1994 (3) TMI 380 - SC - Indian Laws

Scope and ambit of the Presidential power under Article 356 and related provisions - Centre-State relations - Role of State Governors inviting President s Rule and the mode by which the Union Cabinet and Parliament discharged their responsibility - limitations of the judicial review of the Proclamation - principles of judicial review - Administrative Reforms Commission 1969 - Rajmannar Committee 1969 - Sarkaria Commission 1987 - Whether the provision of Article 74(2) of the Constitution permits withholding of the reasons and material forming the basis for the ministerial advice tendered to the President - test for adjudging the validity of an administrative action. A.M. AHMADI J. - HELD THAT - The marginal note of Article 356 indicates that the power conferred by that provision is exercisable in case of failure of constitutional machinery in the States . While the text of the said article does not use the same phraseology it empowers the President on his being satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution i.e. on the failure of the constitutional machinery to take action in the manner provided in sub-clauses (a) (b) and (c) and (sic of) clause (1) thereof. This action he must take on receipt of a report from the Governor of the State concerned or otherwise if he is satisfied therefrom about the failure of the constitutional machinery. The test laid down by this Court in Barium Chemicals Ltd. v. Company Law Board 1966 (5) TMI 36 - SUPREME COURT and subsequent decisions for adjudging the validity of administrative action can have no application for testing the satisfaction of the President under Article 356. It must be remembered that the power conferred by Article 356 is of an extraordinary nature to be exercised in grave emergencies and therefore the exercise of such power cannot be equated to the power exercised in administrative law field and cannot therefore be tested by the same yardstick. Several imponderables would enter consideration and govern the ultimate decision which would be based not only on events that have preceded the decision but would also depend on likely consequences to follow and therefore it would be wholly incorrect to view the exercise of the President s satisfaction on a par with the satisfaction recorded by executive officers in the exercise of administrative control. The opinion which the President would form on the basis of the Governor s report or otherwise would be based on his political judgment and it is difficult to evolve judicially manageable norms for scrutinising such political decisions. It therefore seems to me that by the very nature of things which would govern the decision-making under Article 356 it is difficult to hold that the decision of the President is justiciable. To do so would be entering the political thicket and questioning the political wisdom which the courts of law must avoid. The temptation to delve into the President s satisfaction may be great but the courts would be well advised to resist the temptation for want of judicially manageable standards. Therefore in my view the court cannot interdict the use of the constitutional power conferred on the President under Article 356 unless the same is shown to be mala fide. Before exercise of the court s jurisdiction sufficient caution must be administered and unless a strong and cogent prima facie case is made out the President i.e. the Executive must not be called upon to answer the charge. Applying the above test I am in agreement with the view that the Proclamations issued and consequential action taken against the States of Madhya Pradesh Himachal Pradesh Rajasthan and Karnataka are not justiciable while the Proclamation issued in connection with Meghalaya may be vulnerable but it is not necessary to issue any order or direction in that behalf as the issue is no more live in view of the subsequent developments that have taken place in that State after fresh elections. I am therefore in respectful agreement with the final order proposed by Verma J. and Ramaswamy J. I may also add that I agree with the view expressed by all the three learned colleagues on the concept of secularism. This also indicates the areas of agreement and disagreements with the views expressed by Sawant and Reddy JJ. SAWANT J. (on behalf of Kuldip Singh J. and himself) - HELD THAT - The conclusions therefore may be summarised as under I. 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 such material may be either the report of the Governor or other than the report. II. Article 74(2) is not a bar against the scrutiny of the material on the basis of which the President had arrived at his satisfaction. III. When the President issues Proclamation under Article 356(1) he may exercise all or any of the powers under sub-clauses (a) (b) and (c) thereof. It is for him to decide which of the said powers he will exercise and at what stage taking into consideration the exigencies of the situation. IV. Since the provisions contained in clause (3) of Article 356 are intended to be a check on the powers of the President under clause (1) thereof it will not be permissible for the President to exercise powers under sub-clauses (a) (b) and (c) of the latter clause to take irreversible actions till at least both the Houses of Parliament have approved of the Proclamation. It is for this reason that the President will not be justified in dissolving the Legislative Assembly by using the powers of the Governor under Article 174(2)(b) read with Article 356(1)(a) till at least both the Houses of Parliament approve of the Proclamation. V. If the Proclamation issued is held invalid 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. VI. In appropriate cases the court will have power by an interim injunction to restrain the holding of fresh elections to the Legislative Assembly pending the final disposal of the challenge to the validity of the Proclamation to avoid the fait accompli and the remedy of judicial review being rendered fruitless. However the court will not interdict the issuance of the Proclamation or the exercise of any other power under the Proclamation. VII. While restoring the status quo ante it will be open for the court to mould the relief suitably and declare as valid actions taken by the President till that date. It will also be open for Parliament and the Legislature of the State to validate the said actions of the President. VIII. 