• AUTHOR :
This article is written by Kamaldeep kaur, student at institute of law, Kurukshetra University, Kurukshetra.
• INTRODUCTION :
The case of S.R. Bommai v. Union of India, 1994 is a landmark judgement refering to Article 356 of the constitution of India. This case is helpful in explaining the Centre-state relationship and the basic structure of the constitution. In this case, Article 356 has been discussed and restrictions on the use of Article 356 have been defined which helps in resolving complex issues related to the Centre-state. The judgement of this case was a historic judgement which was delivered by a bench of nine judges.
• ORIGIN OF ARTICLE 356 :
– Article 356 was inspired by the Section 93 of the Government of India Act, 1935. This provided that if a governor feels that such a condition has arisen in the state due to which the government cannot be carried on according to the provision of the constitution, then he dissolve it and also gives functions to reduce it.
– The Governor, however, could not infringe in the powers of the high court.
– For the British, this provision allowed for a ‘controlled democracy’- while providing some autonomy to provincial government, Section 93 allowed the British authorities to exercise ultimate power when they deemed necessary.
• MISUSE OF ARTICLE 356 :
– Article 356 has been used more than 125 times though B.R. Ambedkar has assured that it would remain a dead letter.
– Article 356 and the Governor proved Ambedkar’s experience wrong. In almost all cases it was used for political deliberation rather than any authentic failure of constitutional machinery in the state.
– From the year 1971-1984, it was used 59 times with maximum being used in the period 1977-79 during which Morai Desai government ruled. It was used by the post- emergency centre government as Vendetta against Congress – ruled state govt. Later, Indira Gandhi reciprocate the favour after storming back to authority in 1980 and during the period 1980-84 it was used 17 times.
– Article 356 had been misused even by Jawaharlal Nehru tu dismiss the majority communist government of Kerala.
• FACTS OF THE CASE :
– The Janta Party is the famous and largest party in the Karnataka state legislature. The full name S.R. Bommai was Somappa Rayappa Bommai. He became the chief minister of Karnataka on 13 August, 1988 and was dismissed on 21st April, 1989 by the Governor, P. Venkatasubbaiah.
– On April 21, 1989 her administration was fired under article 356 of the constitution, and president’s ordinance was enforced which was a regularly applied strategy at the time to keep opposition parties at bay.
– The removal was asserts by the fact that the Bommai government had lost its majority due to large scale abondonment arranged at the time by several party leaders. In spite of Bommai’s presentation of a copy of the resolution passed by the Janta Dal legislative Party, Governor P. VenkataSubbaiah decline to allow him to test his majority in the assembly.
– Ramkrishna Hegde attend to as a Chief minister of Karnataka when the Janta party won the 1985 assembly election . S R. Bommai replaced the Hegde in 1988. After the merger of the Janta party with Janta Dal, new members were to put into the Bommai’s government department.
– Among other things, 19 other members of the legislative assembly , Janta Dal politician KR Molakery reclaim a Letter to governor in September, 1988 announcing their decision to stop supporting the Bommai government.
– The Bommai’s government was not given a chance to prove the majority and the centre used the article 356 to remove the state government , and the President’s authority was also enforced.
– Bommai’s government was removed because the government lost its majority as a result of unrestricted abondonment arranged by various party leaders.
– Meanwhile, in spite of the fact that the chief minister gave the governor a copy of the resolution adopted by the Janta Dal, legislature Party, Governor P. Vakantasubbhaiah decline to give Bommai the chance to test his majority in the assembly.
– Bommai went to the supreme court when the high court was incapable to provide her with any relief. By outlining constraints, the apex court put a halt to the unreasonable dismissal of state government under article 356 of the constitution.
• ISSUES RAISED IN S.R. BOMMAI V. UNION OF INDIA :
1. Whather the duty of the President’s ordinance in the six states was constitutionally valid ?
2. Were there any political and deceptive intentions behind the act of the council of ministers and the President ?
3. Whether the authority of the President under article 356 stand restricted?
4. Are any announcement under article 356 subject to judicial review?
5. What does the President’s announcement stating that a situation has arisen where the state’s legislative functions cannot be in collaboration with the constitution provisions maintain ?
• JUDGEMENT OF THE CASE :
In S.R. Bommai v. Union of India, a nine-bench of the supreme court has laid down a number of important guidelines in regard to the exercise of power under Article 356 . These guidelines reflect the majority view and with which the majority concurred. These may be follows –
1. Article 356 confers extraordinary power on the President. This power should be exercised sparingly and with great circumspection. That resort to article 356
(1) should be only as a last measure, which may be taken to restore constitutional machinery into the state.
