"My Opinion on the Hindu’s editorial “On going beyond Bommai":

Recently, The Hindu In this editorial titled ‘On going beyond ‘Bommai’ dated 23-04-2016 opined as follows.

The Uttarakhand High Court’s verdict 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 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 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. 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 ruling party legislators, and a sting video that allegedly caught Mr. Rawat offering inducements 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 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 of gubernatorial discretion — nay, even machination. By the 1980s, Raj Bhavans had become a stage for headcounts and horse-trading; some incumbents resorted to questionable means to prevent legitimate attempts to cobble up a majority. The judgment did put an end, or at least considerably mitigate, this kind of problem. However, those relating to the application of Article 356 today are somewhat more complex. Chief Ministers cling 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 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 floor tests. Bommai placed severe limitations, and very rightly in our federal set-up, on the Centre’s discretion to dismiss politically inconvenient governments. While keeping the handcuffs that this judgment had introduced in place, what we need are some fetters to keep the ruling party and their friendly Speakers from making a mockery of floor tests.

According to wikepedia free encyclopedia from where I’ve extracted the details of  bellow  given judgment of Bommai case .

  1. R. Bommai v. Union of India ([1994] 2 SCR 644 : AIR 1994 SC 1918 : (1994)3 SCC1) was a landmark judgment of the Supreme Court of India, where the Court discussed at length provisions of Article 356 of the Constitution of India and related issues. This case had huge impact on Centre-State Relations. The misuse of Article 356, popularly known as “President’s rule”, to impose central authority on states, was stopped after this judgement.[2]

Contents

1 Background

2 The Facts

3 The Contentions

4 The Principles laid down by Supreme Court

5 Malafide exercise of Article 356

5.1 Powers of President under Article 356

5.2 Article 74 and Justiciability of advice of Council of Ministers to President

5.3 Invalidation of Proclamation

5.4 Powers of Parliament

5.5 Elections to Legislature pending final Disposal of case

5.6 Secularism

6 Implications and Criticism

7 See also

8 Notes

9 External links

Background

Article 356 deals with imposition of President’s Rule over a State of India. When a state is under President’s Rule, the elected state government (led by the Chief Minister and the Council of Ministers) is suspended, and administration is conducted directly by the Governor of the state. The Governor is an appointee of the President and thus, effectively, a functionary of the Union Government (the central or federal government). Thus imposition of President’s Rule negates the federal character of the Indian political system, where administration usually is shared between the Union and State governments. It also militates against the democratic doctrine of popular sovereignty, since an elected government is suspended. These reasons have made use of Article 356 controversial. Nevertheless, it was used repeatedly by central governments to suspend state governments (of opposite political parties) based on genuine reasons or trumped-up excuses.[3]

Dr. Bhimrao Ramji Ambedkar, chairman of the Drafting Committee of the Constitution of India, referred to Article 356 as a dead letter of the Constitution. In the constituent assembly debate it was suggested that Article 356 is liable to be abused for political gains. Dr. Ambedkar replied, “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.”[4]

But this was never the case and before the judgement in Bommai case, Article 356 has been repeatedly abused to dismiss the State Governments controlled by a political party opposed to ruling party at centre. Provision for suspension of elected governments has been used on more than 90 occasions and in most of the cases, it appeared to be of doubtful constitutional validity, as mentioned by B. P. Jeevan Reddy during one of his interviews in 1998.[2]

The Facts

S.R. Bommai v. Union of India came before the bench of 9 judges (consisting of Kuldip Singh, P. B. Sawant, Katikithala Ramaswamy, S. C. Agarwal, Yogeshwar Dayal, B. P. Jeevan Reddy, S. R. Pandian, A. M. Ahmadi, J. S. Verma) under the following circumstances:

Karnataka

The Janata Party being the majority party in the State Legislature had formed Government under the leadership of S.R. Bommai. In September 1988, the Janata Party and Lok Dal merged into a new party called Janata Dal. The Ministry was expanded with addition of 13 members. Within two days thereafter, one K.R. Molakery, a legislator of Janata Dal defected from the party. He presented a letter to the Governor along with 19 letters, allegedly signed by legislators supporting the Ministry, withdrawing their support to the Ministry. As a result, on 19 April, the Governor sent a report to the President stating therein there were dissensions and defections in the ruling party. He further stated that in view of the withdrawal of the support by the said legislators, the chief Minister, Bommai did not command a majority in the Assembly and, hence, it was inappropriate under the Constitution, to have the State administered by an Executive consisting of Council of Ministers which did not command the majority in the state assembly. He, therefore, recommended to the President that he should exercise power under Article 356(1). However, on the next day seven out of the nineteen legislators who had allegedly written the said letters to the Governor sent letters to him complaining that their signatures were obtained on the earlier letters by misrepresentation and affirmed their support to the Ministry. The Chief Minister and his Law Minister met the Governor the same day and informed him about the decision to summon the Assembly, even by bringing forward the scheduled session, to prove the confidence of assembly in his government. To the same effect, he sent a telex message to the President. The Governor however sent yet another report to the President on the same day i.e., 20-4-1989, and stated that the Chief Minister had lost the confidence of the majority in the House and repeated his earlier request for action under Article 356(1). On that very day, the President issued the Proclamation in question with the recitals already referred to above. The Proclamation was, thereafter approved by the Parliament as required by Article 356(3).