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. IX. The Proclamations dated April 21 1989 and October 11 1991 and the action taken by the President in removing the respective Ministries and the Legislative Assemblies of the State of Karnataka and the State of Meghalaya challenged in Civil Appeal No. 3645 of 1989 and Transfer Case Nos. 5 7 of 1992 respectively are unconstitutional. The Proclamation dated August 7 1988 in respect of State of Nagaland is also held unconstitutional. However in view of the fact that fresh elections have since taken place and the new Legislative Assemblies and Ministries have been constituted in all the three States no relief is granted consequent upon the above declarations. However it is declared that all actions which might have been taken during the period the Proclamation operated are valid. The Civil Appeal No. 3645 of 1989 and Transfer Case Nos. 5 and 7 of 1992 are allowed accordingly with no order as to costs. Civil Appeal Nos. 193-94 of 1989 are disposed of by allowing the writ petitions filed in the Gauhati High Court accordingly but without costs. X. The Proclamations dated December 15 1992 and the actions taken by the President removing the Ministries and dissolving the Legislative Assemblies in the States of Madhya Pradesh Rajasthan and Himachal Pradesh pursuant to the said Proclamations are not unconstitutional. Civil Appeal Nos. 1692 1692-A-1692-C 4627-30 of 1993 are accordingly allowed and Transfer Case Nos. 8 and 9 of 1993 are dismissed with no order as to costs. Final Conclusion - We may summarise our conclusions now (1) Article 356 of the Constitution 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. Under 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. (2) The power conferred by Article 356 upon the President is a conditioned power. It is not an absolute power. The existence of material - which may comprise of or include the report(s) of the Governor - is a pre-condition. The satisfaction must be formed on relevant material. The recommendations of the Sarkaria Commission with respect to the exercise of power under Article 356 do merit serious consideration at the hands of all concerned. (3) 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. Until such approval the President can only suspend the Legislative Assembly by suspending the provisions of Constitution relating to the Legislative Assembly under sub-clause (c) of clause (1). The dissolution of Legislative Assembly is not a matter of course. It should be resorted to only where it is found necessary for achieving the purposes of the Proclamation. (4) The Proclamation under clause (1) can be issued only where the situation contemplated by the clause arises. In such a situation the Government has to go. There is no room for holding that the President can take over some of the functions and powers of the State Government while keeping the State Government in office. There cannot be two Governments in one sphere. (5)(a) 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 the Proclamation lapses at the end of the two- month period. In such a case Government which was dismissed revives. The Legislative Assembly which may have been kept in suspended animation gets 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. (b) However if the Proclamation is 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 does not revive on the expiry of the period of Proclamation or on its revocation. (6) 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. Even if the material is looked into by or shown to the President it does not partake the character of advice. Article 74(2) and Section 123 of the Evidence Act cover different fields. It may happen that while defending the Proclamation the Minister or the official concerned may claim the privilege under Section 123. If and when such privilege is claimed it will be decided on its own merits in accordance with the provisions of Section 123. (7) 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. The deletion of clause (5) which was introduced by the 38th (Amendment) Act by the 44th (Amendment) Act removes the cloud on the reviewability of the action. When called upon the Union of India has to produce the material on the basis of which action was taken. It cannot refuse to do so if it seeks to defend the action. The court will not go into the correctness of the material or its adequacy. Its enquiry is limited to see whether the material was relevant to the action. Even if part of the material is irrelevant the court cannot interfere so long as there is some material which is relevant to the action taken. (8) 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. In such a case the Court has the power to declare that acts done orders passed and laws made during the period the Proclamation was in force shall remain unaffected and be treated as valid. Such declaration however shall not preclude the Government/Legislative Assembly or other competent authority to review repeal or modify such acts orders and laws. (9) The Constitution of India has created a federation but with a bias in favour of the Centre. Within the sphere allotted to the States they are supreme. (10) Secularism is one of the basic features of the Constitution. While freedom of religion is guaranteed to all persons in India from the point of view of the State the religion faith or belief of a person is immaterial. To the State all are equal and are entitled to be treated equally. In matters of State religion has no place. No political party can simultaneously be a religious party. Politics and religion cannot be mixed. Any State Government which pursues unsecular policies or unsecular course of action acts contrary to the constitutional mandate and renders itself amenable to action under Article 356. (11) The Proclamation dated April 21 1989 in respect of Karnataka (Civil Appeal No. 3645 of 1989) and the Proclamation dated October 11 1991 in respect of Meghalaya (Transferred Case Nos. 5 and 7 of 1992) are unconstitutional). But for the fact that fresh elections have since taken place in both the States - and new Legislative Assemblies and Governments have come into existence - we would have formally struck down the Proclamations and directed the revival and restoration of the respective Governments and Legislative Assemblies. The Civil Appeal No. 3645 of 1989 and Transferred Cases Nos. 5 and 7 of 1992 are allowed accordingly. Civil Appeal Nos. 193 and 194 of 1989 relating to Nagaland are disposed of in terms of the opinion expressed by us on the meaning and purport of Article 74(2) of the Constitution. (12) The Proclamations dated January 15 1993 in respect of Madhya Pradesh Rajasthan and Himachal Pradesh concerned 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 respectively are not unconstitutional. The Civil Appeals are allowed and the judgment of the High Court of Madhya Pradesh in M.P. (C) No. 237 of 1993 is set aside. The transferred cases are dismissed. Thus we find ourselves in agreement with the conclusions 1 2 and 4 to 7 in the judgment of our learned Brother Sawant J. delivered on behalf of himself and Kuldip Singh J. We are also in broad agreement with conclusion 8 in the said judgment.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Court in this judgment are:

