TMI Blog1994 (3) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... s conclusions 1, 2 and 4 to 8 with which B.P. Jeevan Reddy, J. concurs in his judgment (speaking for himself and on behalf of S.C. Agrawal, J.) but so far as the reasoning and other conclusions are concerned, I agree fully with the judgment of B.P. Jeevan Reddy, J. Yet I would like to give my brief opinion on the constitutional question of substantial importance in relation to the powers of the President to issue Proclamations under Article 356(1) of the Constitution. 3. The Indian Constitution is both a legal and social document. It provides a machinery for the governance of the country. It also contains the ideals expected by the nation. The political machinery created by the Constitution is a means to the achieving of this ideal. 4. To what extent we have been successful in achieving the constitutional ideals is a question with a wide spectrum which needs an elaborate debate. Harking back to the question involved in this case, the Framers of the Constitution met and were engaged for months together with the formidable task of drafting the Constitution on the subject of Centre State relationship that would solve all the problems pertaining thereto and frame a system which w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13 occasions the President's Rule have been imposed in Union Territories including erstwhile Union Territories which have become States under Section 51 of the Government of Union Territories Act, 1963. All total up to 95 times, of which on 23 occasions the assemblies were dissolved on the advice of the Chief Ministers/or due to their resignations. It may be recalled that on 18 occasions the assemblies suspended were subsequently revived. The above statistics does not include the Proclamations which are presently under challenge before us. We may hasten to add that the Proclamations were made on different occasions on the advice of the Council of Ministers of the Central Government belonging to different political complexions. Some of the States, dissolved valiantly fought, honorably bled and pathetically lost their legal battle. 8. Since my learned brothers have elaborately dealt with the constitutional provisions relating to the issue of the Proclamation and as I am in agreement with the reasoning given by B.P. Jeevan Reddy, J., it is not necessary for me to make further discussion on this matter except saying that I am of the firm opinion that the power under Article 356 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s situations created by both external and internal forces necessitating drastic State action to preserve the security, unity and integrity of the country. To deal with such extraordinarily difficult situations exercise of emergency powers becomes an imperative. Such emergency powers existed under the Government of India Act, 1935, vide Sections 93 and 45 of that enactment. However, when similar powers were sought to be conferred on the President of India by the Constitution, there, was a strong opposition from many members of the Constituent Assembly, vide Constituent Assembly Debates on draft Articles 277 and 277-A. Dr Ambedkar pacified the members by stating : In fact I share the sentiments expressed ... that the proper thing we ought to expect is that such articles will never be called into operation and that they would remain a dead letter. If at all, they are brought into operation, I hope the President, who is endowed with all these powers, will take proper precautions before actually Suspending the administration of the provinces. I hope the first thing he 'will do would be to issue a mere warning to a province that has erred, that things were not happening in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India Act, 1935. Federal Character of the Constitution 13. India, as the Preamble proclaims, is a Sovereign, Socialist, Secular, Democratic Republic. It promises liberty of thought, expression, belief, faith and worship, besides equality of status and opportunity. What is paramount is the unity and integrity of the nation. In order to maintain the unity and integrity of the nation our Founding Fathers appear to have leaned in favour of a strong Centre while distributing the powers and functions between the Centre and the States. This becomes obvious from even a cursory examination of the provisions of the Constitution. There was considerable argument at the Bar on the question whether our Constitution could be said to be 'Federal' in character. 14. In order to understand whether our Constitution is truly federal, it is essential to know the true concept of federalism. Dicey calls it a political contrivance for a body of States which desire Union but not unity. Federalism is, therefore, a concept which unites separate States into a Union without sacrificing their own fundamental political integrity. Separate States, therefore, desire to unite so that all the memb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ouse of Parliament except on the recommendation of the President and unless, where the proposal contained in the Bill affects the area, boundaries or name of any of the States, the Bill has been referred by the President to the Legislature of that State for expressing its views thereon. On a conjoint reading of these articles, it becomes clear that Parliament has the right to form new States, alter the areas of existing States, or the name of any existing State. Thus the Constitution permits changes in the territorial limits of the States and does not guarantee their territorial integrity. Even names can be changed. Under Article 2 it is left to Parliament to determine the terms and conditions on which it may admit any area into the Union or establish new States. In doing so, it has not to seek the concurrence of the State whose area, boundary or name is likely to be affected by the proposal. All that the proviso to Article 3 requires is that in such cases the President shall refer the Bill to the Legislatures of the States concerned likely to be affected to express their views . Once the views of the States are known, it is left to Parliament to decide on the proposed changes. Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Vllth Schedule, the residuary power has been conferred on the Union. This arrangement substantially differs from the scheme of distribution of powers in the United States of America where the residual powers are with the States. 1 (1964) 1 SCR 37 1: AIR 1963 SC 1241 2 (1971) 2 SCC 779: AIR 1972 SC 1061: (1972) 2 SCR 33 19. The Preamble of our Constitution shows that the people of India had resolved to constitute India into a Sovereign Secular Democratic Republic and promised to secure to all its citizens Justice, Liberty and Equality and to promote among them all Fraternity assuring the dignity of the individual and the unity and integrity of the Nation. In the people of India, therefore, vests the legal sovereignty while the political sovereignty is distributed between the Union and the States. Article 73 extends the executive power of the Union to matters with respect to which Parliament has power to make laws and to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement. The executive power which is made co-extensive with Parliament's power to make laws shall not, save as express ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amend the Constitution, albeit by a specified majority. The power extends to amending matters pertaining to the executive as well as legislative powers of the States if the amendments are ratified by the legislatures of not less than one-half of the States. This provision empowers Parliament to so amend the Constitution as to curtail the powers of the States. A strong Central Government may not find it difficult to secure the requisite majority as well as ratification by one half of the legislatures if one goes by past experience. These limitations taken together indicate that the Constitution of India cannot be said to be truly federal in character as understood by lawyers in the United States of America. 20. In State of Rajasthan v. Union of India3 Beg, C.J., observed in (AIR) paragraph 51 as under: (SCC p. 62 1, para 56) A conspectus of the provisions of our Constitution will indicate that, whatever appearance of a federal structure our Constitution may have, its operations are certainly, judged both by the contents of power which a number of its provisions carry with them and the use that has been made of them, more unitary than federal. Further, in (AIR) paragraph 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which are divided into two categories, the exclusive and the concurrent. Within the exclusive sphere of the powers of the State Legislature is local government. And, in all States there is a system of local government in both urban and rural areas, functioning under State enactments. Thus, we can speak of a three tier system of Government in our country in which the Central or the Union Government comes at the apex....... It would thus seem that the Indian Constitution has, in it, not only features of a pragmatic federalism which, while distributing legislative powers and indicating the spheres of governmental powers of State and Central Governments, is overlaid by strongly 'unitary' features, particularly exhibited by lodging in Parliament the residuary legislative powers, and in the Central Government the executive power of appointing certain constitutional functionaries including High Court and Supreme Court Judges and issuing appropriate directions to the State Governments and even displacing the State Legislatures and the Governments in emergency situations, vide Articles 352 to 360 of the Constitution. 21. It is common knowledge that shortly after we constitute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Centre and States are demarcated under the Constitution. It is futile to suggest that the States are independent, sovereign or autonomous units which had joined the federation under certain conditions. No such State ever existed or acceded to the Union. 23. Under our Constitution the state as such has no inherent sovereign power or autonomous power which cannot be encroached upon by the Centre. The very fact that under our Constitution, Article 3, Parliament may by law form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State, etc., militates against the view that the States are sovereign or autonomous bodies having definite independent rights of governance. In fact, as pointed out earlier in certain circumstances the Central Government can issue directions to States and in emergency conditions assume far reaching powers affecting the States as well, and the fact that the President has powers to take over the administration of States demolishes the theory of an independent or autonomous existence of a State. It must also be realised that unlike the Constitution of the Unite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus in the United States, the sovereign States enjoy their own separate existence which cannot be impaired; indestructible States having constituted an indestructible Union. In India, on the contrary, Parliament can by law form a new State, alter the size of an existing State, alter the name of an existing State, etc., and even curtail the power, both executive and legislative, by amending the Constitution. That is why the Constitution of India is differently described, more appropriately as 'quasi-federal' because it is a mixture of the federal and unitary elements, leaning- more towards the latter but then what is there in a name, what is important to bear in mind is the thrust and implications of the various provisions of the Constitution bearing on the controversy in regard to scope and ambit of the Presidential power under Article 356 and related provisions. Secularism under the Constitution 25. India can rightly be described as the world's most heterogeneous society. It is a country with a rich heritage. Several races have converged in this sub- continent. They brought with them their own cultures, languages, religions and customs. These diversities thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be given preferential status, or unique distinction, that no one religion should be accorded special privileges in national life or international relations for that would be a violation of the basic principles of democracy and contrary to the best interests of religion and Government. This view of religious impartiality, of comprehension and forbearance, has a prophetic role to play within the national and international life. No group of citizens shall arrogate to itself rights and privileges which it denies to others. No person should suffer any form of disability or discrimination because of his religion but all alike should be free to share to the fullest degree in the common life. This is the basic principle involved in the separation of Church and State. (emphasis supplied) (Recovery of Faith, New York, Harper Brothers 1955, p. 202) 27. Immediately after we attained independence, the Constituent Assembly, aware of the danger of communalism, passed the following resolution on April 3, 1948 Whereas it is essential for the proper functioning of democracy and growth of national unity and solidarity that communalism should be eliminated from Indian life, this Assembly is of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... racy during the pre-independence era and immediately before we gave unto ourselves the Constitution. We may now very briefly notice the provisions in the Constitution. 29. Notwithstanding the fact that the words 'Socialist' and 'Secular' were added in the Preamble of the Constitution in 1976 by the 42nd Amendment, the concept of Secularism was very much embedded in our constitutional philosophy. The term 'Secular' has advisedly not been defined presumably because it is a very elastic term not capable of a precise definition and perhaps best left undefined. By this amendment what was implicit was made explicit. The Preamble itself spoke of liberty of thought, expression, belief, faith and worship. While granting this liberty the Preamble promised equality of status and opportunity. It also spoke of promoting fraternity, thereby assuring the dignity of the individual and the unity and integrity of the nation. While granting to its citizens liberty of belief, faith and worship, the Constitution abhorred discrimination on grounds of religion, etc., but permitted special treatment for Scheduled Castes and Tribes, vide Articles 15 and 16. Article 25 next provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecalled briefly clearly bring out the dual concept of secularism and democracy, the principles of accommodation and tolerance as advocated by Gandhiji and other national leaders. I am, therefore, in agreement with the views expressed by my learned colleagues Sawant, Ramaswamy and Reddy, JJ., that secularism is a basic feature of our Constitution. They have elaborately dealt with this aspect of the matter and I can do no better than express my concurrence but I have said these few words merely to complement their views by pointing out how this concept was understood immediately before the Constitution and till the 42nd Amendment. By the 42nd Amendment what was implicit was made explicit. 30. After the demise of Gandhiji national leaders like Pandit Nehru,Maulana Azad, Dr Ambedkar and others tried their best to see that the secular character of the nation, as bequeathed by Gandhiji, was not jeopardised. Dr Ambedkar, Chairman of the Drafting Committee, aware of the undercurrents cautioned that India was not yet a consolidated and integrated nation but had to become one. This anxiety was also reflected in his speeches in the Constituent Assembly. He was, therefore, careful while drafti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... axiomatic that no State Government can function on a programme which is destructive of the constitutional philosophy as such functioning can never be in accordance with the provisions of the Constitution. But where a State Government is functioning in accordance with the provisions of the Constitution and its ideology is consistent with the constitutional philosophy, the Central Government would not be justified in resorting to Article 356(1) to get rid of the State Government 'solely' on the ground that a different political party has come to power at the Centre with a landslide victory. Such exercise of power would be clearly mala fide. The decision of this Court in State of Rajasthan v. Union of' India3 to the extent it is inconsistent with the above discussion, does not, in my humble view, lay down the law correctly. 32. Since it was not disputed before us by the learned Attorney General as well as Mr Parasaran, the learned counsel for the Union of India, that a Proclamation issued by the President on the advice of his Council of Ministers headed by the Prime Minister, is amenable to judicial review, the controversy narrows down to the determination of the scope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erned. Part XVIII, which deals with emergency provisions provides for exercise of emergency powers under different situations. Article 352 provides that if the President is satisfied that a grave emergency exists threatening the security of India or any part thereof, whether by war or external aggression or armed rebellion, the President may make a declaration to that effect specifying the area of its operation in the Proclamation. Notwithstanding the use of the language if the President is satisfied which suggests that the decision would depend on the subjective satisfaction of the President, counsel agreed that such a decision cannot be made the subject-matter of judicial scrutiny for the obvious reason that the existence or otherwise of a grave emergency does not fall within the purview of judicial scrutiny since the Courts are ill-equipped to undertake such a delicate function. So also under Article 360 the exercise of emergency power is dependent on the satisfaction of the President that a situation has arisen whereby the financial stability or credit of India or any part thereof is threatened. The decision to issue a Proclamation containing such a declaration is also base ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Govern'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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justiciability is even narrower than that indicated in the elaborate opinions prepared by our learned brethren. The purpose of this separate note is merely to indicate the area of such difference. It is unnecessary to mention the facts and discuss the factors which must guide the exercise of power under Article 356 which have been elaborately discussed in the other opinions. Indication of these factors including the concept of secularism for proper exercise of the power does not mean necessarily that the existence of these factors is justiciable. In our view, these factors must regulate the issuance of a Proclamation under Article 356 to ensure proper exercise of the power but the judicial scrutiny thereof is available only in the limited area indicated hereafter, the remaining area being amenable to scrutiny and correction only by Parliament and the subsequent electoral verdict. 40. There is no dispute that the Proclamation issued under Article 356 is subject to judicial review. The debate is confined essentially to the scope of judicial review or the area of justiciability in that sphere. It does appear that the area of justiciability is narrow in view of the nature of that po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where attempts were made to impugn the exercise of discretionary powers by alleging abuse of the discretion itself rather than alleging nonexistence of the state of affairs on which the validity of its exercise was predicated. Quite properly, the courts were slow to read implied limitations into grants to wide discretionary powers which might have to be exercised on the basis of broad considerations of national policy.' 42. It is also useful to refer to Puhlhofer v. Hillingdon London Borough Council9 wherein Lord Brightman with whom the other Law Lords agreed, stated thus: (All ER p. 474) Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely. In our view, this principle is equally applicable in the present case to determine the extent to which alone a Proclamation issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subject only to political scrutiny and correction for whatever its value in the existing political scenario. This appears to be the constitutional scheme. 47. The test for adjudging the validity of an administrative action and the grounds of its invalidity indicated in Barium Chemicals Ltd. v. Company Law Board and other cases of that category have no application for testing and invalidating a Proclamation issued under Article 356. The test applicable has been indicated above and the grounds of invalidity are those mentioned in State of Rajasthan v. Union of India3. 48. Article 74(2) is no bar to production of the materials on which the ministerial advice is based, for ascertaining whether the case falls within the justiciable area and acting on it when the controversy, is found justiciable, 6 1966 Supp SCR 311: AIR 1967 SC 295: (1966) 36 Comp Cas 3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1 but that is subject to the claim of privilege under Section 123 of the Evidence Act, 1872. This is considered at length in the opinion of Sawant, J. We, therefore, regret our inability to concur with the different view on this point taken in State of Rajasthan v. Union of India3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aterial.' 3 (1977) 3 SCC 592 : AIR 1977 SC 1361: (1978) 1 SCR 1 10 1992 Supp (2) SCC 651 11 (1992) 4 SCC 506 SCR 413 : AIR 1965 SC 745 Later at p. 41 1, Wade has said that 'in accordance with constitutional principle, parliamentary approval does not affect the normal operation of judicial review'. At p. 870 while discussing 'Judicial Review', Wade indicates the position thus: 'As these cases show, judicial review is in no way inhibited by the fact that rules or regulations have been laid before Parliament and approved, despite the ruling of the House of Lords that the test of unreasonableness should not then operate in its normal way. The Court of Appeal has emphasised that in the case of subordinate legislation such as an Order in Council approved in draft by both Houses, the courts would without doubt be competent to consider whether or not the order was properly made in the sense of being intra vires .' 74. The clear indication, therefore, is that mere parliamentary approval of an action or even a report by an outside authority when without such approval, the action or report is ineffective by itself, does not have the effect of excluding judic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Proclamation- (a) assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or anybody or authority in the State other than the Legislature of the State; (b) declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament; (c) make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this Constitution relating to anybody or authority in the State : Provided that nothing in this clause shall authorise the President to assume to himself any of the powers vested in or exercisable by a High Court, or to suspend in whole or in part the operation of any provision of this Constitution relating to High Courts. (2) Any such Proclamation may be revoked or varied by a subsequent Proclamation. (3) Every Proclamation issued under this article shall be laid before each House of Parliament and shall, except where it is a Proclamation revoking a pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the State of Punjab, the reference in the first proviso to this clause to 'three years' shall be construed as a reference to 'five years'. (5) Notwithstanding anything contained in clause (4), a resolution with respect to the continuance in force of a Proclamation approved under clause (3) for any period beyond the expiration of one year from the date of issue of such Proclamation shall not be passed by either House of Parliament unless- (a) a Proclamation of Emergency is in operation, in the whole of India or, as the case may be, in the whole or any part of the State, at the time of the passing of such resolution, and (b) the Election Commission certifies that the continuance in force of the Proclamation approved under clause (3) during the period specified in such resolution is necessary on account of difficulties in holding general elections to the Legislative Assembly of the State concerned: Provided that nothing in this clause shall apply to the Proclamation issued under clause (1) on the 11th day of May 1987 with respect to the State of Punjab. 55. Before we analyse the provisions of Article 356, it is necessary to bear in mind the context i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the emergency to suspend the provisions of Article 19 to enable the State (i.e. the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India) to make any law or to take any executive action which the State would be competent to make or to take but for the provisions contained in Part III of the Constitution while the Proclamation of emergency declaring that the security of India or any part of the territory thereof is threatened by way or by external aggression, is in operation. Such power, it appears, cannot be assumed by the State when the security of India is threatened by armed rebellion and the Proclamation of emergency is issued for that purpose. Article 359 gives power to the President to declare that the right to move any court for the enforcement of rights conferred by Part III of the Constitution except those conferred by Articles 20 and 2 1, shall remain suspended when a Proclamation of emergency is in operation. 56. Article 355 makes an important provision. It casts a duty on the Union to protect States against ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it, and also to maintain the Constitution. So far as such obligation is concerned, it will be found that it is not our Constitution alone which is going to create this duty and this obligation. Similar clauses appear in the American Constitution. They also occur in the Australian Constitution, where the constitution, in express terms, provides that it shall be the duty of the Central Government to protect the units or the States from external aggression or internal commotion. All that we propose to do is to add one more clause to the principle enunciated in the American and Australian Constitutions, namely, that it shall also be the duty of the Union to maintain the Constitution in the provinces as enacted by this law. There is nothing new in this and as I said, in view of the fact that we are endowing the provinces with plenary powers and making them sovereign within their own field, it is necessary to provide that if any invasion of the provincial field is done by the Centre it is in virtue of this obligation. It will be an act in fulfillment of the duty and the obligation and it cannot be treated, so far as the Constitution is concerned, as a wanton, arbitrary, unauthorised a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o months unless it is approved by the resolutions of both Houses of Parliament. We have thus emergency provisions contained in other articles in the same part of the Constitution. 58. The common thread running through all these articles in Part XVIII relating to emergency provisions is that the said provisions can be invoked only when there is an emergency and the emergency is of the nature described therein and not of any other kind. The Proclamation of emergency under Articles 352, 356 and 360 is further dependent on the satisfaction of the President with regard to the existence of the relevant conditions precedent. The duty cast on the Union under Article 355 also arises in the twin conditions stated therein. 59. It is in the light of these other provisions relating to the emergency that we have to construe the provisions of Article 356. The crucial expressions in Article 356(i) are if the President, on the receipt of report from the Governor of a State or otherwise is satisfied that the situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution . The conditions precedent to the issuance of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the article contains sufficient guidelines on both the scope and the limitations, of the judicial review. 61. Before we examine the scope and the limitations of the judicial review of the Proclamation issued under Article 356(1), it is necessary to deal with the contention raised by Shri Parasaran appearing for the Union of India. He contended that there is difference in the nature and scope of the power of judicial review in the administrative law and the constitutional law. While in the field of administrative law, the court's power extends to legal control of public authorities in exercise of their statutory power and therefore not only to preventing excess and abuse of power but also to irregular exercise of power, the scope of judicial review in the constitutional law extends only to preventing actions which are unconstitutional or ultra vires the Constitution. The areas where the judicial power, therefore can operate are limited and pertain to the domain where the actions of the Executive or the legislation enacted infringe the scheme of the division of power between the executive, the legislature and the judiciary or the distribution of powers between the States and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recognised in the administrative law by several members of European Economic Community may be a possible ground for judicial review for 13 (1982) 3 AlI ER 141:(1982) 1 WLR 1155 8 (1985) AC 374: (1984) 3 All ER 935 adoption in the future. It may be stated here that we have already adopted the said ground both statutorily and judicially in our labour and service jurisprudence. Lord Diplock has explained the three heads of grounds. By illegality he means that the decision-maker must understand correctly the law that regulates its decision- making power and must give effect to it, and whether he has or has not, is a justiciable question. By irrationality he means unreasonableness. A decision may be so outrageous or in defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided, could have arrived at it, and it is for the judges to decide whether a decision falls in the said category. By procedural impropriety he means not only failure to observe the basic rules of natural justice or failure to act with procedural fairness, but also failure to observe procedural rules that are expressly laid down in the legislati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion and the relationship of those involved on either side before the decision was taken . 