S.R. Bommai v. Union of India and Ors.

later, by which date proclama­ tions under Article 356(1) were actually issued. One of the questions related to the maintainability of the suits, with which question, of course, we are not concerned. Six opinions were delivered by the Seven-Judge Bench. Though all of them agreed that the writ petitions and suits be dismissed, their reason­ ;ng is not uniform. It would, therefore, be appropriate to notice the ratio underlyjng each of the opinions insofar as it is relevant for our purposes: Beg, CJ. The opinion of Beg, C.J. contains several strands of thought. They F may be stated briefly thus: (i) The language of Article 356 and the practice since 1950 shows that the Central Government can enforce its will against the State governments with respect to the question how the State governments should function and who G should hold reiris of power. (ii) By virtue of Article 365(5) and Article 74(2), it is impossible for the Court to question the satisfaction of the President. It has to decide the case on the basis of only those facts as may have been admitted by or placed by the President before the Court. H A (iii) The language of Article 356(i) is very wide. It is desirable that conventions are developed channelising the exercise of this power. The Court can interfere only when the power is used in a grossly perverse and unreasonable manner so as to constitute patent misuse of the provisions or to an abuse of power. The same idea is expressed at another place saying B that "a constitutionally or legally prohibited or extraneous or collateral purpose is sought to be achieved" by the proclamation, it would be liable to be struck down. The question whether the majority party in the Legis­ lative Assembly of a State has become totally estranged from the electorate is not a matter for the Court to determine. C (iv) The assessment of the Central Government that a fresh chance should be given to the electorate in certain States as well as the question when to dissolve the Legislative Assemblies are not matters alien to Article 356. It cannot be said that the reasons assigned by the Central Government for the steps taken by them are not relevant to the purposes underlying Article D 356. We may say at once that we are in respectful disagreement with propositions (i), (ii) aod (iv) altogether. So far as proposition (iii) is concerned, it is not far off the mark aod in substance accords with our view, as we shall presently show. Y. V. 01andrachud, J. On the scope of judicial review, the learned Judge held that where the reasons disclosed by the Union of India are wholly extraneous, the court cao interfere on the ground of malafides. Judicial scrutiny, said the learned Judge, is available "for the limited purpose of F seeing whether the reasons bear any rational nexus with the action proposed". The court cannot sit in judgment over the satisfaction of the President for determining whether any other view of the situation is reasonably possible, opined the learned Judge. Turning to the facts of the case before him, th~ learned Judge observed that the grounds assigned by the Central Govctnment in its counter-affidavit cannot be said to be G irrelevant to Artic!ii: 356. The Court cannot go deeper into the matter nor shall the Court enquire whether there were any other reasons besides those disclosed in the counter-affidavit. P.N. Bhagwati and A.C. Gupta, JJ. The learned Judges enunciated the H following propositions in their opinion: { •. + ' ·• S.R. BOMMAI v. U.0.1. [B.P. JEEV AN REDDY, J.] 843 The action under Article 356 has to be taken on the subjective A satisfaction of the President. The satisfaction is nol objective. There are no judicially discoverable and manageable standards by which the Court can examine the correctness of the satisfaction of the President. The satisfac- tion to be arrived at is largely political in nature, based on an assessment of >arious and varied facts and factors besides several imponderables and fast changing situations. The court is not a fit body lo enquire into or determine the correctness of the said satisfaction or assessment, as it may be called. However, if the power is exercised malafide or is based upon wholly extraneous or irrelevant grounds, the Court would have jurisdiction to examine it. Even clause (5) is not a bar when the contention is that there was no satisfaction at all. The scope of judicial review of the action under Article 356, - the learned Judge held - is confined lo a "narrow minimal area: May be that in most cases, it would be difficult, if not impossible, to challenge the exercise of power under Article 356(1) on the aforesaid limited ground, because the facts and circumstances on which the satisfaction is based, D would not be known. however, where it is possible, the existence of satisfac- - tion can always be challenged on the ground that it is malafied or based on wholly extraneous and irrelevant grounds. 1 ' We may say with great respect that we find it difficult to agree with E the above formulations in toto. We agree only with the statements regarding the permissible grounds of interference by court and the effect of clause (5), as it then obtained. We also agree broadly with the first proposition, though not in the absolute terms indicated therein. Goswami and Untwalia, fl. The separate opinions of Goswami and Un- F twalia, JJ. emphasise one single fact, namely, that inasmuch cis the facts • state.cl in the counter-affidavit filed by the Home Minister cannot be said to be ' 1 malafide, extraneous or irrelevant\ the action impugned cannot be assailed in the Court. F azal Ali, !. The learned Judge held that : (i) the action under Article 356 is immune from judicial scrutiny unless the action is 11 guided by extraneous consideration 11 or 11 persona1 consideration' 1 (ii) the inference drawn by the Central Government following the 1977 elections to the Lok Sabha cannot be said to be unreasunablc. It cannot H A be said that the inference drawn had no nexus with Article 356. It would thus be seen that there is a broad concensus among five of the seven Judges that the court can interfere if it is satisfied that the power has been exercised malafide or on wholly extraneous or irrelevant grounds. Some learned Judges have stated the rule in narrow terms and some others in a little leS> narrow terms but not a single learned Judge held that the proclamation is immune from judicial sc~utiny. It must be remembered that at that time clause (5) was there barring judicial review of the proclamation and yet they said that ctmrt can interfere on the ground of malafides or where it is based wholly on extraneous or irrelevant grounds. Surely, the deletion of clause (5) has not restricted the scope of judicial review. Indeed, it removed the cloud cast on the said power. The court should, if anything, be more inclined to examine the constitutionality of the proclamation after such deletion. It would be appropriate at this stage to examine a few decisions of the Pakistan Supreme Court, since the Constitution of Pakistan, 1973 contains a provision somewhat similar to Article 356. Article 58 of the Constitution of Pakistan, 1973 provides for dissolu­ tion of National Assembly. Clause (1) says that the President shall dissolve E the National Assembly if so advised by the Prime Minister. It further provides that in any event on the expiry of forty-eight hours after ,the Prime Minister has advised the dissolution, the National Assembly stands dis­ solved. Clause (2) is relevant for our purpose. It reads thus : "(2) Notwithstanding anything contained in clause (2) of Article 48, the President may also dissolve the National Assembly in his discretion where, in his opinion-- (a) a vote of no-confidence having been passed against the Prime Minister, no other member of the National Assembly is likely to command the confidence of majority of the members of the Na­ tional Assembly in accordance with the provisions of the Constitu­ tion as ascertained in a session of the National Assembly summoned for the purpose; or (b) a situation has arisen in which the Government of the Federa­ tion cannot be carried on in accordance with the provisi0ns of the· ·< ... -• ._, S.R. BOMMAI v. U.0.1. [B.P.JEEVAN REDDY,J.] 845 Constitution and an appeal to the electorate is necessary." A Sub-clause (b) of clause (2) approximates to clause (1) of Article 356 of our Constitution. Under this clause, the President may dissolve the National Assembly, in his discretion, where in his opinion, a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary. The first decision is in Federation of Pakistan v. Mohammad Khan, a decision of a Bench of twelve-Judges of the Pakistan Supreme Court, reported in P.K.D. [1989] S.C. 166. Acting under Article 58(2)(b), the C President of Pakistan dissolved the National Assembly and dismissed the federal cabinet with immediate effect by a notification dated May 29, 1988. The order made by the President recited 'that the objects and purposes for which the National Assembly was elected have not been fulfilled; that the law and order in the country have broken down to an alarming extent, resulting in tragic loss of innumerable valuable lives as well as property; D that the life, property, honour and security of the citizens of Pakistan have been rendered totally unsafe; and that the integrity and ideology of Pakis- tan have been seriously endangered." The validity of the said order was challenged by a member of the National Assembly by way of writ petition in the Lahore High Court, which ailowed it but declined to grant the E further relief sought for by the petitioner; viz., restoration of the National Assembly, (Provincial Assembly of Punjab was also dissobcd by a similar order made by the Governor of Punjab under Article 112(2)(b ), which too was questioned in the High Court and with the same result.) In the appeal before the Supreme Court, it was contended that the action of the Presi­ dent was immune from judiciai scrutiny inasmuch as it was an instance of F exercise of his discretionary power. The contention was repelled by the Supreme Court in the following words. "The discretion conferred by Article 58(2 )(b) of the Constitution on the President cannot, therefore,. be regarded to be an absolute one, G but is to be deemed to be a qualified one, in the sense that it is circumscribed by the object of the law that confers it. It must further be noted that the reading of the provisions of Article 48(2) and 58(2) shows that the President has to first form his opinion, objectively, and thcni it is open to him to exercise his H 846 SUPREME COURT REPORTS (1994] 2S.C.R. discretion one way or the other, i.e., either to dissolve the Assembly or to decline to dissolve it. Even if some in1munity envisaged by Article 48(2) is available to the action taken under Article 58(2) that can possibly be only in relation to his 'opinion'. An obligation is cast on the President by the aforesaid Constitutional provision that before exercising his discretion he has to form· his 'opinion' that a situation of the kind envisaged in Article 58(2)(b) has arisen which necessitates the grave step of dissolving the National As­ sembly. In Abut Ala Maudoodi v . Government of West Pakistan, P.L.D. (1964] S.C. 673, Cornelius C.J., while interpreting certain provisions of the Criminal Law Amendment Act, 1908, construed the worJ 'opinion' as under : ........... .it is a duty of Provincial Government to lake into considera­ tion all relevant facts and circumstances. That imports the exercise of an honest judgment as to the existence of conditions in which alone the opinion must be formed honestly, that the restriction is necessary. In this process, the only element which I find to possess a subjective quality as against objective determination, is the final formation of opinion that the action proposed is necessary. Even this is determined, for the most part, by the existence of cir­ cumstances compelling the conclusion. The scope for exercise of personal discretion is extremely limited ..... As I have pointed out, if the section be construed in a comprehensive manner, the re­ quirement of an honest opinion based upon the ascertainment of certain matters which are entirely within the grasp and apprecia­ tion of the government agency is clearly a pre-requisite to the exercise of the power. In the period of foreign rule, such an argu­ ment, i.e., that the opinion of the person exercising authority is absolute may have at times prevailed, but under autonomous rule, where those who exercise power in the State are themselves citizens of the same States, it can hardly be tolerated." G It was further held that "though the President can make his own assessment of the situation as to the course of action to be followed but his opinion must be founded on some material. 11 One of the learned Judges (Shaifur Rehman, J.) dealt with the H meaning and significance of the words 11 cannot be carried on 1 ' occurring in .. - - ~ .. > .,. ' ~ ' ; - S.R. BOMMA! v. U.0.1. [B.P. JEEV AN REDDY, J.] 847 Article 58(2)(b) in the following words: 11 the expression ''cannot be carried on 1 1, sandwitched as it is between 11 Federation Govcrnn1ent 11 and 11 in accordance with the provisions of the Constitution 11 , acquires a very potent, a very positive and very concrete content. Nothing has been left to surmises, like or dislikes, opinion or view. It does not concern itself with the pace of the progress, the shade of the quality or the degree of the performance or the quantum of the achievement. It concerns itself with the breakdoWQ of the Constitutional mechanism, a stalemate, a deadlock ensuring the observance of the provisions of the Con- st.itution. 