masjid structure since according to it the Babri Masjid was
superimposed 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 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 comers at Ayodhya from time to time.
In the days immediately preceding December 6, 1992, their leaders had been
inciting and exhorting their followers to demolish the Babri Masjid and to build
a temple there. The Ministers in Madhya Pradesh, Himachal Pradesh and 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 the Ministers and Chief
Ministers were members of RSS and were protesting against the ban on it. 138

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 their contentions :

138. In May/June 1991, mid-term poll was held to Lok Sabha. The manifesto issued
by the BJP on the eve of May/June 1991 mid-term poll 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 Mandir at Janmasthan", the following statement occurs : "BJP firmly
believes that construction of Ram Mandir at Janmasthan 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 committed to build Sri Ram
Mandir at Janmasthan by relocating superimposed Babri structure with due
respect." By themselves, the above statements may not mean that the programme
envisaged unlawful or forcible demolition of the disputed structure. The said
statements are also capable of being understood 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 Babar and that only thereafter they would relocate the said
structure and build Sri 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.
They are as follows : "A movement to construct the Sri 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 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 structures, including temples
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 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 to protect the
structure and assured everybody there that it is the

       139

       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 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 Shri L.K. Advani 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 Sri 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 Yatras started on December 1, 1992. Shri Advani started
from Varanasi and Shri Joshi from Mathura. The starting points had their own
sinister significance for the future demands and programmes for restoration of
the temples at both these places. Both the leaders travelled through eastern and
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 kar seva. Shri
L.K. Advani, during the Rath Yatra, kept constantly appealing 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 Ayodhya and that the nature of kar seva would be
decided by Sants/Mahants and the RJBBM issue was a religious matter which can be
solved only by the Dharmacharyas but not by the Supreme Court. He threatened of
serious consequences if the BJP Government in U.P. was dismissed. On December 1,
1992, Shri Joshi appealed to the gathering (at Mathura) to assemble at Ayodhya
in large numbers for kar seva and demolish the socalled Babri 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
constructed in the same way it was demolished by Babar. He stated that kar
sevaks were pressurising the leadership that they should be called not to
construct the RJB Temple but to demolish the masjid. As early as December 1,
1992, 25,000 kar sevaks had reached Ayodhya. By December 5, their number crossed
two lakhs. Arrangements were 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 numbers. The Central Government had posted
paramilitary forces at Ayodhya to meet any eventuality and to be ready for any
assistance that the local 140

       Administration or the BJP Goverment may ask for . Instead of utilising
the services 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 December 1, 1992 addressed to the Prime Minister,
Shri 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 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 started pelting stones at the
police personnel. A large crowd broke into the disputed 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 intervene by the local
Magistrate on the spot."

139. 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 the Chief Ministers and Ministers".

140. Relying on these facts and events, it was contended that what happened 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 organisations 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 not a word of regret about
what happened on December 6, 1992. On the contrary, the following statement
occurs there under the heading "Ayodhya" : Ayodhya

       In their actions and utterances, the forces of pseudo-secularism convey
the unmistakable impression of a deep repugnance for all things Hindu. Indeed,
in their minds 'Hindu' has come to be associated with 'communal'. The
controversy over the Ram Janambhoomi temple in Ayodhya is a powerful
illustration of this phenomenon. For them 'Sahmat' is secular and 'Saffron'
communal. 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 namaz has been offered since 1936. The structure built by the Moghul
Emperor Babar was viewed by the Hindus as a symbol of national humiliation.

       141

       Second the election of 1991 in Uttar Pradesh centered on the Ayodhya
dispute. It was a virtual referendum on Ram Janmabhoomi and the BJP with its
promise to facilitate the construction of the Ram Temple won the election.
However, this mandate did not prevent the Congress and other pseudo-secular
parties from wilfully obstructing the

       initiatives of the Uttar Pradesh Government. Everything, from
administrative subterfuge to judicial delay, was used by the opponents of the
temple to prevent the BJP Government from fulfilling its promise to the
electorate.

       On December 6, 1992 kar sevaks from all over India assembled in Ayodhya
to begin the reconstruction of the Rama Temple at 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 taunts, the kar sevaks took matters into their own hands, demolished
the disputed structure and constructed a makeshift temple for Lord Rama at the
garbha griha.

       Owning 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 violation of democratic norms, the Centre
dismissed the BJP Governments in Rajasthan, Madhya Pradesh and Himachal Pradesh.
Further, it banned the Rashtriya Swaymsevak Sangh, Vishwa Hindu Parishad and
Bajrang Dal.

       Worst of all, in collusion with other rootless forces the Government
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'. Recently, the CBI has filed charge-sheets
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 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 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 construction of the Rama Temple at the site of the
erstwhile Babri structure. This is what the people desire."

141. 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 is neither possible nor
realistic to dissociate the Governments of Madhya Pradesh, Rajasthan and
Himachal Pradesh from the acts and deeds of their

142

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 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 Ayodhya and welcomed them and
praised when they came back after doing the deed. Thus, a common thread runs
through ail the four BJP Governments and binds them together. The manifestos of
the party on the basis of which 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 manifestos 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
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 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 tile 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
property. This was not possible with the BJP Governments in power.

142. 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. Allowing a party which had
consciously and actively brought about such a situation to continue in office in
these circumstances would not have helped in restoring the faith of people in
general and of the minorities in particular. It is no answer to say that
disturbance took place on a much larger scale in certain States ruled by
Congress (1) parties and that no action was taken against those Governments.

143. In reply to these contentions, the counsel for the petitioners submitted
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 and the party has to be
banned and that the acceptance of such submissions would create a serious
political situation. They also pointed out that the majority judgment of the two
judges of the Madhya Pradesh High Court had quashed the Proclamation taking the
view that it 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

    Ed.: Sunderlal Pa a v. Union of India, 1993 Jab LJ 387 (FB)

143

outbreak of violence could reasonably lead to the satisfaction of the President
that the Government was unable to function in accordance with the Constitution
and, therefore, the consequent dissolution of the Assembly was also bad in law.

144. The gist of the contentions of the petitioners was that mere disturbance in
some parts of Madhya Pradesh and Rajasthan involving the 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 of Sri 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 that 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
Ayodhya on December 6, 1992 and by giving them a warm send-off for the purpose
did not amount to a deviation from 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 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 Governments of Rajasthan and Madhya Pradesh could not be said to be
remiss in 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 to adhere to
secularism when they had admittedly come to power on the political plank of
constructing Sri 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 December 6, 1992,
the party in question demonstrated what they meant by their said political
manifesto. It was facile thereafter to contend 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 be trusted to follow the objective
of secularism which was part of the basic structure of the Constitution and also
the soul of the Constitution.

145. These contentions inevitably invite us to discuss the concept of secularism
as accepted by our Constitution. Our Constitution does not

144

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, social, 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 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 to freely profess, practise and propagate religion subject to public
order, morality and health and subject to the other Fundamental Rights and the
State's power to make any law regulating or restricting any economic, financial,
political or other secular activity which may be associated with religious
practice. Article 26 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, (c)
to own and acquire movable and immovable property and (d) to administer such
property in accordance with law. Article 29 guarantees 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
discrimination in granting aid to an educational institution managed by a
religious minority. Under Articles 14, 15 and 16, the Constitution prohibits
discrimination against any citizen on the ground of his religion and guarantees
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 51-A casts a duty on every citizen of India, among others, (a) to
abide by the Constitution and respect its ideals and institutions, (b) to
promote harmony and the spirit of common brotherhood, among all the people of
India, transcending, among others, religious and sectional diversities, (c) to
value and preserve the rich heritage of our composite culture, (d) to develop
scientific temper, humanism and the spirit of inquiry and reform; and (e) to
safeguard public property and to abjure violence.

146. 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.

147. As has been explained by Shri M.C. Setalvad (Patel Memorial Lectures-- 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 ideology is of

        145

   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. ...

       A different view in relation to religion is the basis of 'secularism'
understood in the sense of what may be called a 'secular attitude' towards life.
Society generally or the individual constituting it tend

       progressively to isolate religion from the more significant areas 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. The secular attitude would wean us
away from this approach so that in our relations with 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
considerations, restricting religion and its influence to what has been called
its 'proper' sphere, i.e., the advancement of the spiritual life and well- being
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 casteism, communalism and
other like ideas which come in the way of our development.

       'secularism' of the kinds we have adverted to above. ... No doubt, the
two concepts are interdependent in the sense that it is difficult 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.

       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
movement so that religious matters came to be regarded entirely as relating to
the conscience of the individuals.......

       "The coming of the partition emphasised the great importance of
secularism.

       Notwithstanding the partition, a large Muslim minority consisting of a
tenth of the population continued to be the citizens of independent India. There
are other important minority groups of citizens. In the circumstances, 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, become inevitable."

Thereafter, the learned jurist has gone on to point out 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

146

describe our country as a secular State. He quoted Dr Radhakrishnan who said
that "the religious impartiality 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 "two attempts made to introduce the word
'secular' 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 characteristics of a Secular State" and has pointed out
some of the provisions of the Constitution to which we have already made a
reference above. He has 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 environment 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 Chinnappa Reddy, delivering
his Ambedkar Memorial Lecture on 'Indian Constitution and Secularism' has
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 practise
religion, etc., it has excluded all secular activities from the purview of
religion and also 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."

148. One thing which prominently emerges from the above discussion on 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 or a theocratic
State. When the State allows citizens to practise 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 sub-section (3) of
Section 123 of the Representation of the People Act, 1951 which prohibits an
appeal by a candidate or his agent or by any other person with 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. Subsection (3-A) of the same section
prohibits the promotion or attempt to promote feelings of enmity 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 the candidate or his election agent for the
furtherance of the prospects of the 147

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 (3-A) are
deemed to be corrupt practices within the meaning of the said section.

149. Mr. Ram Jethmalani contented that what was prohibited by Section 123(3) was
not an appeal to religion as such but an appeal to religion of 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.
Reading sub-sections (3) and (3-A) 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. What is more, assuming that the interpretation
placed by the learned counsel is correct, it cannot control the content of
secularism which is accepted by and is implicit in our Constitution.

150. 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
satisfaction based on the said acts could be challenged in law. To recapitulate,
the acts were (i) the BJP manifesto on the basis of which the elections were
contested and pursuant to which elections the 3 Ministries came to power stated
as follows : "BJP firmly believes that construction of Sri Ram Mandir at
Janmasthan is a symbol of the vindication of our cultural heritage and national
self-respect. For BJP it is purely a national issue and it (sic) not allow any
vested interest to give it a sectarian and communal colour. Hence party is
committed to build Sri Ram Mandir at Janmasthan by relocating superimposed Babri
structure with due respect."

          (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 Organisation at the relevant time. (iv) The Ministers in he
Ministries concerned exhorted people to join kar seva in Ayodhya on December 6,
1992. One MLA belonging to the ruling BJP in Himachal Pradesh made a public
statement that he had actually participated in the estruction 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 he mosque. (vi) The implementation of
the policy pursuant to the ban of the SS was to be executed by the Ministers who
were themselves members of he said Organisation. (vii) At least in two States,
viz., Madhya Pradesh and Rajasthan there were atrocities against the Muslims and
loss of lives and destruction of property.

151. As stated above, religious tolerance and equal treatment of all religious
groups and protection of their life and property and of the places of

148

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 prima facie proof of the conduct
in defiance of the provisions of our Constitution. If therefore, the President
had acted on the aforesaid "credentials" of the Ministries in these States which
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
Governments in the three States could not be carried on in accordance with the
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 praesenti. 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 had led to the conclusion that in
the circumstances, the Governments of the States could not be carried on in
accordance with the provisions of the Constitution, 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 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.

152. The appeals filed against the judgment of the Madhya Pradesh High Court
have, therefore, to be allowed and the transfer cases challenging the
Proclamation, have to be dismissed.

Summary of conclusions:

       153. Our conclusions, therefore, may be summarised as under

       1. 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 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.

       11. Article 74(2) is not a bar against the scrutiny of the material on
the basis of which the President had arrived at his satisfaction.

       111. 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,

         Ed.: Sunderlal Parwa v. Union of India, 1993 Jab LJ 387 (FB)

       149

       and at what stage, taking into consideration the exigencies of the
situation.

       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
at least both the Houses of Parliament have approved of the 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.

       V. If the Proclamation issued is held invalid, then notwithstanding the
fact that it is approved by both Houses of 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 Ministry.

       VI. In appropriate cases, the court will have power by an interim
injunction, to restrain the holding of fresh elections to the Legislative
Assembly pending the final disposal of the challenge to the validity of the
Proclamation to avoid the fait 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.

       VII. While restoring the status quo ante, it will be open for the court
to mould the relief suitably and declare as valid actions taken by the President
till that date. It will also be open for 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. 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.

       IX. The Proclamations dated April 21, 1989 and October 11, 1991 and the
action taken by the President in removing the respective Ministries 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 August 7, 1988 in
respect of State of Nagaland is also hel d

       unconstitutional. However, in view of the fac t

       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 declarations. 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

       150

       and Transfer Case Nos. 5 and 7 of 1992 are allowed 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 Gauhati High Court accordingly but without
costs.

       X. The Proclamations dated December 15, 1992 and the actions taken by the
President removing the Ministries and dissolving the Legislative Assemblies in
the States of Madhya Pradesh, Rajasthan and Himachal Pradesh pursuant to the
said Proclamations are not unconstitutional. Civil Appeal Nos. 1692,
1692-A-1692-C, 4627-30 of 1993 are accordingly allowed and Transfer Case Nos. 8
and 9 of 1993 are dismissed with no order as to costs.

================================================================================
================================================

K. RAMASWAMY, J.

The appeals and transferred cases raise

questions 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 Rome was burning or like Hamlet, Prince of
Denmark of Shakespeare 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 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 sentinel on the qui vive, under Article 32 or Article 136 or High
Court under Article 226 to consider the satisfaction, reached by the President
under Article 356; when the actions of one State Government found seismic
vibrations in other States governed by the same political party, (in the
language of S/Shri 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 arid decided for successful working of the democratic
institutions set up by the suprema lex. Though the need to decide these
questions practically became academic due 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 for successful working of the Constitution, we acceded to their
prayer.