66. In Puhlhofer v. Hillingdon London Borough Council9 Lord Brightman stated: (AC p. 518: All ER p. 474) Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely. 67. In Leech V. Dy. Governor of Parkhurst Prisonl6 Lord Oliver stated: (AC p. 583: All ER p. 512) ... the susceptibility of a decision to the supervision of the courts must depend, in the ultimate analysis, on the nature and consequences of the decision and not on the personality or individual circumstances of the person called upon to make the decision. 68. While we are on the point, it will be instructive to refer to a decision of the Supreme Court of Pakistan on the same subject, although the language of the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision is to be issued not in subjective discretion or opinion but on objective facts in the sense that the circumstances must exist to lead one to the conclusion that the relevant situation had arisen. As against this, the argument of the Attorney General and other counsel supporting the Presidential Order was that it is the subjective satisfaction of the President and it is in his discretion and opinion to dissolve the National Assembly. It was also argued on their behalf that in spite of the fact that Article 58 (2)(b) states that notwithstanding anything contained in clause (2) of Article 48 , the President may also dissolve the National Assembly in his discretion under Article 58(2) and when he does exercise his discretion to dissolve the Assembly, the validity thereof cannot be questioned on any ground whatsoever as provided for under Article 48(2). Dealing with the first argument, the learned Chief Justice Salam stated as follows: Whether it is 'subjective' or 'objective' satisfaction of the President or it is his 'discretion' or 'opinion', this much is quite clear that the President cannot exercise his powers under the Constitution on wis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be believed or if called upon to explain the reason he may take the Court in confidence without disclosing the reason in public, may be for reason of security of State. After all patriotism is not confined to the officeholder for the time being. He cannot simply say like Caesar it is my will, opinion or discretion. Nor give reasons which have no nexus to the action, are bald, vague, general or such as can always be given and have been given with disastrous effects. ... Dealing with the same arguments, R.S. Sidhwa, J. stated as follows: I have no doubt that both the Governments are not compelled to disclose all the reasons they may have when dissolving the Assemblies under Articles 58(2)(b) and 112(2)(b). If they do not choose to disclose all the material, but only some, it is their pigeon, for the case will be decided on a judicial scrutiny of the limited material placed before the Court and if it happens to be totally irrelevant or extraneous, they must suffer. 15. The main question that arises in this case is when can it be said that a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 237(b) and the impugned order was ultra vires the section. Hidayatullah J., as he then was, in this connection stated that the power under Section 237(b) is discretionary power and the first requirement for its exercise is the honest formation of an opinion that an investigation is necessary and the next requirement is that there are circumstances suggesting the inferences set out in the section. An action not based on circumstances suggesting an inference of the enumerated kind will not be valid. Although the formation of opinion is subjective, the existence of circumstances relevant to the inference as the sine qua non for action, must be demonstrable. If their existence is questioned, it has to be proved at least prima facie. It is not sufficient to assert that the circumstances exist, and give no clue to what they are, because the circumstances must be such as to lead to conclusions of certain definiteness. Shelat, J. commenting on the same 6 1966 Supp SCR 31 1: AIR 1967 SC 295: (1966) 36 Comp Cas issue, stated that although the formation of opinion is purely subjective process and such an opinion cannot be challenged in a court on the ground of propriety, reasonableness or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material respect. The standard of reasonableness to which the administrative body is required to conform may range from the court's opinion of what is reasonable to the criterion of what a reasonable body might have decided; and courts will find out whether conditions precedent to the formation of the opinion have a factual basis. But the onus of establishing unreasonableness rests upon the person challenging the validity of the acts. 72. In State of Rajasthan v. Union of India3 Bhagwati, J. on behalf of Gupta, J. and himself, while dealing with the satisfaction of the President 18 (1974) 2 SCC 687: (1975) 2 SCR 93 3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1 prior to the issuance of the Proclamation under Article 356(1) stated as follows: (SCR pp. 80-83: SCC pp. 661, 662- 63, paras 149 and 150) So long as a question arises whether an authority under the Constitution has acted within the limits of its power or exceeded it, it can certainly be decided by the Court. Indeed it would be its constitutional obligation to do so. ... This Court is the ultimate interpreter of the Constitution and to this Court is assigned the delicate task of determining what is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atisfaction of the Central Government is based. ... But one thing is certain that if the satisfaction is mala fide or is based on wholly extraneous and irrelevant grounds, the court would have jurisdiction to examine it, because in that case there would be no satisfaction of the President in regard to the matter on which he is required to be satisfied. The satisfaction of the President is a condition precedent to the exercise of power under Article 356, clause (1) and if it can be shown that there is no satisfaction of the President at all, the exercise of the power would be constitutionally invalid. ... It must of course be conceded that in most cases it would be difficult, if not impossible, to challenge the exercise of power under Article 356, clause (1) even on this limited ground, because the facts and circumstances on which the satisfaction is based would not be known, but where it is possible, the existence of the satisfaction can always be challenged on the ground that it is mala fide or based on wholly extraneous and irrelevant grounds. ... This is the narrow minimal area in which the exercise of power under Article 356, clause (1) is subject to judicial review and apart f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... free from doubt or uncertainty, to convince; 5. To answer sufficiently (an objection, question); to fulfill or comply with (a request); to solve (a doubt, difficulty); 6. To answer the requirements of (a state of things, hypothesis, etc.); to accord with (conditions). Hence, it is not the personal whim, wish, view or opinion or the ipse dixit of the President dehors the material but a legitimate inference drawn from the material placed before him which is relevant for the purpose. In other words, the President has to be convinced of or has to have sufficient proof of information with regard to or has to be free from doubt or uncertainty about the state of things indicating that the situation in question has arisen. Although, therefore, the sufficiency or otherwise of the material cannot be questioned, the legitimacy of inference drawn from such material is certainly open to judicial review. 75. It has also to be remembered in this connection that the power exercised by the President under Article 356(1) is on the advice of the Council of Ministers tendered under Article 74(1) of the Constitution. The Council of Ministers under our system would always belong to one or the ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government of the State cannot be carried on in accordance with the provisions of this Constitution . Article 365 is more in the nature of a deeming provision. However, the situations other than those mentioned in Article 365 must be such where the governance of the State is not possible to be carried on in accordance with the provisions of the Constitution. In this connection, we may refer to what Dr Ambedkar had to say on the subject in the Constituent Assembly: Now I come to the remarks made by my Friend Pandit Kunzru. The first point, if I remember correctly, which was raised by him was that the power to take over the administration when the constitutional machinery fails is a new thing, which is not to be found in any constitution. I beg to differ from him and I would like to draw his attention to the article contained in the American Constitution, where the duty of the United States is definitely expressed to be to maintain the Republican form of the Constitution. When we say that the Constitution must be maintained in accordance with the provisions contained in this Constitution we practically mean what the American Constitution means, namely that the form of the constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s which may not, in some particular or the other, be strictly in accord with all the provisions of the Constitution. Should every such breach or infraction of a constitutional provision, irrespective of its significance, extent and effect, be taken to constitute a 'failure of the constitutional machinery' within the contemplation of Article 356. In our opinion, the answer to the question must be in the negative. We have already noted that by virtue of Article 355 it is the duty of the Union to ensure that the Government of every State is carried on in accordance with the provisions of the Constitution. Article 356, on the other hand, provides the remedy when there has been an actual breakdown of the constitutional machinery of the State. Any abuse or misuse of this drastic power damages the fabric of the Constitution, whereas the object of this article is to enable the Union to take remedial action consequent upon breakdown of the constitutional machinery, so that governance of the State in accordance with the provisions of the Constitution, is restored. A wide literal construction of Article 356(1), will reduce the constitutional distribution of the powers between th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resort power under Article 356. 81. The Report then goes on to discuss the various occasions on which the political crisis, internal subversion, physical breakdown and noncompliance with constitutional directions of the Union Executive may or can be said to, occur. It is not necessary here to refer to the said elaborate discussion. Suffice it to say that we are in broad agreement with the above interpretation given in the Report, of the expression the Government of the State cannot be carried on in accordance with the provisions of this Constitution , and are of the view that except in such and similar other circumstances, the provisions of Article 356 cannot be pressed into service. 82. It will be convenient at this stage itself, also to illustrate the situations which may not amount to failure of the constitutional machinery in the State inviting the Presidential power under Article 356(1) and where the use of the said power will be improper. The examples of such situations are given in the Report in paragraph 6.5.01. They are: (i) A situation of maladministration in a State where a duly constituted Ministry enjoying majority support in the Assembly, is in office. Imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution'. Hence, in such a situation, also, Article 356 cannot be properly invoked. (viii) The use of this power to sort out internal differences or intra-party problems of the ruling party would not be constitutionally correct. (ix) This power cannot be legitimately exercised on the sole ground of stringent financial exigencies of the State. (x) This power cannot be invoked, merely on the ground that there are serious allegations of corruption against the Ministry. (xi) The exercise of this power, for a purpose extraneous or irrelevant to the one for which it has been conferred by the Constitution, would be vitiated by legal mala fides. We have no hesitation in concurring broadly with the above illustrative occasions where the exercise of power under Article 356(1) would be improper and uncalled for. 83. It was contended on behalf of the Union of India that since the Proclamation under Article 356(1) would be issued by the President on the advice of the Council of Ministers given under Article 74(1) of the Constitution and since c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so provided in Article 74(1). The object of Article 74(2) was thus not to exclude any material or document from the scrutiny of the courts. This is not to say that the rule of exclusion laid down in Section 123 of the Indian Evidence Act is given a go-by. However, it only emphasises that the said rule can be invoked in appropriate cases. 86. What is further, although Article 74(2) bars judicial review so far as the advice given by the Ministers is concerned, it does not bar scrutiny of the material on the basis of which the advice is given. The courts are not interested in either the advice given by the Ministers to the President or the reasons for such advice. The courts are, however, justified in probing as to whether there was any material on the basis of which the advice was given, and whether it was relevant for such advice and the President could have acted on it. Hence when the courts undertake an enquiry into the existence of such material, the prohibition contained in Article 74(2) does not negate their right to know about the factual existence of any such material. This is not to say that the Union Government cannot raise the plea of privilege under Section 123 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an be under clause (3) of Article 356. There is no reason to make a distinction between the Proclamation so approved and a legislation enacted by Parliament. If the Proclamation is invalid, it does not stand validated merely because it is approved of by Parliament. The grounds for challenging the validity of the Proclamation may be different from those challenging the validity of a legislation. However, that does not make any difference to the vulnerability of the Proclamation on the limited grounds available. As has been stated by Prof. H.W.R. Wade in Administrative Law, 6th Edn.: There are many cases where some administrative order or regulation is required by statute to be approved by resolutions of the Houses. But this procedure in no way protects the order or regulation from being condemned by the court, under the doctrine of ultra vires, if it is not strictly in accordance with the Act. Whether the challenge is made before or after the Houses have given their approval is immaterial. (p. 29) parliamentary approval does not affect the normal operation of judicial review. (p. 411) As these cases show, judicial review is in no way inhibited by the fact that rules or regula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... faction at all. In such a case it is not the satisfaction arrived at by the President which is challenged, but the existence of the satisfaction itself. 92. It was accordingly held that in view of the finality clause, the narrow area in which the exercise of power under Article 356 was subject to judicial review included the grounds where the satisfaction is perverse or mala fide or based on wholly extraneous and irrelevant grounds and was, therefore, no satisfaction at all. 93. In A.K. Roy v. Union of India25 (SCC p. 297: SCR p. 297) the Court has observed that clause (5) has been deleted by the 44th Amendment and, therefore, any observations made in the State of Rajasthan case3 on the basis of that clause cannot any longer hold good . These observations imply that after the deletion of clause (5), the judicial review of the Proclamation issued under Article 356(1) has become wider than indicated in the State Of Rajasthan case3. 94. In Kihoto Hollohan v. Zachillhu10 the Court has observed that: (SCC p. 708, para 101) An ouster clause confines judicial review in respect of actions falling outside the jurisdiction of the authority taking such action but precludes chal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble and manageable standards. 97. We may in this connection, refer to the principles of federalism and democracy which are embedded in our Constitution. Article 1 of the Constitution states that India shall be a Union of States. Thus the States are constitutionally recognised units and not mere convenient administrative divisions. Both the Union and the States have sprung from the provisions of the Constitution. The learned author, H.M. Seervai, in his commentary Constitutional Law of India (p. 166, 3rd Edn. _ 5.36) has summed up the federal nature of our Constitution by observing that the federal principle is dominant in our Constitution and the principle of federalism has not been watered down for the following reasons:t (a) It is no objection to our Constitution being federal that the States were not independent States before they became parts of a Federation. A federal situation existed, first, when the British Parliament 26 (1971) 1 SCC 396: (1971) 3 SCR 483 27 (1985) 3 SCC 398: 1985 SCC (L S) 672: 1985 Supp 2 SCR 131 + Ed.: See in 4th Edn. at p. 301 s 5.34 adopted a federal solution in the G.I. Act, 1935, and secondly, when th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... derable extent, reduced the chances of such abuse. And by deleting the clauses which made the declaration and the continuance of emergency by the President conclusive, the 44th Amendment has provided opportunity for judicial review which, it is submitted, the courts should not lightly decline when as a matter of common knowledge, the emergency has ceased to exist. This deletion of the conclusive satisfaction of the President has been prompted not only by the abuse of the Proclamation of emergency arising out of war or external aggression, but, even more, by th e wholly unjustified Proclamation of emergency issued in 1975 to protect the personal position of the Prime Minister; (f) The power to proclaim an emergency originally on the ground of internal disturbance, but now only on the ground of armed rebellion, does not detract from the principle of federalism because such a power, as we have seen exists in indisputably federal constitutions. Deb Sadhan Roy v. State of W.B.28 has established that internal violence would ordinarily interfere with the powers of the federal Government to enforce its own laws and to take necessary executive action. Consequently, such interference c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle 4, Section 4 of the U.S. Constitution and Article 356, like Article 4, Section 4, is not inconsistent with the federal principle. As stated earlier, these provisions were meant to be the last resort, but have been gravely abused and can therefore be 28 (1972) 1 SCC 308: 1972 SCC (Cri) 45: AIR 1972 SC 1924 said to affect the working of the Constitution as a Federal Government. But the recent amendment of Article 356 by the 44th Amendment, and the submission to be made hereafter that the doctrine of the political question does not apply in India, show that the courts can now take a more active part in preventing a mala fide or improper exercise of the power to impose a President's rule, unfettered by the American doctrine of the political question; (k) The view that unimportant matters were assigned to the States cannot be sustained in face of the very important subjects assigned to the States in List 11, and the same applies to taxing powers of the States, which are made mutually exclusive of the taxing powers of the Union so that ordinarily the States have independent source of revenue of their own. The legislative entries relating to taxes in List 11 show that the sourc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Legislature and the Executive constituted by the same process as the Union, whatever the bias in favour of the Centre, it cannot be argued that merely because (and assuming it is correct) the Constitution is labeled unitary or quasi-federal or a mixture of federal and unitary structure, the President has unrestricted power of issuing Proclamation under Article 356(1). If the Presidential powers under the said provision are subject to judicial review within the limits discussed above, those limitations will have to be applied strictly while scrutinising the concerned material. 101. It must further not be forgotten that in a representive democracy in a populous country like ours when Legislatures of the States are dissolved pursuant to the power used under Article 356(1) of the Constitution and the elections are proposed to be held, it involves for the public exchequer an enormous expenditure and consequently taxes the public. The machinery and the resources of the State are diverted from other useful work. The expenses of contesting elections which even otherwise are heavy and unaffordable for common man are multiplied. Frequent elections consequent upon unjustified use of Art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis and the ethnic and cultural identities will not only be protected but promoted. It is in keeping with the said promises, that the States eventually have come to be organised broadly on linguistic, ethnic and cultural basis. The people in every State desire to fulfil their own aspirations through self-govemance within the framework of the Constitution. Hence interference with the self- governance also amounts to the betrayal of the people and unwarranted interference. The betrayal of the democratic aspirations of the people is a negation of the democratic principle which runs through our Constitution. 104. What is further and this is an equally if not more important aspect of our Constitutional law we have adopted a pluralist democracy. It implies, among other things, a multi-party system. Whatever the nature of federalism, the fact remains that as stated above, as per the provisions of the Constitution, every State is constituent political unit and has to have an exclusive Executive and Legislature elected and constituted by the same process as the Union Government. Under our political and electoral system, political parties may operate at the State and national level or ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arty in power in the State and another at the Centre. It is also not an unusual phenomenon that the same electorate may elect a majority of members of one party to the Legislative Assembly, while at the same time electing a majority of members of another party to the Lok Sabha. Moreover, the Legislative Assembly, once elected, is to continue for a specific term and mere defeat at the elections to the Lok Sabha prior to the expiration of the term without anything more would be no ground for its dissolution. The defeat would not necessarily in all cases indicate that the electorate is no longer supporting the ruling party because the issues may be different. But even if it were indicative of a definite shift in the opinion of the electorate, that by itself would be no ground for dissolution, because the Constitution contemplates that ordinarily the will of the electorate shall be expressed at the end of the term of the Legislative Assembly and a change in the electorate's will in between would not be relevant ... the defeat of the ruling party in a State at the Lok Sabha elections cannot by itself, without anything more, support the inference that the Government of the State cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... warning to a province that has erred, that things were not happening in the way in which they were intended to happen in the Constitution. If that warning fails, the second thing for him to do will be to order an election allowing the people of the province to settle matters by themselves. It is only when these two remedies fail that he would resort to this article: It is only in those circumstances he would resort to this article. I do not think we could then say that these articles were imported in vain or that the President had acted wantonly. (Constituent Assembly Debates, Vol. IX, p. 177) 107. The extract from the Report of the Sarkaria Commission which has been reproduced in paragraph 82 above will show that these hopes of Dr Ambedkar and other Hon'ble Members of the Constituent Assembly have not come true. 108. The further equally important question that arises in this context is whether the President when he issues Proclamation under Article 356(1), would be justified in removing the Government in power or dissolving the Legislative Assembly and thus in exercising all the powers mentioned in sub-clauses (a), (b) and (c) of clause (1) of Article 356 whatever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate and the Governor or anybody or authority in the State. The language of sub-clause (a) is very clear on the subject. It must be remembered in this connection that where there is a bicameral legislature, the upper house, i.e., the Legislative Council cannot be dissolved. Yet under sub- clause (b) of Article 356(1) its powers are exercisable by or under the authority of Parliament. The word used there is Legislature and not Legislative Assembly . Legislature includes both the lower house and the upper house, i.e., the Legislative Assembly and the Legislative Council. It has also to be noted that when the powers of the Legislature of the State are declared to be exercisable by or under the authority of Parliament under Article 356(1)(b), it is competent for Parliament under Article 357, to confer on the President the power of such legislature to make laws and to authorise the President to delegate the powers so conferred, to any other authority to be specified by him. The authority so chosen may be the Union or officers and authorities thereof. Legally, therefore, it is permissible under Article 356(1), firstly, only to suspend the political executive or anybody or authority in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer of issuing Proclamation under Article 356(1). The contention is that since under Article 355, it is the duty of the Union to ensure that the Government of every State is carried on in accordance with the provisions of the Constitution and since further the issuance of the Proclamation under Article 356(1) is admittedly a drastic step, there is a corresponding obligation on the President to resort to other measures before the step is taken under Article 356(1). This is all the more necessary considering the principles of federal and democratic polity embedded in our Constitution. In this connection, we may refer again to what Dr Ambedkar himself had to say on the subject. We have quoted the relevant extract from his speech in paragraph 77 above. He has expressed the hope there that resort to Article 356(1) would be only as a last measure and before the article is brought into operation, the President would take proper precaution. He hoped that the first thing the President would do would be to issue a mere warning. If the warning failed, he would order an election and it is only when the said two remedies fail that he would resort to the article. We must admit that we are unable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the court by suitably moulding the relief, and Parliament and the State Legislature by legislation, may validate those acts of the President which are capable of being validated. As far as Parliament is concerned, such acts will not include the removal of the Council of Ministers and the dissolution of the Legislative Assembly since there is no provision in the Constitution which gives such power to Parliament. That power is given exclusively to the Governor under Articles 164(1) and 174(2)(b) respectively. It is this power, among others, which the President is entitled to assume under Article 356(1)(a). Parliament can only approve or disapprove of the removal of the Council of Ministers and the dissolution of the Legislative Assembly under clause (3) of that article, if such action is taken by the President. The question then arises is whether the Council of Ministers and the Legislative Assembly can be restored by the Court when it declares the Proclamation invalid. There is no reason why the Council of Ministers and the Legislative Assembly should not stand restored as a consequence of the invalidation of the Proclamation, the same being the normal legal effect of the invalid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate on the expiration of a period of six months from the date of its issue, or of the further permissible period under clause (4) of Article 356. It does not, however, appear from the provisions of Article 356 or any other provision of the Constitution, that mere nonapproval of a valid Proclamation by Parliament or its revocation or cessation, will have the effect either of restoring the Council of Ministers or the Legislative Assembly. The inevitable consequence in such a situation is fresh elections and the constitution of the new Legislative Assembly and the Ministry in the State. The law made in exercise of the power of the Legislature of the State by Parliament or the President or any other authority during the period the valid Proclamation subsists before it is revoked or disapproved, or before it expires, is protected by clause (2) of Article 357. 