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Introduction

Judicial Review

The power of the courts of a country to examine the actions of

the legislative, executive, and administrative arms of the

government and to determine whether such actions are

consistent with the constitution. Actions judged inconsistent are

declared unconstitutional and, therefore, null and void. The

institution of judicial review in this sense depends upon the

existence of a written constitution[1].

In law, judicial review is said to be the power of the court to

check the legal validity of the action taken by the legislature and

to limit the over use of the same.

Article 356: Background

Case Analysis: S.R.Bommai v. Union of India(1994) 3 SCC 1 adminmain November 24, 2013 Case Analysis No Comment

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Dr. B.R. Ambedkar was of the view that the Constitution must

provide for situation of break-down of the Constitutional

machinery in the State analogous to provisions contained in

Section 93 of the 1935 Act. If a situation arises, for whatever

reason, where the government of a State cannot be carried on in

accordance with the provisions of the Constitution, he said, the

President of India must be empowered to remedy it. For thatpurpose, he could take over all or any of the functions of the

government as well as of the State Legislature. He could also

make such other provisions as he may think necessary

including suspension of the provisions of the Constitution except

those relating to High Court. This power, he stated must be

understood in the context of draft Article 277(A) (Article 355),

which cast an obligation upon the Union to protect every State

against external aggression and internal disturbance and to

ensure that the government of every State is carried on in

accordance with the provisions of the Constitution. To discharge

this obligation, he said, the center must be empowered to take

over the government of the State. At the same time, he said, the

President is not expected to act in a wanton or arbitrary manner

but on the basis of a report from the Governor or on the basis of

other material in his possession, as the case may be.

AN ANALYSIS OF ARTICLE 356:

The heading of Article 356 characterizes it as a provision

providing for failure of Constitutional machinery in State. Clause

(1), however, does not use the words failure of constitutional

machinery. Even so, the significance of the title of the Section

cannot be overlooked. It emphasizes the level, the stage, thesituation in which the power is to be exercised. Clause (1) speaks

of the President being satisfied that a situation has arisen in

which the government of the State cannot be carried on in

accordance with the provisions of this Constitution. If so

satisfied, he may, by proclamation, assume and exercise the

several powers mentioned in Sub-clauses (a), (b) and (c). An

analysis of Clause (1) of the Article yields the following

ingredients: (a) if the President is satisfied; (b) on receipt of

report from the Governor of State or otherwise; (c) that a

situation has arisen in which the government of the State cannot

be carried on in accordance with the provisions of the

Constitution; (d) the President may by proclamation, (1) assume

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to himself all or any of the functions of the Government of the

State of all or any of the powers of the Governor or any other

body or authority in the State except the legislature of the State;

(ii) declare that the powers of the legislature of the State shall be

exercised by the Parliament or under its authority; and (iii) make

such incidental or consequential provisions as appear to him to

be necessary or desirable for giving effect to the objects of theproclamation including provisions for suspending in whole or in

part the operation of any provisions of this Constitution relating

to anybody or authority in the State. (The proviso to Clause (1)

clarifies that nothing in the said clause shall authorize the

President to assume to himself any of the powers vested in or

exercisable by a High Court or to suspend in whole or part the

operation of any provision relating to High Courts.) Clause (2)

says that any proclamation under Clause (1) can be revoked or

varied by a subsequent proclamation. Clause (3) provides that

every proclamation issued under Clause (1) (except a

proclamation revoking a previous proclamation) shall be laid

before each House of the Parliament and shallcease to

operate at the expiration of two months unless before the

expiration of that period it has been approved by resolutions of

both Houses of Parliament. The proviso to Clause (3) provides

for a situation where the Lok Sabha is dissolved on the date of

the proclamation or is dissolved within two months of suchproclamation. Clause (4) says that a proclamation so approved

by both Houses of Parliament shall, unless revoked earlier, cease

to operate on the expiration of period of six months. (By 42nd

Amendment, the words one year were substituted for the words

six months but by 44th Amendment, the words six months

have been restored). The three provisos to Clause (4) provide for

certain situations which it is not necessary for us to consider for

the purpose of these cases. Clause (5), as inserted by 38th

Amendment ran as follows: (5) notwithstanding anything in this

Constitution, the satisfaction of the President mentioned in

Clause (1) shall be final and conclusive and shall not be

questioned in any court on any grounds. By 44th Amendment,

however, this clause was repealed altogether and in its place a

new Clause (5) introduced which limits the maximum period, for

which such a proclamation can be operative, to one year except

in a case where a proclamation of emergency is in operation. It is

not necessary to consider Clause (5) also for the purpose ofthese cases.

