Judges: S.R. Pandian, A.M. Ahmadi, Kuldip Singh, J.S. Verma, P.B. Sawant, K. Ramaswamy, S.C. Agarwal, Yogeshwar Dayal, B.P. Jeevan Reddy, JJ.

Facts:

SR Bommai was the Chief Minister of Karnataka from August 1988 until April 1989. He led a Janata Dal administration that was ousted when President's Rule (Article 356) was instituted in Karnataka on April 21, 1989.

The Governor of Karnataka received nineteen letters from the council of ministers stating that they are withdrawing their support for the ruling party, and as a result of the government's minority status, he forwarded a report to the President of India detailing the council of ministers' defection from the ruling party. Shri S.R. Bommai, failed to summon a majority for the majority of the assembly, resulting in the imposition of president's rule in the state under Article 356(1) of the Indian Constitution.

Seven of the nineteen ministers disputed the misrepresentation in their letters the next day after receiving the report, causing Mr. S.R. Bommai, the Chief Minister and Law Minister, to attend the assembly the same day to prove his government's majority in the assembly. The President was given the same report. The President, thereafter, received another report from the Governor on the same day, claiming that Mr. S.R. Bommai, had lost trust in the state's majority and which also requested that him to declare an emergency under Article 356 of the Indian Constitution. On the basis of this report, the President of India proclaimed a state of emergency in the State of Karnataka.

Shri Bommai and other members of the Council of Ministers filed a writ case in the Karnataka High Court challenging the legitimacy of the 'proclamation' on different grounds. The petition was opposed by the Union of India and others. The petition was dismissed by a three-judge bench of the High Court, which held, among other things, that the facts stated in the Governor's report could not be considered irrelevant, and that the Governor's satisfaction that no other party was in a position to form the government had to be accepted because his personal bona fides were not questioned, and his satisfaction was based on a reasonable assessment of all relevant facts.

The court also held that using a floor-test was neither mandatory nor required, and that forwarding the report to the President was not a requirement. The report of the Governor could not be disputed on the basis of legal mala fides, since the proclamation had to be issued once the Union Council of Ministers was satisfied. The Court also used the standard set out in the State of Rajasthan and Ors. vs. Union of India (UOI) and Ors., MANU/SC/0370/1977, concluding that the President's pleasure could not be questioned based on the evidence presented. Hence, the matter reached the Hon'ble Supreme Court of India, which culminated in present judgment.

In the cases of Meghalaya, Nagaland, Madhya Pradesh, Rajasthan, and Himanchal Pradesh, a similar question of law emerged, and all of the petitions were considered together by the Supreme Court's 9-judge bench.

Issues:

(i) 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?

(ii) Whether the President has unfettered powers to issue Proclamation under Article 356(1) of the Constitution?

(iii)Whether the controversy is amenable to judicial review? In other words, are proclamations under Article 356 of the Constitution subject to judicial reviews? If yes, to what extent?

Law:

Constitution of India - Article 74(1) - There shall be a Council of Ministers, led by the Prime Minister, to assist and advise the President, who shall carry out his or her duties in accordance with the advice.

Constitution of India - Article 74(2) - Prohibits courts from investigating the advice offered to the President by the Council of Ministers.

Constitution of India - Article 356 - Gives the President of India the authority to remove a state's administrative and legislative functions from the Union "if he is persuaded that a situation has arisen in which the state's administration cannot be carried out in conformity with the Constitution".

Indian Evidence Act, 1872 - Section 123 - No one shall be allowed to provide testimony based on unreleased public records related to state matters. The official head of the department concerned can get such an unpublished document, but he or she may refuse approval if necessary. Any evidence acquired from unpublished government records is likewise prohibited under this provision.

Representation of the People Act 1951 - Section 123(3) - The appeal... to vote or refrain from voting for any individual on the basis of his religion, race, caste, community, or language" constitutes a corrupt election practise.