A writ petition was filed on 26 April 1989 challenging the validity of the proclamation. A special bench of 3 judges of Karnataka High Court dismissed the writ petition.

Meghalaya

On 11 October 1991 the president issued a proclamation under Article 356(1) dismissing the government of Meghalaya and dissolving the legislative assembly. The Proclamation stated that the President was satisfied on the basis of the report from the Governor and other information received by him that the situation had arisen in which the Government of the State could not be carried on in accordance with the provisions of the Constitution. The Government was dismissed and the Assembly was dissolved accordingly.

Nagaland

On 7 August 1988, the president issued the proclamation on the basis of Governor Report and dismissed the Government of Nagaland thus dissolving the Legislative assembly. Vamuzo, leader of opposition party, challenged the validity of Proclamation in Gauhati High Court. A Division Bench comprising the Chief Justice and Hansaria, J. heard the petition. The Bench differed on the effect and operation of Article 74 (Constitution of India)(2) and hence the matter was referred to the third Judge. But before the third learned judge could hear the matter, the Union of India moved this Court for grant of special leave which was granted and the proceedings in the High Court were stayed.

Madhya Pradesh, Rajasthan and Himachal Pradesh

On account of the Babri Masjid demolition, communal riots spread out in the entire country. The Central Government banned RSS, VHP and Bajrang Dal. The Central Government dismissed the BJP Governments of Madhya Pradesh,Rajasthan and Himachal Pradesh. As a result, on 15 December 1992, the president issued the proclamation under Article 356 dismissing the State Governments and dissolving the Legislative Assemblies Madhya Pradesh, Himachal Pradesh and Rajasthan. The validity of these proclamations was challenged by the Writs in the appropriate High Courts. The Madhya Pradesh High Court allowed the petition, but writ petition relating to Rajasthan and Himachal Pradesh were withdrawn to Supreme Court.

All the above said petition contained similar question of law and therefore they were heard conjointly by the Hon’ble Supreme Court. The arguments in the S.R. Bommai’s case commenced in the first week of October 1993 and were concluded in the last week of December 1993.

The Contentions

  1. R. Bommai v. Union of India raised serious question of law relating to Proclamation of President’s Rule and dissolution of Legislative assemblies according to Article 356 of the Constitution of India.

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.

It was contended 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 inquiry 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. Whether the Legislature dissolved by the Presidents proclamation can be revived if the president proclamation is set aside. 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 Article 356(3).

It was also contended that whether any relief’s can be granted when the validity of proclamation is challenged and whether the court can grant an interim stay against holding the fresh election.

Whether a president can dissolve the legislature without having obtained the approval of both the Houses of the Legislature. It was contended that Secularism being a basic feature of the Constitution, a State government can be dismissed if it is guilty of nonsecular acts.

The Principles laid down by Supreme Court

The SC laid down certain guidelines so as to prevent the misuse of A356 of the constitution.

The majority enjoyed by the Council of Ministers shall be tested on the floor of the House.

Centre should give a warning to the state and a time period of one week to reply.

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.

If there is improper use of A356 then the court will provide remedy.

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.

A356 is justified only when there is a breakdown of constitutional machinery and not administrative machinery

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.

Malafide exercise of Article 356

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.

Powers of President under Article 356

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.

Article 74 and Justiciability of advice of Council of Ministers to President

In regard to the contention, that Article 74(2) bars the inquiry into advice was tendered by Council of Ministers to the President, the Supreme Court at length considered the scope and effect of Article 74(2). Here it would be appropriate to mention that article 74(2) of the constitution provides that the court cannot inquire as to any, and if so what, advice was tendered by Council of Ministers to the President. In this regard Supreme Court held that 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 material on the basis of which advice was tendered does not become part of the advice. The Courts are 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 inquiry into the existence of such material, the prohibition contained in Article 74(2) does not negate their right to know about the factual existence of any such material. This is not to say that the Union Government cannot raise the plea of privilege under Section 123 of the Evidence Act. As and when such privilege against disclosure is claimed, the Courts will examine such claim within the parameters of the said section on its merits. But Article 74(2) as such is no bar to the power of judicial review regarding the material on the basis of which the proclamation is issued.

