S R BOMMAI V UNION OF INDIA (1994) (A NINE-JUDGE BENCH DECISION)
Facts
S R Bommai was sworn in as the Chief Minister of Karnataka on August 30 1988. On 17th April 1989 one legislator presented a letter to the Governor withdrawing his support to the Ministry. On 18th April 1989 he presented to the Governor 19 letters allegedly written by 19 legislators withdrawing their support to the Ministry.
The Governor 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 headed by S R Bommai there were dissensions and defections. In support the Governor referred to the 19 letters received by him. He further stated that in view of the withdrawal of the support by 19 legislators, the Chief Minister S R Bommai did not command a majority in the Assembly and it was inappropriate to have the State administered by an Executive, consisting of Council of Ministers which did not command the majority in the House. He also added that no other political party was in apposition to form the Government. He therefore recommended to the President that he should exercise his powers under Article 356(1).
The Governor did not ascertain the view of S R Bommai either after the receipt of 19 letters or before making his report to the President
On April 20 1989 7 out of 19 legislators who had allegedly sent the letters to the Governor complained that their signatures were obtained on the earlier letters by misrepresentation and affirmed their support to the Ministry.
The State Cabinet met on April 20 1989 and decided to convene the Session of the Assembly on April 27 1989
The Chief Minister and the Law Minister met the Governor on April 20 1989 and informed him about the decision to summon the Assembly Session. The Chief Minister offered to prove his majority on the floor of the House even by pre-poning the Assembly Session if needed.
On April 20 1989 itself the Governor sent another report to the President referring to the letters of 7 legislators pledging their support to the ministry and withdrawing their earlier letters. The Governor however opined that the letters from 7 legislators were obtained by the Chief Minister by pressuring them and that horse trading was going on and the atmosphere was getting vitiated.
In the end he reiterated his opinion that the Chief Minster had lost the confidence of the majority in the House.
On April 20 1989 the President issues proclamation under Article 356(1) dissolving the House. The proclamation was thereafter approved by the Parliament as required by Article 356(3).
A writ petition challenging the validity of dissolution was dismissed by the High Court of Karnataka on the ground that the Governor’s report was not irrelevant and had to be accepted and the satisfaction of the President cannot be faulted
The Supreme Court declared the proclamation dissolving the Assembly as unconstitutional and observed:
“ It was improper on the part of governor to have arrogated to himself the task of holding firstly, that the earlier 19 letters were genuine and were written by the said legislators of their free will and volition. He had not even cared to interview the said legislators but had merely got the authenticity of the signatures verified through the Legislature Secretariat. Secondly he also took upon himself the task of deciding that the seven out of 19 legislators had written the subsequent letters on account of the pressure from the Chief Minster and not out of their free will. Again he had not cared even to interview the said legislators. Thirdly it is not known from where the Governor got the information that there was a horse trading going on between the legislators. Even assuming that it was so, the correct and proper course for him to adopt was to await the test on the floor of the House which test the Chief Minister had willingly undertaken to go through on any day the Governor chose.”
“We are of the view that this is a case where all canons of proprietary were thrown to wind and the undue haste made by the Governor in inviting the President to issue proclamation under Article 356(1) clearly smacked of mala fide.”
“The proclamation issued by the President on the basis of the said report of Governor equally suffered from mala fide”
“The Proclamation having been based on the said report and so-called information which is not disclosed was therefore liable to be struck down”
“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.”
“There cannot be any presumption of allurement or horse trading.”
“Since the “facts” stated by the Governor in his report contained his own opinion on unascertained material they could hardly be said to form an objective material on which the President could have acted. The proclamation issued was therefore invalid”
Principles laid down in Bommai on the scope of judicial review of President’s Rule
- President’s rule can be subject to judicial review to examine whether it was issued on the basis of any material at all or whether the material was relevant or whether proclamation was issued in mala fide manner
- Article 74(2) is not a bar against the scrutiny of the material on the basis of which President had arrived at his satisfaction. Advice and material are different
- Proclamation should be approved by both Houses of Parliament. If not approved the proclamation lapses
- Legislative Assembly should be kept in suspended animation and should not be dissolved. Legislative Assembly can be dissolved after the Proclamation has been approved by both Houses of Parliament
- President’s satisfaction is subjective but must be based on objective facts
- Proclamation can be struck down if is based on irrelevant consideration or is mala fide
- The Union government has obligation to produce the material before the Court
- If President’s action is unconstitutional the dismissed government can be revived and Assembly could be reactivated
- Pending the final disposal of a challenge the court can stay holding the elections
- Secularism is a part of the basic structure of the Constitution. The acts of a State government which are calculated to subvert or sabotage secularism can lawfully be deemed to give rise to a situation in which the government cannot be carried on in accordance with the provisions of the Constitution
(The Supreme Court in Bommai upheld the validity of the President’s rule in Madhya Pradesh, Rajasthan, and Himachal Pradesh as these governments had acted against secularism. The dismissal of these governments was a consequence of violent reactions in India and abroad as well as in neighbouring countries where some temples were destroyed as a result demolition of Babri Masjid on December 6th 1992. The proclamations were issued on January 15, 1993. These governments were run by BJP. The President had relevant material based upon Governor’s report that these political parties were fomenting communal tension by campaigning for the demolition of Babri Masjid .)