Contentions:

Appellant

Petitioner was not given a single opportunity to demonstrate his party's majority. Furthermore, despite the Governor's requests, neither a floor test nor a call to the Assembly was held.

Imposition of President's Rule was completely illegitimate and solely a political act, because the mere fact of rioting, torching, and looting in the area is insufficient justification for enforcing the presidential proclamation, claiming that the party is incompetent and must be dissolved. The actual motivation for such imposition was to centralise power at the centre and place state representatives in an unenforceable and inequitable position in society.

No substantive facts were offered that satisfied the president enough to declare an emergency and dissolve the administration. The Union administration is required under Article 74(2) to provide all important information to both the State's legislative members and the Court on whose behalf the proclamation was issued, and this responsibility should not be overlooked.

A president cannot dismiss a state legislature without the approval of both Houses of Parliament, and that since secularism is a fundamental feature of the Constitution, a state government cannot be dissolved if it is found guilty of administering non-secular acts.

Respondents

The scope and character of judicial review under constitutional law and administrative law are different. In administrative law, the court can broaden its jurisdiction to include problems involving a government's legislative powers, but it does not have the same authority in constitutional law. The court might simply rule the conduct to be supra vires, or an abuse of discretion. It was also argued that the courts lacked the competence to assess whether the requirements for issuing a presidential proclamation were legal.

Presidential Proclamation would be issued by the President pursuant to Article 356 (1) with the advice of cabinet ministers pursuant to Article 74 (1), but that an investigation into whether or not the President receives any advice from the cabinet, as well as judicial review of the reasons for the proclamation, are strictly 'prohibited' pursuant to Clause 2 of the said Article.

If the State Government's actions are not secular, it can be dissolved under the doctrine of secularism.

Analysis:

(i) The federal nature of our Constitution was put to the test in this case, while analysing the extent to which Article 356 is defensible and, if so, whether it may be subjected to judicial scrutiny.

(ii) The Indian Constitution contains not only elements of pragmatic federalism, which, while distributing legislative powers and indicating the spheres of governmental powers of the State and Central governments, is overlaid by strongly 'unitary' features. Among others, these are, most notably by lodging residuary legislative powers in Parliament and the executive power of appointing certain constitutional functionaries, including High Court and Supreme Court judges, in the Central Government.

(iii)The President's satisfaction with the existence of the appropriate circumstances is a condition precedent for the President to declare an emergency under Articles 352, 356 and 360 of the Indian Constitution.

(iv)Article 356(1) states that if the President 'is convinced' that 'the situation has arisen in which the Government of the State cannot be carried out' 'in accordance with the provisions of the Constitution' 'on the receipt of a report from the Governor of a State or otherwise', the President of India can issue a promulgation of state emergency.

(v) The following requirements must be met before the Proclamation may be issued -

1. the President must be satisfied, either through a report from the Governor of the State or otherwise,
2. that a situation has developed in which the State's government cannot function in conformity with the Constitution.

Conditions of sttes

Karnataka

(i) All canons of appropriateness were thrown to the wind in this circumstance. The Governor's inordinate haste in urging the President to issue the proclamation under Article 356 (1) screamed of mala ftdes. As a result, the President's Proclamation, which was issued on the basis of the Governor's report and in the conditions prevailing at the time, suffered from mala fides as well.

(ii) A properly formed Ministry was fired based on evidence that had not been tested or permitted to be tested and was nothing more than the Governor's ipse dixit. The Governor's action was particularly reprehensible since, as a high-ranking constitutional official, he was expected to behave more honestly, cautiously, and circumspectly. The Governor, on the other hand, appears to have been in a haste to fire the Ministry and dissolve the Assembly.

(iii) Because the proclamation was based on the aforementioned study and 'other information' that was not released, it was likely to be overturned. As a result, the High Court was incorrect in ruling that the floor test was neither mandatory nor obligatory, nor that it was a requirement for forwarding the report to the President proposing action under Article 356 (1).

