P.B. SAWANT, J.
On Judicial Review
…. one of the conclusions which may safely be drawn is that the exercise of power by the President under Article 356(1) to issue Proclamation is subject to the judicial review at least to the extent of examining whether the conditions precedent to the issuance of the Proclamation have been satisfied or not. This examination will necessarily involve the scrutiny as to whether there existed material for the satisfaction of the President that a situation had arisen in which the Government of the State could not be carried on in accordance with the provisions of the Constitution. Needless to emphasise that it is not any material but material which would lead to the conclusion that the Government of the State cannot be carried on in accordance with the provisions of the Constitution which is relevant for the purpose. It has further to be remembered that the article requires that the President “has to be satisfied” that the situation in question has arisen. Hence the material in question has to be such as would induce a reasonable man to come to the conclusion in question.
Effect of the bar imposed by article 74(2)
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 clause (2) of the said article bars enquiry into the question whether any, and if so, what advice was tendered by Ministers to the President, judicial review of the reasons which led to the issuance of the Proclamation also stands barred.
……..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 Article74(2) does not negate their right to know about the factual existence of any such material.
Burden of proof
When the Proclamation is challenged by making out a prima facie case with regard to its invalidity, the burden would be on the Union Government to satisfy that there exists material which showed that the Government could not be carried on in accordance with the provisions of the Constitution. Since such material would be exclusively within the knowledge of the Union Government, in view of the provisions of Section 106 of the Evidence Act, the burden of proving the existence of such material would be on the Union Government.
Effect of approval by Parliament
A further question which has been raised in this connection is whether the validity of the Proclamation issued under Article 356(1) can be challenged even after it has been approved by both Houses of Parliament 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.
No irreversible action before approval by Parliament
It is 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 ineffective if the President takes irreversible actions while exercising his powers under sub-clauses (a), (b) and (c) of clause (1) of the said article. The dissolution of the Assembly by exercising the powers of the Governor under Article 174(2)(b) will be one such irreversible action. Hence, it will have to be held that in no case, the President shall exercise the Governor’s power of dissolving the Legislative Assembly till at least both the Houses of Parliament have approved of the Proclamation issued by him under clause (1) of the said article. The dissolution of the assembly prior to the approval of the Proclamation by Parliament under clause (3) of the said article will be per se invalid. The President may, however, have the power of suspending the Legislature under sub-clause (c) of clause (1) of the said article.
91. Our conclusions, therefore, may be summarised as under:
I. 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.
II. 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.
III. When the President issues Proclamation under Article 356(1), he may exercise all or any of the powers under sub-clauses (a), (b) and (c) thereof. It is for him to decide which of the said powers he will exercise, and at what stage, taking into consideration the exigencies of the situation.
IV. 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 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.
VIII. 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 as enshrined in our Constitution, can lawfully be deemed to give rise to a situation in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution.
K. RAMASWAMY, J.
Diverse situations when the constitutional breakdown may justifiably be inferred:
- large-scale breakdown of the law and order or public order situation;
- gross mismanagement of affairs by a State Government;
- corruption or abuse of its power;
- danger to national integration or security of the State or aiding or abetting national disintegration or a claim for independent sovereign status and
- subversion of the Constitution while professing to work under the Constitution or creating disunity or disaffection among the people to disintegrate democratic social fabric.
B P Jeevan Reddy, J.
Effect of Article 365
Article 365 merely sets out one instance in which the President may hold that the Government of the State cannot be carried on in accordance with the provisions of the Constitution. It cannot be read as exhaustive of the situation where the President may form the said satisfaction.
Suffice it to say that the directions given must be lawful and their disobedience must give rise to a situation contemplated by Article 356(1). Article 365 merely says that in case of failure to comply with the directions given, “it shall be lawful” for the President to hold that the requisite type of situation[contemplated by Article 356(1)]
has arisen. It is not as if each and every failure ipso facto gives rise to the requisite situation. The President has to judge in each case whether it has so arisen. Article 365 says it is permissible for him to say so in such a case. The discretion is still there and has to be exercised fairly.
365. 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 is a conditioned power. It is not an absolute power. The existence of material – which may comprise of or include the report(s) of the Governor – is a pre-condition. The satisfaction must be formed on relevant material. The recommendations of the Sarkaria Commission with respect to the exercise of power under Article 356 do merit serious consideration at the hands of all concerned.
(3) 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.
(4) The Proclamation under clause (1) can be issued only where the situation contemplated by the clause arises. In such a situation, the Government has to go. There is no room for holding that the President can take over some of the functions and powers of the State Government while keeping the State Government in office. There cannot be two Governments in one sphere.
(5)(a) Clause (3) of Article 356 is conceived as a check on the power of the President and also as a safeguard against abuse. In case both Houses of Parliament disapprove or do not approve the Proclamation, the Proclamation lapses at the end of the two-month period. In such a case, Government which was dismissed revives. The Legislative Assembly, which may have been kept in suspended animation gets reactivated. Since the Proclamation lapses — and is not retrospectively invalidated – the acts done, orders made and laws passed during the period of two months do not become illegal or void. They are, however, subject to review, repeal or modification by the Government/Legislative Assembly or other competent authority.
(b) However, if the Proclamation is approved by both the Houses within two months, the Government (which was dismissed) does not revive on the expiry of period of the proclamation or on its revocation. Similarly, if the Legislative 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 if it is found to be mala fide or based on wholly irrelevant or extraneous grounds. When called upon, 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 enquiry is limited to see 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.
(8) If the Court strikes down the proclamation, it has the power to restore the dismissed Government to 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.
(9) The Constitution of India has created a federation but with a bias in favour of the Centre. Within the sphere allotted to the States, they are supreme.
(10) Secularism is one of the basic features of the Constitution. 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. No political party can simultaneously be a religious party. Politics and religion cannot be mixed. Any State Government which pursues unsecular policies or unsecular course of action acts contrary to the constitutional mandate and renders itself amenable to action under Article 356.
(11) The Proclamation dated April 21, 1989 in respect of Karnataka and the Proclamation dated October 11, 1991 in respect of Meghalaya are unconstitutional. But for the fact that fresh elections have since taken place in both the States – and new Legislative 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.
(12) The Proclamations dated January 15, 1993 in respect of Madhya Pradesh, Rajasthan and Himachal Pradesh are not unconstitutional.