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Karnataka Facts

In the case of Karnataka, the facts were that the Janta Party

being the majority party in the State Legislature had formed the

Government under the leadership of Shri S.R. Bommai on August

30, 1988 following the resignation on August 1, 1988 of the

earlier Chief Minister Shri Hegde who headed the ministry fromMarch 1985 till his resignation. On 17 April, 1989 one legislator

presented a letter to the Governor withdrawing his support to the

Ministry. On the next day he presented to the Governor 19 letters

allegedly written by 17 Janta Dal legislators, one independent but

associate legislator and one legislator belonging to the BJP

which was supporting the ministry, withdrawing their support to

the ministry. On receipt of these letters, the Governor is said to

have called the Secretary of the Legislature Department and got

the authenticity of the signatures on the said letters verified. On

April 19, 1989, the Governor sent a report to the President stating

therein that there were dissensions in the Janta Party which had

led to the resignation of Shri Hegde and even after the formation

of the new party viz. Janta Dal, there were dissensions and

defections. He, therefore, recommended to the President that he

should exercise power under Article 356(1). The Governor did not

ascertain the view of Shri Bommai either after the receipt of the

19 letters or before making his report to the President. On thenext day i.e. April 20, 1989, 7 out of the 19 legislators who had

allegedly sent the letters to the Governor complained that their

signatures were obtained on the earlier letters by

misrepresentation and affirmed their support to the Ministry. The

State Cabinet met on the same day and decided to convene the

Session of the Assembly within a week i.e. on April 27, 1989. The

Chief Minister and his Law Minister met the Governor on the

same day and informed him about the decision to summon the

Assembly Session. The Chief Minister offered to prove his

majority on the floor of the House, even by pre-phoning the

Assembly Session, if needed. To the same effect, the Governor

however sent yet another report to the President on the same day

i.e. April 20, 1989, in particular, referring to the letters of seven

Members pledging their support to the Ministry and withdrawing

their earlier letters. In the end, he reiterated his opinion that the

Chief Minister had lost the confidence of the majority in the

House and repeated his earlier request for action under Article356(1) of the Constitution. On that very day, the President issued

the Proclamation in dissolving the House. The Proclamation was

thereafter approved by the Parliament as required by Article

th
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356(3).

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

dissolution was dismissed by a three Judge Bench inter alia

holding that the facts stated in the Governors report cannot be

held to be irrelevant and that the Governors satisfaction that no

other party was in a position to form the Government had to beaccepted since his personal bona fides were not questioned and

his satisfaction was based upon reasonable assessment of all

the relevant facts. The High Court relied upon the test laid down

in the State of Rajasthan case[2] and held that on the basis of

materials disclosed, the satisfaction arrived at by the President

could not be faulted.

Issues

The main issues included in the case are-

1) Whether the presidential proclamation issued under Art.

356(1) is amenable to judicial review or not? If, Yes then what is

the extent of the judicial reviews, adding further, what is the

nature of the presidential satisfaction? Is, it subjective or

objective.

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

conferred by Art. 356 to the president is a conditional power it is

not an absolute power. There are basic two conditions which

need to be fulfilled for the issuance of the presidentialproclamation; these conditions are imposed in Article 356 itself.

Article 356(1) reads as-

356. (1) If the President, on receipt of a report from the Governor

1*** of a State or otherwise[3], is satisfied that a situation has arisen

in which the Government of the State cannot be carried on in

accordance with the provisions of this Constitution, the Presidentmay by Proclamation
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(a) Assume to himself all or any of the functions of the

Government of the State and all or any of the powers vested in or

exercisable by the Governor 2*** or anybody or authority in the State

other than the Legislature of the State;

(b) Declare that the powers of the Legislature of the State shall be

exercisable by or under the authority of Parliament;

(c) Make such incidental and consequential provisions as appear

to the President to be necessary or desirable for giving effect to the

objects of the Proclamation, including provisions for suspending inwhole or in part the operation of any provisions of this Constitution

relating to anybody or authority in the State:

Provided that nothing in this clause shall authorize the President to

assume to himself any of the powers vested in or exercisable by a

High Court, or to suspend in whole or in part the operation of any

provision of this Constitution relating to High Courts.

