Topic - On going beyond 'Bommai'
The Uttarakhand High Court’s verdict [निर्णय ] declaring the imposition of President’s Rule in the State as unconstitutional was expected, but the quick stay on its operation granted by the Supreme Court means that Harish Rawat is once again a “former Chief Minister” and President’s Rule is back in force. The dismissal of an elected government on the eve of a confidence vote was a drastic measure that no court could have unequivocally [स्पष्ट ]endorsed. The High Court after all was only applying the law laid down in the Bommai case in 1994,
which made it clear that the only place to ascertain [ पता लगाने के ] the majority of a government was the floor of the House. In assessing the merits of the Centre’s case for the imposition of President’s Rule, the High Court had to examine three main contentions[ दलीलों ]. These were the unusual passage of the Appropriation Bill through a voice vote rather than a division (following which the Bill was not sent for approval to the Governor), the summary disqualification of nine dissident [ मतभेद करनेवाला ] ruling party legislators, and a sting video that allegedly caught Mr. Rawat offering inducements [ प्रलोभन ] to win back the support of dissidents.Serious though these issues are, the Uttarakhand High Court concluded, and perhaps with some justification, that they did not add up to a breakdown of the constitutional machinery in the State.
While it is impossible to predict what the Supreme Court will make of the High Court’s judgment — the full details of which are not yet available — the controversy in Uttarakhand is symptomatic [ प्रतीक ]of the kind of problem that requires a judicial fix going beyond the rules laid down by the Bommai judgment. Seminal though it was, the Bommai case was essentially about imposing a restraint[ संयम ] of gubernatorial [ गवर्नर ] discretion [ विवेक ]— nay, even machination. By the 1980s, Raj Bhavans had become a stage for headcounts and horse-trading; some incumbents [ अधिकारी ] resorted to questionable means to prevent legitimate[ न्यायसंगत ] attempts to cobble up[put together hastily ] a majority. The judgment did put an end, or at least considerably mitigate [ घटाना ], this kind of problem. However, those relating to the application of Article 356 today are somewhat more complex. Chief Ministers cling [ चिपक जाना ]on to posts even after dissidents have clearly reduced their governments to a minority, and partisan Speakers manipulate floor tests by a selective application of the anti-defection law. (The BJP is no stranger to this cynical [स्वार्थी ] and self-serving game; in 2010, Chief Minister B.S. Yeddyurappa ‘won’ the floor test in Karnataka after 16 legislators were summarily disqualified.) If earlier the problem was that of partisan Governors, the issues that need to be addressed in today’s political context are that of partisan Speakers and vitiated [विकृत ] floor tests. Bommai placed severe limitations, and very rightly in our federal set-up, on the Centre’s discretion[ विचार] to dismiss politically inconvenient governments. While keeping the handcuffs that this judgment had introduced in place, what we need are some fetters[ शृंखला ] to keep the ruling party and their friendly Speakers from making a mockery [उपहास ]of floor tests.
What is the case of S.R. Bommai vs union of india, why it is considered to be a landmark case?
The case deals with the federal nature of the Indian Political System. A federal system is one where the States of the country have autonomy in their operations. America is a truly federal country where the States have their own Constitution and are completely autonomous except in such subjects as Defence, Communication, Foreign Affairs, etc which should remain uniform across the whole country.
India is not a completely federal country. USA is a country that was formed by agreement between the States. However, India is a Union of States. The Center in India has more powers than the States in lot of matters. One such thing is the Emergency Powers. Particularly, the President's rule.
It's covered under Article 356, it basicalky says that, If the President, on receipt of a report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution then he can take over the State govt and administer it through the Governor or any other authority appointed by the President.
This effectively removes the elected govt in the State and the Centre takes over. The only condition required to impose the President's rule is that the President must be satisfied that the State cannot administer its affairs according to the Constitution. There was a lot of apprehension regarding this article in the Constituent Assembly when it was being debated. However, Dr. Ambedkar said that,
"I share the sentiments that such articles will never be called into operation and they would remain a dead letter. 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."
But this didn't happen. The Center has historically abused this power to dismiss State govts that were being ruled by opposition parties of the Center. The dead letter has been used more than 100 times to overthrow the legitimately elected State govts purely guided by political motives.
Between 1988 and 1993 the State govts of Karnataka, Meghalaya, Himachal Pradesh, MP, Rajasthan and Nagaland were put under President's rule and several petitions challenging them were filed in the Courts. As a result the Supreme Court took up the case with a 9 judges bench in oct 1993.
The first and most important question which the Supreme Court had to determine was whether the Presidential Proclamation under Article 356 was justiciable and if so to what extent.
The second contention was whether the President has unfettered powers to issue Proclamation under Article 356(1) of the Constitution.