155. In S.R. Bommai's appeal the facts are that on March 5, 1985 elections held
to the Karnataka State Legislative Assembly and the Janata Dal won 139 seats out
of 225 seats and the Congress Party was the next largest party securing 66
seats. Shri R.K. Hegde was elected as the leader of Janata Dal and became the
Chief Minister. Due to his resignation on August 12, 1988, Shri S.R. Bommai, was
elected as leader of the party and became the Chief Minister. As on February 1,
1989 the strength of Janata Dal was 111 and the Congress was 65 and Janata 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 from Janata Dal and he wrote letters on April 17 and 18, 1989 to the
Governor enclosing the

151

letters of 19 others expressing want of confidence in Shri Bommai. On April 19,
1989 the Governor of Karnataka sent a report to the President. On April 20,
1989, 7 out of 19 MLAs that supported Kalyan Molakery, wrote to the Governor
that their signatures were obtained by misrepresentation and reaffirmed their
support to Shri Bommai. On the same day the cabinet also decided to convene the
assembly session on April 27, 1989 at 3.30 p.m. to obtain vote of confidence and
Shri 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 Article 356 the President issued Proclamation, dismissed Bommai
Government and dissolved the Assembly on April 21, 1989 and assumed the
administration 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 Karnataka
dismissed the writ petition (reported in S.R. Bommai v. Union of India30). Thus
this appeal by special leave.

156. In the elections held in February 1990, the Bhartiya Janata Party, for
short BJP, emerged as majority party in the Legislative Assemblies of Uttar
Pradesh, Madhya Pradesh, Rajasthan and Himachal Pradesh and formed the
Governments in the respective States. One of the programmes of the BJP was to
construct a temple for Lord Sri Rama at his birthplace Ayodhya. That was made an
issue in its manifesto for the elections to the legislative assemblies. On
December 6, 1992 Ram Janmabhoomi-Babri Masjid structure (there is a dispute that
after destroying Lord Sri Rama temple Babur, the Moghul invader, built Babri
Masjid at the birthplace of Lord Sri Rama. It is an acutely disputed question as
to its correctness.) However Ram Janmabhoomi-Babri Masjid structure was
demolished by the kar sevaks gathered at Ayodhya, as a result of sustained
momentum generated by BJP, Vishwa Hindu Parishad for short VHP, Rashtriya
Swayamsevak Sangh, for short RSS, Bajrang Dal for short BD, Shiv Sena for short
SS and other organisations. Preceding thereto when the dispute was brought to
this Court, the Government of India was made to act on behalf of the Supreme
Court and from time to time directions were issued to the State Government which
gave an assurance of full protection to Sri Ram Janmabhoomi-Babri Masjid
structure. On its demolition though the Government of Uttar Pradesh resigned,
the President of India by Proclamation issued under Article 356 dissolved the
State Legislature on December 6, 1992. The disastrous fall out of the demolition
was in the nature of loss of precious lives of innocents, and property
throughout the country and in the neighbouring countries. The President,
therefore, exercised the power under Article 356 and by the Proclamations of
December 15, 1992, dismissed the State Governments and dissolved the Legislative
Assemblies of Rajasthan, Madhya Pradesh and Himachal Pradesh and assumed
administration of the respective States.

30 AIR 1990 Kant 5: ILR 1989 Kant 2425 (FB) 152

157. Shri J. Sorabjee, the learned Senior Counsel appearing for Shri Bommai
contended that power of the President under Article 356 is not unfettered nor
unlimited; its exercise is dependent upon the existence of an objective fact,
namely a situation has arisen in which the Government of the State cannot be
carried on in accordance with the provisions of the Constitution. This condition
precedent is sine qua non to the exercise of power and issuance of the
Proclamation under Article 356. The Proclamation must set forth the grounds and
reasons for reaching the satisfaction supported with the 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
Article 356. The breakdown of the constitutional 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 Government or mere violation of some provisions of the
Constitution. It could be exercised only when the Government misuses its power
contrary to the basic scheme and purpose of the Constitution or for its
inability to discharge its basic constitutional duties and functions due to
political or economic crises which have led to complete paralysing of the State
Administration.

158. The federal character of the Constitution carries by its implication an
obligation to exercise the power under Article 356 only when there is a total
breakdown of the administration of the State. In interpreting Article 356 the
court should keep in view the legislative and constitutional history of Article
356 and corresponding provisions of Government of India Act, 1935. The exercise
of the power under Article 356 impinges upon federalism and visits with great
political consequences. Therefore, court should exercise 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 or arbitrary, perverse,
irrelevant to the purpose or extraneous grounds weighed with the President,
misdirection in law or mala fide or colourable exercise of power, on all or some
of the principles. 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 Presidential Proclamation issued under Article 356. The
prohibition of Article 74(2) has to be understood and interpreted in that
background. The legal immunity under Article 74(2) must be distinguished from
the actions done by the President in discharge of his administrative functions
under Article 356. The Executive cannot seek shelter under "or other
information" mentioned in Article 356(1) as an embargo under Article 361 to
state reasons or as a shield to disclose all the materials in their custody
preventing the court to exercise judicial review. Only the actual advice or part
of the advice tendered by the

153

Minister or Council of Ministers alone would be beyond the ken and scrutiny of
judicial review. The administrative decision taken by the Council of Ministers
is entirely different from the advice tendered to the President, and the latter
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.

159. Shri Shanti Bhushan learned Senior Counsel while adopting the above
contentions argued that the exercise of the power under Article 356 must be
regarded as arbitrary when there was no constitutional breakdown. Every act of
the State Government cannot be regarded as violation of the provisions of the
Constitution or constitutional breakdown. The power under Article 356 must be
exercised only when there was actual breakdown of the constitutional machinery
and not mere opinion in that behalf of the Council of Ministers. The Government,
to justify its action, must place all relevant materials before the court and
only when court is satisfied that the cases relate to actual breakdown of the
constitutional machinery in the State, the Proclamation may be upheld. The
burden of proof is always on the Government to establish the validity or
legality of the Proclamation issued under Article 356. Shri Ram Jethmalani
tracing historical evidence from the debates that took place on the floor of the
Constituent Assembly, contended that the keywords for construction are "cannot
be carried on" and "failure of machinery". The provisions of Article 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 would be permissible only when there is no other
way for the Centre to perform its duties under Article 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 of
the constitutional machinery" and the legislative history of Sections 45 and 93
of the Government of India Act, 1935 must be kept in view for proper
construction of Article 356. According to the learned counsel, Article 356 gives
an indication that extreme step of Proclamation under Article 356 could be
invoked sparingly only when all the alternatives are exhausted. Secularism part
of the preamble is not a part of the Constitution and religion is a 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 religious right in particular to a political party. There is no pleading
founded by factual base in these cases that BJP had used Hindutva as a ground,
or criticised lslamic faith. It used in its manifesto the need for construction
of Sri Ram Temple at his birthplace by demolishing Babri Masjid with most
respectful and dignified language. Even otherwise Sections 29-A and 123(3-A) of
R.P. Act are ultra vires Article 25. The consistent view of this Court that
corrupt practice on grounds of religion is

154

only of the other candidate and not of the petitioner much more so to a
political party. Shri K. Parasaran, learned Senior Counsel for the Union and
Shri P.P. Rao, learned counsel for the State of Madhya Pradesh refuted the
contentions.

160. The crux of the question is the width of the presidents power under Article
356. It finds its birth from a family of Emergency Provisions in Part XVIII of
the Constitution. Article 355 imposes duty on the Union to protect States
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. As a corollary when the Government of the State is not being
carried on 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 matrix is the report of the Governor 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 its head) 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, the President may by Proclamation: (a)
assume to himself all or any of the functions of the Government of a State and
all or any of the powers 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 of the Legislature 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 giving 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
authority in the State. By operation of the proviso to clause (1) of Article
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 of the Constitution relating to High Courts.

161. Clause (2) of Article 356 controls the President's exercise of power, if
the Proclamation is not revoked or varied by a subsequent Proclamation, in other
words, the President, through the Council of Ministers has been given full play
to reconsider the question and may revoke it before 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 Parliament. Clause (3)
guarantees built-in check and control on the exercise of the power. It
postulates that every Proclamation issued under clause (1) 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 a resolution of
both Houses of Parliament. In other words, the duration of the operation of the
Proclamation issued by the President was

155

limited only for a period of two months from the date of issue of such
Proclamation.

162. Unless it is revoked or disapproved by Parliament in the meanwhile, it
casts an obligation to lay the Proclamation on the floor of both Houses of
Parliament in accordance with the provisions of the Constitution and the
business rules. This clearly meant that it was to operate up to the time of two
months and when it was in force it carries with it its necessary implication
that all acts done or actions taken under the Proclamation during the period are
legal and valid.

163. 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 two months referred to in the 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 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 approving the Proclamation has been also passed
by the House of People.

164. 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 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 one year with second approval.
The second proviso adumbrates that if the 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 operate at the expiration of 30 days from the date
on which the House of People first sits after the reconstitution unless before
the expiration of the said period of 30 days a resolution approving the
continuance in force of the Proclamation have also been passed by the House of
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. (i) existence
of emergency issued under Article 352 in the whole of India or whole or part of
the State at the time of passing the resolution and (ii) the Certificate of the
Election Commissioner of his inability to hold elections to the Assembly of that
State. Article 357 provides the consequential exercise of legislative power by

156

Parliament or delegation thereof to the President to exercise them under Article
123, etc.

FEDERALISM AND ITS EFFECT By ACTS DONE UNDER ARTICLE 356

165. The polyglot Indian society of wide geographical dimensions habiting 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 diversity
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 a united Bharat. Federalism implies mutuality and 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 promises 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 that Union of India's territorial
limits are unalterable and the States are creatures of the Constitution and they
are territorially alterable constituents 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 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 the area of any State or diminishing the area of any State, or alter
the boundary of any State.

166. In Berubari Union and Exchange of Enclaves Reference under Article 143(1)
of the Constitution of India, in re3l Gajendragadkar, J. speaking for eight-
judge Bench held that : (SCR p. 285)

       "Unlike other federations, the Federation embodied in the said Act was
not the result of a pact or union between separate and independent communities
of States who came together for certain common purposes and surrendered a part
of their sovereignty. The constituent units of the federation were deliberately
created and it is significant that they, unlike the units of other federations,
had no organic roots in the past. Hence, in the Indian 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 their boundaries
were 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 Indian States. In fact it is well-known that as a
result of the States Reorganisation Act, 1956 (Act XXXVII of 1956), in the place
31 (1960) 3 SCR 250 : AIR 1960 SC 845

       157

       of the original 27 States and one Area which were mentioned in Part D in
the First Schedule to the Constitution, there are now only 14 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." The same was reiterated in State of W.B. v.
Union of India' and State of Karnataka v. Union of India32.

       167. Union and States Relations under the Constitution (Tagore Law
Lectures) by M.C. Setalvad at p. IO stated that

        ... 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."

168. The Constitution decentralises the governance of the States by a four tier
administration i.e. Central Government, State Government, Union Territories,
Municipalities and Panchayats. See the Constitution for Municipalities 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 functional democracy. Their
surrender of rights to be 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 culture and political morality based on healthy conventions are
the fruitful soil to nurture and for sustained growth of the federal
institutions set down by 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
structure. He poignantly projected the pitfalls flowing from the word
"federation".

169. 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 the nation as a
whole under control of a national Government, while the States are allowed to
exercise their sovereign power within their legislative and coextensive
executive and administrative sphere. The common interest is shared by the Centre
and the local interests are controlled by the States. The distribution of the
legislative and executive power within limits and coordinate authority of
different organs are delineated in the organic law of the land, namely the
Constitution itself. The essence of federalism, therefore, is distribution of
the power of the State among its coordinate bodies. Each is

1 (1964) 1 SCR 37 1: AIR 1963 SC 1241

32 (1977) 4 SCC 608

158

organised and controlled by the Constitution. The division of power between the
Union and the States is made in such a way that whatever has been the power
distributed, legislative and executive, be exercised by the respective units
making each a sovereign in its sphere and the rule of law requires that there
should be a responsible Government. Thus the State is a federal status. The
State qua the Centre has quasi-federal unit. In the language of Prof. K.C.
Wheare in his Federal Government, 1963 Edn. at page 12 to ascertain the federal
character, the important point is, "whether the powers of the Government are
divided between coordinate independent authorities or 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 Government
federal?"

170. Salmond in his Jurisprudence, 9th Edn. brought out the distinction between
unitary type of Government and federal form of Government. According to him a
unitary or a simple State is one which is not made up of territorial divisions
which are States themselves. A composite State on the other hand is one which is
itself an aggregate or group 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 coextensive executive and
administrative powers of the Union and the States. Articles 245 to 255 of the
Constitution deal with relative power of the Union and the State Legislature
read with Schedule VII of the Constitution and the entries in List 1 preserved
exclusively to Parliament to make law and List II confines solely to the State
Legislature and List III Concurrent List in which both Parliament as well the
State Legislature have concurrent jurisdiction to make law in the occupied
field, with predominance to the law made by Parliament, by operation of proviso
to clause (2) of Article

254. Article 248, gives residuary legislative powers exclusively to Parliament
to make any law with respect to any matters not enumerated in the Concurrent
List or the State List including making any law imposing a tax not mentioned in
either of those lists. The relative importance of entries in the respective
lists to the VIIth Schedule assigned to Parliament or a State Legislature are
neither relevant nor decisive though contended by Shri K. Parasaran. Indian
federalism is in contradistinction to the federalism prevalent in USA, Australia
and Canada.

171. In regard to distribution of executive powers the Constitution itself made
demarcation between the Union and the States. Article 73(1) read with proviso
and Article 162 read with proviso bring out this demarcation. The executive
power of the Union and the State are coextensive with their legislative powers.
However, during the period of emergency Articles 352 and 250 envisaged certain
contingencies in which the executive power of the State concerned would be
divested and taken over by the Union of India 159

which would last up to a period of 6 months, after that emergency in that area
is so lifted or ceased.

172. The administrative relations are regulated by Articles 256 and 258 A for
effective working of the Union Executive without in any way impeding or
impairing the exclusive and permissible jurisdiction of the State within the
territory. Articles 268 and 269 enjoin the Union to render financial assistance
to the States. The Constitution also made the Union to depend on the States to
enforce the Union law within States concerned. The composition of Rajya Sabha as
laid down by Article 80 makes the Legislature of the State to play its part
including the one for ratifying the constitutional amendments made by Article
368. The election of the President through the elected representatives of the
State Legislatures under Article 54 makes the legislatures of federal units an
electoral 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 matters enumerated
in List II of the VIIth Schedule by operation of Article 246(3) of the
Constitution.