Invalidation of Proclamation

The Supreme Court also held that the power of the court to restore the government to office in case it finds the proclamation to be unconstitutional, it is, in Courts opinion, beyond question. Even in case the proclamation is approved by the 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.

Powers of Parliament

Moreover, the Supreme Court firmly held that there was no reason to make a distinction between the Proclamation so approved and legislation enacted by the Parliament. If the Proclamation is invalid, it does not stand validated merely because it is approved of by the Parliament. The grounds for challenging the validity of the Proclamation may be different from those challenging the validity of legislation. However, that does not make any difference to the vulnerability of the Proclamation on the limited grounds available. And therefore 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 Article 356(3).

Elections to Legislature pending final Disposal of case

Another issue taken into consideration by the Supreme Court was whether any relief’s can be granted when the validity of proclamation is challenged and whether the court can grant an interim stay against holding the fresh election. In this regard the Court held that 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.

Imposition of President’s rule in the State of Karnataka on 21-4-1989 and dissolution of the Legislative Assembly was

challenged before the Karnataka High Court. The Presidential satisfaction was based on the Governor’s report and on

“other information”. The Full Bench held36 that Presidential proclamation was justiciable. The Court declined to decide

the scope of Article 74(2) with reference to the question whether the “other information” could be called for on the ground

that the Courts should base their decision on the disclosed material and probing at any greater depth would be to enter a

field from which judges must scrupulously keep away. The Court held that the facts stated in the two reports of the

Governor were relevant. The Full Bench further ruled that recourse to floor test was neither compulsory or obligatory on

the part of the Governor for reaching the conclusion that the ruling ministry had lost the confidence of the House

My Conclusion:     I concur with “Thye Hindu” as above and as the Hi8ndu rightly opined Governors sarcastically called central Government agents as mostly they belong to opposition party to that of ruling party, and at the  state Governments level Mini9jsters, MLAs and Speakers shouldn’t  act in a way making a mockery of the floor test either conducting the test in Raj Bhavans or completely dismissing the ruling party Government on nont very strong grounds as cited in the above editorial such as di9smissal of Hari9sh Rawat Government etc witch doesnot per se amount to breaking down of constitutional maschinery or ther dubipous whim, devic e or machinationb of Governor. Governor has to first ascertain the ruling party majority on the floor of the house or give an opportunity to an alternate party with clasims of such majority and after exhau7sting all these means only go for a proclamation of president for  dismissal of government and Presidents rule. The Proclamation of breakdown of constitutional machinery will’ve to be approved by Parliament within 2 months otherwise automatically it alpses. Anew proclamation will’ve to be made. If after the first proclamation has been made and during this time State Gove4rnbment is dismissed or State Assembly  is dismissed later on proclamation doesn’t get approval of parliament or is lapsed dismissed te Government and State Assembly would be revived. Floor  Test is the  Sine qua non of inviting  a leader claiming majority to form Government as CM. After the Governor fails in all the  above said alternative ways of forming  a democratically elected leader to form Government then only he should recommend President’s rule by drawing and submitting a proclamation based on the Council of Minister’;s(Central’) advice.

After all the Uttarakhand  High court had held that the lapses numbering 3 committed by Mr. Harish Rawat, Ex CM were  not serious enough to warrant his losing majority and breakdown of constitutional machinery and consequently his dismissal.

Floor of the House is the sanctum sanctorum of the Temple of State assembly/state Council/Legislatures, The August Houses of Pillars of Democracy? Temples of Democracy. And Constitution is our Holy Book/Bible/Geeta. I Appeal to all Legislators Parliamentarians not to violate these democratic temples thus Vitiating their principles, electoral law, their party Manifestos.  Law, and democracy etc. No Horse Trading/No Floor Crossing Please…   MPs are Highest Paid so that they should not indulge in corruption, nepotism, crony capitalism etc.                         Regarding Differences in Uttarakhand and the Supreme Court Judgments we do not as yet know what the Hon’ble Supreme Court said as the Order has not arrived yet.

Dear Indibloggers,

I hope all of you appreciate and enjoy this blog and vote in large numbers thereby promoting me.

Please follow and like us:

Leave a Reply

Your email address will not be published. Required fields are marked *