President's Rule: Limits & checksA.G. NOORANI
|The law on the imposition of President's Rule, Article 356 of the Constitution, has been explained by the Supreme Court in the S.R. Bommai case.|
IN APRIL 1989, Karnataka Chief Minister S.R. Bommai (left) presents Governor P. Ventakasubbiah a copy of the resolution passed by the Janata Dal Legislature Party requesting the Governor to give him an opportunity to test his majority in the Assembly. He was denied the opportunity and his government was dismissed, and eventually the Supreme Court laid down in the Bommai case that any proclamation under Article 356 is subject to judicial review.
THE Governor of Karnataka, H.R. Bhardwaj, put the Government of India in a most embarrassing position by recommending imposition of President's Rule in the State. In the process, he exposed, once again, his unfitness for the office he holds.
The rejection of his recommendation means that his prestige, none too high at any time, will suffer a terrible blow. Had the recommendation been accepted, it would have landed not only the Government of India but also the President in a most embarrassing situation in the Supreme Court. The court would be entitled to examine the material on the basis of which the Council of Ministers advised the President, and the onus of justifying the reckless action would not be on the petitioners but on the Union of India.
A nine-member Bench of the Supreme Court definitely construed the scope of Article 356 of the Constitution, which empowers the imposition of President's Rule in the States, in the famous case of S.R. Bommai and others vs Union of India and others ((1994) 3 Supreme Court Cases 1). It went beyond State of Rajasthan vs Union of India ((1977) 3 SCC 592) on the scope of judicial review. The President, who is sworn to uphold the Constitution and the law of India, can be fully trusted to follow this ruling whenever a draft proclamation imposing President's Rule in any State is presented for his/her signature by the Union Council of Ministers. The Prime Minister and the other Ministers, who have also taken the oath to abide by the Constitution, would also appreciate the stringent conditions the court's ruling in the Bommai case has imposed for the exercise of power under Article 356. The court decided the case on March 11, 1994. But the detailed implications of that ruling have yet to seep in.
The ruling was followed by a verdict by a five-member Bench in the Bihar case Rameshwar Prasad vs Union of India ((2006) 3 SCC 1). In both cases, the test of a vote by the Assembly in cases of disputed majority was approved.
It must be borne in mind that the court's ruling in the Bommai case, which remains definitive, came in the wake of deep, persistent public disquiet on the abuse of Article 356, a fact that is now universally admitted. The commission on Centre-State relations, headed by Justice R.S. Sarkaria, noted in its report, submitted in 1988, the deep resentment that the abuse of this provision caused among the States. The States were treated under the Constitution with less consideration and less respect than a municipality. The Supreme Court ruled (in New Delhi Municipal Committee vs Union of India) that a municipal body cannot be superseded, without notice ( S.L. Kapoor vs Jagmohan (1980) 4 SCC 379). The court said:
"A committee so soon as it is constituted, at once assumes a certain office and status, is endowed with certain rights and burdened with certain responsibilities, all of a nature commanding respectful regard from the public. To be stripped of the office and status, to be deprived of the rights, to be removed from the responsibilities, in an unceremonious way as to suffer in public esteem, is certainly to visit the committee with civil consequences. In our opinion the status and office and the rights and responsibilities to which we have referred and the expectation of the committee to serve its full term of office would certainly create sufficient interest in the municipal committee and their loss, if superseded, would entail civil consequences so as to justify an insistence upon the observance of the principles of natural justice before an order of supersession is passed."
The order of supersession was held to be "vitiated by the failure to observe the principles of natural justice". The judgment was delivered on September 18, 1980. The NDMC's term was to expire on October 3, 1980. The judgment was based on the principles of administrative law, which require strict observance of the principles of natural justice for such executive action. They apply if a State government supersedes a municipal body. Should they not apply also if the Government of India ousts an elected State government and imposes direct Central rule through a presidential proclamation under Article 356 of the Constitution?
In an authoritative exposition in the Constituent Assembly of India on August 4, 1949, the Chairman of the Drafting Committee, Dr B.R. Ambedkar, said: "If at all they are brought into operation, I hope the President, who is endowed with 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 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". ( Constituent Assembly Debates: Vol. ix, pages 176-177).