173. The Union of India by operation of Articles 340 and 245, subject to the
provisions of the Constitution, has power to make laws for the whole or any part
of the territory of India and the said law does not eclipse, nor become invalid
on the ground of extraterritorial operation. In the national interest it has
power to make law in respect of entries mentioned in List II, State List, in the
penal field, as indicated in Article 249. With the consent of the State, it has
power to make law under Article 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. The law laid down by the Supreme
Court is the law of the land under Article 14 1. 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 faith and
credit to the proceedings or public acts or judicial proceedings of the Union
and of the States throughout the territory of India as its fulcrum. Indian
Judiciary is unitary in structure and 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. Under Article 339(2) the Union has power to issue directions
relating to tribal welfare and the State is enjoined to implement the same. In
an emergency arising out of war or aggression or armed rebellion, contemplated
under Article 352 or emergency due to failure of the constitutional machinery in
a State envisaged under Article 356, or emergency in the event of threat to the
financial stability or credit of India, Article 360 gives dominant power to the
Union. During the operation of emergency Article 19 of the Constitution would
become inoperative and the Centre assumes the legislative power of a State unit.
Existence of All India Services under Article 312 and establishment of inter-
State councils under Article 263 and existence of financial relations in Part
XII of the Constitution also indicates the scheme of distribution of the revenue
and the primacy to the Union to play its role. Establishment of Finance
Commission for recommendations to the President under Article 280 for the
distribution 160

of revenue between the Union and the States and allocation of the respective
shares of such inter-State trade and commerce envisaged in Part XIII 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.

174. As earlier stated the organic federalism designed by the founding Fathers
is to suit the parliamentary form of Government 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, 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 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 W.B. v. Union of India',
this Court laid emphasis that the basis of distribution of powers between Union
and the States is that only those powers and authorities which are concerned
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 22 this Court held that
parliamentary system of quasi-federalism was accepted rejecting the substance of
Presidential style of Executive. Dr Ambedkar stated on the floor of the
Constituent Assembly that the Constitution is, "both unitary as well as federal
according to the requirement of time and circumstances". He also further stated
that the Centre would work for common good and for general 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
overwhelming 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 wheel (sic weal) to the Union insulating from future divisive forces or
local zealots with 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 an integral part of the Union. The
Constitution being permanent and not self-destructive, the Union of India is
indestructible. The democratic form of Government 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 1 (1964) 1 SCR 37 1: AIR 1963 SC 1241

22 (1974) 2 SCC 831: 1974 SCC (L&S) 550: (1975) 1 SCR 814 161

Union Judiciary to harmonise the conflicts and adopt constitutional construction
to subserve the purpose envisioned by the Constitution.

      ROLE OF THE GOVERNOR

175. 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 USA to insulate the
office from linguistic chauvinism. The President has been empowered to appoint
him as executive head of the State under Article 155 in Part VI, Chapter 11. The
executive power of the State is vested in him by Article 154 and exercised by
him with the aid and advice of the Council of Ministers, the Chief Minister as
its head. Under Article 159 the Governor shall discharge his functions in
accordance with the oath "to protect and 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 gives him an umpire's role. When a Gandhian economist
member of the Constituent Assembly wrote a letter to Gandhiji of his plea for
abolition of the Office of the Governor, Gandhiji wrote to him for its
retention, thus:

       "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 constitutional
deadlock in the State and he would be able to play an impartial role. There
would be administrative mechanism through which the constitutional crises would
be resolved in the State."

The Governor thus should play an important role. In his dual undivided capacity
as a head of the State he should impartially assist the President. As a
constitutional head of the State Government in times of constitutional crisis he
should bring about sobriety. The link is apparent when we find that Article 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, 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 foundation to
reach the satisfaction by the President. So it must furnish material with
clarity for later fruitful discussion by Parliament. When challenged in a
constitutional court it gives insight into the satisfaction reached by the
President. The Governor, therefore, owes constitutional duty and responsibility
in sending the report with necessary fectual details and it does require the
approval of the Council of Ministers; equally not with their aid and advice.

    DEMOCRACY AND SECULARISM

176. 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 162

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 loyalty and progress. Rule of law has been chosen as an
instrument for social adjustment in the event of clash of interests. In a free
society, law interacts between competing claims in a continuing process to
establish order with stability. Law should not only reflect social and religious
resilience 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 Constitution. 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 seventeenth century for the first time used secularism as
antagonistic to religious dogma as ethical and moral binding force. This Western
thought, in course of time gained humanistic acceptance. The word secularism
defined in Oxford Dictionary means that "morality should be based solely in
regard to 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 study". In
Encyclopaedia Britannica secularism is defined as "branch of totalitarian
ethics, it is for the physical, moral and social improvement of mankind which
neither affirms nor denies theistic problems of religion". Prof. Goethinysem of
the Berlin University writing on secularism in the Encyclopaedia of the Social
Sciences (1939 Edn.) defined it as "the attempt to establish autonomous sphere
of knowledge purged of supernatural, fideistic presuppositions". He described
it, in its philosophical aspect, "as a revolt against theological and eventually
against metaphysical absolutes and universals". He pointed out that "the same
trend may be charted out in the 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 over transient secular authorities. He
indicated how this 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 light. It was increasingly realised that man depended for his
welfare in this world upon his own scientific knowledge and wisdom and their
applications and upon a socioeconomic system of which, willy-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, an associate of Charles
Broadlaugh in his Principles of Secularism in 1859 advocated for secularism
which received approval and acceptance by celebrated political philosopher J.S.
Mill. Jeremy Bentham's The 'Theory of Legislation 163

formulated in the eighteenth century stands 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 number",
a maxim dear to democratic utilitarian political philosophers.

177. Secularism became the means and consciously pursued for full practical
necessities of human life to liberate the human spirit from bondage, ignorance,
superstition which have held back humanity. The goal of every civilised
democratic society is the maximisation of human welfare and happiness which
would be best served by a happy Organisation.

178. 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 foundation on
which the State is erected. Human liberty sometimes means to 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 battlegrounds for power
and root cause for suppression of liberty. 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 people
of India", the Fundamental Rights and Directive Principles of State Policy to
establish an egalitarian social order for all sections of the society in the
supreme law of the land itself. Though the concept of "secularism" was not
expressly engrafted while making the Constitution, its sweep, operation and
visibility are apparent from fundamental rights and directive principles and
their related provisions. It was made explicit by amending the preamble of the
Constitution 42nd 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 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 guarantee 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 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 the citizen full development of
his person, not merely in the physical and material but in the non-material and
non-secular life.

164

179. Prof. Goethinysem in his article referred to hereinbefore outlined the
process of secularism of life and thoughts by which religious sectarianism comes
into contact in daily social and economic spheres of life and he summarises with
"the ideal of human and social happiness through 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 Vivekananda explaining the
Vedantic ideas of God and religion in comparison with western thoughts stated
that the religious attitude is always to seek the dignity inside his ownself as
a natural characteristic of Hindu religion and religious attitude is always
presented by making the subject close his eyes looking inward. Dr Thouless in
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 believed in a superhuman 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 from above rules and standards. According to
Sir James Freezer in his Golden Bough religion consists largely of not only of
methodological and rituals dominated by all aspects of his life, social,
economic, political, legal, cultural, ethical or moral, but also technological.
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 interests of a particular
class or group or a country. The progress of human history is replete with full
misuse of religious notions in that behalf. But the scientific and analytical
spirit characterises 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 faculties. It enables 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, superstition, irrationality, injustice, fraud, hypocrisy
and oppressive exploitations. In other words, though the whole course of human
history discloses an increasing liberation of mankind, accomplished thought, all
is covered by the term secularism. Trevor Ling's writings on Buddhism spoke of
it as a secular religion, which teaches eight-fold path of his mastery and
virtuous conduct of ceaseless, self-critical endeavour for right belief, right
aspiration, right speech, right conduct, right modes of livelihood, right
efforts, right-mindedness and right scripture. Buddhism rationalises the
religion and civilisation to liberate individual from blindfold adherence to
religious belief to rationalisation, in the language of Trevor Ling "flat
alluvial expansion of secularism". Dr Ambedkar believed that Buddhism is the
religion best suited to the Indian

165

soil. Mahatma Gandhi, Father of the Nation, spoke for the need of religion thus:

       ,,The need of the mankind is not one of 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 religions is one, but it is
encased in the multitude of forms. The latter will persist to the end of the
time."

180. 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 atheism. 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 qualities of creativeness. In his
foreword to Dr Abid Hussain's The National Culture of India, Dr S. Radhakrishnan
remarked that secularism does not mean licence or a thrust of material comfort.
It lays thrust on universality of the supreme fellow which may be attained by
variety of ways. Indian concept of secularism means "the equal status to all
religions". He said that "no one religion should be given preferential status or
unique distinction 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 citizens can so arrogate to itself the right and
privilege which it 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 common life. This is the basic
principle in separation of religion and the State. Granville Austin in his The
Indian Constitution : Cornerstone of a Nation stated that the Constitution
makers intended to secure secular and socialist goals envisaged in the preamble
of the Constitution. In Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra
33 this Court held that : (SCR p. 297: SCC p. 32, para 44)

       "The Secular State rising above all

       differences of religion, attempts 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 any public duty
connected with it does not depend upon the profession or practice of any
particular religion."

       It was further pointed out : (SCR p. 297: SCC p. 32, para 45)

       "Our Constitution and the laws framed thereunder leave citizens 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 sphere by what appertains really
to another. It is for courts to determine, in a case

       33 (1976) 2 SCC 17: 1975 Supp SCR 281

       166

       of dispute, whether any sphere was or was not properly interfered with,
in accordance with 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 described exploitative
parading under the garb of religion. Throughout ages endless stream of humans of
diverse creeds, cultures and races have come to India from outside regions and
climes and contributed to the rich cultural diversity. Hindu religion developed
resilience to accommodate and imbibe with tolerance the cultural richness with
religious assimilation and became a land of religious tolerance.

181. Swami Vivekanada stated that right of religious system and ideals is the
same morality; one thing is only preached: Myself, say "Om"; another one says
"Johova", another "Allah- ho-Mohammad", another cries "Jesus". Gandhiji
recognised that all religions are imperfect and because they are imperfect they
require perfecting themselves rather than conducting individually. He stated:

       "The separate religions Hinduism, Islam, Christianity, Buddhism are
different rights converging on the same point even as the tree has the single
trunk but many branches and leaves so there is one perfect religion but it
becomes many as it passes through the human medium. The Allah of Muslims is the
same as the God of Christians and Ishwara of Hindus."

182. Making of a nation State involves increasing secularisation of society and
culture. Secularism operates as a bridge to cross over from tradition to
modernity. The Indian State opted this path for universal tolerance due to its
historical and cultural background and multi-religious faiths. Secularism in the
Indian context bears positive and affirmative emphasis. Religions with secular
craving for spiritual tolerance have flourished more and survived for longer
period in the human history than those who claimed to live in a non-existent
world of their own. Positive secularism, therefore, separates the religious
faith personal to man and limited to 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
seeking shelter in its spiritual or cultural identity dehors the man's need for
his full development. It moves mainly around the State and its institution and,
therefore, is political in nature. At the same time religion does not include
other socioeconomic or cultural social structure. The State is enjoined to
counteract the evils of social forces, maintaining internal peace and to defend
the nation from external aggression. 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 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 of the mankind in

167

the person, to the exclusion of all considerations 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 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 uncertain and unreal. Secularism teaches spirit of tolerance, catholicity
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 aspect of the
State activity in dealing with the people professing different religious faiths.
The more devoted a person in his religious belief, the greater should be his
sense of heart, spirit of tolerance, adherence of secular path. Secularism,
therefore, is not antithesis of religious devoutness. Swami Vivekananda, and
Mahatma Gandhi, 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 not teach to hate those professing other faiths.
Bigotry 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's voices to the sufferings of the people of other community nor it
postulates keeping mum when his or other community make legitimate demands. If
any group of people are subjected to hardship or sufferings, secularism always
requires 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 faiths, living in different parts of the country are to
tolerate each other's religious faith or beliefs and each religion made its
contribution to enrich the composite Indian culture as a happy blend or
synthesis. Our religious tolerance received reflections in our constitutional
creed.

183. The preamble of the Constitution inter alia assures to every citizen
liberty of thought, expression, belief, faith and worship. Article 5 guarantees
by birth citizenship to every Indian. No one bargained to be born in a
particular religion, caste 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 by Article 15. Article 16
mandates equal opportunity to all citizens in matters relating to 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

168

or restricting any social, financial, political or other secular activity which
may be associated with the religious practice. It is subject to providing 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 order, morality and health. Article 27 reinforces the secular 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 of any
particular religion or religious denomination. Taxes going into consolidated
funds should be used generally for the purpose of ensuring the secular purposes
of which only some are 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 receiving aid from the State. Equally no person attending any
educational institution recognised by the State or receiving aid from the State
funds should 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 such
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 educational institution, on the ground that it is a minority
institution whether based on religion or language. It would thus be clear that
Constitution made demarcation between religious part personal to the individual
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 matters of religion and
provides equal protection to all religions subject to regulation and actively
acts on secular part.

184. In Ratilal Panachand Gandhi v. State of Bombay34 this Court defined
religion that it is not necessarily atheistic and, in fact, there are well-known
religions in India like Buddhism and Jainism which do not believe in the
existence of God or caste. A religion undoubtedly 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 faith and religious belief. The religion is
not merely only a doctrine or belief as it finds expression in acts as well. In
Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha
Swamiar 35, known as Shirur Mutt case this Court interpreted religion in a
restricted sense confining to personal beliefs and attended ceremonies or
rituals. The restrictions contemplated in Part III of the Constitution are not
the control of personal religious practices

34 1954 SCR 1055: AIR 1954 SC 388

35 1954 SCR 1005: AIR 1954 SC 282

169

as such by the State but to regulate their activities which are secular in
character though. associated with religions, like management of property
attached to religious institutions or endowments on secular activity which are
amenable to such regulation. Matters such as offering food to the diety, etc.
are essentially religious and the State does not regulate the same, leaving them
to the individuals for their regulation. The caste system though formed the
kernel of Hinduism, and as a matter of practice, for millenniums 1/4th 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 practice an offence.
Articles 25 and 26 have thrown open all public places and all places of public
worship to Hindu religious denominations or sects for worship, offering 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 Kesavananda Bharati case36 and Indira Nehru Gandhi v. Raj
Narain37 this Court held that secularism is a basic feature of the Constitution.
It is true that Schedule III 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 note that the Oaths Act,
1873 was repealed by Oaths Act, 1966 and was made consistent with the
constitutional scheme of secularism in particular, Sections 7 to 11.

185. Equally admission into an educational institution has been made a
fundamental right to every person and he shall not be discriminated on 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, has 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 or places of public resort prohibition of
entry only on grounds of caste or religion is outlawed.