Improper exercise of power under Article 356 according to Sarkaria Commission Report which has been incorporated in S R Bommai judgment
- President rule cannot be imposed on the ground of break-down of law and order or maladministration
- President rule cannot be imposed unless the Governor has explored all possibilities of installing an alternative government in case of resignation or dismissal of a government
- The removal of a government which has not been defeated on the floor of the House and which has not been given an opportunity to prove its majority by floor would be unconstitutional
- The assessment of the strength of the Ministry is not a matter of private opinion of the Governor or President. The strength of the Ministry can be known only by a floor test.
- Massive defeat of a political party in Lok Sabha elections such as in 1977 or 1980 cannot be a ground for exercising power under Article 356
- Internal disturbance not amounting to internal subversion or physical break down cannot be ground for President’s Rule
- Allegation of corruption against the Ministers cannot be ground for invoking 356.
- The use of this power to sort out internal differences or intra-party problems of the ruling party would be constitutionally incorrect
- Article 356 should be used very sparingly in extreme cases as a measure of last resort when all available alternatives failed to prevent the breakdown of government machinery
RAMESHWAR PRASAD V UNION OF INDIA (2005) 7 SCC 625
ISSUE: CAN DISSOLUTION OF ASSEMBLY UNDER ARTICLE 356 (1) BE ORDERED TO PREVENT STAKING OF CLAIM BY A POLITICAL PARTY ON TH GROUND THAT THE MAJORITY HAS BEEN OBTAINED BY ILLEGAL MEANS?
This was a peculiar case where even before the first meeting of the Assembly its dissolution was ordered on the ground that attempts were made to cobble a majority by illegal means
FACTS
In Bihar general elections were held in February 2005. Names of elected candidates were notified on March 4, 2005. No party or coalition was in a position to secure 122 seats so as to have majority out of total 243 seats in the Assembly
Governor’s report recommending Presidents rule in Bihar made on March 7 2005. The Presidential proclamation was approved by Lok Sabha on March 19 2005 and by Rajya Sabha on March 21 2005.
Governor again sent a report on April 27 2005 and May 21 2005 to President Buta Singh stating that some legislators were being induced with offers of money and other allurements and the Governor recommended the dissolution of the Legislative Assembly
On May 23 2005 Prime Minister Man Mohan Singh convened a meeting in the mid-night and obtained the assent of the President who was abroad and the Assembly was dissolved
The Supreme Court struck down the proclamation applying the ratio of S R Bommai case and held that the proclamation dissolving the Assembly was unconstitutional. However the Assembly was not restored as the election was in process.
The report of the Governor referred to (1) serious attempts to cobble a majority (2) winning over MLA’s by offering money, posts and other allurements (3) targeting parties for a split (4) horse trading among the legislators.
The petitioners alleged that the notification dissolving the Assembly was illegal as it was based on the report of the Governor which suffered from serious legal and factual infirmity and were tainted with pervasive mala fides. The object of the report was to prevent political party led by Nitish Kumar to form the Government.
The Supreme Court held
In the absence of relevant material much less due to verification the Governor’s report had to treated ipse dixit (his own perception or opinion) of the Governor. The drastic action was taken on the whims and fancies of the Governor.
The Supreme Court criticized the Union Government for recommending the dissolution of the Assembly without verifying the facts reported by the Governor. The Governor had misled the Central government and his action to forestall the formation of new government led by Nitish Kumar was a mala fide exercise of power. There was no material at all to support the Governor’s perception that money and other allurements were being offered to the legislators.
The Supreme Court relying on nine judge bench decision in Bommai observed:
- It is well settled that if the satisfaction is mala fide or is based on wholly extraneous or irrelevant grounds the courts would have jurisdiction to examine it because in that case no satisfaction of the President in regard to that matter on which he is required to be satisfied. The proclamation under Article 356(1) is subject to judicial review to the extent of examining that the condition precedent for the issue of proclamation have been satisfied or not. This examination will involve the scrutiny of the material for satisfaction of the President
- While considering the question of material it is not the personal whim, wish, opinion or view of the President but a legitimate inference drawn from the material placed before him which is relevant for the purpose.
- In this case the Union Council of Ministers should have verified the facts stated in Governor’s report before hurriedly accepting it as a gospel truth. Clearly the Governor had misled the President.
- The case in hand is squarely covered against the Government by the majority decision in Bommai’s case There cannot be any assumption of allurement or horse trading.
- The assessment of the strength of a ministry is not a matter of private opinion of President or Governor. The proper course for a Governor was to test the strength of the ministry on the floor of the House which was not done by the Governor of Bihar.
- In the present case like in Bommai there was no material whatsoever except the ipse dixit (personal perception or opinion) of the Governor. His main object was to prevent a political party to stake claim to form government after elections and this object was destructive to the democratic fabric.
- Without highly cogent material it was irrational for the Governor to deny claim made by majority to form the government on the ground that the majority was obtained by offering allurements and bribe.
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