(a) Whether the President of India has unfettered powers to issue Proclamation under Article 356(1) of the Constitution, dismiss State Governments, and dissolve State Legislative Assemblies;

(b) Whether a Proclamation issued under Article 356(1) is amenable to judicial review and, if so, what is the scope and extent of such review;

(c) The meaning and ambit of the expression "a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution" as used in Article 356(1);

(d) The constitutional nature of the Indian federal structure and the implications of Article 356 on Centre-State relations;

(e) The role and duties of the Governor in reporting to the President under Article 356;

(f) The constitutional concept of secularism in India and its relevance to the exercise of power under Article 356;

(g) The effect of parliamentary approval or disapproval of a Proclamation under Article 356(3) and the consequences of judicial invalidation of such Proclamations;

(h) The justiciability of the President's satisfaction under Article 356(1) and the impact of Article 74(2) on judicial scrutiny of ministerial advice;

(i) The validity of specific Proclamations issued in respect of the States of Karnataka, Meghalaya, Nagaland, Madhya Pradesh, Rajasthan, and Himachal Pradesh;

(j) The extent to which political parties may incorporate religious or communal elements in their programmes and the constitutional consequences thereof.

2. ISSUE-WISE DETAILED ANALYSIS

(a) Nature and Scope of Presidential Power under Article 356(1)

Article 356(1) empowers the President, on receipt of a report from the Governor or otherwise, to issue a Proclamation if satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the Constitution. The President may assume all or any functions of the Government or Governor, declare that the State Legislature's powers shall be exercisable by Parliament, and make incidental provisions, excluding powers vested in High Courts.