186. Dr S. Radhakrishnan, stated that: "Religion can be identified with emotion,
sentiments, intensity, cultural, profession, conscious belief of faith."
According to Gandhiji : "By religion I do not mean formal religion or customary
religion but that religion which underlies all religions." Religion to him was
spiritual commitment just total but intentionally personal. In other words, it
is for only development of the man for the absolution of his consciousness (sic
conscience) in certain direction which he considered to be good. Therefore,
religion is one of belief personal to the individual which binds him to his
conscience and the moral and basic principles regulating the life of a man had
constituted the religion, as understood in our Constitution.

37 1975 Supp SCC' 1: (1976) 2 SCR 347

170

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. Undoubtedly, it means that no man possesses 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 religion 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 of person and such beliefs and practices which are
reasonable. The Constitution, 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 exercise control over
members to vote or not to vote, 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 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
inflammatory speeches, nor be a licence to spread violence, nor speak religious
intolerance as an aspect of religious faiths. They are subject to 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. Otherwise even purely
secular practices which are not an essential or an integral part of religion are
apt to be quoted as religious forms and make a claim for being treated as
religious practices. Law as a social engineer provides the means as well as lays
down the rules for social control and resolution of conflicts of all kinds in a
human society. But the motive force for social, economic and cultural
transformation comes from individuals who comprise the society. They are the
movers in the mould of the law as the principal instrument of an orderly
transient to a new socioeconomic order or social integration and fraternity
among the people. The Constitution has chosen secularism as its vehicle to
establish an egalitarian social order. I am respectfully in agreement with our
Brethren 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 socioeconomic needs essential for man's excellence
and of (sic his) moral wellbeing, fulfilment of material and prosperity and
political justice. SEPARATION OF POLITICS AND RELIGION

187. Black's Law Dictionary (6th Edn.) page 1158 defined 'political' as
pertaining or relating to the policy or the administration of Government, State
or national; pertaining to, or incidental to, the exercise of the functions 171

vested in those charged with the conduct of Government; relating to the
management of affairs of State as political theories; of or pertaining to
exercise of rights and privileges or the influence by which individuals of a
State seek to determine or control its public policy; having to do with
organization or action of individuals, parties, or interests that seek to
control appointment or action of those who manage affairs of a State. Political
party was defined as an association of individuals whose primary parliamentary
purposes are to promote or accomplish elections or appointments to public
offices, positions or jobs. A political party, association or Organisation which
makes contributions for the purpose of influencing or attempting to influence
the electoral process of any individual or political party whose name is
presented for election to any State or local elective public office, whether or
not such individual is elected. Politics in positively 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 conducive for secular 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. Ksheersagar, Intellectual Public House, 1992
Edn. at page 155, stated that:

       "In India the majority is not a political majority. The majority is born
but not made, that is the difference between a communal majority and a political
majority. A political majority is not purely a 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 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 claim
absolute majority. Communal majority is not a political majority and in politics
the principle of one vote one value should be adopted irrespective of related
considerations. According to Abul 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 tend to encourage separatist and divisive forces
laying the seeds to disintegrate the parliamentary democratic system. The
political parties or candidates should be stopped from running 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."

188. For a political party or an Organisation that seeks to influence the
electorates to promote or accomplishing success at an election for

172

governance of parliamentary form of Government, the principles are those
embedded in the Directive Principles of the Constitution vis-a-vis the
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 to abstain from
violence. Therefore, the manifesto of a political party should be consistent
with these fundamental and basic features of the Constitution, secularism,
socioeconomic and political justice, fraternity, unity and

national integrity.

189. Under Section 29-A of the Representation of the People Act, 1951 for short
'R.P. Act' registration of a political party, or a group of individual 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 application shall contain a specific provision that the association
or the body shall bear true faith and allegiance to the Constitution of India as
by law established and its members shall be bound by socialism, secularism and
democracy and would uphold the sovereignty and integrity of India. It is,
therefore, a mandatory duty of every political party, body of individuals or
association and its members to abide by the Constitution and the laws; they
should uphold secularism, socialism and democracy, uphold sovereignty and
integrity of the nation. Section 123(3) prohibits use of religion or caste in
politics and declares that the promotion or attempt to promote violence and
hatred between different classes of citizens of India on grounds of religion and
caste for the furtherance of the prospects at the election of the candidate or
for affecting the election of any candidate was declared to be a corrupt
practice. As per sub-section (3-A) of Section 123 the promotion of, or attempt
to promote feeling of enmity or hatred between different classes of Indian
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 prejudicially affecting the election of any candidate was declared as
corrupt practice. A political party, therefore, should not ignore the
fundamental features of the Constitution and the laws. Even its manifesto with
all sophistication or felicity of its language, a political party cannot escape
constitutional mandate and negates the abiding faith and solemn responsibility
and duty undertaken to uphold the Constitution and laws after it was registered
under Section 29-A. Equally it/they should not sabotage the same basic features
of the Constitution either influencing the electoral process or working the
Constitution or the law. The political party or the political executive securing
the governance of the State by securing majority in the legislature through the
battle of ballot throughout its tenure by its actions and programmes, it is
required to abide by the Constitution and the laws in letter and spirit. 173

190. Article 25 inhibits the Government to patronise a particular religion as
State religion overtly or covertly. Political party is, therefore, positively
enjoined to maintain neutrality in religious beliefs and prohibit practices
derogatory to the Constitution and the laws. Introduction of religion into
politics is not merely in negation of the constitutional mandates but also a
positive violation of the constitutional obligation, duty, responsibility and
positive prescription of prohibition specifically 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 grounds
of religion and caste. It divides the people and disrupts the social structure
on grounds of religion and caste which is obnoxious and anathema to the
constitutional culture and basic features. Appeal on grounds of religion offends
secular democracy.

191. An appeal to the electorates on the grounds of religion offends secular
democracy. In S. Veerabadran Chettiar v. E. V. Ramaswami Naicker38 (SCR at pp.
1217 & 1218), this Court held that the courts would be cognizant to the
susceptibilities of class of persons to which the appeal to religious
susceptibility is made and it is a corrupt practice. Interpreting Section
123(3-A) this Court held that:

        "The section has been intended to respect the religious susceptibilities
of persons of different religious persuasions or creeds ... very circumspect in
such matters and to pay due regard to feelings and religious emotions of
different classes of persons with different beliefs irrespective of the
consideration whether or not they share those beliefs, or whether they are
rational or otherwise......

192. This Court in Shubnath Deogram v. Ramnarain Prasad39 held that (SCR p. 959)

       "[I]t would appear that the pleasure of the deities is indicated through
the cock taking the food that is given to it and that the 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."

193. In Z.B. Bukhari v. Brijmohan33 this Court held thus : (SCR p. 288: SCC p.
24, para 11)

       "Our 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 preamble to the Constitution. No democratic political and
social order, in which the conditions of freedom and their progressive expansion
for all make some 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

       38 1959 SCR 121 1: AIR 1958 SC 1032

       39 (1960) 1 SCR 953: AIR 1960 SC 148

       33 (1976) 2 SCC 17: 1975 Supp SCR 281

       174

       religion, race, caste, community, culture, creed and language. Our
political history made it particularly necessary that these differences, which
can generate powerful emotions, depriving people of their powers of rational
thought and action, should not be permitted to be exploited lest the imperative
conditions for the preservation of democratic freedoms are disturbed. "

194. In another case S. Harcharan Singh v. S. Sajjan Singh4O this Court fully
discussed the question of what constitutes an appeal on grounds of religion
falling within the scope of Section 123(3) and Section 123(3-A) 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
democracy. In S. Veerabadran Chettiar case38 this Court held

thus: (SCR pp. 1217-18)

       "In our opinion, placing such restricted interpretation on the words of
such general import, is against all established canons of construction. Any
object however trivial or destitute of real value in itself, if regarded as
sacred by any class of persons would come 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 worshipped. 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 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 persuasions 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,
irrespective of the consideration whether or not they share those beliefs, or
whether they are rational or otherwise, in the opinion of the court."

195. In Mullapudi Venkata Krishna Rao v. Vedula Suryanarayana 4l this Court held
thus : (SCC p. 508, para 10: Scale p. 172)

       "There is no doubt in our mind that the offending poster 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 by Lord Krishna to Arjuna that his incarnation would be
born upon the earth in age after age to restore dharma is not only to a Hindu by
religion but to every Indian symbolic of the Hindu religion. The use by a
candidate of such a symbol coupled with the printing upon it of words derogatory
of a rival political party must lead to the conclusion that the religious symbol
was used

       40 (1985) 1 SCC 370: (1985) 2 SCR 159

       38 1959 SCR 121 1: AIR 1958 SC 1032

       41 1993 Supp (3) SCC 504: (1993) 2 Scale 170 175

with a view to prejudicially affect the election of the candidate of the rival
political party."

196. The contention of Shri Ram Jethmalani that the interpretation and
applicability of sub-sections (3) and (3- A) of Section 123 of R.P. Act would be
confined to 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 law though in the context of the
contesting candidates, that interpretation lends no licence to a political party
to influence the electoral prospects on grounds of religion. In a secular
democracy, like ours, mingling of religion with politics is unconstitutional, in
other words a flagrant breach of constitutional features of secular democracy.
It is, therefore, imperative that the religion 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 of politics. Every
political party, association of persons or individuals contesting election
should abide by the constitutional ideals, the Constitution and the laws
thereof. I also agree with my learned Brethren Sawant and Jeevan Reddy, JJ., in
this behalf.

197. Rise of fundamentalism and communalisation of politics are anti-secularism.
They encourage separatist and divisive forces and 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 corrupt practice to exercise their free
and fair franchise. Correct interpretation in proper perspective would be in the
defence of the democracy and to maintain the democratic process on an even keel
even in the face of 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

198. 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 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 guise of preventing the abuse of
power, there is a lurking suspicion 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 176

jurisdiction in reaching the decision or making the order. The judicial review
is, therefore, a protection, 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 proportionality has been applied, to test the validity of the decision or
order, apart from its ultra vires, mala fides or unconstitutionality. Initially
in the process of judicial review the court tested the functions from the
purview of the "source of power". In the course of evolution of judicial review
it tested on the "nature of the subject- matter", "the nature of the power",
"the purpose" 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 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 underprivileged or
handicapped groups of persons. Interpreting Articles 14 and 21, tested
administrative orders or actions or processes 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. Therefore,
it serves no useful purpose to elaborately consider various decisions or
textbooks 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 source, the nature, or scope of the power and indelible effects it
generates in the operation of law or affects the individual 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 furtherance thereof is in fulfilment of that policy or is in
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 decision was taken, existence or nonexistence
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, depends 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 and acted on the decision itself.

199. 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 India3. In that case clause (5) inserted by the Constitution 3 (1977) 3 SCC
592: AIR 1977 SC 1361: (1979) 1 SCR 1 177

(Thirty-eighth) Amendment Act, 1975 which prohibited judicial review of the
Presidential Proclamation [which was later on substituted by the Constitution
(Forty-fourth) Amendment Act, 1978], was called into operation. Before its
substitution the constitutionality of the letter issued by the Home Minister and
dissolution of the Assemblies of North Indian States were in question. The
reason for the dissolution was that the Congress Party was routed completely in
1977 parliamentary election 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 Article 133 and Article 32 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 it then stood,
judicial review was open on limited grounds, namely mala fides, wholly
extraneous or irrelevant grounds without nexus between power exercised and the
reasons in support thereof. The contention of Shri 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 President under Article 356 is constitutional exercise of the power
like 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 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.

200. The question, therefore, is what is the scope of judicial review of the
Presidential Proclamation under Article 356. Though the arm of the court 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 Proclamation
under Article 356. The contention of S/Shri Shanti Bhushan, Soli Sorabjee and
Ram Jethmalani that all the principles of judicial review of administrative
action would stand attracted to the Presidential Proclamation under Article 356
cannot be accepted in toto. Equally the wide proposition of law canvassed by
Shri Parasaran is also untenable. At the cost of repetition it is to reiterate
that judicial review is the basic feature of the Constitution. This Court has
constitutional duty and responsibility, since judicial review having been
expressly entrusted to it as a constituent power, to review the acts done by the
coordinate 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
extent and limits of the power of the coordinate authorities and to find the
law. It is the province and duty of this Court, as 178

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 branch transgresses such
limits. The action of the President under Article 356 is a constitutional
function and the same is subject to judicial review. Shri T.R. Andhyarujina, the
learned Advocate General of Maharashtra, contended that though the Presidential
Proclamation is amenable to judicial review, it is in the thicket of political
question and is not generally justiciable. Applying self-imposed limitations
this Court may be refrained to exercise judicial review. This contention too
needs to be qualified and circumscribed.

201. Judicial review must be distinguish from justiciability. the two concepts
are not synonymous. The power of judicial review goes to the 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 an
authority, ex necessitate. Judiciary has to decide the source, extent,
limitations of the power and legitimacy in some cases of the authority
exercising the power. There are no hard and 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 always that the Constitution has entrusted
the power to the highest executive, 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 raised for decision is judicially based on
manageable standards? The question relating to the extent, 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.

202. However, a distinction be drawn between judicial review of the
interpretation of the order or the extent of the exercise of the power by the
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
area but the latter depends upon the nature of the order and its contents. The
question may be camouflaged with a political thicket, yet since the Constitution
entrusted that delicate task in the scheme of the Constitution itself to this
Court, in an appropriate case, the court may unwrap the dressed up question, 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 179

USA. Therefore, the scope of political question, when came up for consideration
in Baker v. Carr 42, it was held in a restricted sense, but the same was
considerably watered down in later decision of that Court. Vide Gilligan v.
Morgan 43 . But in deciding the political question the court must keep in
forefront whether the court has 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 terms to a coordinated
political department, by the Constitution itself.

203. In the State of Rajasthan case 3 Chandrachud, J., as he then was, held
that: (SCR p. 61: SCC p. 644, para 131) "Probing at any greater depth 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 trespassing into it." Bhagwati, J., as he then was, speaking for
himself and Gupta, J., held that (SCR p. 82: SCC p. 662, para 150) "It is not a
decision which can be based on what the Supreme Court of the United States has
described as 'judicially discoverable and manageable standards'. It would
largely be a political judgment based on assessment of diverse and varied
factors, fast changing situations, potential consequences, public reaction,
motivations and responses of different classes of people and their anticipated
future behaviour and a host of other 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 modem
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
satisfaction of the Central Government which is best in a position to decide
it."

