S. R. Bommai v Union of India (1994)

It is the single most important decision on Art. 356, and one of the most important on federalism and on secularism. Before it, President's rule was widely treated as unreviewable; after it, a Proclamation is justiciable, the floor of the House is the constitutionally ordained forum for testing a Ministry's strength, and a State Government whose conduct is inconsistent with secularism may be dismissed.

The Court examined the nature of the Indian Constitution; certain aspects of Centre-State relations; the circumstances in which the imposition of President's rule in the States could be justified; the scope of judicial review of the President's satisfaction in imposing President's rule; the dissolution of a State Assembly and the effect of dissolution where the Proclamation is disapproved by Parliament; and the power of the Supreme Court in such cases.

Jeevan Reddy J on the nature of the Indian federation

The expression federation, or federal form of government, has no fixed meaning. It broadly indicates a division of powers between a central government and the units comprised in it. No two federal constitutions are alike — each of the United States, Canada, Australia and any other country has its own distinct character and is the culmination of a particular historical process. It is futile to try to fit our Constitution into any particular mould; it must be understood in the light of our own historical process and constitutional evolution. One thing is clear: it was not a case of independent States coming together to form a Federation, as in the United States.

The bias towards the Centre

A review of the provisions shows unmistakably that while creating a federation the Founding Fathers wished to establish a strong Centre, which, in the light of the past history of the sub-continent, was probably a natural and necessary decision. The evidence given is a checklist worth reproducing:

• all the more important heads of legislation are placed in List I;
• several entries in List II are limited by, or made subject to, entries in List I;
• in List III the parliamentary enactment is given primacy, irrespective of whether it is earlier or later than the State enactment;
• residuary powers are with the Centre;
• by the Forty-second Amendment several entries in List II were omitted or transferred to other lists;
• Art. 3 empowers Parliament to form new States out of existing ones by merger or division and to increase, diminish or alter boundaries, so that existing States may disappear and new ones come into existence — the States Reorganisation Act 1956 produced fourteen States and six Union territories in place of twenty-seven States and one area — and even the names of States can be changed by Parliament unilaterally, the only requirement being ascertainment of the views of the affected Legislatures under the proviso to Art. 3;
• there is single citizenship, unlike the United States;
• the judicial organ is one and single for the entire country, again unlike the United States with its separate federal and State judiciaries;
• Arts. 249 to 252 demonstrate the primacy of Parliament — the Rajya Sabha by a two-thirds resolution may open the State List under Art. 249; Parliament may legislate on State List matters during an Emergency under Art. 250; and it may implement international agreements under Art. 253;
• on finance the States are in a less favourable position, several taxes being collected by the Centre and made over to them in whole or in part, an aspect that has attracted criticism from the States and from proponents of State autonomy.

Correspondingly, obligations are placed on the Centre, including that in Art. 355 — the duty to protect every State against external aggression and internal disturbance. Jeevan Reddy J noted that this very Article confers greater power upon the Centre in the name of casting an obligation on it, namely to ensure that the government of every State is carried on in accordance with the provisions of the Constitution. It is both a responsibility and a power.

But the States are not appendages

The counterweight is equally important and is the sentence most often quoted against a purely centralist reading:

The fact that greater power is conferred on the Centre does not mean that the States are mere appendages of the Centre. Within the sphere allotted to them, States are supreme. The Centre cannot tamper with their powers. More particularly, the courts should not adopt an approach or interpretation which has the effect, or tends to have the effect, of whittling down the powers reserved to the States. The world-wide trend towards strengthening central governments — even in the United States, whose Constitution has an obvious bias in favour of the States — must put the Court on guard against any conscious whittling down of State powers. 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.

The judgment also records Ambedkar's answer in the Constituent Assembly on Arts. 355, 356 and 357: notwithstanding the many provisions under which the Centre may override the States, ours is a federal Constitution, meaning that the States are sovereign in the field which is left to them and have plenary authority to make any law for the peace, order and good government of the State. The States therefore have an independent constitutional existence and as important a role in the political, social, educational and cultural life of the people as the Union: they are neither satellites nor agents of the Centre.

Elsewhere the Court recorded Ambedkar's statement that the Constitution is both unitary as well as federal according to the requirement of time and circumstances, the Centre working for the common good and the general interest of the country as a whole while the States work for local interest.