(iv)The High Court was also incorrect in concluding that the facts provided in the Governor's report were not immaterial when the Governor proceeded to deliver his unconfirmed opinion in the subject without first determining whether the Chief Minister's or the seven MLA's retraction was genuine or not.

(v) The High Court also overlooked the fact that, presuming the 19 MLAs withdrew their support for the Ministry, the Governor was responsible for determining whether another Ministry could be established. What has to be determined is whether the Governor followed all legal procedures and investigated all options to ensure a constitutional administration in the State before stating that the constitutional machinery had failed.

(vi) Apart from the Governor's report, the President had no further information before issuing the Proclamation. Because the "facts" given by the Governor in his report comprised his personal judgement based on unascertained evidence, they could scarcely be considered to create objective material on which the President might have acted under the circumstances. As a result, the Proclamation issued was null and void.

Meghalaya

(i) The unfavourable occurrence demonstrates the Governor's unwarranted haste to fire the Ministry and dissolve the Assembly, as well as his failure as a constitutional functionary to recognise the orders of this Court's binding legal implications and to give effect to them. Worse, the Union Council of Ministers elected to advise the President on whether or not to issue the Proclamation on the subject matter. The material before the President was not only unreasonable, but also inspired by factual and legal errors. As a result, the Proclamation was declared null and void.

Nagaland

(i) The Governor should have enabled Shri Vamuzo to put his strength to the test on the House floor. This was especially true because the Chief Minister, Shri Serna, had already given the Governor his resignation. This is despite the fact that Governor stated in his report that no fewer than 11 governments had been formed in the preceding 25 years, and that, according to his information, the Congress MLAs were enticed by monetary benefits, resulting in an incredible lack of political morality and complete disregard for the wishes of the electorate.

(ii) Although the Tenth Schedule was added to the Constitution to discourage political negotiations and defections, it did not restrict the creation of a new political party provided it had the support of at least 1/3 of the members of the current parliamentary party. The Proclamation issued was unlawful since Shri Vamuzo was not given the opportunity to demonstrate his strength on the House floor, as he claimed, and to establish the Ministry.

Madhya Pradesh, Rajasthan & Himachal Pradesh in the context of Secularism

(i) The President's actions in dismissing the Ministry and dissolving the Legislative Assemblies of the states of Madhya Pradesh, Rajasthan, and Himachal Pradesh in response to the Proclamations dated December 15, 1992 are not unconstitutional.

(ii) By implication, Articles 14, 15, 16, 26, 30, and 44 restricts the development of a theocratic state and prohibit the state from associating with or favouring any specific religion, religious group, or denomination. The state is required to respect all religions, religious groups, and denominations equally.

(iii) Whatever may be the state's attitude toward religions, religious sects, and denominations, religion cannot be merged with any of the state's secular activities. Encroachment of religion into secular activity is, in fact, completely forbidden. The clauses of the Constitution demonstrate this. The fact that the state tolerates one or more faiths does not constitute it a religious or theocratic state.

(iv) When the state enables citizens to practise and proclaim their faiths, it does not allow them to bring religion into the state's non-religious and secular operations, either directly or implicitly. Religion is only free and tolerated to the extent that it allows for the pursuit of a spiritual life that is distinct from the secular existence. The latter is only concerned with the activities of the state.

(v) This is also obvious from Section 123(3) of the Representation of the Peoples Act, 1951, which makes it plain that appealing to any religion or seeking votes in the name of any religion is illegal. To construe the provisions in any other way would be to undermine their aim and purpose.

(vi) The BJP manifesto, on the basis of which the elections were contested and the three Ministries came to power as a result of those elections, said that the party is dedicated to building Shri Ram Mandir at Janmasthan by respectfully removing the overlaid Babri edifice. Following that, BJP leaders routinely made statements to the same effect. Some of the Chief Ministers and Ministers were members of the RSS, which was a banned group at that time.