113. It is therefore, necessary to interpret clauses (1) and (3) of Article 356 harmoniously since the provisions of clause (3) are obviously meant to be a check by Parliament (which also consist of members from the States concerned) on the powers of the President under clause (1). The check would become meaningless and rendered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expeditiousness with which the court is moved, the prima facie case with regard to the invalidity of the Proclamation made out, the steps which are contemplated to be taken pursuant to the Proclamation, etc. However, if other conditions are satisfied, it will defeat the very purpose of the judicial review if the requisite interim relief is denied. The least relief that can be granted in such circumstances is an injunction restraining the holding of fresh elections for constituting the new Legislative Assembly. There is no reason why such a relief should be denied if a precaution is taken to hear the challenge as expeditiously as possible taking into consideration the public interests involved. The possibility of a delay in the disposal of the challenge cannot be a ground for frustrating the constitutional right and defeating the constitutional provisions. It has, however, to be made clear that the interlocutory relief that may be granted on such challenge is to prevent the frustration of the constitutional remedy. It is not to prevent the constitutional authority from exercising its powers and discharging its functions. Hence it would be wholly impermissible either to interdict th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Ministry was expanded on April 15, 1989 with addition of 13 members. Within two days thereafter, i.e., on April 17, 1989, one Shri K.R. Molakery, a legislator of Janata Dal defected from the party and presented a letter to the Governor withdrawing his support to the Ministry. On the next day, he presented to the Governor 19 letters allegedly signed by 17 Janata Dal legislators, one independent but associate legislator and one legislator belonging to the Bhartiya Janata Party which was supporting the Ministry, withdrawing their support to the Ministry. On receipt of these letters, the Governor is said to have called the Secretary of the Legislature Department and got the authenticity of the signatures on the said letters verified. On April 19, 1989, the Governor sent a report to the President stating therein that there were dissensions in the Janata Party which had led to the resignation of Shri Hegde and even after the formation of the new party, viz., Janata Dal, there were dissensions and defections. In support of his case, he referred to the 19 letters received by him. He further stated that in view of the withdrawal of the support by the said legislators, the Chief Minister, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Council of Ministers challenged the validity of the Proclamation before the Karnataka High Court by a writ petition on various grounds. The petition was resisted by the Union of India, among others. A three-Judge Bench of the High Court dismissed the petition holding, among other things, that the facts stated in the Governor's report could not be held to be irrelevant and that the Governor's satisfaction that no other party was in a position to form the Government had to be accepted since his personal bona fides were not questioned and his satisfaction was based upon reasonable assessment of all the relevant facts. The court also held that recourse to floor-test was neither compulsory nor obligatory and was not a prerequisite to sending the report to the President. It was also held that the Govern's report could not be challenged on the ground of legal mala fides since the Proclamation had to be issued on the satisfaction of the Union Council of Ministers. The Court further relied upon the test laid down in the State of Rajasthan case3 and held that on the basis of the material disclosed, the satisfaction arrived at by the President could not be faulted. 3 (1977) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neither tested nor allowed to be tested and was no more than the ipse dixit of the Governor. The action of the Governor was more objectionable since as a high constitutional functionary, he was expected to conduct himself more firmly, cautiously and circumspectly. Instead, it appears that the Governor was in a hurry to dismiss the Ministry and dissolve the Assembly. The Proclamation having been based on the said report and so-called other information which is not disclosed, was therefore liable to be struck down. 119. In this connection, it is necessary to stress that in all cases where the support to the Ministry is claimed to have been withdrawn by some legislators, the proper course for testing the strength of the Ministry is holding the test on the floor of the House. That alone is the constitutionally ordained forum for seeking openly and objectively the claims and counterclaims in that behalf. The assessment of the strength of the Ministry is not a matter of private opinion of any individual, be he the Governor or the President. It is capable of being demonstrated and ascertained publicly in the House. Hence when such demonstration is possible, it is not open to bypass it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion based on unascertained material, in the circumstances, they could hardly be said to form an objective material on which the President could have acted. The Proclamation issued was, therefore, invalid. 121. We may on this subject refer to the unanimous Report of the five member Committee of Governors which recommended as follows: ... the test of confidence in the ministry should normally be left to a vote in the Assembly ... where the Governor is satisfied by whatever process or means, that the ministry no longer enjoys majority support, he should ask the Chief Minister to face the Assembly and prove his majority within the shortest possible time. If the Chief Minister shirks this primary responsibility and fails to comply, the Governor would be in duty bound to initiate steps to form an alternative ministry. A Chief Minister's refusal to test his strength on the floor of the Assembly can well be interpreted as prima facie proof of his no longer enjoying the confidence of the legislature. If then, an alternative ministr y can be formed, which, in the Governor's view, is able to command a majority in the Assembly, he must dismiss the ministry in power and instal t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued in the House and it had to be adjourned. On August 11, 1991, the Speaker issued show-cause notices to the alleged defectors, the 5 independent MLAs on a complaint filed by one of the legislators Shri Shylla. The 5 MLAs replied to the notice denying that they had joined any of the parties and contended that they had continued to be independent. On receipt of the replies, the Speaker passed an order on August 17, 1991, disqualifying the 5 MLAs on the ground that 4 of them were Ministers in the then Ministry and one of them was the Deputy Government Chief Whip. Thereafter, again on the Governor's advice, the Chief Minister Shri Lyngdoh summoned the session of the Assembly on September 9, 1991 for passing a vote of confidence in the Ministry. The Speaker however, refused to send the notices of the session to the 5 independent MLAs disqualified by him and simultaneously made arrangements to prohibit their entry into the Assembly. On September 6, 1991, the 5 MLAS, approached this Court. This Court issued interim order staying the operation of the Speaker's orders dated August 7, 1991 and August 17, 1991 in respect of four of them. It appears that one of the members did not ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ef Minister moved this Court, thereafter, against the letter of the Governor, and this Court on October 9, 1991, among other things, asked the Governor to take into consideration the orders of this Court and votes cast by the 4 independent MLAs before taking any decision on the question whether the Government had lost the motion of confidence. In spite of this, the President on October 11, 1991 issued Proclamation under Article 356(1). The Proclamation stated that the President was satisfied on the basis of the report from the Governor and other information received by him that the situation had arisen in which the Government of the State could not be carried on in accordance with the provisions of the Constitution. The Government was dismissed and the Assembly was dissolved. This Court by an order of October 12, 1991, set aside the order dated August 17, 1991 of the then Speaker. However, thereafter, both the Houses of Parliament met and approved the Proclamation issued by the President. 123. The unflattering episode shows in unmistakable terms the Governor's unnecessary anxiety to dismiss the Ministry and dissolve the Assembly and also his failure as a constitutional funct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arty was not true. He added that the Speaker was hasty in according recognition to the new group of the 13 members and commented that horse-trading was going on in the State. He made a special reference to the insurgency in Nagaland and also stated that some of the members of the Assembly were having contacts with the insurgents. He expressed the apprehension that if the affairs were allowed to continue as they were, it would affect the stability of the State. In the meanwhile, the Chief Minister submitted his resignation to the Governor and recommended the imposition of the President's rule. The President thereafter, issued the impugned Proclamation and dismissed the Government and dissolved the Assembly. Shri Vamuzo, the leader of the new group challenged the validity of the Proclamation in the Gauhati High Court. The petition was heard by a Division Bench comprising the Chief Justice and Hansaria, J. 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 learned Judge could hear the matter, the Union of India moved this Court for grant of special leave which was granted and the proceedings in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eafter, on the same day the President issued Proclamation under Article 356(1) and dissolved the Legislative Assembly of the State. The said Proclamation is not challenged. Hence we are not concerned in these proceedings with its validity. 127. As a result of the demolition of the structure which was admittedly a mosque standing at the site for about 400 years, there were violent reactions in this country as well as in the neighbouring countries where some temples were destroyed. This in turn created further reactions in this country resulting in violence and destruction of the property. The Union Government tried to cope up with the situation by taking several steps including a ban on several organisations including Rashtriya Swayamsevak Sangh (RSS), Vishva Hindu Parishad (VHP) and Bajrang Dal which had along with BJP given a call for kar sevaks to march towards Ayodhya on December 6, 1992. The ban order was issued on December 10, 1992 under the Unlawful Activities (Prevention) Act, 1967. The dismissal of the State Governments and the State Legislative Assemblies in Madhya Pradesh, Rajasthan and Himachal Pradesh were admittedly a consequence of these developments and were effec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e State Administration, the situation demanded immediate issuance of the Proclamation. Hence the Proclamation. HIMACHAL PRADESH T. C. No. 8 of 1993 129. The Proclamation issued by the President succeeded the report of the Governor of Himachal Pradesh which was sent to him on December 15, 1992. In his report the Governor had stated, among other things, that the Chief Minister and his Cabinet had instigated kar sevaks from Himachal Pradesh to participate in the kar seva on December 6, 1992 at Ayodhya. Not only that, but some of the Ministers had expressed their desire publicly to participate in kar seva if the party high-command permitted them to do so. As a result, a number of kar sevaks including some BJP MLAs participated in the kar seva at Ayodhya. A member of the Legislative Assembly belonging to the ruling BJP had also openly stated that he had participated in the demolition of the Babri Masjid. The Governor then added that Chief Minister, Shri Shanta Kumar had met him on December 13, 1992, i.e., two days before he sent the letter to the President, and had informed him that he desired to implement the ban orders imposed by the Government of India on RSS, VHP and three ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pradesh which were pending in the respective High Courts, stood transferred to this Court. 132. It is contended that the imposition of the President's rule in the States of Madhya Pradesh, Rajasthan and Himachal Pradesh was mala fide, based on no satisfaction and was purely a political act. Mere fact that communal disturbances and/or instances of arson and looting took place is no ground for imposing the President's rule. Indeed, such incidents took place in several Congress (I)- ruled States as well, as in particular, in the State of Maharashtra on a much larger scale and yet no action was taken to displace those Government whereas action was taken only against BJP Governments. It is pointed out that so far as Himachal Pradesh is concerned, here were no communal disturbances at all. There was no law and order problem worth the name. Even the Governor's report did not speak of any such incidents. The Governments of Madhya Pradesh, Rajasthan and Himachal Pradesh, it is argued, cannot be held responsible for what happened at Ayodhya on December 6, 1992. For that incident, the Government of Uttar Pradesh had resigned owning responsibility therefor. It also pointed out t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nied that there was no law and order situation in the State. The Governor's reports are based upon relevant material and are made bona fide, and after due verification. 135. In the counter-affidavit filed in the writ petition (TC No. 8 of 1993) relating to Himachal Pradesh, it is stated that the events of December 6, 1992 were not the handiwork of few persons. It is the public attitude and statements of various groups and political parties including BJP which led to the destruction of the structure in question and caused great damage to the very secular fabric of the country and created communal discord and disharmony all over the country including Himachal Pradesh. It is stated that the repercussions of the event cannot be judged by comparing the number of persons killed in different States. It is asserted that the Council of Ministers and the President had a wealth of material available to them in the present case which are relevant to the satisfaction formed under Article 356. They were also aware of the serious damage to communal amity and harmony which has been caused in the State of Madhya Pradesh, among others. They were extremely concerned with repercussions w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngle goal of all the leaders of BJP, their Ministers, legislators and all cadres. For this purpose, they had been repeatedly collecting kar sevaks from all comers at Ayodhya from time to time. In the days immediately preceding December 6, 1992, their leaders had been inciting and exhorting their followers to demolish the Babri Masjid and to build a temple there. The Ministers in Madhya Pradesh, Himachal Pradesh and Rajasthan had taken active part in organising and sending kar sevaks to Ayodhya. When the kar sevaks returned from Ayodhya after demolishing the Masjid, they were welcomed as heroes by those very persons. Many of the Ministers and Chief Ministers were members of RSS and were protesting against the ban on it. They could not, therefore, be trusted to enforce the ban, notwithstanding the protestations to the contrary by some of them. The counsel relied for the purpose upon the following facts to support their contentions : 138. In May/June 1991, mid-term poll was held to Lok Sabha. The manifesto issued by the BJP on the eve of May/June 1991 mid-term poll states that the BJP seeks the restoration of Ram Janambhoomi in Ayodhya only by way of a symbolic righting of hist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... envisaged location of the sanctum sanctorum of the temple at the very site of the disputed structure. The Union Government was concerned about the safety of the structure. But at the meeting of the National Integration Council held on November 2, 1991, the Chief Minister of Uttar Pradesh, Shri Kalyan Singh, undertook to protect the structure and assured everybody there that it is the responsibility of the State Government to protect the disputed structure and that no one would be allowed to go there. He also undertook that all the orders of the court will be faithfully implemented. In July 1992, a large number of kar sevaks gathered on the acquired land and proposed to start the construction. The situation was averted and kar seva was called off on July 26, 1992. The BJP decided to re-enact the Rath Yatra by Shri L.K. Advani and Shri M.M. Joshi on the pattern of 1990 Rath Yatra with the objective of mobilising people and kar sevaks for the construction of Sri Ram Temple. Shri Advani said that they have now plunged into the temple movement in full strength. The leaders of the BJP were acting in concert with VHP, RSS and allied organisations. The Rath Yatras started on December 1, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services of the said forces, the Chief Minister of Uttar Pradesh had been protesting to the Central Government about the camping of the said forces at Ayodhya. In his letter dated December 1, 1992 addressed to the Prime Minister, Shri Kalyan Singh recorded his protest about the continued presence of the said forces at Ayodhya, termed it as unauthorised and illegal on the ground that they were stationed there without the consent and against the wishes of the State Government. On December 6, 1992, while the crowd of kar sevaks was being addressed by leaders of the BJP, VHP, etc., roughly 150 persons in a sudden move broke through the cordon on the terrace, regrouped and started pelting stones at the police personnel. A large crowd broke into the disputed structure. The mob swelled enormously within a short time and started demolishing the structure. The local police stood by as mute spectators since they were under orders of the Chief Minister not to use force against the kar sevaks. The central forces were equally helpless since they were not allowed to intervene by the local Magistrate on the spot. 139. It was also emphasised that according to the statement of the Union Hom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eudo-secularist taunts, the kar sevaks took matters into their own hands, demolished the disputed structure and constructed a makeshift temple for Lord Rama at the garbha griha. Owning responsibility for its inability to prevent the demolition, the BJP Government headed by Shri Kalyan Singh submitted its resignation. A disoriented Central Government was not content with the imposition of President's rule in Uttar Pradesh. In violation of democratic norms, the Centre dismissed the BJP Governments in Rajasthan, Madhya Pradesh and Himachal Pradesh. Further, it banned the Rashtriya Swaymsevak Sangh, Vishwa Hindu Parishad and Bajrang Dal. Worst of all, in collusion with other rootless forces the Government unleashed a vicious propaganda offensive aimed at belittling the Hindus. The kar sevaks were denigrated as fascists, lumpens and vandals, and December 6, was described as a 'national shame'. Recently, the CBI has filed charge-sheets against leaders of the BJP and the Vishwa Hindu Parishad with the purpose of projecting them as criminals. This relentless onslaught of the pseudo- secular forces against the people of India had very serious consequences. For a start, it cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akistan and Bangladesh in reprisal of the demolition at Ayodhya. It was difficult in this situation for the minorities in the four States to have any faith in tile neutrality of the four Governments. It was absolutely necessary to recreate a feeling of security among them. They required to be assured of the safety and security of their person and property. This was not possible with the BJP Governments in power. 142. It was also stressed that the Chief Ministers of Himachal Pradesh and Madhya Pradesh were the members of the banned RSS. In such circumstances, the respective Governors were rightly of the view that the said Chief Ministers could not be expected to, or relied upon to implement the ban sincerely. Hence it could not be said to be an unfounded opinion. Allowing a party which had consciously and actively brought about such a situation to continue in office in these circumstances would not have helped in restoring the faith of people in general and of the minorities in particular. It is no answer to say that disturbance took place on a much larger scale in certain States ruled by Congress (1) parties and that no action was taken against those Governments. 143. In repl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies which were formed on the said political plank in the aftermath of the destruction of the mosque by itself could not further have led to the feelings of insecurity in the minds of the Muslims when the State Governments of Rajasthan and Madhya Pradesh could not be said to be remiss in taking all necessary actions to prevent riots and violence and when there was no incident of violence or destruction in Himachal Pradesh. As against this, the sum and substance of the contentions on behalf of the Union of India and others supporting the Proclamations in these States was that the Ministries heading the Administration in these States could not be trusted to adhere to secularism when they had admittedly come to power on the political plank of constructing Sri Ram Mandir on the site of the mosque by relocating the mosque elsewhere which meant by destroying it and then reconstructing it at other place. This was particularly so, when by its actual deed on December 6, 1992, the party in question demonstrated what they meant by their said political manifesto. It was facile thereafter to contend that the party only wanted to follow the constitutional means to pursue the goal of constructing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he State to endeavour to secure to its citizens a uniform civil code. Article 51-A casts a duty on every citizen of India, among others, (a) to abide by the Constitution and respect its ideals and institutions, (b) to promote harmony and the spirit of common brotherhood, among all the people of India, transcending, among others, religious and sectional diversities, (c) to value and preserve the rich heritage of our composite culture, (d) to develop scientific temper, humanism and the spirit of inquiry and reform; and (e) to safeguard public property and to abjure violence. 146. These provisions by implication prohibit the establishment of a theocratic State and prevent the State either identifying itself with or favouring any particular religion or religious sect or denomination. The State is enjoined to accord equal treatment to all religions and religious sects and denominations. 147. As has been explained by Shri M.C. Setalvad (Patel Memorial Lectures-- 1965 on Secularism)- Secularism often denotes the way of life and conduct guided by materialistic considerations devoid of religion. The basis of this ideology is that material means alone can advance mankind and tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he population continued to be the citizens of independent India. There are other important minority groups of citizens. In the circumstances, a secular Constitution for independent India under which all religions could enjoy equal freedom and all citizens equal right and which could weld together into one nation, the different religious communities, become inevitable. Thereafter, the learned jurist has gone on to point out that our Constitution undoubtedly lacks a complete separation between the church and the State as in the United States and at the same time we have no established church as in Great Britain or some other countries. In our country, all religions are placed on the basis of equality and it would, therefore, seem that it is erroneous to describe our country as a secular State. He quoted Dr Radhakrishnan who said that the religious impartiality of the Indian State is not to be confused with secularism or atheism . He also pointed out that the proceedings of the Constituent Assembly show that two attempts made to introduce the word 'secular' in the Constitution had failed. ... At the same time, he asserted that....... nevertheless, it could not be said t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of or appeal to religious symbols. Subsection (3-A) of the same section prohibits the promotion or attempt to promote feelings of enmity and hatred between different classes of the citizens of India on the grounds of religion, race, caste, community or language by a candidate or his agent or any other person with the consent of the candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate. A breach of the provisions of the said sub-sections (3) and (3-A) are deemed to be corrupt practices within the meaning of the said section. 149. Mr. Ram Jethmalani contented that what was prohibited by Section 123(3) was not an appeal to religion as such but an appeal to religion of the candidate and seeking vote in the name of the said religion. According to him, it did not prohibit the candidate from seeking vote in the name of a religion to which the candidate did not belong. With respect, we are unable to accept this content ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss of lives and destruction of property. 151. As stated above, religious tolerance and equal treatment of all religious groups and protection of their life and property and of the places of their worship are an essential part of secularism enshrined in our Constitution. We have accepted the said goal not only because it is our historical legacy and a need of our national unity and integrity but also as a creed of universal brotherhood and humanism. It is our cardinal faith. Any profession and action which go counter to the aforesaid creed are a prima facie proof of the conduct in defiance of the provisions of our Constitution. If therefore, the President had acted on the aforesaid credentials of the Ministries in these States which had unforeseen and imponderable cascading consequences, it can hardly be argued that there was no material before him to come to the conclusion that the Governments in the three States could not be carried on in accordance with the provisions of the Constitution. The consequences of such professions and acts which are evidently against the provisions of the Constitution cannot be measured only by what happens in praesenti. A reasonable prognosis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the issuance of the Proclamation under Article 356 of the Constitution dismissing the State Government and dissolving the State Legislatures and to bring the administration of the State under his rule. If he so acts, the scope and width of the exercise of the power and parameters of judicial review, by this Court, as sentinel on the qui vive, under Article 32 or Article 136 or High Court under Article 226 to consider the satisfaction, reached by the President under Article 356; when the actions of one State Government found seismic vibrations in other States governed by the same political party, (in the language of S/Shri Parasaran and P.P. Rao, learned Senior Counsel, 'common thread rule') are also liable to be brought under the President Rule need to be critically examined arid decided for successful working of the democratic institutions set up by the suprema lex. Though the need to decide these questions practically became academic due to conducting elections to the State Assemblies and the new Legislative Assemblies were constituted in the States of U.P., Rajasthan, Madhya Pradesh and Himachal Pradesh, all the counsel requested us to decide the questions regardles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. One of the programmes of the BJP was to construct a temple for Lord Sri Rama at his birthplace Ayodhya. That was made an issue in its manifesto for the elections to the legislative assemblies. On December 6, 1992 Ram Janmabhoomi-Babri Masjid structure (there is a dispute that after destroying Lord Sri Rama temple Babur, the Moghul invader, built Babri Masjid at the birthplace of Lord Sri Rama. It is an acutely disputed question as to its correctness.) However Ram Janmabhoomi-Babri Masjid structure was demolished by the kar sevaks gathered at Ayodhya, as a result of sustained momentum generated by BJP, Vishwa Hindu Parishad for short VHP, Rashtriya Swayamsevak Sangh, for short RSS, Bajrang Dal for short BD, Shiv Sena for short SS and other organisations. Preceding thereto when the dispute was brought to this Court, the Government of India was made to act on behalf of the Supreme Court and from time to time directions were issued to the State Government which gave an assurance of full protection to Sri Ram Janmabhoomi-Babri Masjid structure. On its demolition though the Government of Uttar Pradesh resigned, the President of India by Proclamation issued under Article 356 dissolved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ederalism and visits with great political consequences. Therefore, court should exercise the power of judicial review and interdict and restrict wide scope of power under Article 356. The scope of judicial review would be on the same or similar grounds on which the executive action of the State is challengeable under constitutional or administrative law principles evolved by this Court, namely, non-compliance with the requirements of natural justice, irrational or arbitrary, perverse, irrelevant to the purpose or extraneous grounds weighed with the President, misdirection in law or mala fide or colourable exercise of power, on all or some of the principles. The petitioner has to satisfy the Court only prima facie that the Proclamation is vitiated by any one or some of the above grounds and burden then shifts on the Council of Ministers to satisfy the Court of the legality and validity of the Presidential Proclamation issued under Article 356. The prohibition of Article 74(2) has to be understood and interpreted in that background. The legal immunity under Article 74(2) must be distinguished from the actions done by the President in discharge of his administrative functions under Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not being carried on . The significance of the keyword gets accentuation from the marginal note of the article failure of the constitutional machinery and the legislative history of Sections 45 and 93 of the Government of India Act, 1935 must be kept in view for proper construction of Article 356. According to the learned counsel, Article 356 gives an indication that extreme step of Proclamation under Article 356 could be invoked sparingly only when all the alternatives are exhausted. Secularism part of the preamble is not a part of the Constitution and religion is a fundamental right to every citizen who composes of a political party. The election law prohibits election prospects on religious grounds if the other candidate's religion is attacked. It cannot be tested on vague secularism nor be buttressed into religious right in particular to a political party. There is no pleading founded by factual base in these cases that BJP had used Hindutva as a ground, or criticised lslamic faith. It used in its manifesto the need for construction of Sri Ram Temple at his birthplace by demolishing Babri Masjid with most respectful and dignified language. Even otherwise Sections 29-A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ested in or exercisable by a High Court or to suspend in whole or in part the operation of any provisions of the Constitution relating to High Courts. 