On the source of Art. 356 the Court noted that Art. 356 read with Art. 355 was based on Article 4, Section 4 of the United States Constitution and, like that provision, is not inconsistent with the federal principle. These provisions were meant to be the last resort, but have been gravely abused, and can therefore be said to affect the working of the Constitution as a federal government. But the Forty-fourth Amendment to Art. 356, together with the proposition that the doctrine of the political question does not apply in India, means that the courts can now take a more active part in preventing a mala fide or improper exercise of the power to impose President's rule, unfettered by the American political question doctrine.

This is the practical core of the case.

In all cases where the support to a 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 counter-claims. 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, and when such demonstration is possible it is not open to bypass it and depend instead on the subjective satisfaction of the Governor or the President. Such private assessment is an anathema to the democratic principle, apart from being open to serious objections of personal mala fides.

It may be that on rare occasions a floor test is impossible, though the Court thought it difficult to envisage such a situation; even then it should be obligatory on the Governor to state in writing the reasons for not holding the floor test. The High Court had been wrong to hold that a floor test was neither compulsory nor obligatory nor a pre-requisite to a report recommending action under Art. 356(1).

The High Court was further wrong in holding that the facts stated in the Governor's report were not irrelevant, when the Governor, without ascertaining either from the Chief Minister or from the seven MLAs whether their retraction was genuine, proceeded to give his unverified opinion. Even assuming support had been withdrawn by nineteen MLAs, it was incumbent on the Governor to ascertain whether any other Ministry could be formed.

The question of the personal bona fides of the Governor is irrelevant in such matters. What is to be ascertained is whether the Governor proceeded legally and explored all possibilities of ensuring a constitutional Government in the State before reporting that the constitutional machinery had broken down — and even if this meant installing a Government belonging to a minority party, the Governor was duty bound to opt for it.

Where a duly constituted Ministry was dismissed on the basis of material which was neither tested nor allowed to be tested and was no more than the ipse dixit of the Governor, the action was the more objectionable because a high constitutional functionary was expected to conduct himself firmly, cautiously and circumspectly; instead the Governor appeared to be in a hurry to dismiss the Ministry and dissolve the Assembly. A Proclamation based on such a report and on undisclosed other information was liable to be struck down.

The result was not uniform, and this is what makes the case a real decision rather than a set of dicta. The majority declared invalid the dissolution of the Assemblies of Karnataka and Nagaland, and held valid the dissolution of the Assemblies of Madhya Pradesh, Rajasthan and Himachal Pradesh.

The reason for the difference lay in the material. For Karnataka and Nagaland the material relied on by the Governor was held to be nothing but his ipse dixit, and the dissolutions were illegal. For the three other States, the President had material on which he could be satisfied that the Governments controlled by one and the same party, whose leading lights were actively campaigning for the demolition of the structure, could not be disassociated from the acts and deeds of the party's leaders; that their faith in the concept of secularism was suspect; and that in the volatile situation that developed after the demolition the Government of those States could not be carried on in accordance with the Constitution. The Court was not able to say that there was no relevant material on which the President could be so satisfied; it cannot question the correctness of the material, and cannot interfere so long as there is some relevant material to sustain the action, even if part of the material is irrelevant.

Once that split is kept in focus, the argument that everything turns on the perception of the same facts, or that there are no judicially manageable standards, has no legs to stand on.

A Proclamation under Art. 356 is justiciable; the President's satisfaction must rest on some relevant material and will be struck down if it is mala fide, based on wholly extraneous and irrelevant grounds, or on nothing but the Governor's ipse dixit; and where the issue is the strength of a Ministry, the floor of the House is the constitutionally ordained forum and the Governor's subjective assessment cannot be substituted for it. Secularism and federalism are basic features by reference to which the exercise of the power may be judged.

• Three heads, always: federalism and the nature of the Constitution; the floor test and the Governor's duties; the scope and limits of judicial review, with the split result as proof that the review is real but restrained.
• Quote the pair. The Centre is far more powerful; and yet, within the sphere allotted to them, the States are supreme. An answer that gives both is complete.
• Use it with Rameshwar Prasad, which applies exactly this framework to a dissolution ordered before the Assembly had met, and with State of Rajasthan v Union of India, the earlier authority on review of an Art. 356 proclamation.