       Untwalia, J., laid down that: (SCR p. 94: SCC p. 672, para 183)

       "[E]ven if one were to assume such a fact in favour of the plaintiffs or
the petitioners the facts disclosed, undoubtedly, lie in the field or an area
purely of a political nature, which are essentially non-justiciable. It would be
legitimate to characterise such a field as a prohibited area in which it is
neither permissible for the courts to enter, nor should they ever take upon
themselves the hazardous task of entering into such an area. Fazal Ali, J.
reiterating the same view held, that : (SCR p. II 5: SCC p. 689, para 208)

       "It is manifestly clear that the court does not possess the resources
which are 'In the hands of the Government to f

       42 7 L Ed 2d 663, 686: 369 US 186 (1962)

       43 37 L Ed 2d 407, 416: 413 US 1 (1973)

       3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1

       180

       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. held that: (SCR p. 26: SCC p. 616, para 39)

       "Insofar 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......

204. We respectfully agree that the above approach would be the proper course to
tackle the problem. Yet another question to be disposed of at this stage is the
scope of Article 74(2). In 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 to his individual discretion. The scope thereof
was considered vis-a-vis the claim of privilege under Section 123 of the
Evidence Act. At the outset we say that Section 123 of Evidence Act is available
to the President to claim privilege. In R. K. Jain v. Union of India 44 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 transaction of the Government business made under Article 77(3). The
Government of India (Transaction of Business) Rules, 1961 provide 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 steering body
responsible for the governance of the country. They enjoy the confidence of
Parliament and remain in office so long as they maintain the confidence of the
majority. They are answerable to Parliament and accountable to the people. They
bear collective responsibility. Their executive functions comprise both the
determination of the policy as well as carrying its execution, the initiation of
legislation, 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'
activity and carrying on all trading activities, etc. and they bear collective
responsibility to the Constitution. It was also held therein that subject to the
claim of privilege under Section 123 of the Evidence Act, the Minister was
constitutionally bound under Article 142 to assist the court in producing 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 placed before the court for its perusal in camera.

205. Article 74(2) provides that the question whether any, and if sc what,
advice was tendered by Ministers to the President shall not be inquired into in
any court. In other words it intends to give immunity to the Council 44 (1993) 4
SCC 11 9: 1993 SCC (L&S) 11 28: (1993) 25 ATC 464

181

of Ministers to 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 responsibility of
the constitutional court to exercise the power of judicial review. Article 142,
in particular, gives power to this Court in its exercise 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 in
such manner as prescribed by or under any law made by Parliament and subject to
such law. The said restriction is only in matter of procedure and does not
affect 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 document 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 under Article 74(2) and the wider power of this Court under
Article 142 need to be harmonised.

206. In R.K. Jain case44 it was held that the court is required to consider
whether public interest is so strong to override the ordinary right and interest
of the litigant that he shall be able to lay before a court of justice the
relevant evidence in balancing the competing interest. It is the duty of the
court to see hat there is a public interest and that harm shall not be done to
the nation or of 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 is to be 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 document whether should be produced for
effectuating justice and meaningful 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 of justice,
weigh the scales and decide where the balance lies. The basic question to which
the court would, therefore, have to address itself for the purpose of deciding
the validity of the objection would be, whether the document relates to affairs
of the State, in other words, is of such a character that its 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 6 and 1744.)

207. When public interest immunity against disclosure of the State documents in
the transaction of the 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 weigh the balance in that case also and that the harm

(1993) 4 SCC 119: 1993 SCC (L&S) 1128: (1993) 25 ATC 464 182

shall not be done to the nation or the public service and in the administration
of justice each case must be considered in its backdrop.

208. The President has no implied authority under the Constitution 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 and 5544.)
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 do complete justice it must be considered 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 inquire into the question whether and if so
what advice was tendered by the Minister. In other words, the records other than
the advice tendered by the Minister to the President, if found necessary, may be
required to be produced before the constitutional 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 equibalance.

209. Article 74(2) creates bar of enquiry and not a claim of privilege for
decision in the exercise of the jurisdiction whether and, if so, what advice was
tendered by the Council of Ministers to the President. The power of Article
74(2) applies 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. 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 President.
Similarly prorogation of Parliament or dissolution of 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 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 discretion with the aid and advice of the
Council of Ministers. The power of President to promulgate an ordinance under
Article 123 and the assent of the Bills under Article 200 are reserved for
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 refuses to lay down the office, it is his paramount duty to
dismiss the Government. Equally as said earlier, the dissolution of the Lok
Sabha would be on aid and advice

44 (1993) 4 SCC 119:1993 SCC (L&S) 1128:(1993) 25 ATC 464 183

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 consistent with the conventions 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 bars 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 taken on administrative routine
though expressed in the name of the President under Article 73 read with Article
71 of the Constitution.

210. 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 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 aid 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 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 is 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 of the satisfaction reached by the President "on otherwise
self- satisfaction" for 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. Therefore, we are of the considered view that the
advice and, if so, what advice was tendered by the Council of Ministers 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 was tendered constitute the material. But, however, the
material on record, the foundation for advice or a decision, does not receive
total protection under Article 74(2). Normally the record may not be summoned by
"rule nisi" or "discovery order nisi". Even if so summoned it may not be looked
into unless a very strong case is made out from the pleadings, the order of
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 Section
123 of Evidence Act to examine the record in camera.

211. At this juncture we are to reiterate that judicial review is not concerned
with the merits of the decision but with the decision-making process. This is on
the premise that modern democratic system has chosen that political
accountability is more important than other kinds of accountability and the
judiciary exercising its judicial review may be

184

refrained to do so when it finds that the controversy is not based on judicially
discoverable 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 the political field under
the garb of political thicket in particular, when the Constitution.expressly has
entrusted the duty to it. If it is satisfied that a judicially discoverable and
manageable issue arises, it may be open to the 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 interpretor
of the Constitution, though it is a delicate task, and issue appropriate
declaration. This Court equally declares and determines the limit, and whether
the action is in transgression of such limit.

Interpretation of the Constitution and scope of value orientation

212. Before discussing the crucial question it may be necessary to preface that
the Constitution is intended to endure for succeeding generations to come. The
best of the vision of the Founding Fathers could not visualise the pitfalls 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 letter" and at best "sparingly"
be used. In working the Constitution, Article 356 has been used 90 times so far
a daunting exercise of the power. But it is settled law that in interpreting the
Constitution neither motives nor bad faith nor abuse of power be presumed unless
in an individual case it is assailed and arises for consideration on that
premise. Section 114(e) of the Evidence Act raises statutory presumption that
official acts have been regularly performed.

213. Prof. Bork in his "Neutral Principles and Some First Amendment Problems" 47
Ind. Law Journal, p. 1, 8, 1971 Edn. stated that the choice of fundamental
values by the courts cannot be justified. When 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 construct new
rights. The same neutral principle was preferred by Prof. Hans Linde in his
"Judges Critics and Realistic Traditions" [82 Yale Law Journal, 227 at 254,
(1972)] that "the judicial 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 Reo v. Ved 45 stated that a neutral principle if it
lacks connection with any value, the constitution marks it as special. It is not
a constitutional principle and the court has no business in missing it. In
Encyclopaedia of the American Constitution by

45 1982 Yale LJ 1920, 1949, 1973

185

Leonard W. Levy at p. 464 it is stated that "the Constitution is a political
document; it serves political ends; its interpretations are political acts". Any
theory of constitutional interpretation therefore presupposes a normative theory
of the Constitution itself a theory, for example, about the constraints that the
words and intentions of the adopters should impose on those who apply or
interpret the Constitution. As Ronald Dworkin observed: "Some parts of any
constitutional theory must be independent of the intentions or beliefs or indeed
the acts of the people the theory designates as framers. Some part must stand on
its own political or moral theory; otherwise the theory would be wholly

       circular."

The courts as interpreters are called upon to fill those significant
constitutional gaps in variety of ways. The court should vigorously describe as
determinaters, of public values as small revolution and principles. Their source
of moral reasoning and search for moral truth are at least the best moral
foundation available at the time when momentous issues based on ethical or moral
principles arise. What is left for the other social decision makers, the State,
the legislature 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, 191, 202-10) stated that the non-
originalist interpreters leave the above questions largely unanswered. He says:

       "They seem or busy of timing 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 mind, the essential question of constitutional law, who decides?
None of the non-originalists vaguely phrased assignments for the judiciary, such
as 'search for public or traditional values'; or 'protection of principles' 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 is toothless. The list of
values or principles that might be justiciably considered is virtually infinite.
Anyone with the slightest sophistication can find some benefit, value or
justiciable principles in virtually 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 all. On the other hand one close
up to the tenor of the arguments that the non-originalists can be seen as giving
the judicial task of balancing the conflicting public values for Proclamation
which principles triumph. Here the judiciary becomes the central societal
decision- maker. The resolution of conflicts among public values is coterminous
with social decision-making. It is what the legislature, the executive and even
the judiciary do. Put simply, the value formulations

186

of the non-originalists do not address the essential issue raised by the earlier
discussions. How shall responsibility for decisions be allocated in a world of
highly imperfect decision-makers? How would these scholars have judiciary (let
alone the other institution) face such terms as distrust, uncertainty and
ignorance? One does not have to be hostile to a substantial role for judicial
review to be concerned when so much constitutional scholarship skirts so central
an issue. Indeed, one could allow for significantly more judicial activism than
our constitutional history reveals without approaching the limits inherent in
the nebulous formulations of the various non-originalist positions. As a general
matter even in the most activist spirit, for example "the Lochner and Warran's
Courts Eras", the judiciary seems to have decided, not to decide more questions
leaving the discovery of the public values or moral evolution in most areas to
other societal decision- makers. Although such things are within the measures,
it seems that there are legislative, executive and to a greater extent
administrative agencies, interpreters have actively influenced only a small
percentage of public decision- making. This it seems to me the non-originalists'
literature threatens to be largely irrelevant to "constitutional analysis" so
long as it does not consider with greater care under what circumstances the
usually passive mode of judicial interpretation is to be replaced by the less
common, but more important active mode. Bennion on Statutory Interpretation at
p. 721 stated that since constitutional law is the framework of the State it is
not to be altered by a side wind. A 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 "purposive 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.

SATISFACTION OF THE PRESIDENT AND JUSTICIABILITY

214. The satisfaction of the President that a President that a situation has
arisen in which the Government of the State cannot be carried out in accordance
with the provisions of the Constitution is founded normally upon the report from
the Governor or any other information which the President has in possession, in
other words, "the Council of Ministers", "the President" 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 not
inclined to report to the President of the prevailing situation contemplated by
Article 356, the President may otherwise have information through accredited
channels of communications and have it in 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 on in accordance with the
provisions.

187

   "OTHERWISE"

215. The word "otherwise" in Article 356(1) was not originally found in the
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 188 merely provided that the President should act
on the report made by the Governor. The word 'otherwise' was not there. Now it
is felt that in view of the fact that Article 277-A (now Article 355) which
precedes Article 278 (Article 356) imposed a duty and an obligation upon the
Centre, it would not be proper to restrict and confine action of the President,
which undoubtedly will be taken in the fulfilment of the duty, to the report
made by the Governor of the province. It may be that the Governor does not make
a report. None-theless, the facts are such that the President feels that his
intervention is necessary and imminent. I think as a necessary consequence to
the introduction of Article 277-A, we must also give liberty to the President to
act even when there is no report by the Governor and when the President has got
certain facts within his knowledge on which he thinks he ought to act in
fulfilment 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 administrative officer based on irrelevant
and relevant grounds and when 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 Proclamation 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
conferred upon an administrative agency, of his subjective satisfaction upon
objective material like in detention cases, administrative action or by
subordinate 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
Parliament and accountable to the people.

216. To test the satisfaction reached by the President there is no satisfactory
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 variegated considerations for the President to reach the
satisfaction. The question of satisfaction is 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 188

being subjective, it is not judicially discoverable by any manageable standards
and the court would not substitute their own satisfaction for that of the
President. The President's satisfaction would be the result of his comprehending
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 range of situations and sometimes may not
be enumerated, nor can 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 manageable standards. Moreover, the executive decision of the
President receives the flavour of the legislative approval after both Houses of
Parliament have 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 to question the
satisfaction, equally a declaration that a situation has arisen in the State to
clamp emergency or to declare President's rule by judicial order is permissible
and cannot be wished away. Could it be done?

217. The use of the word "may" in clause (1) of Article 356 discerns discretion
vested in the President (Council of Ministers) to consider whether the situation
contemplated under Article 356 has arisen and discernible from the report
submitted by the Governor or other information 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 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 are subject to the parliamentary control which itself is a check and
safeguard to protect the federal character of the State and the democratic form
of 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 (1) of Article 74, brought by the Constitution
44th Amendment Act, itself is a further assurance that it was issued after due
and great deliberations. It also assures that the President actively applied his
mind to the advice tendered and the material placed before him to arrive at his
subjective satisfaction. In an appropriate case he 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 implication it assures that the President is an
active participant not merely acting as a constitutional head under Article 73,
but also active participant in the decision-making process and the Proclamation
was issued after due deliberations. The court cannot, therefore, go behind the
issue of

189

Proclamation under Article 356 and substitute its own satisfaction for that of
the President.

"CANNOT BE CARRIED ON" MEANING AND SCOPE

218. We are to remind ourselves that application of "principle of the source"
from Part XVIII, the family of emergency provisions conveniently employed or the
grammarian's rule would stultify the operation of Article 356 wisely
incorporated in the Constitution. Instead placing it in the spectrum of
"purposive operation" with prognosis would yield its efficacy for succeeding
generations to meet diverse situations that may arise in its operation. The
phrase "cannot be carried on" in clause (1) of Article 356 does not mean that it
is impossible to carry on the Government of the State. It only means that a
situation has so arisen that the Government of the State cannot be carried on
its administration in accordance with the provisions of the 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 Article
356(1). Suppose after general elections held, no political party or coalition of
parties or groups is able to secure absolute majority in the legislative
assembly and despite the Governor's exploring the alternatives, the situation
has arisen in which no political party is able to form stable Government, 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 legislature. It would be a case of failure of constitutional machinery.
After formation of the Ministry, suppose due to internal dissensions, a
deliberate deadlock was created by a party or a group of parties or members and
the Governor recommends to the President to dissolve the Assembly, situation may
be founded on imponderable variable opinions and if the President is satisfied
that the Government of the State cannot be carried on and dissolves the Assembly
by Proclamation under Article 356, would it be judicially discoverable and based
on manageable standard to decide the issue? Or a Ministry is voted down 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 to form an
alternative Government or a party having majority refuses to form the Ministry
would not a constitutional deadlock be created? When in such situations the
Governor reported to the President, and President issued Proclamation could it
be said that it would be unreasonable or mala fide exercise of power? Take
another instance where the Government of a State, although enjoying the majority
support in the Assembly, It has deliberately conducted, over a period of time,
its administration in disregard of the Constitution and the law and while
ostensibly acting within the constitutional form, inherently flouts the
constitutional principles and conventions as a responsible Government or in
secret collaboration with the foreign powers or agencies creates subvertive
situation, in all the cases each is a case of failure of the constitutional
machinery.