More elaborately the two conditions are-

Firstly, the president should be fully satisfy himself that there is a

condition aroused in which the government of the state will not

be able to function in accordance with the provisions of the

constitution.

Secondly, the presidential satisfaction should be based on the

report of the governor or otherwise means that the

satisfaction of the president should based on the either of the

report of the governor or the president may otherwise haveinformation through accredited channel of communications and

have it in custody and on consideration of which the president

would reach a satisfaction that a situation has arisen in which


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the Government of a state cannot be carried on in accordance

with the provisions of the constitution or more briefly the

materials and record should be self satisfactory in themselves

for the issuance of such an proclamation which is referred as Dr.

Ambedkars dead letter[4] for the government of the state.

Analysis of the issues and relative reasoning

The whole Issue can be divided to two parts;

First part is related to the power and extent of courts to judiciallyreview the presidential proclamation.

Second part deals with the nature of the presidential satisfaction.

Dealing with the first part court broadened the purview of

the judicial review as discussed in the case of State of

Rajasthan v. Union of India[5] concluding that-

Yes, the proclamation made by the president can be judicially

reviewed, adding to the extent of the judicial power court says

that the proclamation is subjected to the judicial review, to an

extent of examining whether the conditions at the time of

issuance of the proclamation have been fulfilled or not and that

condition includes- whether there existed material for the

satisfaction of the president, that a situation has arisen in which

the government of the state could not be carried on in

accordance with the provisions of the constitution.

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

on wholly irrelevant grounds then the supreme court of the high

court can strike down the proclamation. The deletion of clause

(5) from Article 356, removes the clouds of reviewability of the

action. When called upon, the union of India has to produce thematerial on the basis of which action was taken. Its enquiry is

limited to see whether the material was relevant to the action.

Moreover, if any advice was tendered to the president by the
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council of ministers,[6]then the court will not interfere into the

matter that what advice was, but the material and record on

which the advice was tendered to the president.

Examples;

Malafide[7]/Bad Faith

Prof. de Smithin his book on bad faith stated that

The concept of bad faith eludes precise definition, but in

relation to the exercise of statutory powers it may be said to

comprise dishonestly (or fraud) and malice. A power is exercised

fraudulently if its repository intends to achieve an object other than

that for which he believes the power to have been conferred. Hisintentions may be to promote another public interest or private

interest. A power is exercised maliciously if its repository is

motivated by personal animosity towards those who are directly

affected by its exercised.

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

influenced by any kind of malicious feeling including any kind of

political rivalry or irrelevant materials as in the case of State of

Rajasthan v. Union Of India[8]. Where the political party in the

power at the centre tendered such malafide advice against a

state governed by another political party to the president. But in

this case court due the enactment of 38 amendment which

includes clause (5) to article 356 which say that-

(5) The satisfaction of the president will be final and conclusive andcannot be challenged before any cour[9]t

And decided the same and doesnt leave any scope of judicial

review. Subsequently, clause (5) of the article was struck down

by the enactment of the 44 amendment act. This opens the way

for the ray of light of judicial review to enter the prison of

presidential power under article 356(1) if the proclamation is

made under such malicious minds and irrelevant material onrecords. This was subsequently seen in the case of S.R Bommai

v. Union of India[10]. In which the bench of nine judges by

majority of 5:4 broadened or say open up the scope of judicial

th

th
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review.

Dealing with the second part of the issue court says that

the presidential satisfaction is a subjective one and it is

subjected to the materials and records and also the reportof the governor of the state. Moreover, court guided that

the facts and circumstances relevant to the satisfaction,

that the government of the state cannot be carried on in

accordance with the provisions of the constitution, should

only be the ground of the satisfaction of the president.

