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Validity of proclamation of emergency by President under Article 356 of Constitution

S.R. Bommai v. Union of India
(1994) 3 SCC 1: AIR 1994 SC 1918
Judges: S. Ratnavel Pandian, A.M. Ahmedi, Kuldip Singh, J.S. Verma, P.B. Sawant, K. Ramaswamy, S.C. Agrawal, Yogeshwar Dayal and B.P. Jeevan Reddy, JJ.
Date of Decision: 11-3-1994

This case came before a Bench of 9 Judges under the following circumstances. On 21st April, 1989, the President issued a proclamation under article 356 dismissing the Bommai Government and dissolving the Legislative Assembly of the State of Karnataka. A writ petition was filed on 26th April, 1989 challenging the validity of Proclamation. A Special Bench of 3 Judges of the Karnataka High Court dismissed the writ petition. On 11th October, 1991, the President issued a Proclamation under article 356(1) dismissing the Government of Meghalaya and dissolving the Legislative Assembly. On 7th August, 1988 the President issued a Proclamation dismissing the Government of Nagaland and dissolving the Legislative Assembly. The validity of the Proclamation was challenged in the Gauhati High Court. The petition was heard by a Division Bench comprising of the Chief Justice. 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 Judge could hear the matter, the Union of India was granted special leave to appeal and further proceedings in the High Court were stayed. On December 15, 1992, the President issued a proclamation under article 356 dismissing the State Governments and dissolving the Legislative Assemblies of Rajasthan, Madhya Pradesh and Himachal Pradesh. The validity of these Proclamations was challenged by writ petitions in the appropriate High Courts. The Madhya Pradesh High Court allowed the petition, but writ petitions relating to Rajasthan and Himachal Pradesh were withdrawn to the Supreme Court.

Whether the President has unfettered powers to issue proclamation under article 356(1) of the Constitution?

Article 356 confers a power upon the President to be exercised only where he is satisfied that a situation has arisen where the Government of a State cannot be carried on in accordance with the provisions of the Constitution. But according to our Constitution the power is really that of the Union Council of Ministers with the Prime Minister at its head. The satisfaction contemplated by the article is subjective in nature.

The power granted under article 356 upon the President is a conditional power and not absolute. Existence of material which may include report of the Governor is a condition precedent for issue of the proclamation. The satisfaction must be formed on relevant material. Use of article 356 solely on the ground that ruling party in the State had faced overwhelming defeat in Lok Sabha elections was not permissible where a ministry resigns or loses majority. The Governor cannot recommend imposition of President’s rule without conducting a floor test of exploring the possibility of forming a new Government.

Though the power of dissolving of the Legislative Assembly can be said to be implicit in clause (1) of article 356, it must be held, having regard to the overall constitutional scheme that the President shall exercise it only after the Proclamation is approved by both Houses of Parliament under clause (3) and not before such approval. The President can only suspend the Legislative Assembly under sub-clause (c) of clause (1). The dissolution of Legislative Assembly should be resorted to only where it is found necessary for achieving the purposes of the Proclamation.

Clause (3) of article 356 is conceived as a check on the power of the President and also as a safeguard against abuse. In case both Houses of Parliament disapprove or do not approve the Proclamation, it lapses at the end of two-month period. In such a case Government which was dismissed revives. The Legislative Assembly which may have been kept in suspended animation get reactivated. Since the Proclamation lapses and is not retrospectively invalidated, the acts done, orders made and laws passed during the period of two months do not become illegal or void. They are, however, subject to review, repeal or modification by the Government/Legislative Assembly or other competent authority.

However, if the Proclamation approved by both the Houses within two months, the Government (which was dismissed) does not revive on the expiry of period of the proclamation or on its revocation. Similarly if the Legislative Assembly has been dissolved after the approval under clause (3), the Legislative Assembly doesn’t revive on the expiry of the period of Proclamation on its revocation.

Article 74(2) merely bars an enquiry into the question whether any, if so, what advice was given by the Council of Ministers to the President. It does not bar the Court from calling upon the Council of Ministers to disclose to the Court the material on which the President formed his satisfaction.

The Proclamation under article 356(1) is not immune from judicial review. The Supreme Court or the High Court can strike down the Proclamation if it is found to be mala fide or based on wholly irrelevant or extraneous grounds. Though the sufficiency of the material cannot be questioned but legitimacy of inference drawn from such material is open to judicial review.
If the Court strikes down the proclamation, it has the power to restore the dismissed Government to office and revive and reactivate the Legislative Assembly wherever it may have been dissolved or kept under suspension.

The dismissal of the Government in M.P. and Rajasthan was valid and imposition of the President’s rule in these States was constitutional. But the imposition of President’s rule in Nagaland in 1988, Karnataka in 1989 and Meghalaya in 1991 was unconstitutional and therefore, liable to be struck down. In these States, however no action could be taken as election had subsequently taken place and new Government had been installed and it was not possible to revive old State Assemblies.
The President’s power under article 356 is not absolute or Arbitrary. The President cannot impose President’s rule on a State at his whim, without reasonable cause.

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