The Supreme Court's ruling in the Bommai case highlighted clearly the many and stringent conditions for the valid exercise of the power under Article 356. They are:
(1) Whether conditions in fact exist objectively which render it impossible to carry on the governance of the State in accordance with the provisions of the Constitution; even so, this power must be used sparingly and so as not to disturb the federal balance of power between the Union and States since federalism is part of the unamenable basic structure of the Constitution.
(2) The State's Assembly must not be dissolved before both Houses of Parliament have approved the proclamation made by the President under Article 356.
(3) Even after such approval it will be open to the courts to consider independently whether in fact conditions so existed as to warrant exercise of the power under Article 226; judicial review, which is also part of the basic structure of the Constitution, is available in respect of Article 356. It can be exercised by the High Courts and the Supreme Court. Once a prima facie case is made out, the burden of proof will lie on the Government of India to justify the action.
(4) The court will be entitled to requisition the records from the government containing the material on the basis of which the Council of Ministers of the Government of India tendered the advice to the President.
(5) The courts have the power to order an interim stay on the exercise of power under Article 356.
(6) Lastly, the courts have the power, if the proclamation is struck down as unconstitutional, to order the revival of the dissolved State Assembly and restoration of the dismissed State government.
These six propositions emerge very clearly from the judgments pronounced by the nine judges who sat on the Special Bench that heard the case.
Article 356 is based on Section 93 of the Government of India Act, 1935. On August 14, 1947, a day before India became independent, the Governor-General, in exercise of his powers under Section 8 (2) of the Indian Independence Act, 1947, made the India (Provisional Constitution) Order, 1947, adapting the Act of 1935 with important modifications, as a provisional Constitution of India while the Constituent Assembly was at work on a new Constitution.
This Order omitted the hated Section 93 completely. Thus, from August 15, 1947, until January 25, 1950, the country was governed without any provision in its constitution for Governor's rule or Governor-General's rule. This period witnessed communal riots, refugee influx, the Telangana armed rebellion and much else. Section 93 was thus proved dispensable for two and a half years.
Article 356 was adopted by the Constituent Assembly bearing in mind the abnormal conditions the country was passing through.
B.R. AMBEDKAR, CHAIRMAN of the drafting committee of the Constitution. In the Constituent Assembly on August 4, 1949, he said of the relevant Articles: "If at all they are brought into operation, I hope the President, who is endowed with these powers, will take proper precautions before actually suspending the administration of the provinces."
The following exchange between Ambedkar and Pandit Hriday Nath Kunzru in the Constituent Assembly deserves noting. Pandit Kunzru put a specific question to Ambedkar during that debate on August 4, 1949:
"May I ask my honourable friend to make one point clear? Is the purpose of Articles 278 and 278-A to enable the Central government to intervene in provincial affairs for the sake of good government of the provinces?
The Honourable Dr B.R. Ambedkar: No. No. The Centre is not given that authority.
Pandit Hriday Nath Kunzru: Or, only when there is such mis-government in the province as to endanger the public peace?
The Honourable Dr B.R. Ambedkar: Only when the government is not carried on in consonance with the provisions laid down for the constitutional government of the provinces. Whether there is good government or not in the Province is not for the Centre to determine. I am quite clear on the point.
Pandit Hriday Nath Kunzru: What is the meaning exactly of the provision of the Constitution taken as a whole? The House is entitled to know from the honourable member what is his idea of the meaning of the phrase 'in accordance with the provisions of the Constitution'."
Ambedkar referred him to the Government of India Act, 1935, which used this expression in Section 93. He, however, took care to emphasise the limitations:
The head of the Sarkaria Commission on Centre-State relations, Justice R.S. Sarkaria (right), with S.R. Sen, member. The commission noted in its report, submitted in 1988, the deep resentment that the abuse of Article 356 of the Constitution caused among the States.