The Court held that this power is extraordinary and must be exercised sparingly, only when the constitutional machinery in a State has failed. The term "cannot be carried on" connotes a situation of constitutional breakdown or impasse, not mere maladministration or minor infractions. The power is a conditioned power, not absolute; the satisfaction of the President must be based on relevant material.

The Court rejected the notion that the President can assume only some functions of the Government while leaving the State Government in office, emphasizing that two Governments cannot coexist in the same sphere. The power to dissolve the Legislative Assembly is implicit in Article 356(1)(a), but its exercise is subject to approval by both Houses of Parliament under Article 356(3). Dissolution prior to such approval is invalid.

(b) Justiciability and Judicial Review of Proclamation under Article 356(1)

The Court unanimously held that Proclamations under Article 356(1) are subject to judicial review, but the scope is limited. The President's satisfaction is subjective and political in nature, often involving imponderables and fast-changing situations lacking judicially manageable standards. Therefore, courts should exercise restraint and not substitute their judgment for that of the President or the Union Council of Ministers.

Judicial review is available to examine whether:

• There was any relevant material before the President;
• The satisfaction was mala fide, based on extraneous or irrelevant grounds;
• There was no satisfaction at all.

The Court emphasized that the adequacy or correctness of the material cannot be questioned, only its relevance. The deletion of the finality clause (Article 356(5)) by the 44th Amendment reinforced the availability of judicial review.

Article 74(2), which bars inquiry into the advice given by Ministers to the President, does not prevent courts from scrutinizing the material on which such advice was based. The material is distinct from the advice itself and may be subject to judicial examination, subject to claims of privilege under the Evidence Act.

In cases where a strong prima facie case is made out, courts may issue discovery orders to compel production of material, to be examined in camera.

Interim relief, such as injunctions restraining fresh elections, may be granted to prevent frustration of judicial review, but courts will not stay the issuance or operation of the Proclamation itself.

(c) Federal Character of the Indian Constitution and Centre-State Relations

The Court analyzed the Indian Constitution's federal structure, describing it as "quasi-federal" with a strong bias towards the Centre. Unlike the United States, Indian States are not sovereign entities; Parliament has power to alter State boundaries, create or abolish States, and amend the Constitution to curtail State powers.

Executive and legislative powers are distributed, but the Union enjoys residuary powers and financial predominance. The Constitution envisages a single citizenship, an integrated judiciary, and a strong Centre to maintain national unity and integrity.

Article 355 imposes a duty on the Union to protect States against external aggression and internal disturbance and to ensure constitutional governance. Article 356 is a mechanism to enforce this duty in case of failure of constitutional machinery.

The Court emphasized that States are constitutional entities with independent existence and that the exercise of Article 356 power must preserve the federal balance and democratic principles.

(d) Role and Duties of the Governor

The Governor is a vital constitutional functionary and a link between the Union and the States. He is expected to act impartially and with constitutional responsibility, reporting to the President when the constitutional machinery in the State has failed.

The Court held that the Governor's report forms the basis of the President's satisfaction under Article 356(1). The Governor must verify facts, explore possibilities of alternative governments, and recommend President's Rule only as a last resort. The practice of bypassing a floor test to determine majority support is improper and contrary to democratic principles.

(e) Concept of Secularism under the Constitution

Secularism is a basic feature of the Indian Constitution, though the word was explicitly added to the Preamble only by the 42nd Amendment. The Court traced the historical and philosophical foundations of secularism in India, emphasizing equal treatment of all religions by the State, freedom of conscience and religion, and the prohibition of State patronage of any particular religion.

Secularism entails separation of religion from the secular activities of the State. The State maintains neutrality and ensures equality, liberty, and fraternity among all citizens regardless of religion. Political parties and Governments must abide by this constitutional mandate and not mix religion with politics.

The Court held that acts or policies of a State Government that subvert or sabotage secularism can be grounds for invoking Article 356.