161. Clause (2) of Article 356 controls the President's exercise of power, if the Proclamation is not revoked or varied by a subsequent Proclamation, in other words, the President, through the Council of Ministers has been given full play to reconsider the question and may revoke it before Parliament's approval is sought. It shall remain in operation for a period of two months unless it is either revoked by another Proclamation or approved by Parliament. Clause (3) guarantees built-in check and control on the exercise of the power. It postulates that every Proclamation issued under clause (1) shall be laid before each House of Parliament and shall, except where it is a Proclamation revoking a previous Proclamation, cease to operate at the expiration of two months unless before the expiration of that period it has been approved by a resolution of both Houses of Parliament. In other words, the duration of the operation of the Proclamation issued by the President was limited only for a period of two months from the date of is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date on which the House of People first sits after the reconstitution unless before the expiration of the said period of 30 days a resolution approving the continuance in force of the Proclamation have also been passed by the House of People. The third proviso is not material for the purpose of this case. Hence omitted. Under clause (5) for continuance of the Proclamation beyond one year and not more than three years, two conditions are necessary i.e. (i) existence of emergency issued under Article 352 in the whole of India or whole or part of the State at the time of passing the resolution and (ii) the Certificate of the Election Commissioner of his inability to hold elections to the Assembly of that State. Article 357 provides the consequential exercise of legislative power by Parliament or delegation thereof to the President to exercise them under Article 123, etc. FEDERALISM AND ITS EFFECT By ACTS DONE UNDER ARTICLE 356 165. The polyglot Indian society of wide geographical dimensions habiting by social milieu, ethnic variety or cultural diversity, linguistic multiplicity, hierarchical caste structure among Hindus, religious pluralism, majority of rural population and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and so they deliberately adopted the provisions in Article 3 with a view to meet the possibility of the redistribution of the said territories after the integration of the Indian States. In fact it is well-known that as a result of the States Reorganisation Act, 1956 (Act XXXVII of 1956), in the place 31 (1960) 3 SCR 250 : AIR 1960 SC 845 of the original 27 States and one Area which were mentioned in Part D in the First Schedule to the Constitution, there are now only 14 States and 6 other Areas which constitute the Union Territory mentioned in the First Schedule. The changes thus made clearly illustrate the working of the peculiar and striking feature of the Indian Constitution. The same was reiterated in State of W.B. v. Union of India' and State of Karnataka v. Union of India32. 167. Union and States Relations under the Constitution (Tagore Law Lectures) by M.C. Setalvad at p. IO stated that ... one notable departure from the accepted ideas underlying a federation when the power in the Central Government to redraw the boundaries of States or even to destroy them. 168. The Constitution decentralises the governance of the States by a four tier administration i.e. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whatever has been the power distributed, legislative and executive, be exercised by the respective units making each a sovereign in its sphere and the rule of law requires that there should be a responsible Government. Thus the State is a federal status. The State qua the Centre has quasi-federal unit. In the language of Prof. K.C. Wheare in his Federal Government, 1963 Edn. at page 12 to ascertain the federal character, the important point is, whether the powers of the Government are divided between coordinate independent authorities or not , and at page 33 he stated that the systems of Government embody predominantly on division of powers between Centre and regional authority each of which in its own sphere is coordinating with the other independent as of them, and if so is that Government federal? 170. Salmond in his Jurisprudence, 9th Edn. brought out the distinction between unitary type of Government and federal form of Government. According to him a unitary or a simple State is one which is not made up of territorial divisions which are States themselves. A composite State on the other hand is one which is itself an aggregate or group of constituent States. Such composi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution also made the Union to depend on the States to enforce the Union law within States concerned. The composition of Rajya Sabha as laid down by Article 80 makes the Legislature of the State to play its part including the one for ratifying the constitutional amendments made by Article 368. The election of the President through the elected representatives of the State Legislatures under Article 54 makes the legislatures of federal units an electoral college. The legislature of the State has exclusive power to make laws for such State or any part thereto with respect to any of the matters enumerated in List II of the VIIth Schedule by operation of Article 246(3) of the Constitution. 173. The Union of India by operation of Articles 340 and 245, subject to the provisions of the Constitution, has power to make laws for the whole or any part of the territory of India and the said law does not eclipse, nor become invalid on the ground of extraterritorial operation. In the national interest it has power to make law in respect of entries mentioned in List II, State List, in the penal field, as indicated in Article 249. With the consent of the State, it has power to make law und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rendering social, economic and political justice, equality of status and opportunity; dignity of person to all its citizens transcending regional, religious, sectional or linguistic barriers as complimentary units in working the Constitution without confrontation. Institutional mechanism aimed to avoid friction to promote harmony, to set constitutional culture on firm foothold for successful functioning of the democratic institutions, to bring about matching political culture adjustment and distribution of the roles in the operational mechanism are necessary for national integration and transformation of stagnant social order into vibrant egalitarian social order with change and continuity economically, socially and culturally. In the State of W.B. v. Union of India', this Court laid emphasis that the basis of distribution of powers between Union and the States is that only those powers and authorities which are concerned with the regulation of local problems are vested in the State and those which tend to maintain the economic nature and commerce, unity of the nation are left with the Union. In Shamsher Singh v. Union of India 22 this Court held that parliamentary system of q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an umpire's role. When a Gandhian economist member of the Constituent Assembly wrote a letter to Gandhiji of his plea for abolition of the Office of the Governor, Gandhiji wrote to him for its retention, thus: The Governor had been given a very useful and necessary place in the scheme of the team. He would be an arbiter when there was a constitutional deadlock in the State and he would be able to play an impartial role. There would be administrative mechanism through which the constitutional crises would be resolved in the State. The Governor thus should play an important role. In his dual undivided capacity as a head of the State he should impartially assist the President. As a constitutional head of the State Government in times of constitutional crisis he should bring about sobriety. The link is apparent when we find that Article 356 would be put into operation normally based on Governor's report. He should truthfully and with high degree of constitutional responsibility, in terms of oath, inform the President that a situation has arisen in which the constitutional machinery in the State has failed and the Government of State cannot be carried on in accordance w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l and social improvement of mankind which neither affirms nor denies theistic problems of religion . Prof. Goethinysem of the Berlin University writing on secularism in the Encyclopaedia of the Social Sciences (1939 Edn.) defined it as the attempt to establish autonomous sphere of knowledge purged of supernatural, fideistic presuppositions . He described it, in its philosophical aspect, as a revolt against theological and eventually against metaphysical absolutes and universals . He pointed out that the same trend may be charted out in the attitudes towards social and political institutions , so that men in general broke away from their dependence upon the Church which was regarded as the guardian of an eternal welfare which included that in this world as well as that in the next, and, therefore, was considered entitled to primacy or supremacy over transient secular authorities. He indicated how this movement expanded in the second half of the eighteenth century, into a secularised universalism, described as Enlightenment , which conceived of man on earth as the source of all really significant and verifiable knowledge and light. It was increasingly realised that man depended f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der for all sections of the society in the supreme law of the land itself. Though the concept of secularism was not expressly engrafted while making the Constitution, its sweep, operation and visibility are apparent from fundamental rights and directive principles and their related provisions. It was made explicit by amending the preamble of the Constitution 42nd Amendment Act. The concept of secularism of which religious freedom is the foremost appears to visualise not only of the subject of God but also an understanding between man and man. Secularism in the Constitution is not anti-God and it is sometimes believed to be a stay in a free society. Matters which are purely religious are left personal to the individual and the secular part is taken charge by the State on grounds of public interest, order and general welfare. The State guarantee individual and corporate religious freedom and dealt with an individual as citizen irrespective of his faith and religious belief and does not promote any particular religion nor prefers one against another. The concept of the secular State is, therefore, essential for successful working of the democratic form of Government. There can be no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf. But the scientific and analytical spirit characterises secularism as saviour of the people from the dangers of supposed fusion of religion with political and economic activities and inspire the people. The secularism, therefore, represents faiths born out of the exercise of rational faculties. It enables people to see the imperative requirements for human progress in all aspects and cultural and social advancement and indeed for human survival itself. It also not only improves the material conditions of human life, but also liberates the human spirit from bondage of ignorance, superstition, irrationality, injustice, fraud, hypocrisy and oppressive exploitations. In other words, though the whole course of human history discloses an increasing liberation of mankind, accomplished thought, all is covered by the term secularism. Trevor Ling's writings on Buddhism spoke of it as a secular religion, which teaches eight-fold path of his mastery and virtuous conduct of ceaseless, self-critical endeavour for right belief, right aspiration, right speech, right conduct, right modes of livelihood, right efforts, right-mindedness and right scripture. Buddhism rationalises the religi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attempts to secure the good of all its citizens irrespective of their religious beliefs and practices. It is neutral or impartial in extending its benefits to citizens of all castes and creeds. Maitland had pointed out that such a state has to ensure, through its laws, that the existence or exercise of a political or civil right or the right or capacity to occupy any office or position under it or to perform any public duty connected with it does not depend upon the profession or practice of any particular religion. It was further pointed out : (SCR p. 297: SCC p. 32, para 45) Our Constitution and the laws framed thereunder leave citizens free to work out happy and harmonious relationships between their religions and the quite separable secular fields of law and politics. But, they do not permit an unjustifiable invasion of what belongs to one sphere by what appertains really to another. It is for courts to determine, in a case 33 (1976) 2 SCC 17: 1975 Supp SCR 281 of dispute, whether any sphere was or was not properly interfered with, in accordance with the Constitution, even by a purported law. Thereby this Court did not accept the wall of separation between law and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unteract the evils of social forces, maintaining internal peace and to defend the nation from external aggression. Welfare State under the Constitution is enjoined to provide means for well-being of its citizens; essential services and amenities to all its people. Morality under positive secularism is a pervasive force in favour of human freedom or secular living. Prof. Holyoake, as stated earlier, who is the father of modern secularism stated that morality should be based on regard for well-being of the mankind in the person, to the exclusion of all considerations drawn from the belief in God or a future State . Morality to him was a system of human duty commencing from man and not from God as in the case of religion. He distinguished his secularism from Christianity, the living interest of the world that is prospects of another life. Positive secularism gives birth to biological and social nature of the man as a source of morality. True religion must develop into a dynamic force for integration without which the continued existence of human race itself would become uncertain and unreal. Secularism teaches spirit of tolerance, catholicity of outlook, respect for each other's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointment to any office or post under the State and prohibits discrimination on grounds only of inter alia religion. Article 25 while reassuring to all persons freedom of conscience and the right to freely profess, practice and propagate his religion, it does not affect the operation of any existing law or preventing the State from making any law regulating or restricting any social, financial, political or other secular activity which may be associated with the religious practice. It is subject to providing a social welfare and reform or throwing open all Hindu religious institutions of public character to all classes of citizens and sections of Hindus. Article 26 equally guarantees freedom to manage religious affairs, equally subject to public order, morality and health. Article 27 reinforces the secular character of Indian democracy enjoining the State from compelling any person or making him liable to pay any tax, the proceeds of which are specifically prohibited to be appropriated from the consolidated fund for the promotion or maintaining of any particular religion or religious denomination. Taxes going into consolidated funds should be used generally for the purpose of ensur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l religious practices 34 1954 SCR 1055: AIR 1954 SC 388 35 1954 SCR 1005: AIR 1954 SC 282 as such by the State but to regulate their activities which are secular in character though. associated with religions, like management of property attached to religious institutions or endowments on secular activity which are amenable to such regulation. Matters such as offering food to the diety, etc. are essentially religious and the State does not regulate the same, leaving them to the individuals for their regulation. The caste system though formed the kernel of Hinduism, and as a matter of practice, for millenniums 1/4th of the Indian population Scheduled Castes and Scheduled Tribes were prohibited entry into religious institutions like temples, maths, etc. on grounds of untouchability; Article 17 outlawed it and declared such practice an offence. Articles 25 and 26 have thrown open all public places and all places of public worship to Hindu religious denominations or sects for worship, offering prayers or performing any religious service in the places of public worship and no discrimination should be meted out on grounds of caste or sect or religious denomination. In Kesavananda Bharati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r rights of religion. Undoubtedly, it means that no man possesses a right to dictate to another what religion he believes in; what philosophy he holds, what shall be his politics or what views he shall accept, etc. Article 25(1) protects freedom of conscience and religion of members of only of an organised system of belief and faith irrespective of particular affiliations and does not march out of concern itself as a part of the right to freedom of conscience and dignity of person and such beliefs and practices which are reasonable. The Constitution, therefore, protects only the essential and integral practices of the religion. The religious practice is subject to the control of public order, morality and health which includes economic, financial or other secular activities. Could the religious practice exercise control over members to vote or not to vote, to ignore the National Flag, National Anthem, national institutions? Freedom of conscience under Article 25 whether guarantees people of different religious faiths the right to religious procession to antagonise the people of different religious faiths or right to public worship? It is a fact of social and religious history in In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ek to control appointment or action of those who manage affairs of a State. Political party was defined as an association of individuals whose primary parliamentary purposes are to promote or accomplish elections or appointments to public offices, positions or jobs. A political party, association or Organisation which makes contributions for the purpose of influencing or attempting to influence the electoral process of any individual or political party whose name is presented for election to any State or local elective public office, whether or not such individual is elected. Politics in positively secular State is to get over their religion, in other words, in politics a political party should neither invoke religion nor be dependent on it for support or sustenance. Constitution ensures to the individual to protect religion, right to belief or propagate teachings conducive for secular living, later to be controlled by the State for betterment of human life and progress. Positive secularism concerns with such aspects of human life. The political conduct in his Political Thought by Dr Ambedkar compiled by R.K. Ksheersagar, Intellectual Public House, 1992 Edn. at page 155, stated t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution, secularism, socioeconomic and political justice, fraternity, unity and national integrity. 189. Under Section 29-A of the Representation of the People Act, 1951 for short 'R.P. Act' registration of a political party, or a group of individual an application to the Election Commission constituted under Article 324 for its registration as political party with a copy of the memorandum or rules or regulations of the association of the body signed by its Chief Executive Officer. The application shall contain a specific provision that the association or the body shall bear true faith and allegiance to the Constitution of India as by law established and its members shall be bound by socialism, secularism and democracy and would uphold the sovereignty and integrity of India. It is, therefore, a mandatory duty of every political party, body of individuals or association and its members to abide by the Constitution and the laws; they should uphold secularism, socialism and democracy, uphold sovereignty and integrity of the nation. Section 123(3) prohibits use of religion or caste in politics and declares that the promotion or attempt to promote violence and hatred bet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r democracy. 191. An appeal to the electorates on the grounds of religion offends secular democracy. In S. Veerabadran Chettiar v. E. V. Ramaswami Naicker38 (SCR at pp. 1217 1218), this Court held that the courts would be cognizant to the susceptibilities of class of persons to which the appeal to religious susceptibility is made and it is a corrupt practice. Interpreting Section 123(3-A) this Court held that: The section has been intended to respect the religious susceptibilities of persons of different religious persuasions or creeds ... very circumspect in such matters and to pay due regard to feelings and religious emotions of different classes of persons with different beliefs irrespective of the consideration whether or not they share those beliefs, or whether they are rational or otherwise...... 192. This Court in Shubnath Deogram v. Ramnarain Prasad39 held that (SCR p. 959) [I]t would appear that the pleasure of the deities is indicated through the cock taking the food that is given to it and that the deities only thereafter accept the sacrifice of the cock. Therefore, when the leaflet stated that food should be given to the cock in the shape of votes what was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt claims to belong. The section has been intended to respect the religious susceptibilities of persons of different religious persuasions or creeds. Courts have got to be very circumspect in such matters, and to pay due regard to the feelings and religious emotions of different classes of persons with different beliefs, irrespective of the consideration whether or not they share those beliefs, or whether they are rational or otherwise, in the opinion of the court. 195. In Mullapudi Venkata Krishna Rao v. Vedula Suryanarayana 4l this Court held thus : (SCC p. 508, para 10: Scale p. 172) There is no doubt in our mind that the offending poster is a religious symbol. The depiction of anyone, be it N.T. Rama Rao or any other person, in the attire of Lord Krishna blowing a 'shanku' and quoting the words from the Bhagavad Gita addressed by Lord Krishna to Arjuna that his incarnation would be born upon the earth in age after age to restore dharma is not only to a Hindu by religion but to every Indian symbolic of the Hindu religion. The use by a candidate of such a symbol coupled with the printing upon it of words derogatory of a rival political party must lead to the conclusi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... review in the field of administrative law and the constitutional law, the courts are not concerned with the merits of the decision, but with the manner in which the decision was taken or order was made. Judicial review is entirely different from an ordinary appeal. The purpose of judicial review is to ensure that the individual is given fair treatment by the authority or the tribunal to which he has been subjected to. It is no part of the duty or power of the court to substitute its opinion for that of the tribunal or authority or person constituted by law or administrative agency in deciding the matter in question. Under the thin guise of preventing the abuse of power, there is a lurking suspicion that the court itself is guilty of usurping that power. The duty of the court, therefore, is to confine itself to the question of legality, propriety or regularity of the procedure adopted by the tribunal or authority to find whether it committed an error of law or jurisdiction in reaching the decision or making the order. The judicial review is, therefore, a protection, but not a weapon. The court with an avowed endeavour to render justice, applied principles of natural justice with a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... either side before the decision was taken, existence or nonexistence of the factual foundation on which the decision was taken or the scope of the discretion of the authority or the functionary. Supervision of the court, ultimately, depends upon the analysis of the nature of the consequences of the decision and yet times upon the personality of the authority that takes decision or individual circumstances in which the person was called upon to make the decision and acted on the decision itself. 199. The scope of judicial review of the Presidential Proclamation under Article 356 was tested for the first time by this Court in State of Rajasthan v. Union of India3. In that case clause (5) inserted by the Constitution 3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1979) 1 SCR 1 (Thirty-eighth) Amendment Act, 1975 which prohibited judicial review of the Presidential Proclamation [which was later on substituted by the Constitution (Forty-fourth) Amendment Act, 1978], was called into operation. Before its substitution the constitutionality of the letter issued by the Home Minister and dissolution of the Assemblies of North Indian States were in question. The reason for the dissolution was tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... At the cost of repetition it is to reiterate that judicial review is the basic feature of the Constitution. This Court has constitutional duty and responsibility, since judicial review having been expressly entrusted to it as a constituent power, to review the acts done by the coordinate branches, the executive or the legislature under the Constitution, or under law or administrative orders within the parameters applicable to a particular impugned action. This Court has duty and responsibility to find the extent and limits of the power of the coordinate authorities and to find the law. It is the province and duty of this Court, as ultimate interpreter of the Constitution, to say what the law is. This is a delicate task assigned to the Court to determine what power Constitution has conferred on each branch of the Government, whether it is limited to and if so what are the limits and whether any action of that branch transgresses such limits. The action of the President under Article 356 is a constitutional function and the same is subject to judicial review. Shri T.R. Andhyarujina, the learned Advocate General of Maharashtra, contended that though the Presidential Proclamation is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a political thicket, yet since the Constitution entrusted that delicate task in the scheme of the Constitution itself to this Court, in an appropriate case, the court may unwrap the dressed up question, to find the validity thereof. The doctrine of political thicket is founded on the theory of separation of powers between the executive, the legislature and the judiciary. The Constitution of the United States of America, gave no express power of judicial review to the Supreme Court of USA. Therefore, the scope of political question, when came up for consideration in Baker v. Carr 42, it was held in a restricted sense, but the same was considerably watered down in later decision of that Court. Vide Gilligan v. Morgan 43 . But in deciding the political question the court must keep in forefront whether the court has judicially discoverable and manageable standards to decide the particular controversy placed before it, keeping in view that the subjective satisfaction was conferred in the widest terms to a coordinated political department, by the Constitution itself. 203. In the State of Rajasthan case 3 Chandrachud, J., as he then was, held that: (SCR p. 61: SCC p. 644, para 131) Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utive policy and expediency, courts cannot interfere with these unless and until it is shown what constitutional provision the President is going to contravene...... 204. We respectfully agree that the above approach would be the proper course to tackle the problem. Yet another question to be disposed of at this stage is the scope of Article 74(2). In the cabinet system of the Government the Council of Ministers with the Prime Minister as the head would aid and advise the President to exercise the functions under the Constitution except where the power was expressly given to the President to his individual discretion. The scope thereof was considered vis-a-vis the claim of privilege under Section 123 of the Evidence Act. At the outset we say that Section 123 of Evidence Act is available to the President to claim privilege. In R. K. Jain v. Union of India 44 in paragraph 23 at page 143 it was held that the President exercises his executive power through the Council of Ministers as per the rules of business for convenient transaction of the Government business made under Article 77(3). The Government of India (Transaction of Business) Rules, 1961 provide the procedure in that beha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter of procedure and does not affect the power under Article 142. This Court has all or every power to make any order to secure the attendance of any person, discovery or production of any document or investigation . Thereby the power of this Court to secure or direct production of any document or discovery is a constitutional power. The restrictive clause under Article 74(2) and the wider power of this Court under Article 142 need to be harmonised. 