"In regard to the general debate which has taken place in which it has been suggested that these articles are liable to be abused, I may say that I do not altogether deny that there is a possibility of these articles being abused or employed for political purposes. But that objection applies to every part of the Constitution which gives power to the Centre to override the Provinces. In fact, I share the sentiments expressed by my honourable friend Mr Gupte yesterday 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."
Objective tests for the use of the power
I. In the Bommai case, Justice P.B. Sawant said in his judgment, with which Justice Kuldip Singh concurred: "Articles 278 and 278-A of the Draft Constitution referred to above correspond to present Articles 356 and 357 of the Constitution respectively. Thus, it is clear from Article 355 that it is not an independent source of power for interference with the functioning of the State government but is in the nature of justification for the measures to be adopted under Articles 356 and 357. What is, however, necessary to remember in this connection is that while Article 355 refers to three situations, viz (i) external aggression (ii) internal disturbance, and (iii) non-carrying on of the government of the States in accordance with the provisions of the Constitution, Article 356 refers only to one situation, viz., the third one. As against this, Article 352, which provides for Proclamation of Emergency, speaks of only one situation, viz., where the security of India or any part of the territory therefore, is threatened either by war or external aggression or armed rebellion. The expression 'internal disturbance' is certainly of larger connotations than 'armed rebellion' and includes situations arising out of 'armed rebellion' as well. In other words, while a Proclamation of Emergency can be made for internal disturbance only if it is created by armed rebellion, neither such Proclamation can be made for internal disturbance caused by any other situation nor a proclamation can be issued under Article 356 unless the internal disturbance gives rise to a situation in which the government of the State cannot be carried on in accordance with the provisions of the Constitution. A mere internal disturbance, short of armed rebellion, cannot justify a proclamation of Emergency under Article 352 nor such disturbance can justify issuance of proclamation under Article 356 (1), unless it disables or prevents carrying on of the government of the State in accordance with the provisions of the Constitution. Article 360 envisages the Proclamation of financial emergency by the President when he is satisfied that a situation has arisen whereby the financial stability or credit of the country or of any part of the territory thereof is threatened. It declares that such Proclamation shall be laid before each House of Parliament and shall cease to operate at the expiration of two 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" (Para 57, page 92).
Thus, mere internal disturbance, short of armed rebellion, cannot justify a Proclamation under Article 356. No such disturbance can justify the issuance of Proclamation under Article 356 (1) unless the situation prevents the carrying on of the government of the State in accordance with the provisions of the Constitution.
Likewise, Justice B.P. Jeevan Reddy, with whom Justice S.C. Agrawal concurred, remarked in words of strong disapproval as follows: "Since the commencement of the Constitution, the President has invoked Article 356 on as many as ninety or more occasions. Quite a performance for a provision which was supposed to remain a 'dead-letter'. Instead of remaining a 'dead-letter', it has proved to be a 'death-letter' of scores of State governments and Legislative Assemblies. The Sarkaria Commission, which was appointed to look into and report on Centre-State relations, considered inter alia the manner in which this power had been exercised over the years and made certain recommendations designed to prevent its misuse. Since the Commission was headed by a distinguished Judge of this court and also because it made its report after an elaborate and exhaustive study of all relevant aspects, its opinions are certainly entitled to great weight notwithstanding the fact that the report has not been accepted so far by the Government of India" [Para 295, page 228].
They proceeded to quote extensively from the recommendations made by the Sarkaria Commission, which thus received the imprimatur of the approval of the Supreme Court. (Justice Sawant had also quoted from it.) The judges added: "The aforesaid recommendations are evidently the outcome of the opinion formed by the Commission that more often than not the power under Article 356 had 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 (Para 300, page 231).
"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 State against the arbitrary and unilateral action of the party commanding overwhelming majority at the Centre. In other respects, Shri Rajamannar's views accord broadly with the views expressed by the Sarkaria Commission and hence, need not be set out in extenso" (Para 301, page 231).
In para 434 (1), page 296, the judges concluded: "Article 356 of the Constitution confers a power upon the President to be exercised only when 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". (italics here as in the original).