While dealing with the question as to whether the Presidential Proclamation under Article 356 was justiciable all the judges were unanimous in holding that the presidential proclamation was justiciable. The Supreme Court held that the proclamation under Article 356(1) is not immune from judicial review. 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 malafide exercise of the power. The Supreme Court or the High court can strike down the proclamation if it is found to be malafide or based on wholly irrelevant or extraneous grounds. The deletion of Clause (5) by the 44th Amendment Act, removes the cloud on the reviewability of the action.
When a prima facie case is made out in the challenge to the Proclamation, the Union of India has to produce the material on the basis of which action was taken. It cannot refuse to do so, if it seeks to defend the action. The court will not go into the correctness of the material or its adequacy. Its inquiry is limited to whether the material was relevant to the action. Even if part of the material is irrelevant, the court cannot interfere so long as there is some material which is relevant to the action taken. It is submitted that the validity of the Presidents proclamation under Article 356 is justiciable.
The second question which was taken into consideration by the court was that whether the President has unfettered powers to issue Proclamation under Article 356(1) of the Constitution. It was contended that The Supreme Court in this regard held that the power conferred by Article 356 upon the President is a conditioned power. It is not an absolute power. 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 pre-condition to the formation of satisfaction. The satisfaction must be formed on relevant material. The dissolution of the Legislative Assembly should be resorted to only when it is necessary for achieving the purposes of the proclamation. The exercise of the power is made subject to approval of the both Houses of Parliament.
The above two points effectively put a stop to the wide spread misuse of President's rule.
The SC laid down certain guidelines so as to prevent the misuse of A356 of the constitution.
1. The majority enjoyed by the Council of Ministers shall be tested on the floor of the House.
2. Centre should give a warning to the state and a time period of one week to reply.
3. The court cannot question the advice tendered by the CoMs to the President but it can question the material behind the satisfaction of the President. Hence, Judicial Review will involve three questions only : a. Is there any material behind the proclamation b. Is the material relevant. c. Was there any mala fide use of power.
4. If there is improper use of A356 then the court will provide remedy.
5. Under Article 356(3) it is the limitation on the powers of the President. Hence, the president shall not take any irreversible action until the proclamation is approved by the Parliament i.e. he shall not dissolve the assembly.
6. A356 is justified only when there is a breakdown of constitutional machinery and not administrative machinery
7. A356 shall be used sparingly by the centre, otherwise it is likely to destroy the constitutional structure between the centre and the states. Even Dr. Ambedkar envisaged it to remain a 'dead letter' in the constitution.
This judgement gave back the autonomy to the States and protected the Federal Nature which forms the Basic Structure of the Indian Constitution.
The Babri incident that took place in 1992 led to banning of RSS and Bajrang Dal and imposing President's rule in HP, MP and Rajasthan which were rules by BJP. As a result, Secularism was also discussed by the SC.
Supreme Court while adjudicating that a State Government cannot follow particular religion discussed at length the concept of Seculariam. The Court held that Secularism is one of thebasic features of the Constitution. Secularism is a positive concept of equal treatment of all religions. This attitude is described by some as one of neutrality towards religion or as one of benevolent neutrality. While freedom of religion is guaranteed to all persons in India, from the point of view of the State, the religion, faith or belief of a person is immaterial. To the state, all are equal and are entitled to be treated equally. In matters of State, religion has no place. And if the Constitution requires the State to be secular in thought and action, the same requirement attaches to political parties as well. The Constitution does not recognize, it does not permit, mixing religion and State power. Both must be kept apart. That is the constitutional injunction. None can say otherwise so long as this Constitution governs this country. Politics and religion cannot be mixed.
Any State government which pursues nonsecular policies or nonsecular course of action acts contrary to the constitutional mandate and renders itself amenable to action under Article 356. Given the above position, it is clear that if any party or organization seeks to fight the elections on the basis of a plank which has the proximate effect of eroding the secular philosophy of the Constitution would certainly be guilty of following an unconstitutional course of action.
There were many other Constitutional questions that were discussed by the SC in this case. As a result this case remains one of the landmark cases in the Judicial history of India
Sources:
https://en.m.wikipedia.org/wiki/...
What is the case of S.R. Bommai vs union of india, why it is considered to be a landmark case?
The case deals with the federal nature of the Indian Political System. A federal system is one where the States of the country have autonomy in their operations. America is a truly federal country where the States have their own Constitution and are completely autonomous except in such subjects as Defence, Communication, Foreign Affairs, etc which should remain uniform across the whole country.
India is not a completely federal country. USA is a country that was formed by agreement between the States. However, India is a Union of States. The Center in India has more powers than the States in lot of matters. One such thing is the Emergency Powers. Particularly, the President's rule.
It's covered under Article 356, it basicalky says that, If the President, on receipt of a report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution then he can take over the State govt and administer it through the Governor or any other authority appointed by the President.
This effectively removes the elected govt in the State and the Centre takes over. The only condition required to impose the President's rule is that the President must be satisfied that the State cannot administer its affairs according to the Constitution. There was a lot of apprehension regarding this article in the Constituent Assembly when it was being debated. However, Dr. Ambedkar said that,
"I share the sentiments that such articles will never be called into operation and they would remain a dead letter. 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."