(f) Effect of Parliamentary Approval or Disapproval of Proclamation

Article 356(3) requires every Proclamation to be laid before both Houses of Parliament and ceases to operate after two months unless approved by resolutions of both Houses. The Court held that:

• If Parliament disapproves or does not approve the Proclamation within two months, the Proclamation lapses and the status quo ante is restored, including revival of the dismissed Government and reactivation of the Legislative Assembly (if dissolved or suspended).
• If Parliament approves the Proclamation, the dismissal and dissolution are valid and final, and the Government and Assembly do not revive after the Proclamation's expiry or revocation.

The Court rejected the view that the Assembly and Government do not revive even if Parliament disapproves the Proclamation, holding that such a view would render the parliamentary check ineffective and violate parliamentary supremacy.

(g) Validity of Specific Proclamations

Karnataka: The Governor's report was based on letters from legislators withdrawing support, some of which were later retracted. The Governor did not verify these retractions or permit a floor test. The Court held the Governor's report and the consequent Proclamation mala fide and unconstitutional, as it bypassed the constitutional forum of the Assembly for testing majority.

Meghalaya: The Governor ignored Supreme Court orders and the votes of certain MLAs, allowed the Speaker to act contrary to the Court's directions, and recommended dismissal. The Proclamation was held prima facie invalid and mala fide, but no relief was granted as fresh elections had been held.

Nagaland: The Governor's report was based on allegations of a party split and political machinations without allowing the claimant to prove majority on the floor. The Proclamation was held unconstitutional for failure to allow floor test and for being based on unverified and partisan material.

Madhya Pradesh, Rajasthan, Himachal Pradesh: Following the demolition of the Babri Masjid, the BJP Governments in these States were dismissed and Assemblies dissolved. The Governors' reports indicated law and order breakdown, political leadership's support to banned organizations, and failure to implement bans. The Court held these Proclamations valid, as the material before the President was relevant and the situation was extraordinary, involving breach of secularism, a basic feature of the Constitution.

(h) Role of Political Parties and Religion in Politics

The Court emphasized that political parties must bear true faith and allegiance to the Constitution, including its basic features of secularism and democracy. Mixing religion with politics or espousing religious or communal platforms violates constitutional mandates and renders parties and Governments amenable to action under Article 356.

Manifestos or actions that subvert secularism, promote communal disharmony, or incite violence are unconstitutional. The Court held that the BJP's election manifestos and conduct, including the campaign for construction of Ram Temple and the events leading to the Babri Masjid demolition, constituted a breach of secularism justifying the dismissal of the Governments in Madhya Pradesh, Rajasthan, and Himachal Pradesh.

3. SIGNIFICANT HOLDINGS

"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."

"Article 74(2) is not a bar against the scrutiny of the material on the basis of which the President had arrived at his satisfaction."

"Since the provisions contained in clause (3) of Article 356 are intended to be a check on the powers of the President under clause (1) thereof, it will not be permissible for the President to exercise powers under sub-clauses (a), (b) and (c) of the latter clause, to take irreversible actions till at least both the Houses of Parliament have approved of the Proclamation."

"If the Proclamation issued is held invalid, 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."

"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."

"The satisfaction reached by the President for issuing the Proclamation under Article 356 must be tested only on those grounds of unconstitutionality, but not on the grounds that the material which enabled him to reach the satisfaction was not sufficient or inadequate."

"The President shall exercise the power to dissolve the Legislative Assembly only after the Proclamation is approved by both Houses of Parliament under clause (3) and not before. Until such approval, the President can only suspend the Legislative Assembly by suspending the provisions of Constitution relating to the Legislative Assembly."

"The Governor should normally leave the test of confidence in the Ministry to a vote in the Assembly and should not decide the question himself except in extraordinary situations where a free vote is not possible."

"The power under Article 356 is not an absolute power to be exercised at the President's whim but a conditioned power based on relevant material and satisfaction formed in good faith."

"The political party or organisation which mixes religion with politics or espouses unsecular policies violates the basic features of the Constitution and is amenable to action under Article 356."