190

219. While it is not possible to exhaustively catalogue diverse situation when
the constitutional breakdown may justifiably be inferred from, for instance (i)
large-scale breakdown of the law and order or public order 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 fabric.

220. 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 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 means envisaged under Article 257(2) of the
Constitution and despite the directions, the State Government fails to comply
with the same. It would be an instance envisaged under Article 356. Similarly
protection of the railways within the State is of paramount importance. If a
direction issued under Article 257(3) was failed to be complied with by the
State to protect the railways, it would be another instance envisaged under
Article 365. In these or other analogous situations the warning envisaged by Dr
Ambedkar needs to be given and failure to comply with the same would be obvious
failure of the constitutional machinery. During Proclamation of emergency under
Article 352 if directions issued under Article 353-A were not complied with or
given effect to, it would also be an instance under Article 365. Equally
directions given under Article 360(3) as to observance of financial propriety or
the Proclamation as to financial emergency is yet another instance envisaged by
Article 365. The recent phenomena that the Chief Minister gets life-size photo
published in all national and regional dailies everyday at great public
expenditure. Central Government has responsibility to prevent such wasteful
expenditure. Sufficient warning given yielded no response nor the Chief Minister
desisted to have it published is it 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 with the provisions of the Constitution. These instances appear
to be curative in nature. In these cases forewarning may be called for before
acting under Article 356.

221. Take another instance that under Article 339(2) of the Constitution 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 drew the plans
nor executed the schemes, but diverted the finances allocated for other
purposes, it would be a failure of the constitutional machinery to

191

elongate the constitutional purpose of securing socioeconomic justice to the
tribals envisaged in the directive principles warranting the President to reach
his satisfaction that the Government of the State is not being carried on in
accordance with the provisions of the Constitution. Where owing to armed
rebellion or extraordinary natural calamity, like earthquake, the Government of
the State is unable to perform its duty in accordance with the provisions of the
Constitution, then also satisfaction of the President that the Government of the
State is unable to perform as a responsible Government in accordance with the
provisions of the Constitution is not justiciable.

222. 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
expresses inability to cope with his majority legislators, recommends to the
Governor for dissolution, and dissolution accordingly was made, exercising the
power by the President, it would also be a case of highly irrational exercise of
the power. Where the Governor recommends to the President to dissolve the
Assembly on the ground that the Chief Minister belongs to a particular religion,
caste or creed, it would also be a case that the President reached satisfaction
only on highly irrational consideration and does not bear any nexus or
correlation to the approximate purpose of the action. It is clearly
unconstitutional. Take an instance that national language is Hindi. Centre
directs a non-Hindi-speaking State to adopt Hindi in the Devanagari script as
State language, though predominantly 95% of the population does not know Hindi,
nor has need to adopt it as lingua franca, the violation of the directives does
not entail imposition of President's rule.

223. 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 bitterness between the Union of India and the States. 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 parties are also emerging. So one political party would be in power at
the Centre and another at the State level. In particular, when the Union of
India seeks to dismiss a State Ministry belonging to a different political
party, there is 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 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 enormous election expenditure to the State and the candidates. It
also generates 192

disbelief in the efficacy of the democratic process which is a death-knell for
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 gain or
to get rid of an inconvenient State Government for good or bad governance. But
only in cases of failure of the constitutional machinery of the State
Government.

224. As stated earlier, the constitutional and political features should be
nurtured and set conventions be laid by consensus among the political 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 Government of Tamil Nadu suggested certain
amendments to Article 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 guidance as some of them
would be beset with difficulties in implementation. However, their creases could
be ironed out by conference or by consensus of the political parties. As regards
horse-trading by the legislators, there are no judicially discoverable and
manageable standards to decide in judicial review. A floor- test may provide
impetus for corruption and rank force and violence by musclemen or wrongful
confinement or volitional captivity of legislators occurs till the date of the
floor- test in the House, to gain majority on the floor of the House.

225. At some quarters it is believed that power under Article 356 was misused.
We are not called to examine each case. Taking a bird's-eye view of the
Proclamations issued by the President under Article 356 it would appear that on
three occasions the Speaker of the Legislative Assembly created deadlock to pass
the financial bills. The power was used to resolve the deadlock. When there was
breakdown of law and order and public order due to agitations for creation of
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 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 crabbed. Moreover, the elected representatives from that State
represent in Parliament and do participate in the discussion of the Presidential
Proclamation when its approval is sought and the transaction of legislative
business concerning that State and express their dissent when it is misused.
Though temporarily the democratic form of 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 executives temporarily at times for
maximum period of three years.

226. The President being the highest executive of the State, it is impermissible
to attribute personal mala fides or bad faith to the President. The proviso to
Article 74(1) presumptively prohibits such a charge, unless 193

established by unimpeachable evidence at the threshold. For the exercise of the
power under Article 356 the Prime Minister and his Council of Ministers, he/they
are collectively responsible to Parliament and accountable 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.

227. 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 spectator to exercise of
the power under Article 356. It owes duty and responsibility to defend the
democracy. If the court, upon the material placed before it finds that the
satisfaction reached by the President is unconstitutional, highly irrational or
without any nexus, then the court would consider 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 either on wholly irrelevant 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 circumstances justifying the declaration of President's rule.
Roscoupoun in his Development of the Constitutional Guarantees of 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 constitutional constraint to obtain approval of 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 power properly and legitimately that the
administration of the State is not carried on in accordance with the provisions
of the Constitution.

SCOPE OF REINDUCTION OF THE DISMISSED GOVERNMENT, RENOTIFICATION AND REVIVAL OF
DISSOLVED ASSEMBLY AND ITS EFFECT

228. 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 Government to carry on the administration in
accordance with the provisions of the Constitution or by dual exercise of the
power partly by State and partly by the President or alternatively with
dissolution of the Assembly should be deferred till approval by Parliament is
given and stay the operation of the Presidential Proclamation till that time
have been canvassed 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 situations.

194

CONSTITUTIONAL CONVENTIONS PROVIDE FLESH WHICH CLOTHES DRY BONES OF LAW

229. Ever since Article 356 was put in operation convention has been developed
that the Legislative Assembly is dissolved, the State Government 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. Parliament exercises the legislative powers of the entries in List 11
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 of the Union Government. The Constitution though
provided an elaborate procedure with minute details, that in the event
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" or it will "not be put to operation", or at best "sparingly" used. Dr
Ambedkar in his closing speech in the Constituent Assembly stated that "the
conventions and political morality" would help successful working of the
Constitution. Constitution cannot provide detailed rules for every eventuality.
Conventions are found in all established Constitutions. The conventions are
meant to bring about constitutional development without formal change in the
law. Prof K.C. Wheare in his book The Statute of Westminster and Dominion Status
(4th Edn.) defined the conventions thus :

       "The definition of conventions may thus be amplified by saying that 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."

230. Sir W. Ivor Jennings, in his Law and the Constitution (5th Edn.) 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 which the
men concerned with government must follow."

231. 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 necessary as the
instrument. The conventions are the rules elaborated for effecting that
cooperation. Conventions entrust power granted in the constitution 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 is to regulate exercise of the discretion facing that irresponsible
abuse of power.

232. K.C. Wheare in his book Modern Constitution (1967 Edn.) stated that:

195

       "The 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 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 persuasive 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 W. Ivor
Jennings had stated that:

       "The law provides only a framework; those who put the laws into operation
give the framework a meaning and fill in the interstices. Those who take
decisions create precedents which others tend to follow, and when they have been
followed long enough they acquire 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 elaborately considered the scope of conventions
which obviated the need to tread the path once over and held in Supreme Court
Advocates-on-Record Association v. Union of India46, that : (SCC p. 651, para
340)

       "The written Constitutions cannot provide for every eventuality.
Constitutional

       institutions are often created by the provisions which are generally
worded. Such provisions are interpreted with the help of conventions which grow
with the passage of time. Conventions are vital insofar as they fill up the gaps
in the Constitution itself, help solve problems of interpretation, and allow for
the future development of the constitutional framework. Whatever 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."

233. The convention in working Article 356 of the Constitution has been
established and became the constitutional law filling the interstices of
legislative process. The actions done by the President in accordance with the
choice left to him by sub-clauses (a) to (c) of Article 356(1) and by Parliament
under Article 357, i.e., dissolution of the Legislative Assembly, removing the
State Government, assumption of administration and entrustment 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 legislative functions
by 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 46 (1993) 4 SCC 441: JT (1993) SC 479

196

smooth working base and is being operated upon all these years. We hold that
upsetting the settled convention and the law and adopting value-oriented
interpretation would generate uncertainty and create constitutional crises in
the administration and the Government and would lead to failing the Constitution
itself.

PRESIDENTIAL PROCLAMATION - So FAR PARLIAMENT DID NOT DISAPPROVE

234. 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 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) and (c) of clause (1) of
Article 356 the President takes either steps mentioned therein and Parliament
exercises the power under Article 357 conferring the legislative power on the
President and arrangement for convenient administration made while exercising
legislative powers in the entries in List 11 of Schedule VII of the
Constitution. The contention is that till expiry 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 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 be beset with
grave incongruities and result in operational disharmony. 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 case3
this Court 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 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. FUNCTIONAL
INCONGRUITY AND DISHARMONY

235. The executive power of the Union or the State is coextensive with their
legislative powers respectively. When the President assumed administration of
the State under Article 356, without dissolving the Legislative Assembly could
the President discharge the executive powers without legislative powers being
armed with by Parliament? Could the President discharge the duties under the
directions of the State Legislature, if need arises for passing appropriate
legislative sanctions. Bicameral operation of the legislative and executive
powers both by the State Legislature and Parliament in List 11 of VIlth Schedule
is an anathema to the democratic principle and constitutional scheme. The
question of conflict of

3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1 197

parliamentary supremacy and executive overbearing is more imaginary than actual
or real.

236. The reinduction of the Government of the State is also beset with 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 Parliament. The dismissed Government, if
restituted into power, may violate with impunity 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 the Constitution. The political
party must seek afresh mandate from the electorates and establish their
credibility by winning majority seats. The existence of the Legislative Council
which is not dissolvable, like Rajya Sabha, cannot by itself transact any
business, in particular the finance bills or appropriation bills or annual
financial statements. Therefore, its continuance shall render no criteria to the
continuance of legislature or to assume it be not dissolved on grammarian rule
to reconstitute the dissolved Legislative Assembly of which the majority members
belong to the same party. No doubt dissolution of the Legislature literally
would include Legislative 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 rule carries no
consistence. 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 Parliament approves the Proclamation, if
urgent need arose to issue ordinance or transact legislative or financial
business, who would do it? The suspended Assembly cannot do nor Parliament. The
dismissed Ministry cannot transact the legislative business. Even if permitted
to function and ultimately the Proclamation is approved by Parliament, what
would happen to the validity of the executive and legislative acts done in the
interregnum. As stated, is there no possibility of large-scale abuse of office
for personal or political gain? If the orders are 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 exercise of the power under Article 324? Are day to day executive,
legislative and administrative actions to be done under the writ of the court?
of a High Court issues a direction to allow the dissolved assembly its full
course of balance period including the suspended period what would 198

happen? Is it not violative of Article 172? Whether it could be prevented 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 Article 361 ?
Instead of solving the problems, does not the writ of the court create
constitutional crisis? Giving deep and anxious consideration and visualising the
far-reaching constitutional crisis, we are firmly of the view that the self-
restraint constrains us to express no value opinion leaving it to Parliament to
ponder over and if deemed necessary amend Article 356 suitably.

237. The Constitution was amended more than 77 times and Article 356 itself was
amended 6 times through the Constitution's 38th Amendment Act; the 42nd
Amendment Act; the 44th Amendment Act; the 59th Amendment Act; the 64th
Amendment Act and the 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 Parliament the dissolved Assembly stands revived and removed
Government stood reinducted. The statutory construction fortifies this
conclusion. CASUS OMISSUS - WHETHER PERMISSIBLE To SUPPLY

238. The question, further arises whether by interpretative process, would 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 permissible, when we
are called upon to interpret the organic Constitution and working the political
institutions created therein. When Parliament has had an opportunity to consider
what exactly is going wrong with the political system 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 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 work out, more fundamental changes are brought out by more thorough-
going and in-depth consideration and specific provisions should be made by which
it is implemented. Such is the way to contradict the problem by the legislative
process 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.
Bennion at page 338 extracting from the Institute of the Law of Scotland Vol. 3,
page 1 of The Practice by David Maxwell at page 127 abstracted that "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 199

       "where the literal meaning of the enactment goes narrower than the object
of the legislator, the court may be required to apply a rectifying construction.
Nowadays it is regarded as not in accordance with public policy to allow a
draftsman's ineptitude to prevent justice being 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 casus 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 expressions merely to suit what the court thinks 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 and
effect to the language of the statute when applied to a subject about which
nothing whatever is said, and which, to all appearances, 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 engrafted thereon. At page 434 in para 366 it is further stated that
:

       " While it has been held that it is duty of the courts to interpret a
statute as they find it without reference to whether its provisions 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
construction or the other is properly considered. 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 interpretation of
statutes, to vindicate the wisdom of the law. The mere fact that the statute
leads to unwise results 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
the same token, an omission or failure to provide for contingencies, 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 interpret a statute as they find it without reference to whether its
provisions are wise or unwise, necessary or unnecessary, appropriate or
inappropriate, or well or ill-conceived. "

239. Craies on Statute Law, 7th Edn., at page 69, states that the second
consequence of the rule of casus omissus is that the statute may 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 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,
even though such a case is within the obvious purpose of

200

the statute and the omission appears to have been due to accident or
inadvertence, the court cannot include the omitted case by supplying the
omission. This is equally true where the omission was due to 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 adopt something which would command
itself to our minds as being implied from the context. In State of Tasmania v.
Commonwealth of Australia and State of Victoria47 Connor, J. dealing with the
question observed thus :

       "It appears to me that the only safe rule is to look at the statute
itself 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, C.J., in Mille v.
Solomons. 'If', he says, 'the meaning of the language be plain and clear, we
have nothing to do but to obey it 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 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 Parliament, but there is no foundation for any such
distinction. The intention of the enactment is to be gathered from its words. If
the words are plain, effect must be given to 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 contemporaneous
circumstances to the 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 is naturally more extended than in
the case of a State Statute, but the principles to be applied are the same. You
may deduce the intention of the legislature 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 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."