206. In R.K. Jain case44 it was held that the court is required to consider whether public interest is so strong to override the ordinary right and interest of the litigant that he shall be able to lay before a court of justice the relevant evidence in balancing the competing interest. It is the duty of the court to see hat there is a public interest and that harm shall not be done to the nation or of the public service by disclosure of the document and there is a public interest that the administration of justice shall not be frustrated by withholding the documents which must be produced, if justice is to be done. it is, therefore, the paramount right and duty of the court, not of the executive, to decide whether the document w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was tendered by the Minister. In other words, the records other than the advice tendered by the Minister to the President, if found necessary, may be required to be produced before the constitutional court. This restrictive interpretation would subserve the wider power under Article 142 given to this Court and the protection accorded by Article 74(2) maintaining equibalance. 209. Article 74(2) creates bar of enquiry and not a claim of privilege for decision in the exercise of the jurisdiction whether and, if so, what advice was tendered by the Council of Ministers to the President. The power of Article 74(2) applies only to limited cases where the matter has gone to the President for his orders on the advice of the Council of Ministers. Exercise of personal discretion calling the leader of a political party that secured majority to form the Government or the leader expressing his inability, to explore other possibilities is not liable to judicial scrutiny. Action based on the aid and advice also restricted the scope, for instance, the power of the President to grant pardon or appointing a Minister, etc. is the discretion of President. Similarly prorogation of Parliament or dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd advice of the Council of Ministers but only or otherwise i.e. on any other information under Article 356(1) his satisfaction is a subjective one that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution and issues the Proclamation required under Article 356(1) of the Constitution. When it is challenged and asked to give his reasons, he is immuned from judicial process. The Union of India will not have a say for the exercise of the satisfaction reached by the President on otherwise self- satisfaction for his issuing his Proclamation under Article 356. Then no one can satisfy the court the grounds for the exercise of the powers by the President. Therefore, we are of the considered view that the advice and, if so, what advice was tendered by the Council of Ministers for exercise of the power under Article 356(1) would be beyond the judicial enquiry under Article 74(2) of the Constitution. Nevertheless, the record on the basis of which the advice was tendered constitute the material. But, however, the material on record, the foundation for advice or a decision, does not receive total protection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should not be put to operation or be a dead letter and at best sparingly be used. In working the Constitution, Article 356 has been used 90 times so far a daunting exercise of the power. But it is settled law that in interpreting the Constitution neither motives nor bad faith nor abuse of power be presumed unless in an individual case it is assailed and arises for consideration on that premise. Section 114(e) of the Evidence Act raises statutory presumption that official acts have been regularly performed. 213. Prof. Bork in his Neutral Principles and Some First Amendment Problems 47 Ind. Law Journal, p. 1, 8, 1971 Edn. stated that the choice of fundamental values by the courts cannot be justified. When constitutional materials do not clearly specify the value to be preferred, there is no principle weighing to prefer any claimed human value to any other. The judge must stick close to the text and the history and their fair implications and not to construct new rights. The same neutral principle was preferred by Prof. Hans Linde in his Judges Critics and Realistic Traditions [82 Yale Law Journal, 227 at 254, (1972)] that the judicial responsibility begins and ends wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lic or traditional values'; or 'protection of principles' or 'evolution of morals' tell us what the courts should do or hold or describe, what they actually do. The judiciary can be seen as doing everything or nothing under these schemes. If the judiciary is meant merely to list values or principles that might be considered by political process, the judicial role is toothless. The list of values or principles that might be justiciably considered is virtually infinite. Anyone with the slightest sophistication can find some benefit, value or justiciable principles in virtually any legislation. That is how the minimal scrutiny or rational review techniques of judicial review generally have been employed. This level of review is no review at all. On the other hand one close up to the tenor of the arguments that the non-originalists can be seen as giving the judicial task of balancing the conflicting public values for Proclamation which principles triumph. Here the judiciary becomes the central societal decision- maker. The resolution of conflicts among public values is coterminous with social decision-making. It is what the legislature, the executive and even th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of the Constitution is founded normally upon the report from the Governor or any other information which the President has in possession, in other words, the Council of Ministers , the President reached a satisfaction. Normally, the report of the Governor would form basis. It is already stated that the Governor's report should contain material facts relevant to the satisfaction reached by the President. In an appropriate case where the Governor was not inclined to report to the President of the prevailing situation contemplated by Article 356, the President may otherwise have information through accredited channels of communications and have it in their custody and on consideration of which the President would reach a satisfaction that a situation has arisen in which the Government of a State cannot be carried on in accordance with the provisions. OTHERWISE 215. The word otherwise in Article 356(1) was not originally found in the Draft Article 278, but it was later introduced by an amendment. Dr Ambedkar supported the amendment on the floor of the Constituent Assembly stating that : The original Article 188 merely provided that the President should act on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the satisfaction. The question of satisfaction is basically a political one, practically it is an impossible question to adjudicate on any judicially manageable standards. Obviously the Founding Fathers entrusted that power to the highest executive, the President of India, with the aid and advice of the Council of Ministers. The satisfaction of the President being subjective, it is not judicially discoverable by any manageable standards and the court would not substitute their own satisfaction for that of the President. The President's satisfaction would be the result of his comprehending in his own way the facts and circumstances relevant to the satisfaction that the Government of the State cannot be carried on in accordance with the provisions of the Constitution. There may be wide range of situations and sometimes may not be enumerated, nor can there be any satisfactory criteria, but on a conspectus of the facts and circumstances the President may reach the satisfaction that the Government of the State cannot be carried on in accordance with the provisions of the Constitution. Therefore, the subjective satisfaction is not justiciable on any judicially manageable standards. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision-making process and the Proclamation was issued after due deliberations. The court cannot, therefore, go behind the issue of Proclamation under Article 356 and substitute its own satisfaction for that of the President. CANNOT BE CARRIED ON MEANING AND SCOPE 218. We are to remind ourselves that application of principle of the source from Part XVIII, the family of emergency provisions conveniently employed or the grammarian's rule would stultify the operation of Article 356 wisely incorporated in the Constitution. Instead placing it in the spectrum of purposive operation with prognosis would yield its efficacy for succeeding generations to meet diverse situations that may arise in its operation. The phrase cannot be carried on in clause (1) of Article 356 does not mean that it is impossible to carry on the Government of the State. It only means that a situation has so arisen that the Government of the State cannot be carried on its administration in accordance with the provisions of the Constitution. It is not the violation of one provision or another of the Constitution which bears no nexus to the object of the action under Article 356. The key word in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) large-scale breakdown of the law and order or public order situation; (ii) gross mismanagement of affairs by a State Government; (iii) corruption or abuse of its power; (iv) danger to national integration or security of the State or aiding or abetting national disintegration or a claim for independent sovereign status and (v) subversion of the Constitution while professing to work under the Constitution or creating disunity or disaffection among the people to disintegrate democratic social fabric. 220. The Constitution itself provides indication in Article 365 that on the failure of the State Government to comply with or to give effect to any directions given by the Union Government in exercise of its executive powers and other provisions of the Constitution it shall be lawful for the President to hold that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution. For instance, the State failed to preserve the maintenance of means of communication declared to be of national or material means envisaged under Article 257(2) of the Constitution and despite the directions, the State Government fail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... like earthquake, the Government of the State is unable to perform its duty in accordance with the provisions of the Constitution, then also satisfaction of the President that the Government of the State is unable to perform as a responsible Government in accordance with the provisions of the Constitution is not justiciable. 222. Conversely, on the resignation of the Chief Minister the Governor without attempting or probing to form an alternative Government by an opposition party recommends for dissolution of the Assembly, it would be an obvious case of highly irrational exercise of the power. Where the Chief Minister himself expresses inability to cope with his majority legislators, recommends to the Governor for dissolution, and dissolution accordingly was made, exercising the power by the President, it would also be a case of highly irrational exercise of the power. Where the Governor recommends to the President to dissolve the Assembly on the ground that the Chief Minister belongs to a particular religion, caste or creed, it would also be a case that the President reached satisfaction only on highly irrational consideration and does not bear any nexus or correlation to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 224. As stated earlier, the constitutional and political features should be nurtured and set conventions be laid by consensus among the political parties either by mutual agreement or resolution passed in this behalf. It is undoubted that Sarkaria Commission appointed by the Union of India and Rajamannar Commission appointed by the State Government of Tamil Nadu suggested certain amendments to Article 356, distinguished Judges gave guidelines. Though they bear weight, it is for the consideration of the political parties or Governments, but judicially it would not be adapted as guidance as some of them would be beset with difficulties in implementation. However, their creases could be ironed out by conference or by consensus of the political parties. As regards horse-trading by the legislators, there are no judicially discoverable and manageable standards to decide in judicial review. A floor- test may provide impetus for corruption and rank force and violence by musclemen or wrongful confinement or volitional captivity of legislators occurs till the date of the floor- test in the House, to gain majority on the floor of the House. 225. At some quarters it is believed that power u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt is unconstitutional, highly irrational or without any nexus, then the court would consider the contents of the Proclamation or reasons disclosed therein and in extreme cases the material produced pursuant to discovery order nisi to find the action is wholly irrelevant or bears no nexus between purpose of the action and the satisfaction reached by the President or does not bear any rationale to the proximate purpose of the Proclamation. In that event the court may declare that the satisfaction reached by the President was either on wholly irrelevant grounds or colourable exercise of power and consequently Proclamation issued under Article 356 would be declared unconstitutional. The court cannot go into the question of adequacy of the material or circumstances justifying the declaration of President's rule. Roscoupoun in his Development of the Constitutional Guarantees of Liberty, 1963 Edn. quoted Jahering that, Form is sworn enemy of caprice, the twin sisters of liberty, fixed forms are the school of discipline and order and thereby of liberty itself. The exercise of the discretion by the President is hedged with the constitutional constraint to obtain approval of Parliamen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tution cannot provide detailed rules for every eventuality. Conventions are found in all established Constitutions. The conventions are meant to bring about constitutional development without formal change in the law. Prof K.C. Wheare in his book The Statute of Westminster and Dominion Status (4th Edn.) defined the conventions thus : The definition of conventions may thus be amplified by saying that their purpose is to define the use of constitutional discretion. To put this in slightly different words, it may be said that conventions are non-legal rules regulating the way in which legal rules shall be applied. 230. Sir W. Ivor Jennings, in his Law and the Constitution (5th Edn.) elaborated the constitutional convention : Thus within the framework of the law there is room for the development of rules of practice, rules which may be followed as consistently as the rules of law, and which determine the procedure which the men concerned with government must follow. 231. The constitutional conventions provide the flesh which clothes the dry bones of the law; they make the constitution work; they keep it in touch with the growth of ideas. A constitution does not work its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titutional functionaries. Conventions regulate the exercise of that discretion. 233. The convention in working Article 356 of the Constitution has been established and became the constitutional law filling the interstices of legislative process. The actions done by the President in accordance with the choice left to him by sub-clauses (a) to (c) of Article 356(1) and by Parliament under Article 357, i.e., dissolution of the Legislative Assembly, removing the State Government, assumption of administration and entrustment of the administration and the executive power to the Governor of that State with the aid and advice of the appointed Advisors and to take over legislative functions by Parliament and the power of promulgation of Ordinance by the President, etc. by operation of Article 357 and making all incidental and consequential provisions for convenient administration of executive Government of the State attained status of constitutional law. This constitutional convention firmly set the working of the Constitution on 46 (1993) 4 SCC 441: JT (1993) SC 479 smooth working base and is being operated upon all these years. We hold that upsetting the settled convention and the law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cutive powers without legislative powers being armed with by Parliament? Could the President discharge the duties under the directions of the State Legislature, if need arises for passing appropriate legislative sanctions. Bicameral operation of the legislative and executive powers both by the State Legislature and Parliament in List 11 of VIlth Schedule is an anathema to the democratic principle and constitutional scheme. The question of conflict of 3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1 parliamentary supremacy and executive overbearing is more imaginary than actual or real. 236. The reinduction of the Government of the State is also beset with several incongruities. It cannot be assumed that the President lightly removed the State Government. It must be for formidable grounds, though not judicially discoverable nor discernable to strict judicial scrutiny. All the Proclamations so far issued were not disapproved by Parliament. The dismissed Government, if restituted into power, may violate with impunity the provisions of the Constitution and laws for the balance period taking advantage of majority in the legislature and full-scale corruption or other unconstitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the court or by the exercise of the power under Article 324? Are day to day executive, legislative and administrative actions to be done under the writ of the court? of a High Court issues a direction to allow the dissolved assembly its full course of balance period including the suspended period what would happen? Is it not violative of Article 172? Whether it could be prevented to be done? If such order is not complied with, is not the President liable to contempt of the court and if so what happens to the protection of Article 361 ? Instead of solving the problems, does not the writ of the court create constitutional crisis? Giving deep and anxious consideration and visualising the far-reaching constitutional crisis, we are firmly of the view that the self-restraint constrains us to express no value opinion leaving it to Parliament to ponder over and if deemed necessary amend Article 356 suitably. 237. The Constitution was amended more than 77 times and Article 356 itself was amended 6 times through the Constitution's 38th Amendment Act; the 42nd Amendment Act; the 44th Amendment Act; the 59th Amendment Act; the 64th Amendment Act and the 68th Amendment Act. Apart fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectifying construction. Nowadays it is regarded as not in accordance with public policy to allow a draftsman's ineptitude to prevent justice being done. This was not always the case. Where the language of a statute is clear and unambiguous, there is no room for the application either of the doctrine of casus omissus or of pressing into service external aid, for in such a case the words used by the Constitution or the statute speak for themselves and it is not the function of the court to add words or expressions merely to suit what the court thinks is the supposed intention of the legislature. In American Jurisprudence 2d Series, Vol. 73 at page 397 in para 203 it is stated that: It is a general rule that the courts may not, by construction insert words or phrases in a statute or supply a casus omissus by giving force and effect to the language of the statute when applied to a subject about which nothing whatever is said, and which, to all appearances, was not in the minds of the legislature at the time of the enactment of the law. Under such circumstances new provisions or ideas may not be interpolated in a statute or engrafted thereon. At page 434 in para 366 it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the context. In State of Tasmania v. Commonwealth of Australia and State of Victoria47 Connor, J. dealing with the question observed thus : It appears to me that the only safe rule is to look at the statute itself and to gather from it what is its intention. If we depart from that rule we are apt to run the risk of the danger described by Pollack, C.J., in Mille v. Solomons. 'If', he says, 'the meaning of the language be plain and clear, we have nothing to do but to obey it to administer it as we find it; and, I think, to take a different course is to abandon the office of Judge, and to assume the province of legislation'. Some passages were cited by Mr Glynn from Black on the Interpretation of Laws, which seem to imply that there might be a difference in the rules of interpretation to be applied to the Constitution and those to be applied to any other Act of Parliament, but there is no foundation for any such distinction. The intention of the enactment is to be gathered from its words. If the words are plain, effect must be given to them; if they are doubtful, the intention of legislature is to be gathered from the other provisions of the statute aided by a co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strument for the formation of policy. 241. In the Modes of Constitutional Interpretation by Craig R. Ducat, 1978 Edn. at p. 125, he stated that the judges' decision ought to mean society's values not their own. He. quoted Cardozo's passage from the Nature of Judicial Process at page 108 that, a judge, I think would err if he were to impose upon the community as a rule of life his own idiosyncrasies of conduct or belief'. The court when caught in a paralysis of dilemma should adopt self-restraint, it must use the judicial review with greatest caution. In clash of political forces in political statement the interpretation should only be in rare and auspicious occasions to nullify ultra vires orders in highly arbitrary or wholly irrelevant Proclamation which does not bear any nexus to the predominant purpose for which the Proclamation was issued, to declare it to be unconstitutional and no more. 242. Frankfurter, J. says in Dennis v. US48 thus : But how are competing interests to be assessed? Since they are not subject to quantitative ascertainment, the issue necessarily resolves itself into asking, who is to make the adjustment? who is to balance the relev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assembly. The proviso to clause (1) or clause (2) are not relevant. It is thereby declared the constitutional policy that five years' tenure of the legislature starts running from the date appointed for its first meeting and expiration of the period operates constitutionally as date of dissolution of the Assembly. The phrase no longer reinforces its mandatory character. Article 324(1) enjoins the Election Commission to conduct elections to Parliament and to the Legislature of every State, etc. The R.P. Act, rules and the instructions prescribe the procedure to conduct and complete elections four months before the expiry of the date of dissolution. Article 329(b) issues an injunction that no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate legislature. In other words, the election process once set in motion should run its full course and all election disputes shall be resolved in accordance with the procedure established by R.P. Act. 245. In N.P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titution. The High Courts must observe a self-imposed limitation on their power to act under Article 226, by refusing to pass order or give directions which will inevitably result in an indefinite postponement of elections to legislative bodies, which are the very essence of the democratic foundation and functioning of our Constitution. That limitation ought to be observed irrespective of the fact whether the preparation and publication of electoral rolls are a part of the process of 'election' within the meaning of Article 329(b) of the Constitution. There are plethora of precedents in this behalf, but suffice for the limited purpose to say that the exercise of the power either under Article 226 or Article 32 or Article 136 staying the elections to the dissolved Assembly under Article 356 not only flies in the face of the constitutional mandates and the law laid down by this Court, but creates uncertainty and constitutional crises as stated hereinbefore. Enlightened public opinion both inside or outside Parliament, informed public objective criticism, objective assessment of the ground realities would inhibit misuse of power and hinder highly irrational exercise of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have been brought under control. The common thread of breach of secularism ran through the events and with prognosis action was taken. Our learned Brother Jeevan Reddy, J. elaborately considered the pleadings of the parties and arguments by the respective counsel. He also deduced the conclusions. The need for discussion once over is thereby redundant. We respectfully agree with him and in case of Meghalaya also. We conclude that the satisfaction reached by the President cannot be adjudicated with any judicially discoverable and manageable standards, but one stark fact that emerged is that due to sustained campaign by the BJP and other organizations Sri Ram Janmabhoomi-Babri Masjid disputed structure was destroyed. Consequential situation that has arisen due to which the President satisfied that Governments of the States of Madhya Pradesh, Rajasthan and Himachal Pradesh cannot be carried on in accordance with the provisions of the Constitution and they breached the basic features of the Constitution, namely secularism. Therefore the satisfaction reached by the President cannot be said to be irrelevant warranting interference. As regards Meghalaya is concerned, though a declarati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment and as corollary under Article 356 it is enjoined that the Government of every State should be carried on in accordance with the provisions of the Constitution. On receipt of a report from the Governor or otherwise the President (Council of Ministers) on being satisfied that a situation has arisen in which the Government of a State cannot be carried on in accordance with the provisions of the Constitution, is empowered to issue Proclamation under Article 356(1) and impose President's rule in the State in the manner laid down in sub-clauses (a) to (c) of Article 356(1) of the Constitution. 251. The exercise of the power under Article 356 is an extraordinary one and needs to be used sparingly when the situation contemplated by Article 356 warrants to maintain democratic form of Government and to prevent paralysing of the political process. Single or individual act or acts of violation of the Constitution for good, bad or indifferent administration does not necessarily constitute failure of the constitutional machinery or characterises that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grammes or principles evolved by political parties based on religion amounts to recognising religion as a part of the political governance which the Constitution expressly prohibited. It violates the basic features of the Constitution. Positive secularism negates such a policy and any action in furtherance thereof would be violative of the basic features of the Constitution. Any act done by a political party or the Government of the State run by that party in furtherance of its programme or policy would also be in violation of the Constitution and the law. When the President receives a report from a Governor or otherwise had such information that the Government of the State is not being carried on in accordance with the provisions of the Constitution, the President is entitled to consider such report and reach his satisfaction in accordance with law. 253. A person who challenges the Presidential Proclamation must prove strong prima facie case that the Presidential Proclamation is unconstitutional or invalid and not in accordance with law. On the Court's satisfying that the strong prima facie case has been made out and if it is a High Court, it should record reasons before is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 257. This Court as final arbiter in interpreting the Constitution, declares what the law is. Higher judiciary has been assigned a delicate task to determine what powers the Constitution has conferred on each branch of the Government and whether the actions of that branch transgress such limitations, it is the duty and responsibility of this Court/High Courts to lay down the law. It is the constitutional duty to uphold the constitutional values and to enforce the constitutional limitations as the ultimate interpreter of the Constitution. The judicial review, therefore, extends to examine the constitutionality of the Proclamation issued by the President under Article 356. It is a delicate task, though loaded with political overtones, to be exercised with circumspection and great care. In deciding finally the validity of the Proclamation, there cannot be any hard and fast rules or fixed set of rules or principles as to when the President's satisfaction is justiciable and valid. 258. Justiciability is not a legal concept with a fixed content, nor is it susceptible of scientific verification. Its use is the result of many pressures or variegated reasons. Justiciability may be lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Proclamation. Therefore, 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 traditional parameters of judicial review, therefore, cannot be extended to the area of exceptional and extraordinary powers exercised under Article 356. The doctrine of proportionality cannot be extended to the power exercised under Article 356. The ultimate appeal over the action of the President is to the electorate and judicial self-restraint is called in aid, in which event the faith of the people in the efficacy of the judicial review would be strengthened and the judicial remedy becomes meaningful. 