11 The next decision of the Pakistan Supreme Court brought to our notice is in Khaja Ahmed T01iq Rahim v. The Federation of Pakistan, reported in P.L.D. [1992] S.C. 646. On August 6, 1990, the President of Pakistan dissolved the National Assembly in exercise of his discretion, by an order made under Article 58(2)(b) of the Constitution of Pakistan. The formal order referred to the National Assembly being afflicted with inter- nal dissensions and frictions, persistent and scandalous 'horse-trading' for political gain and furtherance of personal interests, corrupt practices and inducement in contravention of the Constitution and the Law and failure to discharge substantive legislative functions other than the adoption of the Finance Bill all of which led the President to believe that the National Assembly has lost the confidence of the people. The validity of the order was challq1ged by a former Federal Minister in the Lahore High Court. The High Court upheld the Presidential Order whereupon the nlatter was carried to the Supreme Court. Both the part~es agreed that the principles enunciated by the Supreme Court in Federation of Pakistan v. Moha~unad Saifullah Khan, do govern the controversy. On fact, the Supreme Court found that though some of the goods given may not be relevant, there are other relevant goods all of which read together 11 are sufficient to justify the action taken 11 • G The next decision relied upon by Sri Sorabjee is in Mirza Mohd. Nawaz Sharie! v. The President of Pakistan reported in P.L.D. (1993] S.C. 473. The said decision pertains to the most recent dismissal of the Federal Government and dissolution of the National Assembly by the President of Pakistan by his order dated April 18, 1993. H 848 SUPREME COURT.REPORTS [1994] 2 S.C.R. In this decision, several propositions have been enunciated by the court. Firstly, it is reiterated that "if it could be shown that no grounds existed on the basis of which an honest opinion could be formed 'that a situation had arisen in which the government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary' the exercise of the power would be unconstitutional and open to correction through judicial review". It is next held that "Article 58(2)(b) of the Constitution empowers the executive head to destroy the legislature and to remove the chosen representatives. It is ·< ... an exceptional power provided for an exceptional situation and must ~r receive, as it has in Federation of Pakistan v. Haji Md. Seiful/ah Khan & C Ors., P.L.D [1989] SC 166, the narrowest interpretation". It is also held that if there is a doubt whether the Prime Minister had lost the confidence of the National Assembly "the only course left constitutionally open for the President for arriving at his satisfaction in this matter iS to 'summon the National Assembly and require the Prime Minister to obtain a vote of / D confidence in the National Assembly". This observation was, of course, ma:le in the context of Article 91(5), which says: "(5) The Prime Minister shall hold office during the pleasure of the President, but the President shall not eltercise his powers under this clause unless he is satisfied that the Prime Minister does not command the confidence of the majority of the members of the National Assembly, in which case he shall summon the National Assembly and require the Prime Minister to obtain a vote of confidence from the Assembly." The court then examined the presidential order and held that none of the ground therein bore any nexus to the order passed and that the grounds stated were extraneous and irrelevant and in dear departure of the constitutional provisions. Accordingly, it was held that the presidential declaration was unconstitutional and that as a natural and logical corollary, the ministTy which has been dismissed along with the dissolved National G Assembly must be restored and revived. Before we refer to the principle of these decisions, it is necessary to bear in mind the nature of the power conferred by the Constitution of Pakistan. Under Article 58(2)(b), the President, who acts alone and per­ sonally, is empowered not only to dismiss the federal government but also H to dissolve the National Assembly if, in his opinion, a situation has arisen - S.R. BOMMAI v. U.0.1. [B.P.JEEVAN REDDY,J.] 849 in which the government of the Federation cannot be carried on in accord- A .., ance with the provisions of the Constitution and an appeal to the electorate is necessary. This is of course, not the position under our Constitution. Under our Constitution, the President has to act and does act in accord- ance with the aid and advice tendered to him by the council of ministers i with the Prime Minister at its head. There is no occasion for the President to act in his personal capacity or with out reference to council of ministers. B The second distinguishing feature is that under the Pakistan Constitution the President is empowered to dismiss the federal government just as the '• Governor of a province is empowerd to dismiss the provincial government, ' whereas under our Constitution, there is no question of President dismiss- ing the Union Government; it is really a case where the Union Government c dismisses the State government if the situation contemplated by Article 356(1) arises. The stong remarks made by the Pakistan Supreme Court must no doubt be understood in the context of the aforesaid character of Article 58(2)(b). Yet the relevance of the approach adopted by the Pakis- tan Supreme Court is not without significance. We may at this stage refer to the decision of the Constitution Bench D of this Court in Kehar Singh & Anr. v. Union of India, [1988] Suppl. 3 S.C.R. n 1102. Article 72 of the Constitution confers upon the President the power - to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence. The power extends to cases where the sentence is a sentence of E death. The article does not provide any guidance in which matters should the President exercise which power and in which cases to refuse. In other words, the power appears ex-facie to be absolute. Kehar Singh was con- victed under Section 302 I.P.C. in connection with the assassination of the then Prime Minister of India, Snit. Indira Gandhi and sentenced to death. ' The sentence was confirmed by this court on appeal. A subsequent writ ,. . petition and review filed by him in this court failed. Kehar Singh' s son then presented a petition to the President of India for grant of pardon under Article 72. He requested a personal hearing. Personal hearing was refused and in a letter adC!ressed to Kehar Singh a counsel, the Secretary to the President expressed the President's opinion that the President cannot go G into the merits of the case finally decided by the highest court of the land. The petition was accordingly rejected. The rejection of the petition was questioned by way of writ petition in this court. This court expressed the --1 view that under Article 72, it is open to the President to scrutinise the evidence on record of a cirminal case and come to a different conclusion A from that recorded by the court both on the question of guilt as well as sentence. This power, it was held, is not in conflict with nor in supersession of judicial power. It L' an altogether different power, an executive power exercised on the aid and advice of the council of ministers. It was also stated that any number of considerations may enter the decision of the President and that it is not possible to lay any guidelines governing the exercise of the said power. What is relevant for our purpose is the holding regarding the extent of judicial review of the exercise of power under the said article. It was held that the exercise of power under Article 72 falls squarely within the judicial domain and can be examined by the court by way of judicial review. While the court cannot go into the merits, the C limitations of such review are those enunciated in Marn Ram v. Union of India, [1981] 1 S.C.R. 1196 at 1249. The court held, "the function of determining whether the act of a constitutional or statutory functionary falls within the constitutional or legislative conferment of power, or is vitiated by self denial on an erroneous appreciation of the full amplitude. of the power is a matter for the court." This was so held inspite of the D seemingly absolute nature of the power conferred by Article 72 upon the President. The argument of the learned Attorney General of India that the exercise of power under Article 72 was not justiciable was accordingly rejected. Counsel appearing on both the sides placed strong reliance upon the decision of the House of Lords in C.C.S.U. v. Minister for the Civil Service, as laying down correctly the principles to be followed in the matter of judicial review of administrative action whether governed by a statute or by 'common law'. The petitioners say that this approach ought to be adopted even in the case of the Constitutional action like the one under Article 356. The respondents demur to it. It is, therefore, necessary to examine what does the said decision lay down precisely. The Government Communications Headquarters i·s a branch of the public services under the Foreign <ind Commonwealth office. Its main G functions are to ensure the security of the United Kingdom military and official communications and to provide signals intelligence for the Govern­ ment. Since 1947, i.e., from the time of its establi,hment, the staff employed therein were permitted to belong lO national trade unions and most of them did so. There were several disputes between the staff and the government over the years all of which were settled by negotiations with the Union. On H January 25, 1984, however, the Secretary of the State for Foreign and .. - . .., . ___ \..., S.R. BOMM~ v. U.0.1. [B.P.JEEVAN REDDY,J.) 851 Commonwealth Affairs announced suddenly that the staff of the Govern- A ment Communications Headquarters will no longer be permitted to belong to national trade unions and that they would be permitted to belong to only to a departmental staff association approved by the Director. The said decision was given effect to by certain orders issued on December 22, 1993. The Unions questioned the validity of the said instructions. The conditions of service of the staff working in Government Com­ munications Headquarters were to be regulated by the Minister for the Civil Service, empowered as he was by Article 4 of the 1982 Order-in­ Council. The said order-in-Council was not issued under powers conferred by any Act of Parliament. It was issued by the Sovereign by virtue of her prerogative. According to the definition given by Dicey in "Introduction to the study of the Law of the Constitution" - which has been accepted and followed at all points of lime in U .K. - "prerogative is the name for the remaining portion of the Crown's original authority, and is therefore, as already pointed out, the name for the residue of discretionary power left at ;.ny moment in the hands of the Crown, whether such power be in fact D exercised by the King himself or by his lv.linisters." The very same idea has been stated by Lord Diplock in the following words: 11 For a decision to be susceptible to judicial review, the decision­ maker must be empowered by public law (and not merely, as in arbitration, by agreement between private parties) to make decisions that, if validly made, will lead to administrative action or abstention from action by an authority endowed by law with ex­ ecutive powers, which have one or other of the consequences mentioned in the preceding paragraph. The ultimate source of the decision-making power is nearly always nowadays a statute or subordinate legislation made under the statute; but in the absence of any statute regulating the subject matter of the decision, the source of the decision-making power m•y still be the common law itself, i.e., that part of the common law that is given by lawyers the label of the prerogative." The contention on behalf of the Minister was that action taken by him in exercise of the prerogative power is not amenable to judicial review . The said contention was rejected. So far as the merits are concerned, the only contention urged by the Unions related to "the manner in which the decision whicli led to these instructions being given, was taken, that is to H .. A say, without prior consultation of any kind with the appellant or, indeed, others." The right 'of prior consultation was founded upon the theory of legitimate expectation. All the Law Lords agreed that having regard to the practice in vogue since the establishment of the said establishment, the Unions could claim a legitimate expectation to be consulted before effect- ing any change in the conditions of their service. But, they held, the said legitimate expectation cannot prevail over the considerations of national security which prompted the Minister to issue the impugned instructions. It is on this ground alone that the Haus~ of Lords dismissed the appeal preferred by the Unions. C So far as India is concerned, there is no such thing as 'prerogative'. There is the executive power of the Government of India and there are the .constitutional functions of the President. It is not suggested by the counsel for the respondents that all the orders passed and every action taken by the President or the Government of India is beyond judicial review. All that is suggested is that some of the powers of the President and the D Government of India are immune. Sri Parasaran relies upon the opinion of Lord Roskill where certain prerogative powers are held not fit subject­ matters for judicial scrutiny. They are the powers relating to entering of treaties with foreign power, defence of the realm, grant of pardon/mercy, conferring of honours, dissolution of Parliament and appointment of Min- E isters. We agree that broadly speaking the above matters, because of their very nature, are outside the ken of courts and the courts would not, ordinarily speaking, interfere in matters relating to above subjects. But that is different from saying all the President's action are immune. In fact, the main holding in this decision is that action taken in exercise of the preroga­ tive power is not immune from judicial review apart from the clear enun- F ciation of the grounds of judicial review. It is also held, of course, that in matters involving government policy, the ground of irrationality may not be an appropriate one. We may now examine the principles enunciated by this Court in G Barium Chemicals, which is the leading decision of this court on the subject of subjective satisfaction. it exhaustively lays down the parameters of judicial review in such matters. Barium Chemicals was concerned with an enquiry ~"dered into the affairs of the appellant -company by the Company Law Board under Section 237(b) of the Companies Act, 1956. Section 237 H read as follows : ·. ) ,' S.R. BOMMAI v. U.0.1. (B.P. JEEV AN REDDY, J.] 853 "Without prejudice to its powers under Section 235, the Central A Government - (a) shall appoint one or more competent persons as inspec­ tors to investigate the affairs of a company and to report thereon in such manner as the Centre Government may direct, if - B (i) the company, by special resolution, or (ii) the Court, by order, declares that the affairs of the company ought to be investigated by an inspector ap- C pointed by the Central Government; and (b) may do so it, in the opinion of the Central Government, there are circumstances suggesting - (i) that the business of the company is being conducted with D intent to defraud its creditors, me'l'bers or any other . persons or otherwise for a fraudulent or unlawful purpose, or in- a manners oppressive of any of its members, ·or that the company was formed for any fraudulent or unlawful purpose; of (ii) that persons concerned in the formation of the company or the management of its affairs have in connection there­ with been guilty of fraud, misfeasance or other misconduct towards the company or towards any of its members; or (iii) that the members of the company have not