240. In Encyclopaedia of the American Judicial System. The Constitutional
Interpretation by Craig R. Ducat it is stated that the standard for assessing
constitutionality must be the words of the Constitution, not

47 (1904) 1 CLR 329, 358-59

201

what the judges would prefer the Constitution to mean. The constitutional
supremacy necessarily assumes that a superior rule is what the Constitution
says, it is not what the judges prefer it to be. (Vide page 973). (emphasis
supplied) In judicial tributes balancing the competing interest Prof Ducat
quoted with approval the statement of Bickel at page 798 thus :

       "The judicial process is too principle-prone and principle-bound 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 accessible to all 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, or it lags; its pace hardly ever seems just right. For
all these reasons, it is, in a vast, complex, changeable society, a most
unsuitable instrument for the formation of policy."

241. In the Modes of Constitutional Interpretation by Craig R. Ducat, 1978 Edn.
at p. 125, he stated that the judges' decision ought to mean society's values
not their own. He. quoted Cardozo's passage from the Nature of Judicial Process
at page 108 that, "a judge, I think would err if he were to impose upon the
community as a rule of life his own idiosyncrasies of conduct or belief'. The
court when caught in a paralysis of dilemma 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 arbitrary or wholly irrelevant
Proclamation which does not bear any nexus to the predominant purpose for which
the Proclamation was issued, to declare it to be unconstitutional and no more.

242. Frankfurter, J. says in Dennis v. US48 thus : "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 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, within narrow limits. Their essential
quality is detachment, founded on independence. History teaches that the
independence of the judiciary is jeopardize d

       when courts become embroiled in the passions of the day and assume
primary responsibility in choosing between competing political, economic and
social pressures."

243. Regionalism, linguism and religious fundamentalism have become divisive
forces to weaken the unity and integrity of the country. Linguistic chauvinism
adding its fuel to keep the people poles apart. Communalism and

48 341 US 494,525:95 [Ed]137(1951)

202

casteism for narrow political gains are creating foul atmosphere. The
cessationist forces are working from within and outside the country threatening
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 functioning in accordance
with the provisions of the Constitution. Article 356 should, therefore, be used
sparingly 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 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 strait-jacket formula would be possible to evolve. The
Founding Fathers thus confided the exercise of the power in the highest
executive, the President of India, through his Council of Ministers headed by
the Prime Minister of the country who is accountable to the people of the
country.

STAY OF ELECTIONS WHETHER COULD BE MADE

244. Under Article 168 for every State there shall be Legislative Assembly and
in some States Legislative Council. Article 172(1) provides that every
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 a dissolution of the
Assembly. The proviso to clause (1) or 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 meeting and
expiration of the period operates constitutionally as date of dissolution of the
Assembly. The phrase "no longer" reinforces its mandatory character. Article
324(1) enjoins the Election Commission to conduct elections to Parliament and to
the Legislature of every State, etc. The R.P. Act, rules and the instructions
prescribe the procedure to 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 or either 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 by the appropriate legislature. In other words, the
election process once set in motion should run its full course and all election
disputes shall be resolved in accordance with the procedure established by R.P.
Act.

245. In N.P. Ponnuswami v. Returning Officer, Namakkal ConstituenCy49 at the
earliest, Constitution Bench of this Court held that 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 disputes arising out of elections should
be postponed till after the elections are over,

49 1952 SCR 218: AIR 1952 SC 64: 1 ELR 133

203

so that the election proceedings may not be unduly retarded or protracted. In
Lakshmi Charan Sen v. A.K.M. Hassan Uzzaman50 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 Courts must observe self-imposed limitation on their power to
act under Article 226 by refusing to pass orders or giving directions which will
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 limitation 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 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 functioning is questioned, which is open to the citizen
to do, the court must examine the allegations with more than ordinary care. Very
often the exercise of jurisdiction 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 obligation imposed by Article 168. The pragmatic approach was
couched thus: (at SCR p. 523): (SCC p. 709, para 30)

       "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 Constitution. The High Courts must observe a
self-imposed limitation on their power to act under Article 226, by refusing to
pass order or give directions which will 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 limitation
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 329(b) of the Constitution."

There are plethora of precedents in this behalf, but suffice for the limited
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 constitutional crises
as stated hereinbefore. Enlightened public opinion both inside or outside
Parliament, informed public objective criticism, objective assessment of the
ground realities would inhibit misuse of power and hinder highly irrational
exercise of the power.

50 (1985) 4 SCC 689: 1985 Supp 1 SCR 493

204

246. The question which finally emerges is whether issuance of the Proclamation
under Article 356 without affording a particular Chief Minister to test his
majority support of his party in the Legislatures (sic) of Janata Dal or
coalition on the floor of the House is arbitrary and bears no reasonable nexus
or irrational. Having given our anxious consideration to the facts in Bommai
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 legislators
which had resulted in the failure of constitutional machinery, satisfied himself
that necessitated to issuance of the Proclamation 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 of the Governors, it would appear that in its
working there emerged several pitfalls 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 declaration in this behalf. In regard to dissolution of U.P.
Assembly, though there is no writ petition filed, since the Government machinery
of that Government had failed to prevent destruction of Sri Ram Janmabhoomi-
Babri Masjid disputed structure and failed to protect the religious property, be
it belong to Hindus or Muslims and in that surged atmosphere when it was done,
it cannot be concluded that the President acted unconstitutionally or that there
is no proximate nexus between the action and the 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 sevaks to participate in the demolition of Ram
Janmabhoomi-Babri Masjid disputed structure and also criticised the imposition
of ban on RSS. 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 ran 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 the
conclusions. The need for discussion once over is thereby redundant. We
respectfully agree with him and in case of Meghalaya also. We conclude 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 organizations Sri Ram
Janmabhoomi-Babri Masjid disputed structure was destroyed. Consequential
situation that has arisen due to which the President satisfied that Governments
of the States of Madhya Pradesh, Rajasthan 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

205

the 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 fait accompli.

CONCLUSIONS

247. 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
integrity, but a permanent entity with its boundaries alterable by a law made by
Parliament. Neither the relative importance of the legislative entries in
Schedule VII, Lists 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 federal in structure and
independent in its exercise of legislative and executive power. However, being
the creature of the Constitution the State has no right to secede or claim
sovereignty. 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 socioeconomic and political justice to
the people, to preserve and elongate the constitutional goals including
secularism.

248. The preamble of the Constitution is an integral part of the Constitution.
Democratic form of Government, federal structure, unity and integrity of the
nation, secularism, socialism, social justice and judicial review are basic
features of the Constitution.

249. 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 President 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 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 with the provisions of the Constitution
with necessary factual details in a non-partisan attitude.

250. 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 Constitution. 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 in the manner laid down in sub-clauses (a) to (c) of Article 356(1)
of the Constitution.

206

251. The exercise of the power under Article 356 is an extraordinary one and
needs to be used 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 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 Article 356 should under no circumstance be for a political gain to the
party in power in the Union Government. It should be used sparingly and with
circumspection that the Government of the State function with responsibility in
accordance with the provisions of the Constitution.

252. Rule of law has been chosen as an instrument of social adjustment 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 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 professing a particular religious 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 strikes a balance to ensure an
atmosphere of full faith and confidence among its people to realise fill 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 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 overplay, social disunity is bound to erupt leading to
national disintegration. Secularism is a part of the basic features of the
Constitution. Political parties, group of persons or individuals who would seek
to influence 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 religious
unity. Programmes or principles evolved by political parties based on religion
amounts to recognising religion as a part of the political governance which the
Constitution expressly prohibited. 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 features of the
Constitution. Any act done by a political party or the Government of the

207

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 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.

253. A person who challenges the Presidential Proclamation must prove strong
prima facie case that the Presidential Proclamation is unconstitutional 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 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 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. Article 74(2)
receives only this limited protective canopy from disclosure, but the material
on the basis of which the advice was tendered by the Council of Ministers is
subject to judicial scrutiny.

254. The Union of India, when discovery order nisi is issued by this Court,
would act in aid of the Court under Article 142(2) and is enjoined to produce
the material, the foundation for action under Article 356. As held earlier
before calling upon the Union to produce the material, the court must first find
strong prima facie case and when the records are produced they are to be
considered in camera.

255. Judicial review is a basic feature of the Constitution. This Court/High
Courts have constitutional duty and responsibility to exercise judicial review
as sentinel on the qui vive. 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 power. The
normal subjective satisfaction of an administrative decision on objective basis
applied by the courts to administrative decisions by subordinate officers or
quasi-judicial or subordinate legislation does not apply to the decision of the
President under Article 356.

256. Judicial reveiw must be distinguished from the justiciability by the 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, howsoever lofty, 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. 208

257. This Court as final arbiter 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 of the Government and
whether the actions of that branch transgress such limitations, it is the duty
and responsibility of this Court/High Courts to lay down the law. It is the
constitutional duty to uphold the constitutional values and to enforce the
constitutional limitations as the ultimate interpreter of the Constitution. The
judicial review, therefore, extends to examine the constitutionality of the
Proclamation issued by the President under Article 356. It is a delicate task,
though loaded with political overtones, 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 satisfaction is justiciable and valid.

258. 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
or variegated 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 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 conferred in the widest terms to the political coordinate 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.

259. The proviso to Article 74(1) reinforces 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 and ambit of satisfaction
reached by the President. In some cases such satisfaction lacks judicially
manageable standards for resolution. The abuse of the power by high
constitutional functionaries cannot be assumed, 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 Constitution 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 Parliament and accountable to the people. Confidence reposed on
the 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 mala fides to the President in
the face of constitutional prohibition of answerability by Article 361. But if
the proof of

209

 mala fide abuse of power is available, appropriate remedy would be available in
the Constitution under Article 61.

260. The decision can be tested on the ground of legal mala 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 grounds of
unconstitutionality, but not on the grounds that the material which enabled him
to reach the satisfaction was not sufficient or inadequate. The traditional
parameters of judicial review, therefore, cannot be extended to the area of
exceptional and extraordinary 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, in which event the faith of the people
in the efficacy of the judicial review would be strengthened and the judicial
remedy becomes meaningful.

261. Under Article 356 as soon as the Proclamation is 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 convention has been established that
on issuing the Proclamation the President on his assumption of the functions 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 power of the Legislature of the State
shall be exercisable by or under the authority of 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
Government. 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 VIIth Schedule. The Governor of the State with the aid and advice of
the advisors exercises 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 operation of Presidential
Proclamation creates constitutional and administrative hiatus and incongruity.
The Union and the State simultaneously cannot operate the legislative and
executive powers in List II of VIIth Schedule of the Constitution. Thereby
simultaneous bicameral functions by the Union and the State is an anathema to
the democratic principle and constitutional scheme. It would lead to incongruity
and incompatibility.

262. 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 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

210

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 theLegislative Assembly of
the State also creates functional disharmony leading to constitutional crisis.
The grant of stay of elections to the Legislative Assembly, occasioned pursuant
to the Presidential Proclamation, also creates constitutional crisis. Therefore,
the courts should not issue such directions leaving it to Parliament to amend
the Constitution if need be.

263.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 is 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 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 distinguished Judges of this land, recommended floor-
test, it could only mean that that is a consideration which must cross the mind
of the Governor. It would 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.

264.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 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 States
concerned cannot be carried on in accordance with the provisions of the
Constitution. Therefore, the satisfaction cannot be said to be unwarranted. The
appeals of the Union from the judgment of the Madhya 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. Therefore, no futile writs could be issued as the Court
does not act in vain. The appeal of Bommai and the transferred petitions are
accordingly dismissed, but in the circumstances without costs.

B.P. JEEVAN REDDY, J. (on behalf of Agrawal, J. and himself) 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 inspired by Section 45 and Section 93 of the Government of India
Act, 1935. Article 356, however, is qualitatively

211

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
Government of that 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
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 Parliament 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 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, therefore, 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 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 constitutional in character, they do have political overtones.
It is quite likely that our views will not be found palatable by some but that
probably cannot be helped. Sworn to uphold the Constitution, we must say what
the article says and means. 266.It is true that on account of elections having
taken place subsequent to the issuance of the Proclamations impugned herein, no
effective relief can be granted in these matters, we are yet requested by all
the parties concerned herein that we should express ourselves on all the issues
arising herein so that the principles enunciated by this Court may serve as
guidelines for the future for all concerned.

  ARTICLE 356: THE BACKGROUND

267.India became a British colony in the year 1858. Roughly two-thirds of it was
under direct British rule while the remaining one-third was under the rulership
of more than 500 Princes, who in turn were directly under the thumb of the
British Crown. The 1935 Act introduced, for the first time, the concept of
division of powers between the Centre and the provinces. Most of the powers were
retained with the Centre. The Provincial Governments were kept under an ever-
watchful and all powerful Centre. The Governors in the provinces and the
Governor General at the Centre exercised real and substantial power, unlike the
Governors and the President under the Constitution. From the British point of
view, it was an experiment, the first one, in self-rule by the Indians. A few
powers were entrusted to the elected 212

Governments at the Centre or in the provinces; even those could be resumed and
taken back by the Governor General or Governor, as the case may be, whenever 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 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
mistrust.

268.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-A and
278 (corresponding to Articles 355 and 356) were taken up for consideration on
August 3, 1949. It would be appropriate to read both Articles 355 and 356 as
enacted by the Constituent Assembly :

       "355. Duty of the Union to protect States against external aggression and
internal disturbance.- It shall be the duty of 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
this Constitution.

       356. Provisions in case of failure of

       constitutional machinery in States.- (1) If the President, on receipt of
report from the Governor of a State orotherwise, 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(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;

       (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 any body or
authority in the State :

       Provided that nothing in this clause shall authorise 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. (2) Any such Proclamation may be revoked
or varied by a subsequent Proclamation.

       (3)Every Proclamation issued under this

       article shall be laid before each House of Parliament and shall, except
where it is a Proclamation

       213

       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
resolutions of both Houses of Parliament :

       Provided that if any such Proclamation (not being a Proclamation 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 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.

       (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

       Provided further that if the dissolution of the House of the 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 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 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 provide for situation of breakdown of the constitutional machinery in the
States analogous to the 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
Centre must be 214

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.