261. Under Article 356 as soon as the Proclamation is issued, under sub-clause (3) of Article 356, the President shall seek its approval from both Houses of Parliament within two months from the date of its issue unless it is revoked in the meanwhile. A consistent constitutional convention has been established that on issuing the Proclamation the President on his assumption of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, the courts should not issue such directions leaving it to Parliament to amend the Constitution if need be. 263.The floor-test may be one consideration which the Governor may keep in view. But whether or not to resort to it would depend on prevailing situation. The possibility of horse-trading is also to be kept in view having regard to the prevailing political situation. It is not possible to formulate or comprehend a set of rules for the exercise of the power by the Governor to conduct floor-test. The Governor should be left free to deal with the situation according to his best judgment keeping in view the Constitution and the conventions of the parliamentary system of Government. Though Sarkaria Commission and Rajamannar Commission, headed by two distinguished Judges of this land, recommended floor-test, it could only mean that that is a consideration which must cross the mind of the Governor. It would suffice to say that the Governor should be alive to the situation but he would be the sole judge on the question whether or not conditions are conducive to resort to floor- test. 264.The satisfaction reached by the President in issuing Presidential Proclamation an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the judicial review is the approval by both Houses of Parliament which in practice has proved to be ineffective, as this judgment will demonstrate. And with respect to judicial review of the action under Article 356, serious reservations are expressed by the counsel for the Union of India and other respondents. If what they say is accepted, there is a danger of this power eroding the very federal structure of our State and introducing a serious imbalance in our constitutional scheme. It is, therefore, necessary to define the parameters of this power and the parameters 'of judicial review in these matters in the interest of our constitutional system. It is for this reason that we heard elaborate arguments from all the parties before us on the meaning, scope and dimensions of the power under this article. We may say, we are fully aware of the delicate nature of the problem. We are aware that though the questions raised herein are constitutional in character, they do have political overtones. It is quite likely that our views will not be found palatable by some but that probably cannot be helped. Sworn to uphold the Constitution, we must say what the article says and means. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Assembly : 355. Duty of the Union to protect States against external aggression and internal disturbance.- It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of this Constitution. 356. Provisions in case of failure of constitutional machinery in States.- (1) If the President, on receipt of report from the Governor of a State orotherwise, is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may by Proclamation(a) assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or any body or authority in the State other than the Legislature of the State; (b)declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament; (c)make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od of thirty days a resolution approving the continuance in force of the Proclamation has been also passed by the House of the People. Dr B.R. Ambedkar was of the view that the Constitution must provide for situation of breakdown of the constitutional machinery in the States analogous to the provisions contained in Section 93 of the 1935 Act. If a situation arises, for whatever reason, where the Government of a State cannot be carried on in accordance with the provisions of the Constitution, he said, the President of India must be empowered to remedy it. For that purpose, he could take over all or any of the functions of the Government as well as of the State Legislature. He could also make such other provisions as he may think necessary including suspension of the provisions of the Constitution except those relating to High Court. This power, he stated, must be understood in the context of draft Article 277-A (Article 355), which cast an obligation upon the Union to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of the Constitution. To discharge this oblig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Provisions . Article 352, the first article in this Part, empowers the President of India to proclaim emergency in the country or any part thereof if he is satisfied that a grave emergency exists whereby the security of India or any part thereof is threatened whether by war, external aggression or armed rebellion. (By the 44th Amendment, the words armed rebellion were substituted in the place of the words internal disturbance ). Articles 353 and 354 set out the effects of such a Proclamation and provide for certain incidental matters. Article 355, set out hereinbefore, imposes a duty upon the Union to protect the States against external aggression and armed rebellion and also to ensure that the Government of every State is carried on in accordance with the provisions of the Constitution. Articles 355, 356 and 357 go together. Article 356 provides for the action to be taken by the President where he is satisfied that a situation has arisen in which the Government of a State cannot be carried on in accordance with the provisions of the Constitution by making a Proclamation in that behalf, while Article 357 sets out the powers that can be exercised by Parliament when a Proclamation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitution shows unmistakably that while creating a federation, the Founding Fathers wished to establish a strong Centre. In the light of the past history of this sub-continent, this was probably a natural and necessary decision. In a land as varied as India is, a strong Centre is perhaps a necessity. This bias towards Centre is reflected in the distribution of legislative heads between the Centre and States. All the more important heads of legislation are placed in List I. Even among the legislative heads mentioned in List II, several of them, e.g., Entries 2, 13, 17, 23, 24, 26, 27, 32, 33, 50, 57 and 63 are either limited by or made subject to certain entries in List I to some or the other extent. Even in the Concurrent List (List III), the parliamentary enactment is given the primacy, irrespective of the fact whether such enactment is earlier or later in point of time to a State enactment on the same subject-matter. Residuary powers are with the Centre. By the 42nd Amendment, quite a few of the entries in List II were omitted and/or transferred to other lists. Above all, Article 3 empowers Parliament to form new States out of existing States either by merger or division as als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere allotted to them, States are supreme. The Centre cannot tamper with their powers. More particularly, the courts should not adopt an approach, an interpretation, which has the effect of or tends to have the effect of whittling down the powers reserved to the States. It is a matter of common knowledge that over the last several decades, the trend the world over is towards strengthening of Central Governments be it the result of advances in technological/scientific fields or otherwise, and that even In USA the Centre has become far more powerful notwithstanding the obvious bias in that Constitution in favour of the States. All this must put the court on guard against any conscious whittling down of the powers of the States. Let it be said that the federalism in the Indian Constitution is not a matter of administrative convenience, but one of principle the outcome of our own historical process and a recognition of the ground realities. This aspect has been dealt with elaborately by Shri M.C. Setalvad in his Tagore Law Lectures Union and State relations under the Indian Constitution (Eastern Law House, Calcutta, 1974). The nature of the Indian federation with reference to its hist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oy a State with all its powers and authority. AN ANALYSIS OF ARTICLE 356 279.The heading of Article 356 characterises it as a provision providing for failure of constitutional machinery in States. Clause (1), however, does not use the words failure of constitutional machinery . Even so, the significance of the title of the section cannot be overlooked. It emphasises the level, the stage, the situation in which the power is to be exercised. Clause (1) speaks of the President being satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution . If so satisfied, he may, by Proclamation, assume and exercise the several powers mentioned in sub- clauses (a), (b) and (c). An analysis of clause (1) of the article yields the following ingredients : (a) if the President is satisfied; (b) on receipt of report from the Governor of State or otherwise; (c) that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution; (d) the President may by Proclamation, (i) assume to himself all or any of the functions of the Government of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be operative, to one year except in a case where a Proclamation of emergency is in operation. It is not necessary to consider clause (5) also for the purpose of these cases. 280.The power conferred by Article 356 is a conditioned power; it is not an absolute power to be exercised in the discretion of the President. The condition is the formation of satisfaction subjective, no doubt that a situation of the type contemplated by the clause has arisen. This satisfaction may be formed on the basis of the report of the Governor or on the basis of other information received by him or both. The existence of relevant material is a precondition to the formation of satisfaction. The use of the word 'may' indicates not only a discretion but an obligation to consider the advisability and necessity of the action. It also involves an obligation to consider which of the several steps specified in sub-clauses (a), (b) and (c) should be taken and to what extent? The dissolution of the Legislative Assembly assuming that it is permissible is not a matter of course. It should be resorted to only when it is necessary for achieving the purposes of the Proclamation. The exercise of the power is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... words provisions of this Constitution mean what they say. The said words cannot be limited or confined to a particular chapter in the Constitution or to a particular set of articles. While construing a constitutional provision, such a limitation ought not to be ordinarily inferred unless the context does clearly so require. The provisions of the Constitution include the chapter relating to Fundamental Rights, the chapter relating to Directive Principles of State Policy as also the preamble to the Constitution. Though, at one time, it was thought that preamble does not form part of the Constitution, that view is no longer extant. It has been held by the majority of Judges in Kesavananda Bharati v. State of Kerala35 that preamble does form part of the Constitution. It cannot be otherwise. The attempt to limit the said words to certain machinery provisions in the Constitution is misconceived and cannot be given effect to. It is difficult to believe that the said words do not take in fundamental provisions like the fundamental rights in Chapter III. It must, however, be remembered that it is not each and every non-compliance with a particular provision of the Constitution that calls ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... situation of the nature contemplated by Article 356(1) has arisen. It is then and only then that he can issue the Proclamation. Once the Proclamation under Article 356(1) is issued or simultaneously with it, the President can take any or all the actions specified in clauses (a), (b) and (c). Power of the President to dissolve Legislative Assembly of the State : 283.We shall now examine whether clause (1) of Article 356 empowers the President to dissolve the Legislative Assembly of the State. There are two points of view which we may set out before expressing our preference : 284.ONE VIEW, which is supported by the opinions of some of the learned Judges in State of Rajasthan v. Union of India3 is that the power of the dissolution is implicit in sub- clause (a). The reasoning runs thus : The President assumes the functions of the Government of the State as well as the powers of the Governor under the said sub-clause; the Legislative Assembly can be dissolved by the Governor under Article 174(2)(b); of course, this may have to be done on the advice of the Council of Ministers with the Chief Minister at its head; since the President assumes to himself the powers and functions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ismissal is not absolute in the sense of a physical death of a living being. It only means putting the Government out of the way. Such dismissal does not preclude the President from restoring the Government after the period of Proclamation is over, or at any time earlier by revoking the Proclamation, if he is so advised. Coming to sub-clause (b), when it speaks of the powers of Legislature of the State being made exercisable by Parliament, or under its authority, it cannot and does not mean or imply dissolution of the Legislature of the State. It is significant to note that the sub-clause refers to Legislature of the State and not Legislative Assembly. In a given State, the Legislature may consist of Legislative Assembly as well as Legislative Council. In such a case, there can be no question of dissolving the Legislative Council since it is a continuing body [Article 172(3)]. Only the Legislative Assembly can be dissolved [Article 174(2)(b)]. In other words, there can be no question of dissolution of the Legislature of the State the expression employed in sub-clause (b). The question may then arise, why was sub-clause (b) put in and what does it imply? The answer must be that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the Proclamation, as the case may be, the suspension of the provisions of the Constitution will also come to an end. 287.The proponents of this view criticize the other (first) view on several grounds firstly, they say, it does not seem to take into consideration the fact that dissolution of the Legislative Assembly is an extremely serious step; if this power was supposed to be conferred on the President under clause (1) of Article 356, the Constitution-makers would have said so expressly and not left it to be inferred. Secondly, it ignores the language of sub-clause (b). Sub- clause (b) speaks of powers of the Legislature of the State being exercised by Parliament or under its authority. Sub-clause (b) does not speak of dissolution of Legislature of the State , since that is an impossibility only the Legislative Assembly can be dissolved and not the Legislative Council as explained hereinabove. There are quite a few States where the Legislature consists of Legislative Assembly as well as Legislative Council. Thirdly, clause (1) speaks of failure of the Government and not of the Legislative Assembly, though it is true, the Government is drawn from and very often forms th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , that he states the reasons for such extraordinary step in the order itself. 289.The question then arises at what stage should he exercise this power? To answer this query, we must turn to clause (3). Clause (3) says that every Proclamation issued under Article 356(1) shall be laid before both Houses of Parliament and shall cease to operate at the expiry of two months unless before the expiration of that period it has been approved by resolutions passed by both Houses. This is conceived both as a check upon the power and as a vindication of the principle of parliamentary supremacy over the Executive. The President's action which is really the action of the Union Council of Ministers is subject to approval of both Houses of Parliament. Unless approved by both Houses of Parliament, the Proclamation lapses at the end of two months and earlier if it is disapproved or declined to be approved by both the Houses of Parliament, as explained 3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1 hereinafter. Having regard to the incongruity of the Executive (even though Union Executive) dissolving the Legislature (even if of a State), it would be consistent with the scheme and spirit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) remains in operation for a period of two months in any event. It is held that even if Parliament disapproves or declines to approve the Proclamation within the said period of two months, the Proclamation continues to be valid for two months. The approval of Parliament under clause (3) is held to be relevant only for the purpose of continuance of the Proclamation beyond two months. It has also been held further that even if both the Houses do not approve or disapprove the Proclamation, the Government which has been dismissed or 3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1 the Assembly which may have been dissolved do not revive. With utmost respect to the learned Judges, we find ourselves unable to agree with the said view insofar as it says that even where both Houses of Parliament disapprove or do not approve the Proclamation, the Government which has been dismissed does not revive. (The State of Rajasthan3 also holds that such disapproval or non-approval does not revive the Legislative Assembly which may have been dissolved but we need not deal with this aspect since according to the view expressed by us hereinabove, no such dissolution is permissible before the appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to restore the Government to officein case it finds the Proclamation to be unconstitutional, it is, in our opinion, beyond question. Even in case the Proclamation is approved by 3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1 Parliament it would be open to the court to restore the State Government to its office in case it strikes down the Proclamation as unconstitutional. If this power were not conceded to the court, the very power of judicial review would be rendered nugatory and the entire exercise meaningless. If the court cannot grant the relief flowing from the invalidation of the Proclamation, it may as well decline to entertain the challenge to the Proclamation altogether. For, there is no point in the court entertaining the challenge, examining it, calling upon the Union Government to produce the material on the basis of Which the requisite satisfaction was formed and yet not give the relief. In our considered opinion, such a course is inconceivable. 292.A question may arise what happens to the acts done, orders made and laws enacted by Parliament or under its authority during the period the Proclamation was in operation in case the Proclamation is declared to be un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd obligations of the Government. A Proclamation under Article 356(1) necessarily contemplates the removal of the Government of the State since it is found unable or unfit to carry on the Government of the State in accordance with the provisions of the Constitution. In our considered opinion, it is not possible to give effect to the argument of Shri Ram Jethmalani. Acceptance of such an argument would introduce the concept of two Governments in the same sphere the Central Government exercising one or some of the powers of the State Government and the State Government performing the rest. Apart from its novelty, such a situation, in our opinion, does not promote the object underlying Article 356 nor is it practicable. 294.Shri Jethmalani brought to our notice the British Joint Parliamentary Report, para 109, in support of his contention aforementioned. We are unable to see any relevance of the said para to the interpretation of Article 356(1). Under the Government of India Act, 1935, the Governor General and the Governor were not constitutional heads of State as under the Constitution. They exercised real power in their own right. Only a few powers were entrusted to the elected G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abric of the Constitution. A literal construction of Article 356(1) should be avoided, it opined. 297.In para 6.4.01, the Commission noted that failure of constitutional machinery may occur in a number of cases. It set out some of the instances leading to it, viz., (a) political crisis; (b) internal subversion; (c) fiscal breakdown; and (d) non-compliance with constitutional directions of the Union Executive. The Commission, however, hastened to add that the instances set out by it are not claimed to be comprehensive or perfect. Then it examined each of the said four heads separately. 298.In para 6.5.01, the Commission set out illustrations in which invokingArticle 356 would be improper. Illustration (iii) in the said paragraph reads thus: (iii) Where, despite the advice of a duly constituted ministry which has not been defeated on the floor of the house, the Governor decides to dissolve the assembly and without giving the ministry an opportunity to demonstrate its majority through the floor- test, recommends its supersession and imposition of President's rule merely on subjective assessment that the ministry no longer commands the confidence of the assembly. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the situation. (Paragraph 6.3.17) 6.8.04.(a) In a situation of political breakdown, the Governor should exploreall possibilities for having a Government enjoying majority support in the Assembly. If it is not possible for such a Government to be installed and if fresh elections can be held without avoidable delay, he should ask the outgoing Ministry, if there is one, to continue as a caretaker Government, provided the Ministry was defeated solely on a major policy issue, unconnected with any allegations of maladministration or corruption and is agreeable to continue. The Governor should then dissolve the Legislative Assembly, leaving the resolution of the constitutional crisis to the electorate. During the interim period, the caretaker Government should be allowed to function. As a matter of convention, the caretaker Government should merely carry on the day-to-day Government and desist from taking any major policy decision. (Paragraph 6.4.08) (b) If the important ingredients described above are absent, it would not be proper for the Governor to dissolve the Assembly and instal a caretaker Government. The Governor should recommend Proclamation of President's rule without di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been invoked improperly. It is not for us to express any opinion whether this impression of the Commission is justified or not. It is not possible for us to review all the ninety cases in which the said power has been invoked and to say in which cases it was invoked properly and in which cases, not. At the same time, we are inclined to say, having regard to the constitutional scheme obtaining under our Constitution, that the recommendations do merit serious consideration. 301.It is probably because he was of the opinion that the invocation of this power was not warranted in many cases, Shri P.V. Rajamannar, former Chief Justice of Madras High Court, (who was appointed as the Inquiry Committee by the Government of Tamil Nadu to report on the Centre-State relations) recommended that Articles 356 and 357 be repealed altogether. [See para (8) in Chapter IX, Emergency Provisions of his report, submitted in 1971]. In the alternative, he recommended, safeguards must be provided to secure the interests of the States against the arbitrary and unilateral action of a party commanding overwhelming majority at the Centre. In other respects, Shri Rajamannar's views accord broadly with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle 14 (under the sub-heading Right of Equality ) enjoins the State not to deny to any person equality before the law or the equal protection of laws within the territory of India. Articles 15 and 16 elucidate this doctrine of equality. They say that the State shall not discriminate against any citizen on ground only of religion, race or caste, whether in the matter of employment under the State or otherwise. By Article 25, all persons are declared equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion, subject, of course, to public order, morality and health. Articles 26, 27 and 28 elucidate the freedom guaranteed by Article 25. Article 27 declares that no person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination. Article 28(1) decrees that no religious instruction shall be provided in any educational institution wholly maintained out of the State funds while Article 28(3) says that no person attending an educational institution recognised by the State or receiving aid out of Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent with this constitutional policy is, in plain words, unconstitutional. This does not mean that the State has no say whatsoever in matters of religion. Laws can be made regulating the secular affairs of temples, mosques and other places of worships and maths. (See S. P. Mittal v. Union of India52.) 36 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225: 1973 Supp SCR 1 37 1975 Supp SCC 1: (1976) 2 SCR 347 52 (1983) 1 SCC 51: (1983) 1 SCR 729 The power of Parliament to reform and rationalise the personal laws is unquestioned. The command of Article 44 is yet to be realised. The correct perspective appeared to have been placed by Shri K.M. Munshi during the Constituent Assembly Debates. He said : Religion must be restricted to spheres which legitimately appertain to religion, and the rest of life must be regulated, unified and modified in such a manner that we may evolve, as early as possible, a strong and consolidated nation. Our first problem and the most important problem is to produce national unity in this country. We think we have got national unity. But there are many factors and important factors which still offer serious dangers to our national consolidation, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eristic of secularism which is writ large in all the provisions of the Indian Constitution. 306.Prof. Upendra Baxi says that Secularism in the Indian Constitution connotes : (i) The State by itself, shall not espouse or establish or practice any religion; (ii)public revenues will not be used to promote any religion; (iii)the State shall have the power to regulate any 'economic, financial or other secular activity' associated with religious practice [Article 25(2)(a) of the Constitution]; (iv)the State shall have the power through the law to provide for social welfare and reform or the throwing open of the Hindu religious institutions of a public character to all classes and sections of Hindus' [Article 25(2)(b) of the Constitution]; (v)the practice of untouchability (insofar as it may be justified by Hindu religion) is constitutionally outlawed by Article 17; (vi)every individual person will have, in that order, an equal right to freedom of conscience and religion; (vii)these rights are however subject to the power of the State through law to impose restrictions on the ground of 'public order, morality and health', (viii) these rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter beyond any doubt, leaving no room for any controversy. In such a situation, the debate whether the preamble to the Constitution is included within the words the provisions of this Constitution is really unnecessary. Even if we accept the reading of Shri Jethmalani, preamble is a key to the understanding of the relevant provisions of the Constitution. The 42nd (Amendment) Act has furnished the key in unmistakable terms. 310.Given the above position, it is clear that if any party or Organisation seeks to fight the elections on the basis of a plank which has the proximate effect of eroding the secular philosophy of the Constitution it would certainly be guilty of following an unconstitutional course of action. Political parties are formed and exist to capture or share State power. That is their aim. They may be associations of individuals but one cannot ignore the functional relevance. An association of individuals may be devoted to propagation of religion; it would be a religious body. Another may be devoted to promotion of culture; it would be a cultural Organisation. They are not aimed at acquiring State power, whereas a political party does. That is one of its main object ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enough to vitiate the election of the candidate. Similarly, sub- section (3-A) of Section 123 provides that promotion of, or attempt to promote, feelings of enmity or hatred between different classes of citizens of India on grounds of religion, race, caste, community or language by a candidate or his agent, etc. for the furtherance of the prospects of the election of that candidate is equally a corrupt practice. Section 29-A provides for registration of associations and bodies as political parties with the Election Commission. Every party contesting elections and seeking to have a uniform symbol for all its candidates has to apply for registration. While making such application, the association or body has to affirm its faith and allegiance to the principles of socialism, secularism and democracy among others. Since the Election Commission appears to have made some other orders in this behalf after the conclusion of arguments and because those orders have not been placed before us or debated, we do not wish to say anything more on this subject. ARTICLE 74(2) ITS MEANING AND SCOPE 312.The Constitution of India has introduced parliamentary democracy in this country. The pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clause (1), the supreme command of the Armed Forces of the Union shall be vested in the President and that the exercise of such power shall be regulated by law. 314.Clause (1) of Article 77 provides that all executive action of the Government of India shall be expressed to be taken in the name of the President . Clause (2) then says that all orders made and other instruments executed in the name of the President shall be authenticated in such manner as may be specified in the rules to be made by the President. It further provides that the validity of an order or instrument which is authenticated in accordance with the said rules shall not be called in question on the ground that it is not an order or instrument made or executed by the President. Rules have been made by the President as contemplated by this clause contained in Notification No. S.O. 2297 dated November 11, 1958 (as amended from time to time). Several officers of the Government have been empowered to authenticate the orders and other instruments to be made and executed in the name of the President. Clause (3) requires the President to make rules for the more convenient transaction of the business of the Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anifestation of the theory prevalent in English Law that King can do no wrong and, for that reason, beyond the process of the court. Any and every action taken by the President is really the action of his Ministers and subordinates. It is they who have to answer for, defend and justify any and every action taken by them in the name of the President, if such action is questioned in a court of law. The President cannot be called upon to answer for or justify the action. It is for the Council of Ministers to do so. Who comes forward to do so is a matter for them to decide and for the court to be satisfied about it. Normally speaking, the Minister or other official or authority of the Ministry as is entrusted with the relevant business of the Government, has to do it. 319.Article 53(1) insofar as says that the executive power of the Union, which vests in the President, can be exercised by him either directly or through officers subordinate to him in accordance with the Constitution stresses the very idea. Even where he acts directly, the President has to act on the aid and advice of the Council of Ministers or the Minister concerned, as the case may be. (Advice tendered by a Minis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar case, but if and when the Council of Ministers tenders the advice on such reconsideration, he is bound by it.] Then comes clause (2) of Article 74 which says that the question whether any, and if so, what advice was tendered by the Ministers to the President shall not be inquired into in any court . The idea behind clause (2) is this : The court is not to enquire it is not concerned with whether any advice was tendered by any Minister or Council of Ministers to the President, and if so, what was that advice. That is a matter between the President and his Council of Ministers. What advice was tendered, whether it was required to be reconsidered, what advice was tendered after reconsideration, if any, what was the opinion of the President, whether the advice was changed pursuant to further discussion, if any, and how the ultimate decision was arrived at, are all matters between the President and his Council of Ministers. They are beyond the ken of the court. The court is not to go into it. It is enough that there is an order/act of the President in appropriate form. It will take it as the order/act of the President. It is concerned only with the validity of the order and legality ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any aid or advice by the Ministers to him. It is the act/order of Government of India, though expressed in the name of the President. It is for the Minister or Ministry concerned, to whom the function is allocated under the rules of business to defend and justify such action/order. * The orders and acts of the President of India made and taken in exercise of his functions are generally expressed as having been ordered or taken by the President of India whereas the executive action of the Government of India is expressed to have been ordered or taken by the Government of India in the name of the President of India. This difference in form is only indicative and no( obligatory or mandatory. 