been given F all the information with respect to its affairs which they might reasonably expect, including information relating to the calculation of the commission payable to a managing or other director, the managing agent, the secretaries and · treasurers, or the man~ger of the company." Clause (b) empowered the Central Government to appoint one or more persons as inspectors to investigate into the affairs of a Company and to report thereon if in its opinion 11 there are circumstances suggesting" one or the other of the circumstances mentioned in sub clauses (i), (ii) and (iii). Tlie ·main opinion was delivered by Shela!, J. That the action contemplated H 854 SUPREME COURT REPORTS (1994] 2 S.C.R. A under Section 237(b) could be taken on the subjective satisfaction of the Central Government was not in dispute. The controversy, however, < centered round the next aspect. According to the appellant, though the opinion was subjective, the existence of circumstances set out in clause (b) was a condition precedent to the. formation of such opinion and, therefore, even if the impugned orders were to contain a recital of the .existence of those circumstances, the Court can go behind that recital and determine whether they did in fact exist. On the other hand, the contention for the Company Law Board was that cla,use (b) was incapable of such dichotomy and that not only the opinion was subjective but that the entire clause was • made dependent on such opinion. It was urged that the words "opinion" ; c and "suggesting 11 were clear indications that the entire function was subjec- tive, that the opinion which the authority has to form is that circumstances suggesting what is set out in sub-clauses (i) and (ii) exist and, therefore, the existence of those circumstances is by itself a matter of subjective opinion. The Legislature having entrusted that function to the authority, it was urged, the Court cannot go behind its opinion and ascertain whether D the relevant circumstances exist or not. ' After considering a large number of decisions, Shela!, J. held: ~-J ' 1 ..... the words, ''reason to believe''or 11 in the opinion or1 do not always lead to the construction that the process of entertaining 11 reason to believe'' or 11 the opinion 11 is an altogether subjective process not lending itself even to a limited scrutiny by the Court that such 11 a reasor.. to belive" or 11 opinion 11 was not formed on relevant facts or within the limits of, as Lord Redcliffe and Lord Reid called, the restraint of the statute as an alternative safeguard F to rules of natural justice where the function is administrative." T The learned Judge then examined the object underlying Section 237 and held: "There is no doubt that the formation of opinion by the Central Government is purely subjective process. There can also be no doubt that since the legislature has provided for the opinion of the government and not of the court such an opinion is not subject to a challenge on the ground of propriety, reasonableness or sufficien- cy. But the Authority is required to arrive at such an opinion from H circumstances suggesting what is set out in sub-clauses (i), (ii) or , S.R. BOMMAI v. (I.CJ.I. [ll.I'. JEEVAN REDDY.I.] 855 (iii). If these circumstances \Vere not to exist, can the government A .still say that in its opinion they exist t)f can the Government say the same thing where the circumstances relevant to the clause do not exist? The legislature no doubt has used the expression ''cir­ cumstances suggesting''. But, that expression means that the cir­ cun1stances need not be such as \Voul<l conclusively c<lstablish an intent to defraud or a fraudulent or illegal purpose. The proof of such an intent or purpose is still to be adduced through an investigation. But the expression "circumstances suggesting" cannot support the construction that even the existence of circumstances is a matter of' .subjective opinion. That expression points out that there rr.ust exist circumstances from which the Authority forn1s an opinion that they are suggestive of the crucial matters set out in the three sub-clauses. It is hard to contemplate that the legislature could have left to the subjective process both the formation of opinion and also the existence of circumstances on which it is to be founded. It is also not reasonable to say that the clause per­ mitted the Authority to say that it has formed the opinion on circnmstances which in its opinion exist and which in its opinion suggest an intent to defraud or a fraudulent or unlawful purpose. It is eq"ally unreasonable to think that the legislature could have abandoned even the small safeguard of requiring the opinion to be founded on existent circumstances which suggest the things for which an investigastion can be ordered and left the opinion and even the existence of circumstances from which it is to be formed to a subjective process........ There must, therefore, exist cir­ cumstances which in the opinion of the Authority suggest \Vhat has been set out in sub-clauses (i), (ii) and (iii). If it is shown that the circumstances do not exist or that they are such that it is impossible for any one to form an opinion therefrom suggestive of the aforesaid things, the opinion is challengeable on the ground of non-application of mind or pervertsity or on the ground that it was formed on collateral grounds and was beyond the scope of the statute." Hidayatullah, J. observed thus in his separate opinion : 11 Since the existence of 11 circumstances 11 is a condition funda1ncntal to the making of an opinion, the existence of the circumstances, if questioned, has to be proved at leastpn·niafacie. It is not sufficient H 856 SUPREME COURT REPORTS jl994] 25.C.R. lo assert that the circumstances exist and give no clue to what they are because the circumstances musl be such a.s to lead to con­ clusions of certain definiteness. The conclusions mu.st relate to an intent to defraud, a fraudulent or unlawful purpose, fraud or misconduct or the withholding of information of a particular kind." The learned Judge proceeding further to say: "We have to see whether the Chairman in his affidavit has shown the existence of circumstances leading to such tentative con­ clusions. If he has, his action cannot be questioned because the inference is to be drawn subjectively and even if this court would not have drawn a similar inference that fact would be irrelevant. But if the circumstances pointed out are such that no inference of the kind stated in Section 237(b) can at all be drawn the action would be ultra vires the Act and void." The principles enunciated in this case are not only self-evident, they have been followed uniformly since. We do not think it necessary to re-state .. these principles - they are too well-known. Counsel brought to our notice a decision of the High Court of Australia in the Queen v. Toohey-Ex pane Nolthem Lmrd Council, 151 Common Wealth Law Reports 170. Under the Aboriginal Land Rights (Northern Territory) Act, 1976, provision was made for the aboriginals to claim return of the land traditionally occup;ed by them. The application was to be made to the Commissioner under the Act. Tochcy, J. was acting as the Commissioner. The application was made by the Prosecutor, Nothem Land Council,. According to the Land Rights Act, no such claim could be laid if the land claimed was comprised in a town. The expression 'town' was defined to have the same meaning as in the law relating to Planning and Develupment of Town. In 1979, Planning Act was enacted superseding an earlier Act. In Section 4(1) of the Planning Act, "town" G meant inter alia "lands specifiied by the regulations to be an area which has to be treated as a town". Planning Regulations were made by the Ad­ ministrator of the northerns territory under the Planning Act specifying inter alia the cox peninsula as part of 'Darwin town'. The cox peninsula was separated from Darwin town-proper by an arm of the sea. The land route for reaching the peninsula from Darwin town-proper was a difficult and H long one. The Prosecutor, Northern Land Council challenged the validity )-"' - ' S.R. BOMMAI v. U.0.1. [B.P.JEEVAN REDDY,J.] 857 of the Planning Regulation on the ground that the inclusion of cox penin­ sula in the Dar\vin town is not really for the purposes germane to the Planning Act and the Regulations made thereunder but for an altogether extraneous purpose. The question was whether such a plea can be inves­ tigated by the courts. The contention of the other side was that the Administrator was the Crown's Representative in the Territory and, there­ f orc, the power exercised by him was immune from any examination by the courts. This argument was met by the prosecutor of the Northern Land Council saying that the Administrator is only the servant of the crown and not its representative and hence, possesses no immunity and on the further ground that even if he is the Representative of the Crown, there was no such immunity. The majority (Murphy, J. dissenting) held that judicial review of the Regulations was not barred. The conclusion may best be set out in the words of Stephen, J.: "Conclusion on exa111inability. The trend of decisions in British and Commonwealth courts D has encouraged me to conclude that, in the unsettled state of Australian authority, the validity of reg.5 was open to be attacked in the manner attempted by the Council. Such a view appears to me to be in accord with principle. It involves no intrusion by the courts into the sphere either of the legislature or of the executive. It ensures that, just as legislatures of constitutionally limited com­ petence must remain within their limits of power, so too must the executive, the exercise by it of power granted to it by the legislature being confined to the purposes for which it was granted. In drawing no distinction of principle between the acts of the representative of the Crown and those of Ministers of the Crown it recognises F that in the exercise of statutory powers the former acts upon the advice of the latter: as Latham, C.J. said in the Australian Com­ munist Part Case, the opinion of the Queen's representative "is really the opinion of the Government of the day''. That this is so in the Northern Territory appears from s.33 of the Northern G Territory (Self-Government) Act 1978. I have already referred to the possibility of a legislature by appropriate words excluding judicial review of the nature here in question. The terms of the present grant of power conferred by s. 165(1) are devoid of any suggestion of such exclusion. It follows H 858 SUPREME COURT REPORTS J !994J 2 S.C.R. that if it be shown that a regulation made under that pO\\'cr \Vas made for a purpose wholly alien lo the Planning Acl it will be ultra vire.1· the power and will be so treated by the courts." This case establishes that the validity of an action whether taken by a Minister or a Repre.sentative of the Crown is subject to judicial reviev,r even if done under the statute. In this case, it may be noted, the Regulations in question were made under a statute, no doubt by the Administrator who was supposed to be the Representative of the Crown in the Territory. This factor, the court held, did not preclude the court from reviewing the validity of the Regulations made by him. Having noticed various decisions projecting different points of view, we may now proceed to examine what should be the scope and reach of judicial review when a proclamation under Article 356(1) is questioned. While answering this question, we should be, and we are, aware that the power conferred by Article 356(1) upon the President is of an exceptional D character designed to ensure that the government of the States is carried on in accordance with the Constitution. V1/c are equally aware that any misuse or abuse of this power is bound to play havoc with our constitutional system. Having regard to the form of government we have adopted, the power is really that of the Union Council of Ministers with the Prime Minister at its head. In a sence, it is not really a power but ar:. obligation cast upon the President in the interest of preservation of constitutional governn1ent in the States. It is not a power conceived to preserve or promote the interests of the political party in power at the Centre for the time being nor is it supposed to be a weapon with which to strike your political opponent. The very enormity of this power - undoing the will of the people of a State by dismissing the duly constituted government and dissolving the duly elected Legislative Assembly - must itself act as a v.rarning against its frequent use or misuse, as the case may be. Every misuse of this power has its consequences which may not be evident im1nediately but surface in a vicious form a few years later. SO\\' a wind and you will reap the whirlwind. Wisdom lies in moderation and not in excess. Whenever a proclamation under Article 356 is questioned, the court will no doubt start with the presumption that it was validly issued but it will not and it should not hesitate to interfere if the invalidity or uncon­ slilutionalily of the proclamation is clearly made out. Refusal to interfere in such a case would amount to abdication of the duty cast upon the court H -Supreme Court and High Courts; by the Constitution. Now, what are the )-' - •i S.R. BO MM Al v. U.0.1. IB.P. JEEVAN REDDY. J.] 859 grounds upon which the court can interfere and strike down the proclama~ A tion? While discussing the decisions hereinabove, we have indicated the unacceptability of the approach adopted by the Privy Council in Bhagat Singh v. Emporer and King Emporer v. Benoari Lal Samia. That was in the years 1931 and 1944, long before the concept of judicial review had acquired its present efficacy. As stated by the Pakistan Supreme Court, B that view is totally unsuited to a democractic polity. Even the Privy Council has not stuck to that vie\v, as is evident from its decision in the case from Malaya Stephen Kaalong Ningkan v. Govemmellt of Malaysia. In this case, the Pri;y Council proceeded on the assumption that such a proclamation is arnen.ablc to judicial revie\v. On facts and circumstances of this case, it found the action justified. Now, coming to the approach adopted by the Pakistan Supreme Court, it must be said - as indicated hereinbefore - that it is coloured by the nature of the power conferred upon the President by Section 58(2)(b) of the Pakistan Constitution. The power to dismiss the federal government and the National Assembly is vested in the President and President alone. He has to exercise that power in his personal discre- tion and judgment. One man against the entire system, so to speak - even D though that man too is elected by the representatives of the people. That is not true of our Constitution. Herc the President acts on the aid and advice of the Union council of Ministers and not in his personal