(vii) Ministers from the relevant ministries urged people to participate in kar seva at Ayodhya on December 6, 1992. One of the ruling BJP's MLAs in Himachal Pradesh made a public declaration claiming to have taken part in the demolition of the mosque. Ministers had given the kar sevaks a formal send-off and had also invited them back after the mosque was destroyed. Ministers who were themselves members of the RSS were to carry out the policy in accordance with the RSS's prohibition. Atrocities against Muslims occurred in at least two states, namely Madhya Pradesh and Rajasthan, resulting in the loss of lives and property.

(viii) Religious tolerance and equality of treatment for all religious groups, as well as protection of their lives, property, and places of worship, are key elements of our Constitution's secularism. Any profession or behaviour that contradicts the aforementioned creed is prima facie evidence of conduct in violation of our Constitutional requirements. If, as a result, the President acted on the aforementioned 'credentials' of the Ministries in these States,which had unforeseeable and imponderable cascading consequences, it is difficult to argue that he had no material to draw the conclusion that the governments in the three States could not function in accordance with the Constitution.

(ix)The repercussions of such professions and conduct that are clearly in violation of the Constitutional provisions cannot be judged just by what occurs in praesentie. On the basis of the events that have occurred, a reasonable prognosis of future events and their numerous consequences can always be made, and if such a prognosis led to the conclusion that the States' governments could not function in accordance with the Constitution in the circumstances, the inference could hardly be faulted.

(x) As a result, the President had sufficient evidence in the form of the aforementioned professions and acts of the responsible section in the political set up of the three States, including the Ministries, to satisfy him that the three States governments could not function in accordance with the Constitution's provisions. As a result, the proclamations issued in these three states could not be considered invalid.

Power to issue proclamation

(i) The Indian Constitution is fundamentally a political text, and a provision such as Article 356 has the ability to upset and subvert the entireconstitution framework. As a result, the exercise of powers conferred in such Articles must be limited in order to preserve the essential constitutional balance, lest the Constitution be defiled and destroyed.

(ii) The legitimacy of Proclamation issued under Article 356(1) can be contested even after it has been authorised by both Houses of Parliament under paragraph (3) of Article 356, and there is no reason to distinguish between the Proclamation so approved and legislation adopted by the Parliament. If the Proclamation is invalid, the fact that it was authorised by Parliament does not make it lawful.

(iii) The President's power under Article 356(1) is used on the recommendation of the Council of Ministers, which is appointed by Article 74(1) of the Constitution. Under our system, the Council of Ministers would always beaffiliated with one political party or the other. Because of the federal framework and pluralist democracy, the ruling party or parties (in case of coalition Government at the Centre and in the States) may not be the same.

(iv)As a result, it is necessary to limit the exercise of authority under Article 356(1) to the scenario described therein, which is a prerequisite to the said exercise. That is why the founders of the Constitution went to great lengths to define the circumstances that would allow the use of the authority in question. 'The Government of the State cannot be carried on in conformity with the terms of this Constitution', the scenario reads.

(v) A circumstance that does not meet these criteria does not allow the proclamation to be issued. The term "cannot" connotes a dead-endposition emphatically. Situations that can be resolved or that do not cause an impasse, or that do not disable or interfere with the State's governance in accordance with the Constitution, do not warrant the issue of the proclamation under the Article 356.

(vi)A circumstance covered by this Article is one in which the State's government cannot function "in conformity with the provisions of the Constitution". The term does, in fact, conjure up a variety of scenarios.

(vii) The authority given by Article 356 is, therefore, a conditioned one, not an absolute power that the President can employ at his discretion. The condition is the subjective development of satisfaction based on the belief that a circumstance of the sort envisioned by the clause has occurred. This satisfaction faction may be formed as a result of the Governor's report,additional information received by him, or both. The presence of appropriate material is a prerequisite for satisfaction formation.