322.Section 123 of the Evidence Act, in our opinion, is in no manner relevant in ascertaining the meaning and scope of Article 74(2). Its field and purpose is altogether different and distinct. Section 123 reads thus : 123. Evidence as to affairs of State.- No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, calling upon the Union of India to disclose the material would amount to compelling the disclosure of the advice is, if we can say so respectfully, to indulge in sophistry. The material placed before the President by the Minister/Council of Ministers does not thereby become part of advice. Advice is what is based upon the said material. Material is not advice. The material may be placed before the President to acquaint him and if need be to satisfy him that the advice being tendered to him is the proper one. But it cannot mean that such material, by dint of being placed before the President in support of the advice, becomes advice itself. One can understand if the advice is tendered in writing; in such a case that writing is the advice and is covered by the protection provided by Article 74(2). But it is difficult to appreciate how does the supporting material become part of advice. The respondents cannot say that whatever the President sees or whatever is placed before the President becomes prohibited material and cannot be seen or summoned by the court. Article 74(2) must be interpreted and understood in the context of entire constitutional system. Undue emphasis and exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1 having regard to the nature of the function, the high constitutional status of the authority in whom the power is vested and the exigencies in which the said action is taken, the court ought not to go into the question of the advisability of the action or into the adequacy of the material on which it is based. The Presidential action, counsel submitted, is not susceptible to normal rules of judicial review, having regard to the political nature of the action and absence of any judicially manageable standards. There may be several imponderables in the situation which the court cannot weigh. The President's action under Article 356 cannot be equated to administrative action of a government official. It is exercise of a constitutional function by the highest dignitary of the nation, the President of India. May be, the learned counsel submitted, in a case like Maghalaya (Transferred Case Nos 5 and 7 of 1992), the court may interfere where the invalidity of action is demonstrable with reference to the orders of this Court, i.e., where the invalidity is writ large in its face. But, generally speaking, the court is ill fitted to judge the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d is based upon certain material and information. The advice and material cannot be separated. If the court cannot enquire into the advice, it cannot also call upon the Union of India to disclose that material. The learned counsel submitted further that there is a distinction between judicial review of administrative action and judicial review of constitutional action. The decisions of this Court relating to judicial review of administrative or statutory action and discretion cannot be applied to judicial review of constitutional action. Appeal against such action, properly and truly speaking, must, and should always be, to the ultimate political sovereign the people. 328.Shri P.P. Rao, learned counsel for the State of Madhya Pradesh while adopting the contentions of Shri K. Parasaran concentrated mainly upon the secular nature of our Constitution, with the sequiter that nonsecular policies, programmes and acts of political parties place such parties outside the pale of constitutionalism. He submitted that by adopting such policies and programmes and by indulging in non-secular course of action, the Governments run by such parties render themselves amenable to action under Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 31 C. There is no distinction between the judicial review of administrative/statutory action and judicial review of constitutional action. The tests are the same. No other tests can possibly be suggested. The power under Article 356 is undoubtedly the power to be exercised on the subjective satisfaction of the President, which means the Council of Ministers. The latter is undoubtedly a political body and the experience shows that where a different party is in power in a State, the Central Government has been resorting to Article 356 to destabilise that party and to further the prospects of their own party. The circumstances in which and the grounds on which the action based on subjective satisfaction can be interfered with, have been exhaustively stated by this Court in Barium Chemical56 as far back as 1966 which decision has been followed uniformly by this Court over the last three decades. The tests evolved in the said decision are relevant even in the case of action under Article 356. The power under Article 356 is a conditioned power; it can be exercised only when the President is satisfied that the Government of a State cannot be carried on in accordance with the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itutional obligation to do so ... this Court is the ultimate interpreter of the Constitution and to this Court is assigned the delicate task of determining what is the power conferred on each branch of Government, whether it is limited, and if so, what are the limits and whether any action of that branch transgresses such limits. It is for this Court to uphold the constitutional values and to enforce the constitutional limitations. That is the essence of the rule of law. The controversy really pertains to the scope, reach and extent of the judicial review. 331.Regarding the scope and reach of judicial review, it must be said at the very outset that there is not, and there cannot be, a uniform rule applicable to all cases. It is bound to vary depending upon the subject- matter, nature of the right and various other factors. 332.This aspect has been emphasised by this Court in Indra Sawhney v. Union ofIndia54 in the following words : (SCC p. 753, para 842 : JT p. 655) The extent and scope of judicial scrutiny depends upon the nature of the subject-matter , the nature of the right affected, the character of the legal and constitutional provisions applicable and so on. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is, we may now proceed to examine a few decisions where Proclamations of emergency were questioned to notice how the challenge was dealt with. We may first notice the decision of the Privy Council in Bhagat Singh v. Emperor55. Section 72 of the Government of India Act, 1919 empowered the Governor General to make and promulgate ordinance for the peace and good government of British India in case of emergency. The ordinance so made, however, was to be effective for a period of six months from the date of its promulgation and was to be effective like an enactment made by the Indian legislature and be subject to the very same restrictions applying to an enactment made by the Indian legislature. The section read as follows: 72. The Governor General may, in cases of emergency, make and promulgate ordinances for the peace and good government of British India or any part thereof, and any ordinance so made shall, for the space of not more than six months from its promulgation, have the like force of law as an Act passed by the Indian legislature but the power of making ordinances under this section is subject to the like restrictions as the power of the Indian legislature to make laws; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld to be the final judge of the question whether an emergency exists. The power conferred by Section 72 was described as an absolute power without any limits prescribed, except that which apply to an enactment made by the Indian legislature. It was also observed that the subject-matter is not a fit one for a court to enquire into. 337.We may point out that this extreme position is not adopted by Shri Parasaran, learned counsel appearing for the Union of India. He did concede that judicial review under the Constitution is not excluded in the matter of Proclamation under Article 356(1) though his submission was that it should be available in an extremely narrow and limited area since it is a power committed expressly to the President by the Constitution and also because the issue is not one amenable to judicial review by applying known judicially manageable standards. The Supreme Court of Pakistan in Federation of Pakistan v. Mohd. Saifullah Khan56 described the approach (adopted in Bhagat Singh55) in the following words (quoting Cornelius, J.) 56 PLD (1989)SC 166 55 AIR 1931 PC 11 1: 58 IA 169: 35 CWN 646 In the period of foreign rule, such an argument, i.e., that the opinion o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Proclamation of emergency was in operation, to make laws with respect to any matter which it appeared to it as required by reason of the emergency. Such law, it was provided, shall be operative notwithstanding anything contained either in the Constitution of the Federation or the Constitution of the State of Sarawak, and will not be 55 AIR 1931 PC 11 1: 58 IA 169: 35 CWN 646 57 (1944) 72 IA 57: AIR 1945 PC 48: 46 Cri LJ 589 58 (1970) AC 379 treated as amendment to the Constitution. Any such law was, however, to be in force only for the period of emergency. In exercise of the power conferred by clause (5) of Article 150, the Federation Parliament passed Emergency (Federal Constitution and Constitution of Sarawak) Act, 1966. Section 5 of this Act specifically empowered the Governor to dismiss the Chief Minister, in his absolute discretion, if, at any time, the Council Negri passed the resolution of no confidence in the Government by a majority and yet the Chief Minister failed to resign. On September 23, 1966, the Council Negri met and passed the resolution of no confidence in the Chief Minister (appellant). On the next day, the Governor dismissed the appellant under the new Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment and amounted to an emergency calling for immediate action. Nor can their Lordships find any reason for saying that the emergency thus considered to exist was not grave and did not threaten the security of Sarawak. These were essential matters to be determined according to the judgment of the respondent-ministers in the light of their knowledge and experience ... and that he (the appellant) failed to satisfy the Board that the steps taken by the Government including the Proclamation and the impugned Act, were in fraudem legis or otherwise unauthorised by the relevant legislation . The appeal was accordingly dismissed. 343.Three strands of reasoning are evident in the decision. Firstly, the Privy Council assumed that the issue was justiciable. On that basis, it examined the facts of the case and found that the situation did amount to an emergency. Secondly and more importantly, it examined and found that there was no reason for saying that the emergency thus considered to exist was not grave and did not threaten the security of Sarawak , though at the same time, it held that existence of emergency is a matter to be determined by the Council of Ministers in the light of thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... several strands of thought. They may be stated briefly thus : (i)The language of Article 356 and the practice since 1950 shows that the Central Government can enforce its will against the State Governments with respect to the question how the State Governments should function and who should hold reins of power. (ii)By virtue of Article 356(5) and Article 74(2), it is impossible for the court to question the satisfaction of the President. It has to decide the case on the basis of only those facts as may have been admitted by or placed by the President before the court. (iii)The language of Article 356(1) is very wide. It is desirable that conventions are developed channelising the exercise of this power. The court can interfere only when the power is used in a grossly perverse and unreasonable manner so as to constitute patent misuse of the provisions or to an abuse of power. The same idea is expressed at another place saying that if a constitutionally or legally prohibited or extraneous or collateral purpose is sought to be achieved by the Proclamation, it would be liable to be struck down. The question whether the majority party in the Legislative Assembly of a State ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon wholly extraneous or irrelevant grounds, the court would have jurisdiction to examine it. Even clause (5) is not a bar when the contention is that there was no satisfaction at all. The scope of judicial review of the action under Article 356, the learned Judges held, is confined to a narrow minimal area. May be that in most cases, it would be difficult, if not impossible, to challenge the exercise of power under Article 356(1) on the aforesaid limited ground, because the facts and circumstances on which the satisfaction is based, would not be known. However, where it is possible, the existence of satisfaction can always be challenged on the ground that it is mala fide or based on wholly extraneous and irrelevant grounds . We may say with great respect that we find it difficult to agree with the above formulations in toto. We agree only with the statements regarding the permissible grounds of interference by court and the effect of clause (5), as it then obtained. We also agree broadly with the first proposition, though not in the absolute terms indicated therein. Goswami and Untwalia, JJ.- The separate opinions of Goswami and Untwalia, JJ. emphasise one single fact, name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst the Prime Minister, no other member of the National Assembly is likely to command the confidence of majority of the members of the National Assembly in accordance with the provisions of the Constitution as ascertained in a session of the National Assembly summoned for the purpose; or (b) a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary. 350. Sub-clause (b) of clause (2) approximates to clause (1) of Article 356 of our Constitution. Under this clause, the President may dissolve the National Assembly, in his discretion, where in his opinion, a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary. 351. The first decision is in Federation of Pakistan v. Mohd. Saifullah Khan56 a decision of a Bench of twelve Judges of the Pakistan Supreme Court. Acting under Article 58(2)(b), the President of Pakistan dissolved the National Assembly and dismissed the federal cabinet with immediate effect by a notification dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Amendment Act, 1908, construed the word 'opinion' as under: '....it is a duty of Provincial Government to take into consideration all relevant facts and circumstances. That imports the exercise of an honest judgment as to the existence of conditions in which alone the opinion must be formed honestly, that the restriction is necessary. In this process, the only element which I find to possess a subjective quality as against objective determination, is the final formation of opinion that the action proposed is necessary. Even this is determined, for the most part, by the existence of circumstances compelling the conclusion. The scope for exercise of personal discretion is extremely limited. ... As I have pointed out, if the section be construed in a comprehensive manner, the requirement 59 PLD (1 964) SC 673 257 of an honest opinion based upon the ascertainment of certain matters which are entirely within the grasp and appreciation of the government agency is clearly a prerequisite to the exercise of the power. In the period of foreign rule, such an argument, i.e., that the opinion of the person exercising authority is absolute may have at times prevailed, but under au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may not be relevant, there are other relevant goods all of which read together are sufficient to justify the action taken . 1 PLD(1992)SC646,664 6 PLD (1989) SC 166 356. The next decision relied upon by Shri Sorabjee is in Mian Mohd. Nawaz Sharif v. President of Pakistan29. The said decision pertains to the most recent dismissal of the Federal Government and dissolution of the National Assembly by the President of Pakistan by his order dated April 18, 1993. 357. In this decision, several propositions have been enunciated by the court. Firstly, it is reiterated that if it could be shown that no grounds existed on the basis of which an honest opinion could be formed 'that a situation had arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary' the exercise of the power would be unconstitutional and open to correction through judicial review . It is next held that Article 58(2)(b) of the Constitution empowers the executive head to destroy the legislature and to remove the chosen representatives. It is an exceptional power provided for an exceptional situ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers. The second distinguishing feature is that under the Pakistan Constitution the President is empowered to dismiss the Federal Government just as the Governor of a province is empowered to dismiss the Provincial Government, whereas under our Constitution, there is no question of President dismissing the Union Government; it is really a case where the Union Government dismisses the State Government if the situation contemplated by Article 356(1) arises. The strong remarks made by the Pakistan Supreme Court must no doubt be understood in the context of the aforesaid character of Article 58(2)(b). Yet the relevance of the approach adopted by the Pakistan Supreme Court is not without significance. 360. We may at this stage refer to the decision of the Constitution Bench of this Court in Kehar Singh v. Union of India19. Article 72 of the Constitution confers upon the President the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence. The power extends to cases where the sentence is a sentence of death. The article does not provide any guidance in which matters should the President ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s was so held in spite of the seemingly absolute nature of the power conferred by Article 72 upon the President. The argument of the learned Attorney General of India that the exercise of power under Article 72 was not justiciable was accordingly rejected. 361. Counsel appearing on both the sides placed strong reliance upon the decision of the House of Lords in CCSU v. Minister for the Civil Service8 as laying down correctly the principles to be followed in the matter of judicial review of administrative action whether governed by a statute or by 'common law'. The petitioners say that this approach ought to be adopted even in the case of constitutional action like the one under Article 356. The respondents demur to it. It is, therefore, necessary to examine what does the said decision lay down precisely. 362. The Government Communications Headquarters is a branch of the public services under the Foreign and Commonwealth Office. Its main functions are to ensure the security of the United Kingdom military and official communications and to provide signals intelligence for the Government. Since 1947, i.e., from the time of its establishment, the staff employed therein we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect-matter of the decision, the source of the decision- making power may still be the common law itself, i.e., that part of the common law that is given by lawyers the label of the prerogative. 364. The contention on behalf of the Minister was that action taken by him in exercise of the prerogative power is not amenable to judicial review. The said contention was rejected. So far as the merits are concerned, the only contention urged by the Unions related to the manner in which the decision which led to these instructions being given, was taken, that is to say, without prior consultation of any kind with the appellant or, indeed, others . The right of prior consultation was founded upon the theory of legitimate expectation. All the Law Lords agreed that having regard to the practice in vogue since the establishment of the said establishment, the Unions could claim a legitimate expectation to be consulted before effecting any change in the conditions of their service. But, they held, the said legitimate expectation cannot prevail over the considerations of national security which prompted the Minister to issue the impugned instructions. It is on this ground alone that the House ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Government; and (b) may do so, if, in the opinion of the Central Government, there are circumstances suggesting- (i) that the business of the company is being conducted with intent to defraud its creditors, members or any other persons, or otherwise for a fraudulent or unlawful purpose, or in a manner oppressive of any of its members, or that the company was formed for any fraudulent or unlawful purpose; (ii) that persons concerned in the formation of the company or the management of its affairs have in connection therewith been guilty of fraud, misfeasance or other misconduct towards the company or towards any of its members; or (iii)that the members of the company have not been given all the information with respect to its affairs which they might reasonably expect, including information relating to the calculation of the commission payable to a managing or other director, the managing agent, the secretaries and treasurers, or the manager of the company. 367. Clause (b) empowered the Central Government to appoint one or more persons as inspectors to investigate into the affairs of a company and to report thereon if in its opinion there are circumstances sug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... doubt that since the legislature has provided for the opinion of the Government and not of the court such an opinion is not subject to a challenge on the ground of property, reasonableness or sufficiency. But the Authority is required to arrive at such an opinion from circumstances suggesting what is set out in sub-clauses (i), (ii) or (iii). If these circumstances were not to exist, can the Government still say that in its opinion they exist or can the Government say the same thing where the circumstances relevant to the clause do not exist? The legislature no doubt has used the expression circumstances suggesting . But, that expression means that the circumstances need not be such as would conclusively establish an intent to defraud or a fraudulent or illegal purpose. The proof of such an intent or purpose is still to be adduced through an investigation. But the expression circumstances suggesting cannot support the construction that even the existence of circumstances is a matter of subjective opinion. That expression points out that there must exist circumstances from which the Authority forms an opinion that they are suggestive of the crucial matters set out in the three su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 237(b) can at all be drawn the action would be ultra vires the Act and void. The principles enunciated in this case are not only self- evident, they have been followed uniformly since. We do not think it necessary to restate these principles they are too well-known. 370. Counsel brought to our notice a decision of the High Court of Australia in the Queen v. Toohey ex parte Northem Land Council61. Under the Aboriginal Land Rights (Northern Territory) Act, 1976, provision was made for the aboriginals to claim return of the land traditionally occupied by them. The application was to be made to the commissioner under the Act. Toohey, J. was acting as the commissioner. The application was made by the Prosecutor, Northern Land Council. According to the Land Rights Act, no such claim could be laid if the land claimed was comprised in a town. The expression 'town' was defined to have the same meaning as 'in the law relating to Planning and Development of Town. In 1979, Planning Act was enacted superseding an earlier Act. In Section 4(1) of the Planning Act, 'town' meant inter alia lands specified by the regulations to be an area which has to be treated as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the opinion of the Queen's representative 'is really the opinion of the Government of the day'. That this is so in the Northern Territory appears from Section 33 of the Northern Territory (Self Government) Act, 1978. I have already referred to the possibility of a legislature by appropriate words excluding judicial review of the nature here in question. The terms of the present grant of power conferred by Section 165(1) are devoid of any suggestion of such exclusion. It follows that if it be shown that a regulation made under that power was made for a purpose wholly alien to the Planning Act it will be ultra vires the power and will be so treated by the courts. 371. This case establishes that the validity of an action whether taken by a Minister or a Representative of the Crown is subject to judicial review even if done under the statute. In this case, it may be noted, the regulations in question were made under a statute, no doubt by the Administrator who was supposed to be the Representative of the Crown in the Territory. This factor, the court held, did not preclude the court from reviewing the validity of the regulations made by him. 372. Having noticed va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. As stated by the Pakistan Supreme Court, that view is totally unsuited to a democratic polity. Even the Privy Council has not stuck to that view, as is evident from its decision in the case from Malaysia Stephen Kalong Ningkan v. Govt. of Malaysia58. In this case, the Privy Council proceeded on the assumption that such a Proclamation is amenable to judicial review. On facts and circumstances of this case, it found the action justified. Now, coming to the approach adopted by the Pakistan Supreme Court, it must be said as indicated hereinbefore that it is coloured by the nature of the power conferred upon the President by Section 58(2)(b) of the Pakistani Constitution. The power to dismiss the Federal Government and the National Assembly is vested in the President and President alone. He has to exercise that power in his personal discretion and judgment. One man against the entire system, so to speak even though that man too is elected by the representatives of the people. That is not true of our Constitution. Here the President acts on the aid and advice of the Union Council of Ministers and not in his personal capacity. Moreover, there is the check of approval by Parliament whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... struck down, as indicated by a majority of learned Judges in the State of Rajasthan3. This holding must be read along with our opinion on the meaning and scope of Article 74(2) and the further circumstance that clause (5) which expressly barred the jurisdiction of the courts to examine the validity of the Proclamation has been deleted by the 44th Amendment to the Constitution. In other words, the truth or correctness of the material cannot be questioned by the court nor will it go into the adequacy of the material. It will also not substitute its opinion for that of the President. Even if some of the material on which the action is taken is found to be irrelevant, the court would still not interfere so long as there is some relevant material sustaining the action. The ground of mala fides takes in inter alia situations where the Proclamation is found to be a clear case of abuse of power, or what is sometimes called fraud on power cases where this power is invoked for achieving oblique ends. This is indeed merely an elaboration of the said ground. The Meghalaya case, discussed hereinafter, demonstrates that the types of cases calling for interference cannot either be closed or speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nor could they say with any conviction that judicial review is excluded in this behalf. If judicial review is not excluded in matters of pardon and remission of sentence under Article 72 a seemingly absolute and unconditional power it is difficult to see on what principle can it be said that it is excluded in the case of a conditional power like the one under Article 356. 