capacity. Moreover, there is the check of approval by Parliament which contains members from that State (against the government/Legislative Assembly of which State, action is taken) as well. So far as the approach adopted by E this court in Ban·un1 Chemicals is concerned, it is a decision concerning subjective satisfaction of an authority created by a statute. The principles evolved then cannot ipso facto be extended to the exercise of a constitu­ tional power under Article 356. Having regard to the fact that this is a high constitutional power exercised by the highest constitutional functionary of F the Nation, it may not be appropriate to adopt the tests applicable in the case of action taken by statutory or administrative authorities - nor at any rate, in their entirety. We would rather adopt the formulation evolved by this court in State of Rajasthan, as we shall presently elaborate. We also recognise, as did the House of Lords in C. C.S. U. v. Minister for the Civil Service that there are certain areas including those elaborated therein G where the court would leave the matter almost entirely to the Presi­ dent/Union Government. The court would desist from entering those arenas, because of the very nature of those functions. They are not the matter which the court is equipped to deal \Vith. The court has never interfered in thsoe matters because they do not ;.;idmit of judicial review by If A their very nature. Matters concerning foreign policy, relations with other countries, defence policy, power to enter into treaties with foreign powers, issues relating to war and peace are some of the matters where the court would decline to entertain any petition for judicial review. But the same cannot be said of the power under Article 356. It is another matter that in a given case the court may not interfere. It is necessry to affirm that the B proclamation under Article 356(1) is not immune from judicial review, though the parameters thereof may very from an ordinary case of subjective satisfaction. Without trying to be exhaustive, it can be stated that if a proclama- C tion is found to be malafide or is found to be based wholly on extraneous and/or irrelevant grounds, it is liable to be struck down, as indicated by a majority of learned Judges in the State of Rajasthan. This holding must be read along with our opinion on the meaning and scope of Article 74(2) and the further circumstance that clause (5) which expressly barred the juris­ diction of the courts to examine the validity of the proclamation has been D deleted by the 44th Amendment to the Constitution. In other words, the truth or correctness of the material cannot be questioned by the court nor will it go into the adequacy of the material. It will also not substitute its opinion for that of the President. Even if some of the material on which the action is taken is found to be irrelevant, the court would still not interfere so long as there is some relevant material sustaining the ac~ion. The ground of malafides takes in inter alia situations where the proclama­ tion is found to be a clear case of abuse of power, or what is sometimes called fraud on power - cases where this power is invoked for achieving oblique ends. This is indeed merely an elaboration of the said ground. The Meghalaya case, discussed hereinafter, demonstrates that the types of cases calling for interference cannot either be closed or specified exhaustively. It is a case, as will be elaborated a littele later, where the Government recommended the dismissal of the government and dissolution of the Assembly in clear disregard of the orders of this court. Instead of carrying out the orders of this court, as he ought to have, he recommended the dismissal of the government on the ground that it has lost the majority G support, when in fact he should have held following this court's orders that it did not. His action can be termed as a clear case of malafides as well. That a proclamation was issued acting upon such a report is no less objectionable. H It is necessary to reiterate that the court must be conscious while + S.R. HOMMA! v. U.0.1. [B.P.JEEV AN REDDY, J.] 861 examining the validity of the proclamation that it is a power vested in the A ' ... highest constitutional functionary of the Nation. The court will not lightly presume abuse or misuse. The court would, as it should, . tread wearily, making allowance for the fact that the President and the. Union Council of Ministers are the best judges .of the situation, that ·they alone are in possession of information and material - sensitive in nature sometimes - B and that the Constitution has trusted their judgment in the matter. But all _/' ' ! this does not mean that the President and the Union Council of Ministers are the final arbiters in the matter or that their opinion is conclusive. The very fact that the founding fathers have chosen to provide for approval of c the proclamation by the Parliament is itself a proof of the fact that the opinion or satisfaction of the President (which always means the Union Council of Ministers with the Prime Minister at its head) is not final or conclusive. It is well-known that in the parliamentary form of government, where the party in power commands a majority in the Parliament more often that not, approval of Parliament by a simple majority is not difficult to obtain. Probably, it is for this reason that the check created by clause D (3) of Article 356 has not proved to be as effective in practice as it ought to have been. The very fact that even in cases like Meghalaya and Kar­ nataka, both Houses of Parliament approved the proclamations shows the enervation of this check. Even the proponents of the finality of the decision of the President in this matter could not but concede that the said check E has not proved to be an effective one. Nor could they say with any conviction that judicial review is excluded in this behalf. If judicial review is not excluded in matters of pardon and remission of sentence under Article 72 - a seemingly absolute and unconditional power - it is difficult to see on what principle can it be said that it is excluded in the case of a F conditional power like the one under Article 356. We recongnise that judicial process has certain inherent limitations. It is suited more for adjudication of disputes rather than for administering the country. The task of governance is the job of the Executive. The Executive is supposed to know how to administer the country, while the G function of the judiciary is limited to ensure that the g?vernment is carried on in accordance with the Constitution and the Laws. Judiciary accords, as it ohould, due weight to the opinion of the Executive in such matters but that is not to say, it defers to the opinion of Executive altogether. What ultimately determines the scope of judicial review is the facts and cir- H 862 SUPREME COURT REP OR TS (1994) 2 S.C.R. A cumstanccs of the given case. A case may be a clear one - like Meghalaya and Karnataka cases - where the court can fmd unhesitatingly that the proclamation is bad. There may also be cases - like those relating to Madhya Pradesh, Rajasthan and Himachal Pradesh - where the situation is so complex, full of imponderables and a fast-evolving one that the court finds it not a matter which admits of judicial prognosis, that it is a matter which should be left to the judgment of and to be handled by the Executive and may be in the ultimate analysis by the people themselves. The best way of demonstrating what we say is by dealing with the concrete cases before us. Sri Parasaran, learned counsel for the Union of India urged that inasmuch as the Proclamation under clause (i) has been approved by both Houses of Parliament as contemplated by clause (3), the proclamation assumes the character of Legislation and that it can be struck down only on grounds on which a Legislation can be struck down. We cannot agree. Every act of parliament does ml amount to and does not result in Legis­ lation, though Legislation is its main function. Parliament performs many D other functions, e.g., election of Speaker and Deputy Speaker, vote of confidence/no-confidence in the Ministry, motion of thanks to the Presi­ dent after the address by the President and so on. One of such functions is the approval of the proclamation under clause (3). Such approval can by no stretch of imagination be called 'Legislation'. It is not processed or passed as a Bill nor is it presented to the President for his assent. Its legal E character is wholly different. It is a constitutional function, a check upon the exercise of power under clause (1). It is a safeguard conceived in the interest of ensuring proper exercise of power under clause (1). It is another matter that in practice the check has not proved effective. But that may not be so in future or for aU times to come. Be that as it may, it is certainly F not Legislation nor Legislative in character. Sri Shanti Bhushan, learned counsel for the petitioners urged that the deletion of clause (5) by 44th Amendment, which clause was introduced by 38th Amendment, necessarily emplies that the exercise of power under clause (1) is amenable to judicial review in a far more extensive manner. Clause (5), as introduced by 38th Amendment, read as follows: "(5) Notwithstanding anything in this Constitution, the satisfaction of the President mentioned in the clause (1) shall be final and conclusive and shall not be questioned in any court on any ground. 11 .._, . • > S.R. BOMMAI v. U.0.1. [B.P. JEEV AN REDDY, J.] 863 The effect of this clause was considered by .this Court in State of A Rajasthan. It was held that the said clause does not preclude the Court from examining Whether the exercise of power is malafide or is based on extraneous grounds or whether it is based on no satisfaction at all. It was held that the said clause does not prevent the Court from examining the proclamation on the aforesaid grounds. We, however, agree that the dele­ B tion of this clause is cerlianly significant in the sense that the express bar created in the way of judicial review has since been removed consciously and deliberately in exercise of the constituent power of the Parliament. [See A.K Roy v. Union of India (supra) J. The cloud cast by the clause on the power of judicial review has been lifted. It was urged by Sri Parasaran,learned counsel appearing for the Union of India that where a person challenges the validity of the proclama- tion under Article 356(1), the burden lies upon him to establish its validity and that it is not part of the duty of the Union of India to assist the petitioner in establishing his case. Reliance is placed on certain observa- D lions in Stephen kalong Ningkong. He submitted that it would not be a correct practice for the court to call upon the Union of India to justify and establish the validity of the proclamation merely because a person chooses to question it. We do not think that there ought to be any room for confusion on this score - nor can the observations of Hidayatullah, J. in Bariwn Chemicals, quoted elsewhere be understood as saying so. We agree E that merely because a person challenges the validity of the proclamation, the Court would not as a matter of course call upon.the Union of India to produce the materiaVinformation on the basis of which the Pres;.dent formed the requisite satisfaction. the Court must be satisfied, prima facie, on the basis of the averments made by the petitioner and the material, if any, produced by him that is is a fit case where the Un.ion of India should F be called upon to produce the materiaVinformation on the basis of which the President formed the requisite satisfaction. It is then that the Union of India comes under a duty to disclose the same. Since the materiaVinforma- tion on which the satisfaction was formed is available to, and known to, only the Union of India, it is for it to tell the Court what that materiaVin- G formation was. They are matters within the special knowledge of the Union of India. In such a case, only the Union of India can be called upon to satisfy the Court that there was relevant material/information before the President on the basis of which he had acted. It may be that, in a given case, the materiaVinformation may be such that the Union of India may feel it necessary to claim the privilege provided by Section 123 of the Indian H 864 SUPREME COURT REPORTS (1994] 2 S.C.R: A Evidence Act. As and when such claim is made, it is obvious, it will be dealt with according to Jaw. While on this question, we may mention that if in a given case the proclamation contains the reasons, with adequate specificity, for which the proclamation was issued, the Court may have to be satisfied before calling B upon the Union of India to produce the material/information that the reasons given in the proclamation are prinia facie irrelevant to thP- forma­ tion of the requisite satisfaction and/or that it is a fit case where the Union of India must yet be called upon to place the material/information on the basis of which it had formed the satisfaction. The Union of India may C perhaps be well advised to follow the practice of stating the reasons and the grounds upon which the requisite satisfaction is founded. ARTICLE 356 - IS IT CONFINED ONLY TO CASES WHERE THE STATE GOVERNMENT FAILS OR REFUSES TO ABIDE BY THE DIRECTIONS ISSUED BY THE CENTRAL GOVERNMENT? It was submitted by Sri Jethmalani, the learned counsel for some of the petitioners that in view of Article 365 of the Constitution, the only situation in which the power under Article 356 can be invoked by the President is the failure of the State Government to comply with or to give effect to the direction given in exercise of the executive power of the Union under any of the provisions of the Constitution and not in any other case. Reference is made in this connection to Articles 256 and 257. It would be appropriate to read all the three Articles at this stage: "256. Obligation of States and the Union:- The executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Govern­ ment of India to be necessary for that purpose. 