Judicial Review and power to issue proclamation

(i) The President's use of the power to make a proclamation under Article 356(1) is subject to judicial scrutiny, at least to the degree of determining whether the conditions prior to the issuance of the proclamation have been met or not.

(ii) Although the material's adequacy or otherwise cannot be questioned, the legality of inferences formed from it is undoubtedly subject to judicial scrutiny.

(iii) As a natural corollary the satisfaction of the President must be based on objective material. The information might be found in the Governor's report or elsewhere, or it could come from both the report and other sources. Furthermore, the objective evidence available must show that the State's government cannot function in accordance with the Constitution's requirements. As a result, the availability of objective evidence demonstrating that the State's government cannot function in line with the Constitution is a prerequisite before the President makes the proclamation. Once such material is demonstrated to exist, the President's satisfaction with the material is unquestionable.

(iv)The President's Proclamation is susceptible to dispute if there is no such objective material before him, or if the material before him does not fairly imply that the State's government cannot be carried out in accordance with the Constitution's provisions.

(v) These criteria of the condition prior to the proclamation's issuing show the scope of, as well as the limitations on the ability of judicial review of the proclamation's issuance. The Proclamation made under Article 356(1) is unquestionably subject to judicial scrutiny.

(vi) The purpose of Article 74(2) was not to exempt any materials or documents from judicial scrutiny, but to ensure that an order issued by or in the name of the President could not be challenged on the grounds that it was either contrary to the advice of the Ministers or issued without any advice from the Ministers.

(vii) Its sole purpose was to render the question of whether the President had accepted the Ministers' advice or acted against it unjusticiable. As a result, advice given to the President by Ministers, if any, was to be shielded from the Court's examination.

(viii) This is not to imply that the exclusionary rule enshrined in Section 123 of the Indian Evidence Act is given a go by. However, it just emphasises that the aforementioned rule can be used in the right circumstances.

(ix)The Courts, on the other hand, are justified in investigating whether there was any information on which the advise was based, and if it was relevant for such advice, and whether the President might have acted on it. As a result, when the Courts investigate the existence of such material, the bar included in Article 74(2) does not preclude from learning of the material's true existence.

(x) This isn't to suggest that the Union Government can't use Section 123 of the Evidence Act to claim privilege. When such a privilege against disclosure is asserted, the Courts will consider it on its merits within the confines of the aforementioned clause.

(xi)The legitimacy of proclamation issued under Article 356(1) can be contested even after it has been authorised by both Houses of Parliament under Article 356(3), and there is no reason to distinguish between the proclamation so approved and legislation adopted by the Parliament. If the Proclamation is invalid, the fact that it was authorised by Parliament does not make it lawful.

(xii) The federal principle, social pluralism, and pluralist democracy that underpin our Constitution demand that judicial review of the proclamation issued under Article 356(1) is not only a necessary but also a strict duty, and that the exercise of power under the said provision is limited to the purpose and circumstances specified therein and nothing else. It also necessitates a careful examination of the material upon which the power is performed.

Conclusion:

(i) Article 356 of the Constitution gives the President the authority to act only if he is satisfied that a situation has developed in which the government of a state cannot be carried out in line with the Constitution's provisions.

(ii) The satisfaction of India's President, as depicted in the Article, is purely subjective.

(iii) The authority granted to the President by Article 356 is a conditioned power. It isn't a limitless power. A pre-requisite is the presence of documentation that may contain or incorporate the Governor's report(s). The pleasure must be based on material that is relevant.

(iv) Despite the fact that the power to dissolve the Legislative Assembly is implicit in Article 356(1), it must be held that, in light of the overall constitutional scheme, the President may exercise it only after the proclamation has been approved by both Houses of Parliament under clause (3) and not before.

(v) Until such time comes, the President can only suspend the Legislative Assembly by suspending the provisions of the Constitution related to the Legislative Assembly under clause 1 (c). 

(vi) The dissolution of the Legislative Assembly is not something that happens on its own. It should only be used if it is deemed to be required to achieve the proclamation's goals.

