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S.R. Bommai v. Union of India

Supreme Court of India · 11 March 1994 · 9 judges

A Proclamation under Article 356 is open to judicial review on the material behind it; secularism is a basic feature; the Karnataka and Meghalaya Proclamations were unconstitutional, while those for Madhya Pradesh, Rajasthan and Himachal Pradesh stood.

Facts

The cases challenged Proclamations under Article 356(1) that dismissed the governments and dissolved the Assemblies of six States. In Karnataka, after the Governor received letters from 19 legislators withdrawing support, seven of whom then complained that their signatures had been misused, he reported that S.R. Bommai had lost his majority without letting him prove it in the House; the President issued a Proclamation on 21 April 1989 and the Karnataka High Court dismissed Bommai's writ petition. Meghalaya (1991) and Nagaland (1988) involved disputed majorities and splits; in Nagaland the Guwahati High Court Bench divided on Article 74(2). After the demolition of the disputed structure at Ayodhya on 6 December 1992, Proclamations were issued for the BJP governments of Madhya Pradesh, Rajasthan and Himachal Pradesh. The Madhya Pradesh High Court quashed its Proclamation; the Union appealed and the other challenges were transferred to this Court.

Questions before the Court

  1. Is a Proclamation under Article 356(1) open to judicial review, on what grounds, and does Article 74(2) bar disclosure of the material behind it?
  2. May the Legislative Assembly be dissolved before both Houses of Parliament approve the Proclamation, and can the Court restore a dismissed Ministry and Assembly?
  3. Where a Ministry's majority is in doubt, must it be tested on the floor of the House?
  4. Is secularism a basic feature of the Constitution, and were the Proclamations for the six States valid?

What the Court held

  • Every opinion accepted that a Proclamation under Article 356(1) is subject to judicial review. Per the majority of five, the Court examines whether there was any material, whether it was relevant and whether the power was used mala fide, not its adequacy; once a prima facie case is made, the Union must show the material.
  • Article 74(2) bars inquiry only into whether, and what, advice was tendered to the President. It does not bar the Court from requiring the material on which the advice was based; any privilege under Section 123 of the Evidence Act is decided on its merits. Every opinion accepted that the material is not covered by Article 74(2).
  • Per the majority of five, the Assembly may only be kept in suspension, not dissolved, until both Houses approve the Proclamation. If the Court strikes it down, it may restore the Ministry and the Assembly and may save acts done in the meantime. K. Ramaswamy, J. held that the Court could neither revive a dissolved Assembly nor stay the Proclamation.
  • Per the majority of five, where it is doubtful whether a Ministry still commands the House, the only way to test it is on the floor of the House, not by the Governor's own assessment, save in an extraordinary situation he records. K. Ramaswamy, J. left the floor test to the Governor's judgment.
  • Secularism is a basic feature of the Constitution, and a State government that pursues unsecular policies or acts calculated to subvert secularism acts contrary to the Constitution and may face action under Article 356. Seven Judges so held; Verma, J. expressed no opinion on these matters.
  • The Karnataka and Meghalaya Proclamations were unconstitutional (Karnataka by five Judges; Meghalaya also by Verma, J.), but no relief was given because fresh elections had been held. Only Sawant and Kuldip Singh, JJ. declared the Nagaland Proclamation unconstitutional. Every opinion left the Madhya Pradesh, Rajasthan and Himachal Pradesh Proclamations standing.

Why it matters

The case settles that the President's satisfaction under Article 356 is not beyond the courts: the Union must disclose the material behind a Proclamation, which is tested for existence, relevance and mala fides, and Article 74(2) does not shield it. The majority required a Ministry's majority to be tested on the floor of the House, barred dissolution of the Assembly before Parliament approves the Proclamation, allowed restoration of a dismissed government, and held secularism to be a basic feature whose subversion by a State government can justify Article 356.

In the Court's words

Copied from the official judgment; each passage links to its page.

“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.”
Sawant, J. (for Kuldip Singh, J. and himself)Page 145 of the judgment
“Article 74(2) merely bars an enquiry into the question whether any, and if so, what advice was tendered by the ministers to the President. It does not bar the court from calling upon the Union Council of Ministers (Union of India) to disclose to the Court the material upon which the President had formed the requisite satisfaction. The material on the basis of which advice was tendered does not become part of the advice.”
B.P. Jeevan Reddy, J. (for Agrawal, J. and himself)Page 253 of the judgment
“Secondly and more importantly, whether the council of ministers has lost the confidence of the House is not a matter to be determined by the Governor or for that matter anywhere else except the floor of the House. The principle of democracy underlying our Constitution necessarily means that any such question should be decided on the floor of the House. The House is the place where the democracy is in action. It is not for the Governor to determine the said question on his own or on his own verification. This is not a matter within his subjective satisfaction. It is an objective fact capable of being established on the floor of the House.”
B.P. Jeevan Reddy, J. (for Agrawal, J. and himself)Page 227 of the judgment
“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.”
Sawant, J. (for Kuldip Singh, J. and himself)Page 146 of the judgment

Provisions interpreted

Related judgments

Case and bench

Parties
S.R. Bommai v. Union of India
Case
Civil Appeal No. 3645 of 1989, with T.C.(C) Nos. 5, 7, 8, 9 of 1993 and C.A. Nos. 193, 194, 1692, 1692A, 1692C, 4627-30 of 1993
Decided
11 March 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
Opinions
Six opinions. Sawant, J. (for Kuldip Singh, J. and himself), Jeevan Reddy, J. (for Agrawal, J. and himself) and Pandian, J. form the majority of five on the scope of review, dissolution, the floor test and Karnataka. K. Ramaswamy, J., Verma, J. (writing in the plural, without naming any Judge who joined him) and Ahmadi, J. took a narrower view of justiciability.

Questions on this case

15 questions in live Law Maker papers mention this case. A few from free papers:

  1. Question 1 · Landmark Judgments Practice Set 1

    With reference to S.R. Bommai v. Union of India (1994), consider the following statements: 1. Secularism is a part of the basic structure of the Constitution. 2. The President may dissolve the State Legislative Assembly under Article 356(1) even before the Proclamation is approved by both Houses of Parliament. 3. A Proclamation issued under Article 356(1) is open to judicial review. Which of the statements given above is/are correct?

    1. A. 1 and 2 only
    2. B. 1, 2 and 3
    3. C. 1 and 3 only
    4. D. 2 and 3 only
    Show the answer

    C. 1 and 3 only

    Bommai held that secularism is a part of the basic structure and that a Proclamation under Article 356(1) is subject to judicial review, though within a limited area. Statement 2 is wrong: the Court held that the President has no power to dissolve the Assembly until the Proclamation is approved by both Houses under Article 356(3); till then the Assembly can only be kept in suspended animation.