376. We recognise that judicial process has certain inherent limitations. It is suited more for adjudication of disputes rather than for administering the country. The task of governance is the job of the Executive. The Executive is supposed to know how to administer the country, while the function of the Judiciary is limited to ensure that the Government is carried on in accordance with the Constitution and the laws. Judiciary accords, as it should, due weight to the opinion of the Executive in such matters but that is not to say, it defers to the opinion of Executive altogether. What ultimately determines the scope of judicial review is the facts and circumstances of the given case. A case may be a clear one like Meghalaya and Karnataka cases where the court can find unhesitatingly that the Proclamation is b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and shall not be questioned in any court on any ground. 379. The effect of this clause was considered by this Court in State of Rajasthan3. It was held that the said clause does not preclude the court from examining whether the exercise of power is mala fide or is based on extraneous grounds or whether it is based on no satisfaction at all. It was held that the said clause does not prevent the court from examining the Proclamation on the aforesaid grounds. We, however, agree that the deletion of this clause is certainly significant in the sense that the express bar created in the way of judicial review has since been removed consciously and deliberately in exercise of the constituent power of Parliament. (See A.K. Roy v. Union of India25). The cloud cast by the clause on the power of judicial review has been lifted. 380. It was urged by Shri Parasaran, learned counsel appearing for the Union of India that where a person challenges the validity of the Proclamation under Article 356(1), the burden lies upon him to establish its validity and that it is not part of the duty of the Union of India to assist the petitioner in establishing his case. Reliance is placed on certain obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alled upon to place the material/information on the basis of which it had formed the satisfaction. The Union of India may perhaps be well advised to follow the practice of stating the reasons and the grounds upon which the requisite satisfaction is founded. ARTICLE 356 Is IT CONFINED ONLY TO CASES WHERE THE STATE GOVERNMENT FAILS OR REFUSES To ABIDE BY THE DIRECTIONS ISSUED BY THE CENTRAL GOVERNMENT? 382. It was submitted by Shri Jethmalani, the learned counsel for some of the petitioners that in view of Article 365 of the Constitution, the only situation in which the power under Article 356 can be invoked by the President is the failure of the State Government to comply with or to give effect to the directions given in exercise of the executive power of the Union under any of the provisions of the Constitution and not in any other case. Reference is made in this connection to Articles 256 and 257. It would be appropriate to read all the three articles at this stage : 256. Obligation of States and the Union.- The executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution. 383. In our opinion, the contention urged is unacceptable. Article 256 merely states that the executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament whether existing or to be made in future. It is stated therein that the executive power of the Union shall extend to giving of such directions to a State as may appear to the Government of India to be necessary for the said purpose. This article is confined to proper and due implementation of the parliamentary enactments and the power to give directions for that purpose. Article 257 says that executive power of every State shall be so exercised as not to impede or prejudice the exercise of the executive power of the Union; for ensuring the same, the Union Government is empowered to give appropriate directions. Clauses (2), (3) and (4) illustrate and elaborate the power contained in clause (1). Article 365, which incidentally does not occur in Part XVIII, but in Part XIX (Miscellaneous) merely says that where any State has failed to comply with or giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Party and Lok Dal (B) merged resulting in the formation of Janata Dal. The Janata Party in Karnataka Legislature was renamed Janata Dal. On April 15, 1989 the Ministry was expanded by Shri Bommai including thirteen more members. On April 17, 1989, a legislator, Shri Kalyan Rao Molakery, defected from the party and presented a letter to the Governor withdrawing his support to the Janata Dal Government. On the next day, he met the Governor and presented nineteen letters purported to have been signed by seventeen Janata Dal legislators, one associate independent legislator and one BJP legislator withdrawing their support to the Government. The Governor is said to have called the Secretary of the Legislature Department and got the authenticity of the signatures on the letters verified. He did not, of course, inform Shri Bommai about these developments. On April 19, 1989, the Governor sent a report to the President stating that there were dissensions in Janata Party which led to the resignation of Shri Hegde earlier and that even after the formation of Janata Dal, there have been dissensions and defections. He referred to the letters received by him from defecting members and opined tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i and certain other members of the Council of Ministers by way of a writ petition (W.P. 7899 of 1989) in the Karnataka High Court. The Union of India (the first respondent in the writ petition) submitted that the decision of the President of India based on the report of the Governor and other information brought to his notice is not justiciable and cannot be challenged in the writ petition. While making a report, it was submitted, the Governor does not act on the aid and advice of his Council of Ministers but in his individual capacity. The report of the Governor cannot be challenged in view of Article 361 of the Constitution nor can he or the President be compelled to disclose the information or material upon which they have acted. Article 74(2) was said to be a bar to the court enquiring into the said information, material and advice. It was also submitted that the Proclamation has since been approved by both Houses of Parliament under clause (3) of Article 356. The State of Karnataka submitted that the Governor had taken into consideration all the facts and circumstances prevailing in the State while submitting his report and that the Proclamation issued on that basis is unobjec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... article speaks of the satisfaction being formed on the basis of the Govern's report, the legal mala fides, if any, of the Governor cannot be said to be irrelevant. The Governor's report may not be conclusive but its relevance is undeniable. Action under Article 356 can be based only and exclusively upon such report. Governor is a very high constitutional functionary. He is supposed to act fairly and honestly consistent with his oath. He is actually reporting against his own Government. It is for this reason that Article 356 places such implicit faith on his report. If, however, in a given case his report is vitiated by legal mala fides, it is bound to vitiate the President's action as well. Regarding the other points made in the judgment of the High Court, we must say that the High Court went wrong in law in approving and upholding the Governor's report and the action of the President under Article 356. The Governor s report is vitiated by more than one assumption totally unsustainable in law. The Constitution does not create an obligation that the political party forming the ministry should necessarily have a majority in the Legislature. Minority Governments are no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st dismiss the Ministry in power and instal the alternative Ministry in office. On the other hand, if no such Ministry is possible, the Governor will be left with no alternative but to make a report to the President under Article 356. ... As a general proposition, it may be stated that, as far as possible, the verdict as to majority support claimed by a Chief Minister and his Council of Ministers should be left to the Legislature, and that it is only if a responsible Government cannot be maintained without doing violence to correct constitutional practice that the Governor should resort to Article 356 of the Constitution. ... What is important to remember is that recourse to Article 356 should be the last resort for a Governor to seek... the guiding principle being, as already stated, that the constitutional machinery in the State should, as far as possible, be maintained . (quoted from the book President's Rule in the States, edited by Shri Rajeev Dhavan and published under the auspices of the Indian Law Institute, New Delhi). It is a pity that the Governor of Karnataka did not keep the above salutary guidelines and principles in mind while making his report. 394. Dr G.S. D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to invite the leader of the party commanding majority in the House or the single largest party/group to form the Government. We need express no opinion regarding such a situation. 397. We are equally of the opinion that the High Court was in error in holding that enactment/addition of Xth Schedule to the Constitution has not made any difference. The very object of the Xth Schedule is to prevent and discourage 'floor-crossing' and defections, which at one time had assumed alarming proportions. Whatever may be his personal predilections, a legislator elected on the ticket of a party is bound to support that party in case of a division or vote of confidence in the House, unless he is prepared to forego his membership of the House. The Xth Schedule was designed precisely to counteract 'horse-trading'. Except in the case of a split, a legislator has to support his party willy- nilly. This is the difference between the position obtaining prior to and after the Xth Schedule. Prior to the said amendment, a legislator could shift his loyalty from one party to the other any number of times without imperiling his membership of the House it was as if he had a property in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Governor to invite him to form the Government. Thereupon the Governor requested Shri Lyngdoh to prove his majority on the floor of the House. On August 7, 1991, a special session of the Assembly was convened to pass a motion of confidence in the Ministry. On the motion being moved, thirty members supported it and twenty-seven voted against it. Before announcing the result, however, the Speaker announced that he had received a complaint against five independent MLAs in the ruling coalition alleging disqualification under the Anti-defection Law and that he was forthwith suspending their right to vote. This resulted in an uproar in the Assembly. The session had to be adjourned. On August 11, 1991, the Speaker sent identical show-cause notices to the said five independent MLAs on the basis of the complaint filed by one Shri H.S. Shylla. On August 16, the five MLAs sent their replies denying that they have joined any of the parties as alleged. They affirmed that they continue to remain independents. On August 17, 1991 the Speaker passed an order disqualifying all the 5 MLAs on the basis that four of them were Ministers in the Lyngdoh Ministry and one of them (Shri Chamberlain Marak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce in the Government was put to vote, the Speaker declared that 26 voted for the motion and 26 against. In counting the votes casts in favour of the motion, he excluded the votes of the said four independent MLAs again. Holding that there was a tie, he cast his vote against the motion and declared the motion lost. He then adjourned the House sine die, evidently with a view to ward off the passing of motion against himself. The thirty, MLAs (including the said four independent MLAS) however, continued to stay in the House. They elected a Speaker from among themselves and continued the business of the Assembly. The new Speaker found on a scrutiny of the records relating to voting on the motion of confidence that actually 30 members have signed in favour of the motion and 26 against. Accordingly, he declared that the motion of confidence in the Government was carried. They also passed the motion of no confidence in the Speaker, Shri Kyndiah. The 26 members who had voted against the motion had, of course, left the House by that time. The said 30 MLAs thereafter sent a letter to the Governor affirming that they had voted in favour of the Government and also in favour of the motion of no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of this Court while deciding whether the Government has lost the confidence of the House and yet he ignored the same and reported to the President that the Ministry has lost the confidence of the House. We are intrigued by the strange logic of the Governor that obedience to the orders of this Court relating to the disqualification of members of the House is a matter between the Speaker and the Supreme Court. Evidently, he invoked this strange logic to enable him to say as he wanted to say or as he was asked to say, as the case may be that the Speaker's decision that the Ministry has lost the confidence of the House, is valid and effective at any rate, so far as he is concerned. The Governor ought to have noted that this Court had stayed the operation of the orders of the Speaker disqualifying the four independent members, which meant that the said four MLAs were entitled to participate in the proceedings of the Assembly and to vote. They did vote in favour of the motion expressing confidence in the Government. The Speaker was, however, bent upon unseating the Government by means fair or foul and with that view was openly flouting the orders of this Court. He managed to decla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me, one member having died. The particulars of the split in the party are the following : On July 28, 1988, 13 of the 34 MLAs informed the Speaker of the Assembly that they have dissociated from the ruling party and have formed a separate party called Congress Ruling Party . They requested the Speaker for allotment of separate seats for them in the Assembly, the session of which was to commence on August 28, 1988. On July 30, 1988 the Speaker held that a split had occurred within the meaning of the Xth Schedule of the Constitution in the ruling party. Shri Vamuzo was one among the said 13 MLAs. He informed the Governor on July 31, 1988 that he has secured the support of 35 of the 59 members of the Assembly and was in a position to form the Ministry in the State. At this stage, the Chief Secretary to the Government of Nagaland wrote to Shri Vamuzo on August 3, 1988 that according to the information received by him, the group of 13 MLAs aforesaid were wrongfully confined by him. Shri Vamuzo denied the same and invited the Chief Secretary to come and verify the truth of the allegation from the said members themselves. The members stated before the Chief Secretary that they were free ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assembly as privileged documents and a 'class' documents under Section 123 of the Evidence Act. Therefore, the objection that the courts do not have powers to call for the information from the President of India in view of Article 74(2) of the Constitution is sustained. Since the Nagaland Legislative Assembly is dissolved by the two Houses of Parliament, no relief can be granted in the circumstances of this case . Accordingly, he proposed to dismiss the writ petition. Hansaria, J., however, took a contrary view. The learned Judge held that the material which formed part of 'other information' but has not been produced before the court, does not form part of the advice tendered by the Council of Ministers to the President. The court is, therefore, entitled to see the said material and for that purpose the Union of India must be given ten days' time for producing the same. If, however, they decline to do so, the court would have no alternative but to act upon the present material and the Union of India will have to take the consequences of such a course. The learned Judge did not propose to dispose of the writ petition but to wait for ten days and then pronounce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a report to the President setting out the fast deteriorating law and order situation in the State in the wake of widespread acts of violence, arson and looting . He observed in his report that the lack of faith in the ability of the State Government to stem the tide primarily because of the political leadership's overt and covert support to the associate communal organisations seem to point out that there is breakdown of the administrative machinery of the State . He .Followed it up with another report on December 10, 1992 wherein he mentioned about the violence spreading to hitherto peaceful areas. On December 13, 1992, he sent his third report enclosing the photocopy of a letter received from the Executive Director, Bharat Heavy Electricals Limited (BHEL), Bhopal dated December 11, 1992. The said letter, said the Governor, indicated the abject faiure of the law and order machinery to provide safety and security to life and property in the areas in and around BHEL factory . The letter also spoke of the pressure brought on the administration to accommodate the so-called kar sevaks in BHEL area . The Governor termed them as extremely serious developments that deserve a high ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alike. ... As a matter of fact, when the Chief Minister himself and some of the colleagues are members of the banned RSS, then it is not possible for the administrative machinery to implement the ban honestly, especially when some of the Ministers are openly criticising the ban on these communal organisations. He, therefore, recommended imposition of the President's rule. RAJASTHAN 416. The report of the Governor of Rajasthan, recommending imposition of the President's rule, stated the following facts : The Government of Rajasthan has played 'an obvious role' in the Ayodhya episode. The BJP has control over RSS, VHP and Bajrang Dal which are now banned by the Centre. The said ban is not being implemented at all. Indeed, one of the Ministers had resigned and along with 22 MLAs and 15,500 BJP workers had participated in the kar seva at Ayodhya on December 12, 1992. They were given a royal send off and when they returned, they were given a similar royal welcome by the influential people in the political set-up running the Government. The law and order has been very bad for more than a week, the dominant character being the anti- minority on whom largely atrocit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en only against BJP Governments. It is pointed out that so far as Himachal Pradesh is concerned, there were no communal disturbances at all. There was no law and order problem worth the name. Even the Governor's report did not speak of any such incidents. The Governments of Madhya Pradesh, Rajasthan and Himachal Pradesh, it is argued, cannot be held responsible for what happened at Ayodhya on December 6, 1992. For that incident, the Government of Uttar Pradesh had resigned owning responsibility therefor and it was dismissed. That is not under challenge. But the Governments of these three States were in no way connected with the said incident and could not have been dismissed on account of the said incident. It is also pointed out that according to the report of the Governor of Himachal Pradesh, the Chief Minister met him and indicated clearly that he was desirous of and was implementing the ban and that some arrests were also made. In such a situation, there was no reason for the Governor to believe, or to report, that the Chief Minister is not sincere or keen to implement the ban on the said organisations. As a matter of fact, the Tribunal under Unlawful Activities (Prevention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tisfaction. 422. The circumstances in the State of M.P. were different from several other States where too serious disturbance to law and order took place. There is no comparison between both situations. Besides Bhopal, overall situation in the State of M.P. was such that there were sufficient and cogent reasons to be satisfied that the Government in the State could not be carried on in accordance with the provisions of the Constitution. It is denied that there was no law and order situation in the State . The Governor's reports are based upon relevant material and are made bona fide and after due verification. 423. The allegations made against Shri Arjun Singh, Minister for Human Resource Development are baseless. The decision was a collective decision of the Council of Ministers. No comparison with regard to the State of affairs in the State of Madhya Pradesh can be made with those of other States. The Governor of Madhya Pradesh having reported that the constitutional machinery in the State had broken down, the Proclamation of President's rule is justified and constitutional. 424. In the counter-affidavit filed in the writ petition (Transferred Case No. 8 of 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt implemented the ban on RSS properly is denied. There is no requirement that the report of the Governor should be addressed to the President. It can also be addressed to the Prime Minister. Besides the report of the Governor, other information was also available on which the President had formed his satisfaction. The correctness, adequacy or sufficiency of the material contained in the Governor's report is not justiciable and cannot be gone into by the court. The allegations of mala fide, capricious and arbitrary exercise of power are denied. No irrelevant material was taken into consideration by the President and hence, it is averred, the satisfaction of the President is not judicially reviewable. 426. The learned counsel for Union of India and other counsel supporting the impugned Proclamations put their case thus : the main plank and the primary programme of BJP was the construction of a Ram temple at the very site where the Babri Masjid stood. The party openly proclaimed that they will remove relocate, as they called it the Babri Masjid structure since according to them the Babri Masjid was superimposed on an existing Ram temple by Emperor Babur. The party came to powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the BJP, referred to in the White Paper issued by the Government of India, there would hardly be any room for such beneficial interpretation. The White Paper on Ayodhya issued by the Government of India in February 1993, establishes the complicity of the Bhartiya Janata Party as such in the demolition of the disputed structure and its aftermath. 428. According to the statement of the Union Home Minister made in Rajya Sabha on December 21, 1992, the counsel pointed out, all these kar sevaks, when they returned, were received by the Chief Ministers and Ministers . 429. The counsel for the respondents argued further that what happened on December 6, 1992 did not happen in a day. It was the culmination of a sustained campaign carried on by the BJP and other allied organisations over the last few years. They had been actively campaigning for the construction of Ram Temple at the disputed site. They had been speaking of relocating the disputed structure which only meant that they wanted the disputed structure removed and a Ram temple constructed in that very place. The several speeches of the leaders of BJP and other allied parties, referred to in the White Paper, do clearly est ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rule in Uttar Pradesh. In violation of democratic norms, the Centre dismissed the BJP Governments in Rajasthan, Madhya Pradesh and Himachal Pradesh. Further, it banned the Rashtriya Swayamsevak Sangh, Vishwa Hindu Parishad and Bajrang Dal. Worst of all, in collusion with other rootless forces the Government unleashed a vicious propaganda offensive aimed at belittling the Hindus. The kar sevaks were denigrated as fascists, lumpens and vandals, and December 6, was described as a 'national shame'. Recently, the CBI has filed charge-sheets against leaders of the BJP and the Vishwa Hindu Parishad with the purpose of projecting them as criminals. This relentless onslaught of the pseudo- secular forces against the people of India had very serious consequences. For a start, it created a wide emotional gulf between the rulers and the people. Ayodhya was a popular indictment of the spurious politics of double- standards. Far from recognising it as such, the Congress and other anti-BJP parties used it as a pretext for furthering the cause of unprincipled minorityism. It is this minorityism that prevents the Congress, Janata Dal, Samajvadi Party and the Communist Parties from coming ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and despatching the kar sevaks to Ayodhya and welcomed them and praised when they came back after doing the deed. Thus, a common thread runs through all the four BJP Governments and binds them together, say the counsel. All these four Governments had launched upon a course of action in tandem with top BJP leaders, which led to the demolition. Their actions and deeds were contrary to the provisions of the Constitution. The manifestos of the party on the basis of which these Governments came to power coupled with their speeches and actions clearly demonstrate a commonness, an inseparable unity of action between the party and these four Governments. The very manifestos and their programme of action were such as to hurt the religious feelings of the Muslim community. They negated the secular concept, a basic feature of our Constitution. The demolition of the disputed structure was no ordinary event. The disputed structure had become the focal point, the bone of contention between two religious communities. The process which resulted in the demolition and the manner of in which it was perpetrated, dealt a serious blow to the communal harmony and peace in the country. It had adverse inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question of punishing the Governments for what happened on December 6, 1992. The real question was who created this turmoil in the life of the nation and who put the nation's soul in torment. The immediate need was the restoration of the faith of the people in the impartiality of the administration, in the secular credentials of the nation and to ensure not only that the ban on the alleged communal organisations is effectively implemented but also to ensure that the administration acts promptly and impartially in maintaining the law and order. The Central Government, submitted the counsel, acted with this perception and it cannot be said either that the said action was outside the purview of Article 356 or that it was mala fide or that there was no material on which the President could be reasonably satisfied that the dismissal of these State Governments was indeed called for, submitted the learned counsel for Union of India and other respondents. 432. With a view to demonstrate his submission that judicial approach and judicial processes are not appropriate to judge the various situations calling for action under Article 356, Shri Parasaran gave the following scenario : The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and international. Rarely do such occasions arise in the life of a nation. The situation was an extraordinary one; its repercussions could not be foretold at that time. Nobody could say with definiteness what would happen and where? The situation was not only unpredictable, it was a fast-evolving one. The communal situation was tense. It could explode anywhere at any time. On the material placed before us, including the reports of the Governors, we cannot say that the President had no relevant material before him on the basis of which he could form the satisfaction that the BJP Governments of Madhya Pradesh, Rajasthan and Himachal Pradesh cannot dissociate themselves from the action and its consequences and that these Governments, controlled by one and the same party, whose leading lights were actively campaigning for the demolition of the disputed structure, cannot be dissociated from the acts and deeds of the leaders of BJP. In the then prevailing situation, the Union of India thought it necessary to ban certain organisations including RSS and here were Governments which were headed by persons who swore by the values and traditions of the RSS and were giving overt and covert s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ex issues to the President and the Union Council of Ministers to deal with. It was a situation full of many imponderables, nuances, implications and intricacies. There were too many ifs and buts which are not susceptible of judicial scrutiny. It is not correct to depict the said Proclamations as the outcome of political vendetta by the political party in power at the Centre against the other political party in power in some States. Probably in such matters, the ultimate arbiter is the people. The appeal should be to the people and to people alone. The challenge to the Proclamation relating to these three States is, therefore, liable to fail. 434. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve 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. 435. In the light of the reasons given and conclusions recorded hereinabove, 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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