257. Control of the Union over States in certain cases:- (1) The executive power of every State shall be so exercised as not to impede or prejudice the exercise of the executive power of the Union, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Govern­ ment of India to be necessary for that purposes. + - S.R. BOMMAI v. U.0.I. [B.P. JEEV AN REDDY, J.] 865 (2) The executive power of the Union shall also extend to the giving A of directions to a State as to the construction and maintenance of means of communication declared in the direction to be of national or military importance: Provided that nothing in this clause shall be taken as restricting the power of Parliament to declare highways or waterways to be national highways or national waterways or the power of the Union with respect to the highways or waterways so declared or the power of the Union to construct and maintain means of communication as part of its functions with respect to naval, military and air force works. (3) The executive power of the Union shall also extend to the giving of directions to a State as to the measures to be taken for the protection or the railways within the State. ( 4) Where in carrying out any direction given to a State under D clause (2) as to the construction or maintenance of any means of communication or under clause (3) as to the measures to be taken for protection of any railway, costs have been incurred in excess of those which would have been incurred in the discharge of the normal duties of the State if such directions had not be given, there shall be paid by the Government of India to the State such sum as E may be agreed, or indefault of agreement, as may be determined by an arbitrator appointed by the Chief Justice of India with respect of the extra costs so incurred by the State. 365. Effect of failure to comply with, or to give effect to, directions given by the Union:- Where any State has failed to comply with, F or to give effect to, any directions given in the exercise of the executive power of the Union under any of the provisions of this Constitution, it shall be lawful for the President to hold that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution." G In our opinion, the contention urged is unacceptable. Article 256 merely states that the executive power of every State shall be so exercised as to ensure compliance with the laws made by the Parliament whether existing or to be made in future. It is stated therein that the executive power of the Union shall extend to giving of such directions to a State as may H A appear to the Government of India to be necessary for the said purpose. This Article is confined to proper and due implementation of the par­ liamentary enactments and the power to give directions for that purpose. Article 257 says that executive power of every State shall be so exercised as to impede or prejudice the exercise of the executive power of the Union; for ensuring the same, the Union Government is empowered lo give appropriate directions. Clauses (2), (3) and ( 4) illustrate and elaborate the power contained in clause (1). Article 365, which incidentally does not occur in Part XVIII, but in Part XIX (Miscellaneous) merely says that where any State has failed to comply with or give effect to any directions given by the Union of India in exercise of its executive power under my of C the provisions of the Constitution, it shall be lawful for the President to hold that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution. The article merely sets out one instance in which the President may hold that the Government of the Slate cannot be carried on in accordance with D 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 lo hold that the requisite type of situation [con- E templated by Article 356(1) J 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. F FACTS AND MERITS OF INDIVIDUAL CASES: KARNATAKA: G By a proclamation dated April 21, 1989 the President dismissed the Government of Karnataka, dissolved the Legislative Assembly, took over the powers of the Government and the Governor, vested the powers of the State legislature in the Parliament and made other incidental and ancilliary provisions suspending several provisions of the Constitution with respect to that State. The proclamation does not contain any reasons except barely H reciting the satisfaction of the President. The satisfaction is stated to have - r S.R. BOMMAI v. U.0.1. [B.P. JEEV AN REDDY, J.] 867 been formed on a consideration of the report of the Governor and other A information received by him. Sri S.R. Bommai was the Chief Minister then. The Janata Legislature Party emerged as the majority party in the State Legislature following elections to the Assembly in March, 1985. Sri Ramakrishna Hegde was elected the leader of the Janata Legislature Party and was sworn in as the Chief Minister in March, 1985. In August, 1988, Sri Hegde resigned and Sri Bommai was elected as the leader and sworn in as the Chief Minister on August 30, 1988. In September, 1988, Janata Party and Lok Dal (B) merged resulting in the formation of Janata Dal. The Janata Party in Karnataka Legislature was re-named Janata Dal. On April 15, 1989 the Ministry was expanded by Sri Bommai including thirteen more members. On April 17, 1989, a legislator, Sri Kalyan Rao Molakery, defected from the party and presented • letter to the Governor withdraw- ing his support to the Janata Dal Government. On the next day, he met the Governor and presented nineteen letters purported to have been signed by seventeen Jan at a Dal legislators, one associate independent legislator D and one B.J.P. legislator withdrawing their support to the Government. The Governor is said to have called the Secretary of the Legislature Depart­ ment and got the authenticity of the signatures on the letters verified. He did not, of course, inform Sri Bommai about these developments. On April 19, 1989, the Governor sent a report to the President stating that there were dissensions in Janta Party which led to the resignation of Sri Hegde earlier and that even after the formation of Janata Dal, there have been dissensions and defections. He referred to the letters received by him from defecting members and opined that on that account, the ruling party has been reduced to minority. in the Assembly. He stated that the council of ministers headed by Sri Bommai does not command a majority in the House and 'that, therefore, "it is not appropriate under the Constitution to have the State administered by an executive consisting of council of mini­ sters who do not command the majority in the House''. He opined that no other party is in a position to from the Government and recommended action under Article 356(1). On April 20, 1989, seven legislators out of those who were said to have submitted the letters to the Governor submitted letters to the Gover­ nor complaining that their signatures were obtained on those letters by mis-representation and by misleading them. They re-affirmed their support to the Bommai Ministry. On the same day, the State Cabinet met and H A decided to convene the Assembly session on April 27, 1989. The Chief Minister and the Law Minister met the Governor on that day itself and informed him about the summoning of the Assembly session. They also brought to the Governor's notice the recommendation of the Sarkaria Commission that the support and strength of the Chief Minister should be tested on the floor of the Assembly. Sri Bommai offered to prove his majority on the floor of the House. He even expressed his readiness to pre-pone the Assembly Session if so desired by the Governor. He also sent a telex message to that effect to the President of India. Inspite of all this, the Governor sent another report to the President of India on April 20, 1989 referring to the letter of seven members withdrawing their earlier C letters and opining that the said letters were evidently obtained by Sri Bommai by pressuring those M.L.As. He reported that "horse-trading is going on and atmosphere is getting vitiated". He reiterated his opinion that Sri Bommai has lost the confidence of the majority in the State Assembly and requiested action being taken on his previous letter. On that very day, D the President issned the proclamation. It says that the said action was taken on the basis of "the report form the Governor of the State of Karnataka and - other information received 11 Both the Houses of Parliament duly met and approved the said proclamation as contemplated by clause ,(3) of Article 356. The validity of the proclamation was challenged by Sri Bommai and certain other members of the council of ministers by way of a writ petition (W.P. 7899of1989) in the Karnataka High Court. The Union of India (the first respondent in the writ petition) submitted that the decision of the F President of India based on the report of the Governor and other infor­ mation brought to his notice is not justiciable and cannot be challanged in the writ petition. While making a report, it was submitted, the Governor does not act on the aid and advice of his council of ministers but in his individual capacity. The report of the Governor cannot be challenged in view of Article 361 of the Constitution nor can he or the President be G compelled to disclose the information or material upon which they have acted. Article 74(2) was said to be a bar to the Court enquiring into the said information, material and advice. It was also submitted that the proclamation has since been approved by both Houses of Parliament under clause (3) of Article 356. The State of Karnataka submitted that the H Governor had taken into consideration all the facts and circumstances S.R. BOMMAI v. U.0.1. [B.P. JEEVAN REDDY,J.) 869 prevailing in the State while submitting his report and that the proclama- A tion issued on that basis is unobjectionable. A Special Bench of three-Judges of High court heard the writ petition and dismissed the same on the following reasoning: ( 1) The proclamation under Article 356( 1) is not immune from judicial scrutiny. The court can examine whether the satisfaction has been formed on wholly extraneous material or whether there is a rational nexus between the material and the satisfaction. (2) In Article 356, the President means the Union council of mini­ sters. The satisfaction referred to therein is subjective satisfaction. This satisfaction has no doubt to be formed on a consideration of all the facts and circumstances. (3) The two reports of the Governor conveyed to the President essential and relevant facts which were relevant for the purpose of Article D 356. The facts stated in the Governor's report cannot be stated to be irrelevant. They are perfectly relevant. ( 4) Where the Governor's "personal bonajides" are not questioned, his satisfaction that no other party is in a position to form the government E has to be accepted as true and is based upon a reasonable assessment of all the relevant facts. (5) Recourse to floor test was neither compulsory nor obligatory. It was not a pre-requisite to sending up a report recommending action under Article 356(1). F ( 6) The introduction of Xth Schedule to the Constitution has not affected in any manner the content of the power under Article 356. (7) Since the proclamation has to be issued on the satisfaction of the G Union council of ministers, the Governor's report cannot be faulted on the g!Ound of legal ma/ajides. (8) Applying the test indicated in the State of Rajastltan v. Union of India, the court must hold, on the basis of material disclosed, that the subjectiv~. satisfaction arrived at by the President is conclusive and cannot H A be faulted. The proclamation, therefore, is unobjectionable. We find ourselves unable to agree with the High Court except on points (1) and (2). To begin with, we must say that question of 'personal bonafides' of Governor is really irrelevant. We must also say that the observation under point (7) is equally misplaced. It is true that action under Article 356 is taken on the basis of satisfaction of the Union Council of Ministers but on that score it cannot be said that 'legal malafides' of the Governor is irrelevant. When the Article speaks of the satisfaction being formed on the basis of the Governor's report, the legal malafides, if any, of the Governor cannot be said to the irrelevant. The Governor's report may not be conclusive but its relevance is undeniable. Action under Article 356 can be based only and exclusively upon such report. Governor is a very high constitutional func­ tionary. He is supposed to act fairly and honestly consistent with his oath. He is actually reporting against his own government. It is for this reason that Article 356 places such implicit faith in his report. If, however, in a given case his report is vitiated by legal malafides, it is bound to vitiate the President's action as well. Regarding the other points made in the judg­ ment of the High Court, we must say that the High Court went wrong in law in approving and upholding the Governor's report and the action of the President under Article 356. The Governor's report is vitiated by more than one assumption totally unsustainable in law. The Constitution does not create an obligation that the political party forming the ministry should necessarily have· a majority in the Legislature. Minority governments are not unknown. What is necessary is that that government should enjoy the confidence of the House. This aspect does not appear to have been kept in mind by the Governor. Secondly and more importantly, whether the council of ministers has lost the confidence of the House is not a matter to be determined by the Governor or for that matter anywhere else except the floor of the House. The principle of democracy underlying our Con­ stitution necessarily means that any such question should be decided on G the floor of the Ho11se. The House is the place where the democracy is in action. It is not for the Governor to determine the said question on his own or on his own verification. This is not a matter within his subjective satisfaction. It is an objective fact capable of being established on the floor of the House. It is gratifying to note that Sri R. Venkataraman, the former H President of India has affirmed this view in his Rajaji Memorial Lecture <· S.R. BOMMAI v. U.0.1. [B.P. JEEV AN REDDY, J.) 871 (Hindustan Times dated February 24, 1994). Exceptional and rare situations may arise where because of aJJ per· vading atmosphere of violence or other extraordinary reasons, it may not be possible for the members of the Assembly to express their opinion freely. But no such situation had arisen here. No one suggested that any such violent atmosphere was obtaining at the relevant time. In this connection, it would be appropriate to notice the unanimous report of the committee of governors appointed by the President of India. The five Governors unanimously recommended that 11 the test of confidence in the ministry should normally be left to a vote in the Assembly ........ Where C the Governor is satisfied by whatever process or means, that the ministry no longer enjoys majority support, he should ask the Chief Minister to face the Assembly and prove his majority within the shortest possible time. If the Chief Minister shirks this primary responsibility and fails to comply, the Governor would be in duty bound to initiate steps to form an alterna- D tive ministry. A Chief Minister's refusal to test his strength on the floor of the Assembly can well be interpreted as prima facie proof of his no longer enjoying the confidence of the legislature. If then, an alternative ministry can be formed, which, in the Governor's view, is able to command a majority in the assembly, he must dismiss the ministry in power and ins.ta! the alternative ministry in office. On the other hand, if no such ministry is possible, the Governor will be left with no alternative but to make a report to the President under Article 356 ........ As a general proposition, it may be stated that, as far as possible, the verdict as to majority support claimed by a Chief Minister and his Council of Ministers should be left to the legislature, and that it is only if a responsible government cannot be maintained without doing violence to correct constitutional practice that the Governor should resort to article 356 of the Constitution ........... What is important to remember is that recourse to article 356 should.be the last resort for a Governor tu seek ........ the guiding principle being, as already stated, that the constitutional machinary in the state should, as far as G possible, be maintained." (quoted from the Book "President's Rule in the States", edited by Sri Rajiv Dhavan and published under the auspices of the Indian Law Institute, New Delhi). It is a pity that the Governor of Karnataka did not keep the above salutary guidelines and principles in mind while making his report. H 872 SUPREME COURT REPORTS (1994] 2 S.C.R. Dr. G.S. Dhillon Speaker, Lok Sabha (in his address to the con­ ference of the Presiding Officers of legislative bodies in India) too affirmed in clear words that "whether the ministery continued to command majority support in the legislature, the doubt should as far as possible be left to be resolved on the floor of the House and the Governor should not take upon himself unenviable task of deciding the question himself outside the legis­ lature." The High Court, in our opinon, erred in holding that the floor test is not obligatory. If only one keeps in mind the democractic principle underlying the Constitution and the fact that it is the legislative assembly C that represents the will of the people - and not the Governor - the position would he clear beyond any doubt. Jn this case, it may be remembered that the council of ministers not only decided on April 20, 1989 to convene the Assembly on 27th of that very month i.e., within seven days, but also offered to pre-pone the Assembly if the Governor so desired. It pains us to note D that the Governor did not choose to act upon the said offer. Indeed, it was his duty to sumon the Assembly and call upon the Chief Minister to establish that he enjoyed the confidence of the House. Not only did he not do it but when the Council of Minister offered to do the same, he demurred and chose instead to submit the report to the Pr".sident. In the circumstan­ ces, it cannot be said that the Governor's report contained, or was based . E upon, relevant material. There could be no question of the Governor making an assessment of his own. The loss of confidence of the House was an objective fact, which could have beer; demonstrated, one way or the other, on the floor of the House. In our opinion, wherever a doubt arises whether the Council of Ministers has lost tl•e confidence of the House, the F only way of testing it is on the floor of the House except in an extraordinary situation whether because of all-pervasive violence, the Governor comes to the conclusion - and records the same in his report - that for the reasons mentioned by him, a free vote is not possible in the House. We make it clear that what we have said above is confined to a G situation where the incnmbent Chief Minister is alleged to have lost the majority support or the confidence of the House. It is not relevant to a situation arising after a general election where the· Governor has to invite the leader of the party commanding majority in the House or the single largest party/group to form the government. We need express no opinion H reagrding such a situation. t S.R. BOMMAI v. U.0.1. [B.P. JEEV AN REDDY, J.] 873 "" We are equally of the opinion that the High Court was in error in A holding that enactment/addition of Xth Schedule to the Constitution has not made any difference. The very object of the Xth Schedule is to prevent and discourage 'floor-crossing' and defections, which at one time had assumed alarming proportions. Whatever may be his personal predilictions, a legislator elected on the ticket of a party is bound to support that party B in case of a division or vote of confidence in the House, unless he is prepared to forgo his membership of the House. The Xth Schedule was designed precisely to counter-act 'horse-trading'. Except in the case of a ~ split, a legislator has to support his party willy- nilly. This is the difference between the position obtaining prior to and after the Xth Schedule. Prior to the said Amendment, a legislator could shift his loyalty from one party c to the other any number of times without imperilling his membership of the House - it was as if he had a property in the office. Though the proclamation recites that the President's satisfaction was based also on "other information received", the counter-affidavit of the D Union of India does not indicate or state that any other informa- ...... -.,. lton/mater.Wl was available to the President or the Union Council of Ministers other than the report of the Governor - much less disclose it. In the circumstances, we must hold that there was no other information before the President except the report of the Governor and that the word 'and E other information received by me' were put in the proclamation mechani- cally. The Governor's report and the 'facts' stated therein appear to be the only basis of dismissing the government and dissolving the Assembly under Article 356(1). The proclamation must, therefore, be held to be not war- ranted by Article 356. It is outside its purview. It cannot be said, in the F ' circumstances, that the President (or the Union council of ministers) was ' 'satisfied' that the governmnt of the State cannot be carried on in accord- ance with the provisions of the Consitutioin. The action was malajide and unconstitutioinal. The proclamation is accordingly liable to be struck down and we would have struck it down herewith but for the fact that the elections have since been held to the Legislative Assembly of the State and G a new House has come into being. The issuance of a writ at this juncture would be a futile one. But for the said fact, we could certainly have •-;. considered restoring the dismissed government to office and reactivating the di'5olved Assembly. In any event, the judgment of Karnataka High Court is set aside. H MEGHALAYA: (Transferred case Nos. 5 and 7 of 1992) In March, 1990, Hill Peoples' Union, to which the petitioner, Gonald Stone Massar, belonged and several other State political parties and certain independent M.L.As. joined. together to form a 'front', known as Meghalaya United Paliamentary Party (MUPP). This Front had a majority in the Assembly and formed the government headed by Sri B.B. Lyngdoh. On July 25, 1991, the then Speaker of the House, Sri P.R. Kyndiah Arthree was elected as the leader of the opposition group known as United Meghalaya Parliamentary Forum (UMPF), which was led by the Congress party to which Sri Kyndiah belonged. He claimed the support of the C majority of members in the House and requested the Governor to invite him to form the Government. Thereupon the Governor requested Sri Lyngdoh to prove his majority on the floor of the House. On August 7, 1991, a special session of the Assembly was convened to pass a motion of confidence in the ministry. On the motion being moved, thirty members supported it and twenty seven voted against it. Before announcing the D result, however, the Speaker announced that he had received a complaint against five independent M.L.As. in the ruling coalition alleging dis­ qualification under the Anti-defection Law and that he was forthwith suspending their right to vote. This resulted :n an uproar in the Assembly. The session had to be adjourned. On August 11, 1991. the Speaker sent E identical show-cause notices to the said five independent MLAs on the basis of the complaint filed by one Sri H.S. Shylla. On August 16, the five MLAs sent their replies deying that they have joined any of the parties as alleged. They affirmed that they continue to remain independents. On August 17, 1991 the Speaker passed on order disqualifying all the five MLAs on the basis that four of them were ministers in the Lyngdoh F ministry and one of them (Sri Chamberlain Marak) was the Deputy Government Chief Whip. The disqualification, it may be noted, was not on the ground alleged in the show cause notice. Meanwhile, on the Governor's advice, the Chief Minister summoned G the session of the Assembly for September 9, 1991 for passing a vote of confidence. The Speaker refused to send the notices of the session to the five MLAs disqualified by him. He also made arrangements to ensure that the said five membes are not allowed to enter the Assembly. On September 6, 1991, four of the said five MLAs approached this court and obtained an interim order staying the operation of the orders of the Speaker dated H August 7, 1991 and August 17, 1991, (one Member, Sri Ch. Marak, did not . ' S.R. BOMMAI v. U.0.1. [B.P. JEEV AN REDDY, J.] 875 obtain any such orders). On coming to know of the order of this Court, the A Speaker issued a press statement saying that he does not accept any interference by any court with his order dated August 7, 1991 disqualifying five members. He issued strict instructions to the security guards not to allow the said five members to enter the Assembly premisses. In this explosive situation, the Governor adjourned the Assembly indefinitely by an order dated September 8, 1991. After a brief interval and on the advice of the Governor, the Assembly was again summoned to meet on October 8, 1991. Meanwhile, a contempt petition was filed by the said four MLAs in this court against the Speaker. They complained that his action in preventing them from entering into the Assembly premises and from acting as members of the Assembly was in violation of the orders of this court dated September 6, 1991. On October 3, 1991, this court passed another order affirming that all authorities of the State including the Governor must ensure that the orders of this Court dated September 6, 1991 are imple­ mented. Accordingly, the said four independent MLAs were issued invita- tion to attend the session on October 8, 1991. The agenda relating to the. business of the House showed two items for consideration on that day (1.) D .. a motion of confidence in the government and (2) a motion of no-con­ fidence in the Speaker. On October 8, 1991, 56 MLAs apart from the Speaker attended the session. The four MLAs who were disqualified by the Speaker but who had obtained orders from this Court also attended but not Sri Ch. Marak who E did not obtain any orders from any court. After the motion of confidence in the government was put to vote, the Speaker declared that 26 voted for the motion and 26 against. In counting the votes casts in favour of the motion, he excluded the votes of the said four independent MLAs again. Holding that there was a tie, he cast his vote against the motion and declared the motion lost. He then adjourned the House sine die, evidently with a view to ward off the passing of motion against himself. The thirty MLAs (including the said four independent MLAs) however, continued to stay in the House. They elected a Speaker from among themselves and continued the business of the Assembly. The new Speaker found on a scrutiny of the records relating to voting on the motion of confidence that G actually 30 members have signed in favour of the motion and 26 against. Accordingly, he declared that the motion of confidence in the government was carried. They also passed the motion of no confidence in the Speaker, Sri Kyndiah. The 26 members who had voted against the motion had, of course, left the House by that time. The said 30 MLAs thereafter sent a A letter to the Governor affirming that they had voted in favour of the government and also in favour of the motion of no confidence in the Speaker. Inspite of all this, the Chief Minister received a letter dated October 9, 1991 from the Governor advising him to resign in view of the proceedings of the Assembly dated October 8, 1991. The Governor ob- served in his letter that the dispute about the Speaker not taking cog­ nizance of the orders of the Supreme Court was a matter between the Speaker and the Supreme Court and in that view of the matter, the Chief Minister should resign! Immediately, thereupon, the Chief Minister ap- prised his advocate in the Supreme Court of the said letter of the Gover­ nor. The counsel brought the matter to the notice of this Court and at 4.00 C P.M. on the same day (October 9, 1991), this court passed the following order: "Since the matter is extremely urgent, we deem it fit to pass this further order asking the Governor while taking any decision on the ques­ tion whether the Government has lost the motion of confidence and lost its majority in the House, to lake into account, the two earlier orders dated 6.9.1991 and 3.10.1991 of this Court and also to take into account how the D aforesaid four appellant had cast their vote." No heed was paid to this order and on October 11, 1991, the President of India issued a proclama- ' tion under Article 356 of the Constitutioin declaring that he was satisfied ~- ·<! _ on the basis of a report from the Governor of Meghalaya and other information received by him that a situation has arisen in which the Government of the State cannot be carried on in accordacce ·\\ith the E provisions of the Constitution He accordingly dismissed the government and dissolved the Assembly. Before proceeding further, it may be men­ tioned that by an order dated October 12, 1991, a Constitution Bench of thi, Court set aside the order of the Speaker dated August 17, 1989. F Both Houses of Parliament duly met and approved the proclamation. It is a matter of deep regret that the Governor of Meghalaya did not think it his constitutional duty to give effect to the orders of this Court, not even after a specific direction to that effect. He could not have been G unaware of the obligation created by Article 144, viz., the duty of all authorities, civil and judicial, in the territory of India to act in aid of the Supreme Court and its orders. By order dated October 9, 1991, he was specifically requested to lake into account the orders of this Court while deciding whether the government has lost the confidence of the House and yet he ignored the same and reported to the President that the Ministry H has lost the confidence of the House. We are intrigued by the strange logic S.R. BOMMAI v. U.O.l. [B.P. JEEV AN REDDY, J.] 877 of the Governor that obedience to the orders of this Court relating to the A disqualification of members of the House