269.Several members strongly opposed the incorporation of a provision like the
one contained in draft Article 278 on the ground inter alia that it would be an
invasion upon the field reserved for the States and that permitting the
President to take over the Government of the State even on the basis of the
information received "otherwise" 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 the article. All these objections were
overridden by Dr Ambedkar with the argument that no provision of any
Constitution, for that matter, is immune from being abused. He then made this
significant statement : (Constituent Assembly Debates, Vol. IX, p. 177)

       "In fact I share the sentiments expressed by my honourable 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
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."

       He added:

       "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."

270.Article 356 was thus conceived as a mechanism to ensure that the Government
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 rule, had never
known elections. Rule of law was 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 provision like the one in Article 356.

271.Article 356 finds place in Part XVIII which carries the heading "Emergency
Provisions". Article 352, the first article in this Part, empowers 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 aggression or armed
rebellion. (By the 44th Amendment, the words "armed rebellion" were substituted
in the place of the words "internal disturbance"). Articles 353 and 354 set out
the effects of such a Proclamation and provide for certain incidental matters.
Article 355, set out hereinbefore, 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

215

in accordance with the provisions of the Constitution. Articles 355, 356 and 357
go together. Article 356 provides for the action to be taken 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 Parliament when a Proclamation under Article 356 is in
operation. Articles 358 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 situations. 272.In a sense, Article 356 is an emergency provision
though, it is true, it is qualitatively different from the emergency
contemplated by Article 352, or for that matter, from the financial emergency
contemplated by Article 360. Undoubtedly, breakdown of the constitutional
machinery in a State does gives rise to a situation of emergency. Emergency
means a situation which is not normal, a situation which calls for urgent
remedial action. Article 356 confers a power to be exercised by the President in
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.

273.By the 42nd (Amendment) Act of the Constitution, clause (5) was added in
Article 356. It was deleted by the 44th (Amendment) Act which incorporated an
altogether different provision as clause (5). It would be appropriate to take
the article as it now stands while trying to understand its meaning, purpose and
scope. But before we do that, it would be appropriate to examine the nature of
the Indian Federation as ordained by our Constitution. THE FEDERAL NATURE OF THE
CONSTITUTION

274.The expression "Federation" or "federal form of Government" 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 are alike. Each of them, be it of USA, Canada, Australia or of any
other country, has its own distinct character. Each of 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 clear it was not a case of independent States coming
together to form a Federation as in the case of USA.

275.A review of the provisions of the 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. In a land as varied as India is, a

216

strong Centre is perhaps a necessity. This bias towards 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 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, irrespective
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 42nd Amendment, quite a few of the entries in List II were
omitted and/or transferred to other lists. Above all, Article 3 empowers
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 new ones may come into existence.
As a result of the Reorganization of States Act, 1956, fourteen States and six
Union Territories came into existence in the place of twentyseven States and one
area. Even the names of the States can be changed by Parliament 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 States. There is single citizenship, unlike USA. The judicial
organ, one of the three organs of the State, is one and single for the entire
country again unlike USA, where you have the federal judiciary and State
judiciary separately. Articles 249 to 252 further demonstrate the primacy of
Parliament. If the 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 matter in List II (Article 250). Similarly, 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'
autonomy. Several taxes are collected by the Centre and made over, either 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 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". It is both a
responsibility and a power.

276.The fact that under the scheme of our Constitution, greater power is
conferred upon the Centre vis-a-vis the States does not mean that States are
mere appendages of the Centre. Within the sphere allotted to them, States are
supreme. The Centre cannot tamper with their powers. More particularly, the

217

courts should not adopt an approach, an interpretation, which has the effect of
or tends to have the effect of whittling down the 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 Governments be it the result
of advances in technological/scientific fields or otherwise, and that even In
USA the Centre has become far more powerful notwithstanding the obvious bias in
that Constitution in favour of the States. All this must put the court on 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 Shri M.C. Setalvad in his Tagore Law Lectures "Union and State
relations under the Indian Constitution" (Eastern Law House, Calcutta, 1974).
The nature of the Indian federation with reference to its historical background,
the distribution of legislative powers, financial and administrative relations,
powers of taxation, provisions relating to trade, commerce and industry, have
all been dealt with analytically. It is not possible nor is it necessary for the
present purposes to refer to them. It is enough to note that our Constitution
has certainly a bias towards Centre vis-a-vis the States Automobile Transport
(Rajasthan) Ltd. v. State of Rajasthan51. It is equally necessary to emphasise
that courts should be careful not to upset the delicately-crafted constitutional
scheme by a process of interpretation. 277.A few decisions supporting the view
expressed hereinabove may be referred to briefly. In Berubari Union and Exchange
of Enclaves31 Reference under Article 143 Gajendragadkar, J. observed : (SCR at
p. 285) "It may, therefore, be assumed that in construing Article 3 we should
take into account the fact that the Constitution

       contemplated changes of the territorial limits of the constituent States
and there was no guarantee about their territorial integrity." 278.Similarly in
State of W.B. v. Union of India' (SCR at p. 405), this Court observed : "There
is no constitutional guarantee against alteration of the boundaries of the
States. By Article 2 of the Constitution Parliament may admit into the Union or
establish new States on such terms and conditions as it thinks fit, and by
Article 3 Parliament is by law authorised to form a new State by redistribution
of the territory of a State or by by uniting two or more States or parts of
States or by uniting any territory to a part of any State, increase the area of
any State, diminish the area of any State, alter the boundaries of any State,
and alter the name of any State. Legislation which so vitally affects the very
existence

       51 (1963) 1 SCR 491, 540: AIR 1962 SC 1406

       31 (1960) 3 SCR 250: AIR 1960 SC 845

       1 (1964)1SCR371:AIR 1963SC 1241

       218

       of the States may be moved on the recommendation of the President which
in practice means the recommendation of the Union Ministry, 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 boundaries of any State and to diminish its area so as
even to destroy a State with all its powers and authority." AN ANALYSIS OF
ARTICLE 356

279.The heading of Article 356 characterises it as a provision providing for
failure of constitutional machinery in States. 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 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 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, (i) assume to himself all
or any of the functions of the Government of the State or 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 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
clause (1) clarifies that nothing in the said clause shall authorise 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 provisions
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 Parliament and "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 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

219

  period of six months. (By the 42nd Amendment, the words 'one year' were
substituted for the words 'six months' but by the 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 the 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 the 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.

280.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 situation 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 of other information
received by him or both. The existence of relevant material is a precondition to
the formation of satisfaction. The use of the 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) 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. Clause (3) is both a check
on the power and a safeguard against abuse of power. Clause (1): Clause (1)
opens with the words "if the President ... is satisfied". These words are
indicative of the satisfaction being a subjective one. In Barium Chemicals Ltd.
v. Company Law Board6 a decision followed uniformly ever since it was pronounced
Shelat, 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 it is true
that 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 "is of the opinion" or "has reasons to believe". 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

6 1966 Supp SCR 31 1: AIR 1967 SC 295: (1966) 36 Comp Cas 639

220

and the situation in which 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, 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 741,
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. 280-A.
Clause (1) requires the President to be 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 word "cannot" emphasises the type of
situation contemplated by the clause. These words read with the title of the
article "provisions in case of failure of constitutional machinery in States"
emphasise the nature of the situation contemplated. 281.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 inferred unless the context does clearly so require. The
provisions of the Constitution include the chapter relating to Fundamental
Rights, the chapter relating to Directive Principles of State Policy as also the
preamble to the Constitution. Though, at one time, it was thought that preamble
does not form part of the Constitution, that view is no longer extant. It has
been held by the majority of Judges in Kesavananda Bharati v. State of Kerala35
that preamble does form part of the Constitution. It cannot be otherwise. The
attempt to limit the said words to certain machinery 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 III. It must, however, be remembered that it is
not each and every non-compliance with a particular provision of the
Constitution that calls for the exercise of the power under Article 356(1). 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 indeed difficult
nor is it advisable to catalogue the various situations which may arise and
which would be comprised within clause (1). It would be more appropriate to deal
with concrete cases as and when they arise. 282.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. 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 Constitution 35 1954 SCR 1005: AIR 1954 SC 282

221

 (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 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 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 be a
case of his reporting against his own Government but this may be a case of his
wearing two hats, one as the head of the State Government and the other as the
holder of an independent constitutional office whose duty it is to preserve,
protect and defend the Constitution (See Shamsher Singh v. State of Punjab22)
(SCC p. 849 : SCR at p. 835). Since he 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
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 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 :

283.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 :

284.ONE VIEW, which is supported by the opinions of some of the learned Judges
in State of Rajasthan v. Union of India3 is that the power of the 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 dissolved by the
Governor under Article 174(2)(b); of course, this may have to 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. 285.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 22 (1974) 2 SCC 831: 1974 SCC (L & S) 550: (1975) 1 SCR 814 3
(1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1 222

the Government of the State cannot be carried on in accordance with the
provisions of this Constitution", 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 Legislature of the State, (iv) declare that the powers of the
Legislature of the State shall be exercisable by or under the authority of
Parliament and (v) make such incidental or consequential provision, as may be
necessary for giving effect to the Proclamation including suspending in whole or
part the operation of any provisions of the Constitution relating to any body or
authority in the State except the High Court. Now, when subclause (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 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 are read along with the main limb of clause
(1) which speaks of a situation in which "the Government of the State cannot be
carried on in accordance with the provisions of this Constitution", 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 the
President from restoring the Government after the period of Proclamation is
over, 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 Legislature of the
State being made exercisable by Parliament, or under its authority, it cannot
and does not mean or imply dissolution of the Legislature 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 Legislature may consist of
Legislative Assembly as well as Legislative Council. 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)]. In other words, there can be no question of dissolution of the
"Legislature of the State" the expression 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 when the Government of the State is dismissed or removed
from office, the Legislative Assembly cannot function normally. It is difficult
to visualise a Legislative Assembly, or for that matter Legislature, functioning
without a Council of Ministers, i.e., 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 223

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 Parliament. Indeed,
the very fact that clause (b) has provided for only one situation (viz. the
powers of the Legislature being vested in 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 that President
to make such incidental or consequential provisions as may appear to be
necessary or desirable for giving effect to the objects of the 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 Assembly of the State may be suspended
under sub-clause (c) during the 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 passing resolutions
or transacting other business which may interfere with the President's rule in
the State. It is significant to notice in this connection that during the
Constituent Assembly debates on these articles, Dr Ambedkar only spoke of
suspension of the powers of the Legislatures and not their dissolution. (Vide
Constituent Assembly Debates, Vol. IX, page 134.)

286.According to this line of reasoning 'since the Legislature of the State 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 be, the suspension of the provisions of the Constitution will
also come to an end.

287.The proponents of this view criticize 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 clause (1) of
Article 356, the Constitution-makers would have said so expressly and not left
it to be inferred. Secondly, it ignores the language of sub-clause (b). Sub-
clause (b) speaks of "powers of the Legislature of the State" being exercised by
Parliament or under its authority. Sub-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 Legislative Council as
explained hereinabove. There are quite a few States where the Legislature
consists of Legislative Assembly as well as Legislative 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. But the Legislative Assembly also
consists of the opposition and other parties, groups and independent members,
who may

224

themselves have been pointing out and remonstrating against the unconstitutional
working of the Government. There does not appear to be any good reason why the
Legislative Assembly should be dissolved for the acts and defaults of the
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 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.
288.Having given our anxious consideration to both the contending viewpoints 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 also supported by
the decision in State of Rajasthan3 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 is implicit in sub-clause
(a) of clause (1) though there is no such thing as dissolution of the
"Legislature of the State" 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 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 of 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 should also be dissolved or not. If he thinks that it should be so
dissolved, it would be appropriate, indeed highly desirable, that he states the
reasons for such extraordinary step in the order itself. 289.The question then
arises at what 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 before the expiration of that period
it has been approved by resolutions passed by both Houses. This is conceived
both as a check upon the power and as a vindication of the principle of
parliamentary supremacy 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 Houses of Parliament, the
Proclamation lapses at the end of two months and earlier if it is disapproved or
declined to be approved by both the Houses of Parliament, as explained

3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1 225

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 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 Parliament places its sea of approval on the
Proclamation, further steps as may be found necessary to achieve the purposes of
the Proclamation, i.e., dissolution of Legislative Assembly, can be ordered. In
other words, once 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 approval, he can only keep the Assembly under
suspended animation but shall not dissolve it.

290.It must be made clear even at this stage that while no writ petition shall
beentertained by any court before the actual issuance of Proclamation under
clause (1), it shall be open to a High Court or Supreme Court to entertain a
writ petition questioning the Proclamation if it is satisfied that the writ
petition raises arguable questions with respect to the validity of the
Proclamation. The court would be entitled to entertain such a writ petition even
before the approval of the Proclamation by Parliament as also after such
approval. In an appropriate case and if the situation demands, the High
Court/Supreme Court can also stay the dissolution of 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 of 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 of the Proclamation does not 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 situation.

Meaning of approval in clause (3)

In State of Rajasthan3 Chandrachud, Bhagwati and A.C. Gupta, JJ. have expressed
the view that the Proclamation issued under clause (1) remains in operation for
a period of two months in any event. It is held that even if Parliament
disapproves or declines to approve the Proclamation within the said period of
two months, the Proclamation continues to be valid for two months. The approval
of Parliament under clause (3) is held to be relevant only for 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

3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1 226

the Assembly which may have been dissolved do not revive. With utmost respect to
the learned Judges, we find ourselves unable to agree with the said view insofar
as it says that even where both Houses of Parliament disapprove or do not
approve the Proclamation, the Government which has been dismissed does not
revive. (The State of Rajasthan3 also holds that such disapproval or non-
approval does not revive the Legislative Assembly which may have been dissolved
but we need not deal with this aspect since according to the view expressed by
us hereinabove, no such dissolution is permissible before the approval of both
the Houses). Clause (3), it may be emphasised, uses the words "approved by
resolutions of both Houses of Parliament". The word "approval" means affirmation
of the action by a higher or superior authority. In other words, the action of
the President has to be approved by Parliament. The expression "approval" has an
intrinsic meaning which cannot be ignored. Disapproval or non-approval means
that the Houses of Parliament are saying that the President's action was not
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 and of no significance
whatsoever. The Executive would be telling Parliament: "I have dismissed the
Government. Now, whether you approve or disapprove is of no consequence because
the Government in no event can 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 the Executive, the basic premise of parliamentary supremacy. It
would indeed mean supremacy of the Executive over Parliament. The dismissal of a
Government under subclause (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 revives. Legislative Assembly which may have
been 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
unaffected inasmuch as the disapproval or non-approval does not render the
Proclamation invalid with retrospective effect. It