The President cannot exercise these powers under the

Constitution on wish or whim. He has to have facts,

circumstances which can lead a person of his status to form an

intelligent opinion requiring exercise of discretion of such a

grave nature that the representative of the people who are

primarily entrusted with the duty of running the affairs of the

State are removed with a stroke of the pen.

His action must appear to be called for and justifiable under the

Constitution if challenged in a Court of Law. No doubt, the Courts

will be chary to interfere in his discretion or formation of the

opinion about the situation but if there is no basis or

justification for the order under the Constitution, the Courts will

have to perform their duty cast on them under the Constitution.

While doing so, they will not be entering in the political arena forwhich appeal to electorate is provided for.

CONCLUSION

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

nature and should not be used very frequently as used till date

(over 100 times in more than 20 states). As the fear of the same


10/13

should take off the efficiency of the state governments as they

doesnt know that when the dead letter would reach them. Also,

they must be subjected to the judicial review to an extent of

checking the legal validity of the proclamation only. Also it is

submitted that though court have been provided with the power

but it also has to be limited. As it is said by Justice Kailash Nath

Katju, Divisional Manager, Aravali Golf Club and Anr. Vs.: ChanderHass and Anr[11]that-

Judges must know their limits and must not try to run the

Government. They must have modesty and humility, and not behave

like Emperors[12].

Lastly,Dr. Ambedkars stated that the constitution is a document

given by the people to govern themselves not the bodies formed

by the constitution. So, the main power should lies with the

citizens of the country.

The precedent of the case was followed subsequently in

Rameshwar Prasad v. Union of India[13].In this case the scope of

judicial review was broadened more.

[1]Britannica Encyclopedia

[2]AIR 1977 SC 1361

[3]C.A.D Vol IX p. 177

[4]C.A.D Vol IX p. 1970

[5]AIR 1977 SC 1361

[6]Article 74(1)

[7]HM Seervai, constitutional law of india,volume 3, p.3095

[8]AIR 1977 SC 1361

[9]Clause (5) added by 38 amendment(1975) and struck downth
http://c/Users/Dilawar%20Khan/Desktop/Post/SR%20BOMMAI%20v.%20Union%20OF%20India1.docx#_ftnref9http://c/Users/Dilawar%20Khan/Desktop/Post/SR%20BOMMAI%20v.%20Union%20OF%20India1.docx#_ftnref8http://c/Users/Dilawar%20Khan/Desktop/Post/SR%20BOMMAI%20v.%20Union%20OF%20India1.docx#_ftnref7http://c/Users/Dilawar%20Khan/Desktop/Post/SR%20BOMMAI%20v.%20Union%20OF%20India1.docx#_ftnref6http://c/Users/Dilawar%20Khan/Desktop/Post/SR%20BOMMAI%20v.%20Union%20OF%20India1.docx#_ftnref5http://c/Users/Dilawar%20Khan/Desktop/Post/SR%20BOMMAI%20v.%20Union%20OF%20India1.docx#_ftnref4http://c/Users/Dilawar%20Khan/Desktop/Post/SR%20BOMMAI%20v.%20Union%20OF%20India1.docx#_ftnref3http://c/Users/Dilawar%20Khan/Desktop/Post/SR%20BOMMAI%20v.%20Union%20OF%20India1.docx#_ftnref2http://c/Users/Dilawar%20Khan/Desktop/Post/SR%20BOMMAI%20v.%20Union%20OF%20India1.docx#_ftnref1http://c/Users/Dilawar%20Khan/Desktop/Post/SR%20BOMMAI%20v.%20Union%20OF%20India1.docx#_ftn13http://c/Users/Dilawar%20Khan/Desktop/Post/SR%20BOMMAI%20v.%20Union%20OF%20India1.docx#_ftn12http://c/Users/Dilawar%20Khan/Desktop/Post/SR%20BOMMAI%20v.%20Union%20OF%20India1.docx#_ftn11


11/13

by the 44 amendment act(1978)

[10](1994) 3 SCC 1

[11]2007 (14) SCALE 1

[12]JUSTICE RUMA PAL, JUDICIAL OVERSIGHT OROVERREACH: THE ROLE OF THE JUDICIARY IN MODERN

INDIA,2008

[13](2006) 2 SCC 1

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