(vii) Only when the scenario indicated by the clause (1) arises can the proclamation be issued. The government must leave in such a circumstance. There is no way to believe that the President may take over part of the State Government's tasks and powers while retaining the State Government in power. Two governments cannot exist in the same sphere.

(viii) Article 356 (3) is intended to be a check on the President's power as well as a precaution against misuse. The proclamation fails at the conclusion of the two-month term if both Houses of Parliament disapprove or do not approve it. In such a scenario, the government that was before rejected reappears. The Legislative Assembly, which has been inactive for some time, is resurrected.

(ix) Acts done, directives issued, and laws passed within this two-month period do not become illegal or void since the proclamation has expired and is not retroactively nullified. The Government/Legislative Assembly or other responsible authority may, however, examine, repeal, or modify them.

(x) However, if both Houses adopt the Proclamation within two months, the Government (which was dismissed) does not resurrect after the proclamation time expires or is revoked. Similarly, if the Legislative Assembly is dissolved after receiving permission under section (3), the Legislative Assembly does not resurrect when the Proclamation time expires or when it is revoked.

(xi) Article 74(2) simply prohibits an investigation into whether any, and if so, what, advice was given to the President by the Ministers. It does not preclude the court from requesting that the Union of India divulge the evidence on which the President based his satisfaction. The information on which the advise was given does not become part of the advice.

(xii) The proclamation issued under Article 356 is not exempt from judicial scrutiny / review. If the proclamation is shown to be malafide or based on entirely irrelevant or extraneous reasons, it can be overturned by the Supreme Court or the High Court.

(xiii) Therefore, the Union of India must furnish the material on which action was taken if it is called upon. If it wants to defend the activity, it can't refuse to do so. The court will not discuss the material's accuracy or sufficiency. Its investigation is restricted to determining whether the material is relevant to the case. Even if some of the information is useless, the court is powerless to intervene as long as some information is relevant to the action made.

(xiv) If the proclamation is declared invalid, the court has the authority to reinstate the dismissed government and resuscitate and reactivate the Legislative Assembly, if it has been dissolved or suspended. In this scenario, the court has the authority to declare that activities performed, orders issued, and laws enacted during the time the Proclamation was in effect would be unaffected and considered as legal. However, such a proclamation does not stop the Government/Legislative Assembly or any other responsible authority from reviewing, repealing, or amending such acts, orders, or laws.

(xv) The Indian Constitution established a federation, although it was skewed in favour of the Centre. They are preeminent within the realm given to the States.

(xvi) One of the founding principles of the Constitution is secularism. While everyone in India has the right to freedom of religion, the state considers a person's religion, creed, or belief to be irrelevant. Everyone is equal in the eyes of the state, and everyone has the right to be treated equally. Religion has no role in concerns of state. No political party can be both political and religious at the same time. Politics and religion are incompatible. Any state government that promotes non-secular policies or conducts non- secular activities violates the constitution and exposes itself to Article 356 action.

(xvii) The Karnataka Proclamation of April 21, 1989 (Civil Appeal No. 3645 of 1989) and the Meghalaya Proclamation of October 11, 1991 (Transferred Case Nos. 5 and 7 of 1992) are both invalid.

(xviii) The proclamations of January 15, 1993 in respect of Madhya Pradesh, Rajasthan, and Himachal Pradesh in Civil Appeal Nos. 1692,1692-A to 1692-C of 1993, 4627-4630 of 1993, Transferred Case (C) No. 9 of 1993, and Transferred Case No. 8 of 1993 are not unconstitutional.

Important Precedents:

(i) State of Rajasthan v. Union of India

(ii) A.K. Roy v. Union of India

(iii) Union of India v. Jyoti Prakash Mitter

(iv) Shamsher Singh v. Union of India

(v) S. Veerabadran Chettiar v. E. V. Ramaswami Naicker