is a matter between the Speaker and the Supreme Court. Evidently, he invoked this strange logic to enable him to say - as he wanted to say or as he was asked to say, as the case may be - that the Speaker's decision that the Ministry has lost the confidence of the House, is valid and effective - at any rate, so far as he is concerned. The governor ought to have noted that this court had stayed the operation of the orders of the speaker disqualifying the four independent members, which meant that the said four MLAs were entitled to participate in the proceedings of the Assembly and to vote. They did vote in favour of the motion expressing confidence in the government. The Speaker was, how­ ever, bent upon unseating the government by means fair or foul and with tha view was openly flouting the orders of this Court. He managed to declare that the government has lost the confidence of the House by excluding the votes of the said four members in clear violation of the orders of this Court. It is surprising that the Governor chose to turn Nelson's eye upon the misdeds of the Speaker and also chose to refuse to take note of the proceedings of the majority of members taken upon the Speakership D of another member elected by them. It is equally curious that the Governor chose to report that a situation has arisen where the government of the State cannot be C\'rried on in accordance with the provisions of the Consititution. The violation of the provisions of the constitution was by Sri Kyndiah and not by the ministry in office and yet Article 356 was resorted E to by the President to dismiss the government on the basis of such a report. That even such an ex-facie unconstitutional proclamation was approved by both Houses of Parliament shows up the inadequacy of the safeguard envisaged in clause (3) - by which provision much store was laid by the Counsel appearing for the Uni6n of India as well as those ·supporting the impugned proclamations. Jn this case too, the proclamation recites that the requisite satisfac­ tion was arrived at on the basis of the report of the Governor and the other information received by the President but no such information or material has been brought to our notice. We must conclude that there was none and G that the recital to that effect is a mere mechanical one. , '--,. We must say in fairness to Sri Parasaran, learned counsel appearing for the Union of India that he did not seek to defend the proclamation in this case. H A Accordingly, we hold the proclamation as unconstitutional. But for the fact that since the date of proclamation, fresh elections have been held to the Assembly and a new House has come into existence, we would have certainly issued the writ and directed the restoration of the Lyngdoh ministry to office and restored the Assembly as well. NAGALAND: Elections to the Nagaland Assembly were held in November, 1987. The strength of the Assembly was 60. The position emerging from the election was: Congress (1)-35, Naga national Democractic Party-13 and C lndependents-7. The Congress (1) party formed the government with Sri Hokishe Serna as the Chief Minister. In August, 1988, a split occurred in the ruling party whose strength was 34 at that time, one member having died. The particulars of the split in the party are the following: On July 28, 1988, 13 of the 34 MLAs informed the Speaker of the assembly' that they D have dissociated from the ruling party and have formed a separate party called "Congress Rulini: Party". They requested the Speaker for allotment of separate seats f®r them in the Assembly, the session of which was to commence on August 28, 1988. On July 30, 1988 the Speaker held that a split had occurred within the meaning of the Xth Schedule of the Consitu­ tion in the ruling party. Sri Vamuzo was one among the said 13 MLAs. He E informed the Governor on July 31, 1988 that he has secured the support of 35 of the 59 members of the Assembly and was in a position to form the ministry in the State. At this stage, the Chief Secretary to the Government of Nagaland wrote to Sri Vamuzo on August 3, 1988 that according to the information received by him, the group of 13 MLAs aforesaid were wrong- fully confined by him. Sri Vamuzo denied the same and invited the Chief Secretary to come and verify the truth of the allegation from the said members themselves. The members stated before the Chief Secretary that they were free agents and were not confined by any one. On August 6, 1988 the Governor of Nagaland sent a report to the President of India about the formation of Congress Ruling Party. He reported that in the past 25 years, G eleven governments have been formed and that thirteen MLAs who had dissociated t!:emselves from the Congress (1) party were allured with money. He characterised the said weaning away of the thirteen members as "incredible lack of political morality and complete disregard to the wishes to the electorate on the part of the break-away congressmen". He also stated that the said thirteen persons were kept in forcible confinement H by Sri Vamuzo and another person and that the story of split in the party .,. ' t-· y -~ S.R. BOMMAJ v. U.0.1. [8.P.JEEVAN REDDY.J.] 879 is not true. He characterised the recognition accorded to the said group of A thirteen members by the Speaker .as hasty. He also spoke of political 'horse-trading' and machinations. He referred to the insurgency in Nagaland and that indeed some of the members of the Assembly were having contacts with the insurgent groups. He reported that the stability of the State may suffer due to the said episode and further that if the present affairs are allowed to continue) a serious development may ensue. The Chief Minister, Sri Hokishe Serna, probably finding that he has lost the majority support in the House, submitted his resignation to the Governor ar.d recommended the imposition of the President's rule. On August 7, 1988, the President issued the proclamation under Article 356 C assuming the functions of the government of the State of Nagaland. The government was dismissed and the Assembly dissolved. The action was challenged by Sri Vamuzo by way of a writ petition in the Guwahati High Court being C.R. No. 1414 of 1988. The writ petition was heard by a Divisioin Bench comprising the Chief Justice and Hansaria, J. Both the learned Judges agreed that the validity of the proclamation can be ex- D amined by the court and that the proclamation under Article 356 is not immune from judicial scrutiny. But on the question of the effect and operation of Article 74(2), they differed. The learned Chief Justice held : 11 the Union cannot be compelled to tender any information to this court covered by Article 74 of the Constitution relevant to the dissolution of the E Nagaland assembly. I am also of the view that the Union of India can legally claim all documents relevant to the dissolution of the Nagaland assembly as privileged documents and a 'class' documents under Section 123 of the Evidence Act. Therefore, the objection that the courts do not have powers to call for the information from the President of India in view of Article 74 (2) of the Constitutioin is sustained. Since the Nagaland legislative F assembly is dissolved by the two Houses of Parliament, no relief can be grant.ed in the circumstances of this case". Accordingly, he proposed to dismiss the wit petition. Hansaria, J., however, took a contrary view. The learned Judge held that the material which formed part of 'other information' but has not been produced before the court, does not form G part of the advice tendered by the council of ministers to the President. The court is, therefore, entitled to sec the said material and for that purpose the Union of India must be given ten days time for producing the same. If, however, they decline to do so, the court would have no alterna- tive but to act upon the present ma.terial and the Union of India will have 880 SUPREME COURT REPORTS (1994] 2 S.C.R. A to take the consequences of such a course. The learned judge did not propose to dispose of the writ petition but to wait for ten days and then pronounce the final orders. In view of the said difference of opinion, the matter was referred to a third Judge,but before the third Judge could hear the matter, the Union of India moved this Court for grant of special Leave. B Special L~ave was granted and the proceedings in the High Court stayed. We have discussed the effect and scope of article 74(2) elsewhere. In the light of the same, the view taken by Hansaria,J. (as he then was) must be held to be the correct one and not the vir.w taken by the learned Chief Justice. This Special Leave Petition is accordingly disposed of with C the above direction. Inasmuch as fresh elections have since been held, the High Court may consider the advisability of proceeding with the matter at this point of time. J\fADHYA PRADESH, RAJASTHAN AND Hil\fACHAL PRADESH; D In the elections held in February, 1990, the BJP emerged as the majority party in the Assemblies of Uttar Pradesh, Madhya Pradesh, Rajasthan and Himachal Pradesh and formed the government therein. On December 6,1992, the Ram Janambhoomi-Babri Masjid structure E (disputed structutre) was demolished by the kar sevaks who had gathered there in response to appeals by the B.J.P., V J.P.,Bajrang Dal, Shiv Sena and some other organisation. Following· the demolition at Ayodhya on 6th December, 1992, the Government of Uttat Pradesh resigned. It was dismissed by the President F and the Legislative Assembly dissolved by a proclamation under article 356 issued on the same day. The proclamation does not refer either to the report of the Governor nor does it say that the President had received any information otherwise. Be that as it may, the validity of the said proclama­ tion not being in issue before us, we need not express any opinion in that G behalf. The demolitioe of the disputed mosque·had serious repercussions all over the country as also in some neighbouring countries. A number of temples were reportedly demolished there. Serious disturbance to law and order occurred in various parts of the country resulting in considerable loss H of lives and property. By an order dated December 10,1992 issued under -......... .. S.R. BOMMAI v. U.O.L [B.P.JEEVAN REDDY,J.] 881 section 3(1) of the Unlawful Activities (Prevention) Act, 1967 (37 of 1967), A the Government of India banned several alleged communal organisations including RSS, VHP and Bajrang Dal. MADHYA PRADESH: On December 8,1992, the Governor of Madhya Pradesh sent a report to the President setting out the "fast deteriorating law and order situation in the State in the wake of wide-spread acts of violence, arson and looting". He observed in his report that "the lack of faith in the ability of the State Government to stem the tide primarily because of the political leadership's overt and covert covert support to the associate communal organisations C seem to point out that there is breakdown of the administrative machinery of the state." He followed it up with another report on December 10, 1992 wherein he mentioned about the violence spreading to hither to peaceful areas. On December 13, 1992, he sent his third report enclosing the photocopy of a letter received from the executive Director, Bharat Heavy D Electricals Limited (BHEL), Bhopal dated December 11, 1992. The said leUer, said the Governor, indicated the "abject failure of the law and order machinery to provide safety and security to life and property in the areas in and around BHEL factory". The letter also spoke of ''the pressure brought on the administration to accommodate the so called kar sewaks in BHEL area". The Governor termed them as extremely serious develop- E ments that deserve a high level probe. The third report further stated that with lhe reported statement of the Chief Minister Sri Sunder Lal Patwa that the decision of banning the RSS and VHP "'.as unfortunate, the State Government's credibility to sincerely implement the Centre's direction in lhe matter is under a cloud ... there is a question mark as to how BJP leaders like Sri Patwa who swore by the values and traditions of the RSS will be able to implement the ban both in letter and spirit. The VHP's decision to observe December 13 as 'Black Day' all over the country to protest against the above mentioned ban and its decision to observe protest week against these 'heinous laws' from December 14 to 20 are moves fraught with danger, particularly in the present context". The Governor G recommended that "considering this and looked in the background of the RSS etc, contemplating on a fresh strategy to chalk out its future plan and the possibility of the leaders of the banned organisations going under­ ground taking advantage of the soft reaction of the administration have reasons to be convinced that there should not be any further delay in H A imposition of President's rule according to Article 356 of the Constitution of India". HIMACHAL PRADESH: The Governor of Himachal Pradesh sent a report o.n December B 15,1992 wherein he stated inter alia: "there is no dispute on the point that the Chief Minister and his cabinet had instigated the kar sevaks from Himachal Pradesh to participate in the kar seva on the 6th December, 1992. Some of the Ministers expressed their desire even openly, provided the party High command permitted to do so. Consequently, a large number C of kar sevaks including some BJP M.L.As.participated in the kar seva from Himachal Pradesh. A member of the Vidhan Sabha publicly admitted that he had participated in the demolition of the Babri Masjid (Indian Express dated 15.12.1992, Chandigarh Edition). Though Sri Shanta Kumar met me on December 13, 1992 and had informed me that he desired lo implement the ban orders imposed by the Government of India on RSS, VHP and D three other organisations and that he has already issued directions in this regard but since the Chief Minister himself is a member of RSS, therefore, he is not in a position to implement these directions honestly and effective­ ly. Most of the people of the state also feel alike .... As a matter of fact, when the Chief Minister himself and some of the colleagues are members of the E banned RSS, then it is not possible for the admini,trative machinery to implement the ban honestly, especially when some of the Ministers are openly criticising the ban on these communal organisations". He, therefore, recommended imposition of the President's rule. RAJAS THAN: The report of the Governor of Rajasthan, recommending imposition of the President's rule, stated the following facts: the government of Rajasthan has played 'an obvious role' in the Ayodhya episode. The BJP has control over RSS, VHP and Bajrang Dal which are now banned by the centre. The said ban is not being implemented at all. Indeed, one of the G Ministers had resigned and along with 22 MLAs and 15,500 BJP workers had participated in