But this didn't happen. The Center has historically abused this power to dismiss State govts that were being ruled by opposition parties of the Center. The dead letter has been used more than 100 times to overthrow the legitimately elected State govts purely guided by political motives.
Between 1988 and 1993 the State govts of Karnataka, Meghalaya, Himachal Pradesh, MP, Rajasthan and Nagaland were put under President's rule and several petitions challenging them were filed in the Courts. As a result the Supreme Court took up the case with a 9 judges bench in oct 1993.
The first and most important question which the Supreme Court had to determine was whether the Presidential Proclamation under Article 356 was justiciable and if so to what extent.
The second contention was whether the President has unfettered powers to issue Proclamation under Article 356(1) of the Constitution.
While dealing with the question as to whether the Presidential Proclamation under Article 356 was justiciable all the judges were unanimous in holding that the presidential proclamation was justiciable. The Supreme Court held that the proclamation under Article 356(1) is not immune from judicial review. 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 malafide exercise of the power. The Supreme Court or the High court can strike down the proclamation if it is found to be malafide or based on wholly irrelevant or extraneous grounds. The deletion of Clause (5) by the 44th Amendment Act, removes the cloud on the reviewability of the action.
When a prima facie case is made out in the challenge to the Proclamation, the Union of India has to produce the material on the basis of which action was taken. It cannot refuse to do so, if it seeks to defend the action. The court will not go into the correctness of the material or its adequacy. Its inquiry is limited to whether the material was relevant to the action. Even if part of the material is irrelevant, the court cannot interfere so long as there is some material which is relevant to the action taken. It is submitted that the validity of the Presidents proclamation under Article 356 is justiciable.
The second question which was taken into consideration by the court was that whether the President has unfettered powers to issue Proclamation under Article 356(1) of the Constitution. It was contended that The Supreme Court in this regard held that the power conferred by Article 356 upon the President is a conditioned power. It is not an absolute power. 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 pre-condition to the formation of satisfaction. The satisfaction must be formed on relevant material. The dissolution of the Legislative Assembly should be resorted to only when it is necessary for achieving the purposes of the proclamation. The exercise of the power is made subject to approval of the both Houses of Parliament.
The above two points effectively put a stop to the wide spread misuse of President's rule.
The SC laid down certain guidelines so as to prevent the misuse of A356 of the constitution.
1. The majority enjoyed by the Council of Ministers shall be tested on the floor of the House.
2. Centre should give a warning to the state and a time period of one week to reply.
3. The court cannot question the advice tendered by the CoMs to the President but it can question the material behind the satisfaction of the President. Hence, Judicial Review will involve three questions only : a. Is there any material behind the proclamation b. Is the material relevant. c. Was there any mala fide use of power.
4. If there is improper use of A356 then the court will provide remedy.
5. Under Article 356(3) it is the limitation on the powers of the President. Hence, the president shall not take any irreversible action until the proclamation is approved by the Parliament i.e. he shall not dissolve the assembly.
6. A356 is justified only when there is a breakdown of constitutional machinery and not administrative machinery
7. A356 shall be used sparingly by the centre, otherwise it is likely to destroy the constitutional structure between the centre and the states. Even Dr. Ambedkar envisaged it to remain a 'dead letter' in the constitution.
This judgement gave back the autonomy to the States and protected the Federal Nature which forms the Basic Structure of the Indian Constitution.
The Babri incident that took place in 1992 led to banning of RSS and Bajrang Dal and imposing President's rule in HP, MP and Rajasthan which were rules by BJP. As a result, Secularism was also discussed by the SC.
Supreme Court while adjudicating that a State Government cannot follow particular religion discussed at length the concept of Seculariam. The Court held that Secularism is one of thebasic features of the Constitution. Secularism is a positive concept of equal treatment of all religions. This attitude is described by some as one of neutrality towards religion or as one of benevolent neutrality. While freedom of religion is guaranteed to all persons in India, from the point of view of the State, the religion, faith or belief of a person is immaterial. To the state, all are equal and are entitled to be treated equally. In matters of State, religion has no place. And if the Constitution requires the State to be secular in thought and action, the same requirement attaches to political parties as well. The Constitution does not recognize, it does not permit, mixing religion and State power. Both must be kept apart. That is the constitutional injunction. None can say otherwise so long as this Constitution governs this country. Politics and religion cannot be mixed.
Any State government which pursues nonsecular policies or nonsecular course of action acts contrary to the constitutional mandate and renders itself amenable to action under Article 356. Given the above position, it is clear that if any party or organization seeks to fight the elections on the basis of a plank which has the proximate effect of eroding the secular philosophy of the Constitution would certainly be guilty of following an unconstitutional course of action.
There were many other Constitutional questions that were discussed by the SC in this case. As a result this case remains one of the landmark cases in the Judicial history of India
Sources:
https://en.m.wikipedia.org/wiki/...