More than one judge emphasised that the power must be exercised very sparingly. Justice S. Rathnavel Pandian said: "I am of the firm opinion that the power under Article 356 should be used very sparingly and only when the President is fully satisfied that a situation has arisen where the government of the State cannot be carried on in accordance with the provisions of the Constitution. Otherwise, the frequent use of this power and its exercise are likely to disturb the constitutional balance. Further if the Proclamation is freely made, then the Chief Minister of every State who has to discharge his constitutional functions will be in perpetual fear of the axe of Proclamation falling on him because he will not be sure whether he will remain in power or not and consequently he has to stand up every time from his seat without properly discharging his constitutional obligations and achieving the desired target in the interest of the State" (Para 8, page 66).
Justices Sawant and Kuldeep Singh observed as follows: "An allied question which arises in this connection is whether, notwithstanding the fact that a situation has arisen where there is a breakdown of the constitutional machinery in the State, it is always necessary to resort to the power 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 to appreciate the second measure to which Dr Ambedkar referred as a preliminary to the resort to Article 356 (1). We should have thought that the elections to the Legislative Assembly are a last resort and if they are held, there is nothing further to be done by exercising power under Article 356 (1). We may, therefore, ignore the said suggestion made by him. But we respectively endorse the first measure viz. of warning to which the President should resort before rushing to exercise the power under Article 356 (1). In addition to warning, the President will always have the power to issue the necessary directives. We are of the view that except in situations where urgent steps are imperative and exercise of the drastic power under the Article cannot brook delay, the President should use all other measures to restore the constitutional machinery in the State. The Sarkaria Commission has also made recommendations in that behalf in paragraphs 6-8-01 to 6-8-04 of is Report. It is not necessary to quote them here. We endorse the said recommendations" (Para 109, page 121).
Justice K. Ramaswamy said: "In particular when the Union of India seeks to dismiss a State Ministry belonging to a different political party, there is bound to exist friction. The motivating factor for action under Article 356 (1) should never be for political gain to the party in power at the Centre, rather it must be only when it is satisfied that the constitutional machinery has failed. It is to reiterate that the federal character of the government reimposes the belief that the people's faith in democratically elected majority or coalition government would run its full term, would not be belied unless the situation is otherwise unavoidable. The frequent elections would belie the people's belief and faith in parliamentary form of government, apart from enormous election expenditure to the State and the candidates. It also generates disbelief in the efficacy of the democratic process which is a death-knell for the parliamentary system itself. It is, therefore, extremely necessary that the power of proclamation under Article 356 must be used with circumspection and in a non-partisan manner. It is not meant to be invoked to serve political gain or get rid of an inconvenient State government for good or bad governance. But only in cases of failure of the constitutional machinery of the State government" (Para 223, page 191).
The judges also emphasised that Article 356 must be construed in the light of the federal character of the Constitution. Justices Sawant and Kuldeep Singh observed as follows: "The above discussion thus shows that the States have an independent constitutional existence and they have as important a role to play in the political, social, educational and cultural life of the people as the Union. They are neither satellites nor agents of the Centre. The fact that during emergency and in certain other eventualities their powers are overridden or invaded by the Centre is not destructive of the essential federal nature of our Constitution. The invasion of power in such circumstances is not a normal feature of the Constitution. They are exceptions and have to be resorted to only occasionally to meet the exigencies of the special situations. The exceptions are not a rule" (Para 99, page 115).
Justice Ramaswamy made similar observations: "Federalism envisaged in the Constitution of India is a basic feature in which the Union of India is permanent within the territorial limits set in Article 1 of the Constitution and is indestructible. The State is the creature of the Constitution and the law made by Articles 2 to 4 with no territorial integrity, but a permanent entity with its boundaries alterable by a law made by Parliament. Neither the relative importance of the legislative entries in Schedule VII, Lists I and II of the Constitution, nor the fiscal control by the Union per se are decisive to conclude that the Constitution is unitary. The respective legislative powers are traceable to Articles 245 to 254 of the Constitution. The State qua the Constitution is federal in structure and independent in its exercise of legislative and executive power. However, being the creature of the Constitution the State has no right to secede or claim sovereignty. Qua the Union, State is quasi-federal. Both are coordinating institutions and ought to exercise their respective powers with adjustment, understanding and accommodation to render socio-economic and political justice to the people, to preserve and elongate the constitutional goals, including secularism" (Para 247, page 205).