In support, the court referred to the observations made by Dr. B.R. Ambedkar
on Article 356 that ” the proper thing we ought to expect is that such article will never be called into operation and they will remain a dead letter ” . Dr. Ambedkar had hoped that the emergency provisions would be invoked in rarest or rare cases. The court also approved the order of the Sarkaria Commission in regard to the use of Article 356. The commission inter alia recommended that before invoking article 356 (1) a warning in specific terms should be given to the erring state . All alternatives should be exhausted to contain the situation and all attempts to resolve the crisis at the state level should be made. Such alternatives may be dispensed with only in case of extreme urgency. The report of the Governor under article 356 (1) should be a speaking document and the material facts and grounds on which Article 356 was to be invoked must be made , an integral part of the proclamation issued under article 356 (1) for the purpose of judicial review.
2. Though Article 356 does not expressly speak of the dissolution of the legislative assembly of the state, however, such power is implicit in sub-clause ( a) of Article 356 ( 1). Since article 174 (2) (b) empowers the governor to dissolve the legislative assembly and that the president under Article 356 (1) (a) assumes to himself the powers and functions of both of the government and the Governor, heay dissolve the legislative assembly as part of the proclamation issued under article 356 (1) pr by a subsequent order.
3. As regards the stage at which , the power to dissolve the legislative assembly should be exercised, the court said that clause (3) of article 356 requires the proclamation to be laid before both houses of the parliament. It would therefore be consistent with the scheme and spirit of the spirit of the constitution particularly in the absence of specific provision in” the power of disolution can be exercise by the president only after both houses of parliament have a group the proclamation and not before sach approval.” The President may, however ,have the power to suspend the legislative assembly under article 356 (1)(c) before the approval of the proclamation by the parliament. The Sarkaria commission has also recommended for the amendment of the constitution in order to incorporate a provision to this effect.
4. A high court or supreme court shall have the jurisdiction to entertain a writ petition questioning the proclamation is it is satified that the writ petition raises arguable questions with respect to the validity of the proclamation. In an appropriate case and if the situation demand, the court may also stay the dissolution of legislative assembly but not in such a manner as to allow the assembly to continue beyond its original term.
5. Clause (3) of article 356 is conceived as a control on the power of the president and also a safeguard against abuse . Thus, if the two houses of parliament don’t approve the issuance of proclamation ,both the state government and state assembly can be revived.
6. If the proclamation issued is held invalid by the court, 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. The court, it was held, 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 prevent the emasculation of the constitution .
7. Secularism is a part of the basic structure of the constitution. Hence, the act of a state government which were calculated to subvert or subotage secularism as enshrined in the constitution, the court held, could lawfully be deemed to give rise to a situation in which the government of the state could not be carried on in accordance with the provision of the constitution. Reference was made to section 123 of the representation of people act, 1951 ,which prohibits commission of such acts .
8. In all cases, where the ministry loses majority support or where the support to the ministry is claimed to have been withdrawn by some legislator ,it was held that the proper course for testing the strength of the ministry was holding the test on the floor of the house, except in cases where the holding of the floor test was considered not possible for reason given in writing.
9. Article 74 (2) bars and enquiry into the questions as to whether any, and if so, what advice is tendered by the council of ministers to the president. It was held that Article 74 (2) did not bar the court from calling upon the union council of ministers to disclose to the court the material upon which the president had formed the requisite satisfaction.
10. As to the question of judicial review, it was held that there was no dispute that the proclamation issued under article 356 was subject to review by the supreme court or the high court. The examination by the would necessarily involve l 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. The materials in question has to be such as would induce a reasonable man to come to the conclusion in question.
11. The supreme court observed that in view of the pluralist democracy and federal structure that had been accepted under the constitution ,the party or parties in power at the centre and in the state might not be the same. Therefore, there is need to confine the exercise of power under article 356 strictly to the situation mentioned there in which is a condition precedent to the said exercise.
• CONCLUSION :
The case S.R. Bommai v. Union of India is referred a landmark judgement of the constitution of India . India has a combination of both types of government, federal or unitary. This case is helpful in explaining the centre state relationship and the basic structure of the constitution. The supreme court in this case laid down that the authority of the President to issue announcement is not absolute,but is subject to judicial review. It also contains guidelines regarding floor test and secularism. It also announced that secularism as a part of the basic structure of the constitution.
• REFERENCE :
2. India.com/lawyer/articles/9807a1.htm