Justices Jeevan Reddy and Agrawal observed: "The fact that under the scheme of our Constitution greater power is conferred upon the Centre vis-a-vis the States does not mean that 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, 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 the principle – the outcome of our own historical process and a recognition of the ground realities" (Para 276, page 216-217).
Subject to review
II. There was complete unanimity on the point that a Proclamation made under Article 356 is subject to judicial review. Justice A.M. Ahmadi recorded that both the Attorney General and counsel for the Union of India agreed that a Proclamation under Article 356 is open to judicial review. There was scope for argument on the area of justiciability. It is well settled that mala fides, for instance, will vitiate the Proclamation.
III. Article 74 of the Constitution reads thus: "(1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in exercise of his functions, act in accordance with such advice. Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration. (2) The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court."
A Government of India which advises the President to sign a Proclamation under Article 356 runs a clear risk. While no court can call upon the government to disclose its advice, it is now settled beyond all doubt that courts have the power to summon the files and ascertain the material on which that advice was based. The impact of that disclosure on the nature of the advice is obvious. If the advice is irrational, politically motivated, perverse or mala fide , it will expose the Government of India to ridicule and invite the censure of the court. That will emerge clearly from the material shown to the court. No government should put the President in such a predicament, in a court of law.
Justices Sawant and Kuldeep Singh ruled: "The validity of the Proclamation issued by the President under Article 356 (1) is judicially reviewable to the extent of examining whether it was issued on the basis of any material at all or whether the material was relevant or whether the Proclamation was issued in the mala fide exercise of the power. When a prima facie case is made out in the challenge to the Proclamation, the burden is on the Union government to prove that the relevant material did in fact exist, such material may be either the report of the Governor or other than the report. Article 74 (2) is not a bar against the scrutiny of the material on the basis of which the President had arrived at his satisfaction" (Para 153, page 148).
Justice K. Ramaswamy observed: "By operation of Article 74 (2) only the actual advice tendered by the Council of Ministers gets immunity from production and the court shall not inquire into the questions whether and if so what advice 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" (Para 208, page 182).
Justice Jeevan Reddy and Agrawal held to the same effect: "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" (Para 434 (6), page 297).
Justice S. Rathnavel Pandian also agreed with this conclusion: "I find myself in agreement with the opinion of P.B. Sawant, J. on his 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 proclamation under Article 356 (1) of the Constitution" (Para 2, page 65).
Thus a clear majority of six judges in the nine-member Bench rule that the material on the basis of which advice was tendered is liable to be produced in court.
IV. Justice Jeevan Reddy and Agrawal ruled: "Though the power of dissolving of the Legislative Assembly can be said to be implicit in clause (1) of Article 356, it must be held, having regard to the overall constitutional scheme, that the President shall exercise it only after the Proclamation is approved by both Houses of Parliament under clause (3) and not before. Until such approval, the President can only suspend the Legislative Assembly by suspending the provisions of Constitution relating to the Legislative Assembly under sub-clause (c) of clause (1). The dissolution of Legislative Assembly is not a matter of course. It should be resorted to only where it is found necessary for achieving the purposes of the Proclamation" (Para 434 (3), page 296).
To the same effect is the ruling of Justices Sawant and Kuldeep Singh: "Since the provisions contained in clause (3) of Article 356 are intended to be a check on the powers of the President under clause (1) thereof, it will not be permissible for the President to exercise powers under sub-clauses (a) (b) and (c) of the latter clause, to take irreversible actions till at least both the Houses of Parliament have approved of the Proclamation. It is for this reason that the President will not be justified in dissolving the Legislative Assembly by using the power 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" (Para 153 (IV), page 149). Justice S. Rathnavel Pandian concurred with this point as is clear from his observations in para 2 at page 65.
Here again, there is a clear majority ruling that the Assembly must not be dissolved until both Houses of Parliament have taken a decision on the Proclamation.
On revival of Assembly
V. The Bommai case breaks new ground on the revival of the Assembly despite its dissolution and the dismissal of the State government. Hitherto it was believed, quite mistakenly, that even if the orders in respect of them are held to be void the status quo ante cannot be restored. In principle, there is no reason why striking down a void order should not have the same consequences in these matters as in all other; namely, nullify the action and restore the situation to what it was before the unconstitutional act was committed. In the Bommai case the Supreme Court has ruled categorically that if a Proclamation under Article 356 is struck down as invalid, the court can order revival of the dissolved Assembly and restoration of the dismissed government.
Justices Sawant and Kuldeep Singh ruled: "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" (Para 153 (50), page 149). Justice Rathnavel Pandian concurred on this point.
Justices Jeevan Reddy and Agrawal held to the same effect: "Now, coming to the power of the court to restore the government to office in case it finds the Proclamation to be unconstitutional, it is, in our opinion, beyond question. Even in case the Proclamation is approved by 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" (Para 291, page 226-227).
In the summary of their conclusion, the judges ruled: "If the court strikes down the Proclamation, it has the power to restore the dismissed government to the office and revive and reactivate the Legislative Assembly wherever it may have been dissolved or kept under suspension. In such a case, the court has the power to declare that acts done, orders passed and laws made during the period the Proclamation was in force, shall remain unaffected and be treated as valid. Such declaration, however, shall not preclude the government/Legislative Assembly or other competent authority to review, repeal or modify such acts, orders and laws" (Para 434 (8), page 298).
VI. The Supreme Court also opened a new vista for challenge to unconstitutional action by holding, by a clear majority, that it has the power to grant interim relief. Justice Sawant and Kuldeep Singh observed as follows:
"The further important question that arises is whether the court will be justified in granting interim relief and what would be the nature of such relief and at what stage it may be granted. The grant of interim relief would depend upon various circumstances including the expeditiousness with which the court is moved, the prima facie case with regards 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 the delay in disposal of the challenge cannot be 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 the issuance of the Proclamation or its operation till a final verdict on its validity is pronounced. Hence, the normal rules of 'quia timet' action have no relevance in matters pertaining to the challenge to the proclamation. To conclude, the court in appropriate cases will not only be justified in preventing holding of fresh elections but would be duty-bound to do so by granting suitable interim relief to make effective the constitutional remedy of judicial review and to prevent the emasculation of the Constitution" (Para 115, page 124).
In a summary of their conclusions they ruled categorically: "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" (Para 153 (6), page 149). This conclusion was also endorsed by Justice S. Rathnavel Pandian.
Justices Jeevan Reddy and Agrawal also expressed their concurrence with this conclusion: "In the light of reasons given and conclusion 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. We are also in broad agreement with conclusion 8 in the said judgment" (Para 435, page 299).
To sum up, what the Supreme Court did is to make judicial review of the Proclamation under Article 356 far more effective by circumscribing the conditions in which the Article can be invoked; it asserted the right to call for the production of records on the basis of which Union Council of Ministers advised the President; put a restraint on the dissolution of the Assembly prior to parliamentary ratification of the Proclamation; asserted the court's power to order revival of the Assembly and the restoration of the government, even after Parliament has approved the Proclamation, if the court finds them to be unconstitutional; and, not least, it asserted the power to grant interim relief, to prevent the holding of elections to the Assembly in order to defeat a legal challenge to the Proclamation under Article 356 by which the Assembly had been dissolved.
These are all very substantial gains; very substantial guarantees against abuse of power and for the maintenance of the federal structure of the Constitution.
When Governor H.R. Bhardwaj recommended imposition of President's Rule in Karnataka, he revealed either his ignorance of the law – very understandable given his intellectual equipment – or his decision to flout the law; more likely than not the former. His retirement from any public office has been long overdue. Given the Government of India's brusque rejection of his report, with what self-respect can be continue to occupy the Raj Bhavan in Bangalore?
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