the kar seva at Ayodhya on December 12, 1992. They were given a royal send off and when they returned, they were given a similar royal welcome by the influential people in the political set up running the government. The law and order has been very bad for more H than a week, the dominant character being the anti-minority on whom .. .. S.R. BOMMAI v. U.0.1. [B.P. JEEV AN REDDY,J.] 883 largely atrocities have been committed. The administration could not func- A tion effectively under the present political set up. He expressed the ap­ prehension that it would be extremely difficult to expect the administration to function objectively, effectively and in accordance with the rule of law and that a situation has arisen in which the government of the state cannot be carried on in accordance with the provisions of the constitution. On December 15, 1992, the President issued three proclamations dismissing all the three government in Madhya Pradesh, Rajasthan and Himachal Pradesh and dissolving their Legislative Assemblies. The action was purported to be taken on the basis of the reports of the Governors concerned as well as on the basis of other information received. The C validity of the proclamations was challenged immediately by filing writ petitions in the appropriate High Courts. The Madhya Pradesh High Court allowed the same which is challenged by the Union of India in Civil Appeal Nos. 1692, 1692A-1692C of 1993. The writ petitions relating to Rajasthan and Himachal Pradesh were withdrawn to this Court and are numbered as Transferred case No. 9 of 1993 and transferred case No. 8 of 1993 respec- D lively. The petitioners challenged the proclamation as ma/a fide, vitiated by extraneous considerations and an instance of political vendetta. It is sub­ mitted that incidents of disturbance to law and order cannot attract action under Article 356. In any event, in Himachal Pradesh, there was not a single instance. All the three governments were faithfully implementing all the Central and State laws. The impugned proclamations, it is submitted, are the result of internal differences among the leaders of the Congress party and are not supportable in law. It is submitted by the learned counsel for the petitioners that the imposition of the President's rule in the States of Madhya Pradesh, Rajas­ than and Himachal Pradesh was malafide, based on no satisfaction and was purely a political act. Mere fact that communal disturbances and/or instan- ces of arson and looting took place is nci ground for imposing the President's rule. Indeed, such incidents took place in several Congress (I) G - ruled States as well - in particular, in the State of Maharashtra - on a much larger scale and yet no action was taken to displace those govern­ ments whereas action was taken only against B.J.P. governments. It is pointed out that so far as Himachal Pradesh is concerned, there were no communal disturbances at all. H There was no law and order problem worth the name. Even the Governor's report did not speak of any such incidents. The governments of Madhya Pradesh, Rajasthan and Himachal Pradesh, it is argued, cannot be held responsible for what happened at Ayodhya on December 6, 1992. For that incident, the Government of Uttar Pradesh had resigned owning responsibility therefore and it was dismissed. That is not under challenge. But the Governments of these three States were in no way connected with the said incident and could not have been dismissed on account of the said incident. It is also pointed out that according to the report of the Governor of Himachal Pradesh, the Chief Minister met him and indicated clearly that he was desirous of and was implementing the ban and than some arrests C were also made. In such a situation, there was no reason for the Governor to believe, or to report, that the Chief Minister is not sincere or keen to implement the ban on the said organisations. As a matter of fact, the Tribunal under Unlawful Activities (Prevention) Act, 1967, has declared the ban on R.S.S. as illegal and accordingly the ban has since been revoked. The non-implementation of an illegal ban cannot be made the basis of D action under Article 356. Assuming that there was such an inaction or refusal, it cannot be made a ground for dismissing the State Government and for dissolving the Assembly. The Union Government has also not disclosed what other malarial/information they had received on the basis of which the President had acted, though a recital to that effect has been made in the proclamations. The action taken by the President cannot be E justified by producing the material gathered later. The respondents must disclose the information that was before the President when he issued the impugned proclamations. The White Paper now placed before the Court was not in existence on December 15, 1992. The manifestos issued by the B.J.P. from time to time cannot constitute the information referred to in F the proclamations - not, in any event, legally relevant material. The counter filed by the Union of India in Madhya Pradesh High Court in M.P. No. 237/93 (Sunder Lal Patwa & Ors. v. Union of India & Ors.) does not refer to or disclose the other information received by the President. Even in the counters filed in writ petitions questioning the proclamations relating the Himachal Pradesh and Rajasthan, no such material is disclosed. It was the G duty of the Union government to have disclosed to the Court the materiaVinformation upon which the requisite satisfactioin was formed, more so because the proclamations themselves do not refer to any such material. Since they have failed to do so, an adverse inference should be drawn against them. Article 74(2), it is argued, does not and cannot relieve the Union of India of this obligation. The power and remedy of judicial 1 S.R. BOMMAI v. U.0.1. [B.P. JEEV AN REDDY, J.] 885 review, it is argued, cannot be rendered ineffective with reference to A Article 74(2). A counter affidavit was filed by the Union of India in the writ petition filed in the Madhya Pradesh High Court questioning the Proclamation with respect to that State. Apart from the legal contentions, the following facts are stated therein: B The reports of the Governor disclosed that the State Goverment had miserably failed to protect the citizens and property of the State against internal disturbance. On the basis of the said reports, the President formed the requisite satisfaction. C The circumstances in the State of M.P. were different from several other States where too serious disturbance to law and order took place. There is no comparisoon between both situations. "Besides Bhopal, over-all situation in the State of M.P. was such that there was sufficient and cogent reasons to be satisfied that the Government in the State could not be D carried on in accordance with the provisions of the Consttution. It is denied that there was no law and other situation in the State." The Governor's reports are based upon relevant material and are made bonafide and after due verification. The allegations made against Sri Arjun Singh, Minister for Human Resource Development are baseless. The decision was a collective decision of the Council of Ministers. No comparison with regard to the State of affairs in the State of Madhya Pradesh can be made with those States. The Governor of Madhya Pradesh having reported that the Constitutional machinery in the State had broken down, the proclamation of President's F rule is justified and Constitutional." In the count~r affidavit filed in the writ petition (Transferred Case No. 8 of 1993) relating to Himachal Pradesh, the very same objections as are put forward in the counter affidavit filed in the Madhya Pradesh case G have been reiterated In the para-wise replies, it is stated that the events of 6th December, 1992 were not the handiwork of few persons but that "the public attitude and statements of various groups and political parties including BJ.P. led to the destruction of the structure in question and caused great damage to the very secular fabric of the country and created communal c\iscord and disharmony all over the country including Himachal H. 886 SUPREME COURT REPORTS [1994) 2 S.C.R. A Pradesh." It is stated that the repercussions of the event cannot be judged by comparing the number of persons killed in different States. It is asserted that the Council of Ministers and the President "had a wealth of material available to them in the present case which are relevant to the satisfaction formed under Article 356. They were also aware of the serious damage to communal amity and harmony which has been caused in the State of Madhya Pradesh among others. They were extremely concerned with repercussions which events at Ayodhya might still have in the States and the ways and means to bring back normalcy not only in the law and order situation but also communal amity and harmony which had so badly damaged as a result of the activities, attitude and stand of inter a/ia the party in power in the State." It is also stated that, according to the definite information available to the Government of India, members of the R.S.S. were not only present on the spot at Ayodhya but actually participated in the demolition and that they were responsible for promotion of communal disharmony. It is for this reason that it was banned. It is also asserted that the action was taken by the President not only on the basis of the report D of the Governor but also on the basis of other information received by him. In the Counter affidavit filed in the writ petition relating to Rajasthan (Transferred Case No. 9 of 1993) it is stated that after the demolition on 6th December, 1992, violence started in various parts of the country leading to loss of life and property. It is asserted that it is not possible to assess the law and order situatin in different states only on the basis of casualty figures. The situation in each State has to be assessed differently. The averment of the petitioner that the State Government implemented the ban on R.S.S. properly is denied. There is no requirement that the report of the Governor should be addressed to the President. It can also be ad- dressed to the Prime Minister. Besides the report of the Governor, other information was also available on which the President had formed his satisfaction. The correctness, adequacy or sufficiency of the material con­ tained in the Governor's report is not justiciable and cannot be gone into by the Court. The allegations of nzalafide, capricious and arbitrary exercise of power arc denied. No irrelevant material was taken into consideration G by the President and hence, it is averred, the satisfaction of the President is not judicially reviewable. The leanrned counsel for Union of India and other counsel support­ ing the impugned proclamations put their case thus: the main plank and H the primary programme of B.J.P. was the construction of a Ram temple at S.R. BOMMAI v. U.0.1. [B.P.JEEVAN REDDY . .!.] 887 the very site where the Bahri Masjid stood. The party openly proclaimed A that they will remove - relocate, as they called it - the Babri Masjid structure since according to them the Babri Masjid was super-imposc:d on an existing Ram temple by Emperor Babar. The party came to power in all the four States on the said plank and since then had been working towards the said goal. It is the one single goal of all the leaders of BJ.P., their Ministers, Legislators and all cadres. For his purpose, they have been repeatedly gathering kar sevaks' from all corners at Ayodhya from time to time. In the days imm•diately preceding December 6, 1992, their leaders have been inciting and exhorting their followers to demolish the Babri Masjid and to build the temple there. The Ministers in Madhya Pradesh, Himachal Pradesh and Raj~sthan took active part in organising and despatching kar sevaks to Ayodhya. When the karsevaks returned from Ayodhya after demolishing the Masjid, they were welcomed as heroes by those very persons. Many of the Ministers and Chief Ministers were members of R.S.S. and were protesting against the ban on it. They could not, therefore, be trusted to enforce the ban, notwithstanding the protes­ tations to the contrary by some of them. The manifesto issued by the BJP on the eve of May/June, 1991 mid­ term poll states that the BJ.P. "seeks the restoration of Ram Janmabhoomi in Ayodhya only by way of a symbolic righting of historic wrongs, so that the old unhappy chapter of acrimony could be ended, and a Grand National Reconciliation effected." At another place under the head "Sri Ram Mandir at J anmasthan", the following statement occurs: "BJP firmly believes that construction of Ram Mandir at J anmasthan is a symbol of the vindication of our cultural heritage and national self-respect. For BJP it is purely a national issue and it will not allow any vested interests to give it a sectarian and communal colour. Hence, the party is com1nitted to build Slzri Ra111 Mandir at J anmasthan by relocating super-in1posed Babri strncture with due respect. 11 Standing by themselves, it is true, the above statements may not mean that the programme envisaged unlawful or forcible demoli- tion of the disputed structure. The said statement are also capable of being understood as meaning that the party proposed to vindicate their stand in Courts that the disputed structure was in fact the Ram Janmasthan which G was forcible converted into a mosque by Emperor Babar and that only thereafter they will relocate the said structure and build Ram Temple at that site. But, says the counsel, if we read the above statements in the light of the speeches and acts of the leaders of the B.J.P., referred to in the White Paper issued by the Government of India, there would hardly be any A room for such beneficial interpretation. The "White Paper on Ayodhya" issued by the Government of India in February, 1993, establishes the complicity of the Bhartiya Janta Party as such in the demolition of the disputed structure and its aftermath. According to the statement of the Union Home Minister made in Rajya Sabha on December 21, 1992, the counsel pointed out, "all these kar sevaks, when they returned, were received by the Chief Ministers and Ministers 11 The counsel for the respondents argued further that what happened on December 6, 1992 did not happen in a day. It was the culmination of a sustained campaign carried on by the BJP and other allied organisations over the last few years. They had been actively campaigning for the construction of Ram temple at the disputed site. They had been speaking of relocating the disputed structure which only meant that they wanted the disputed structure removed and a Ram temple constructed in that very D place. The several speeches of the leaders of BJP and other allied parties, referred to in the White Paper, do clearly establish the said fact. Indeed, in the manifesto issued by the BJP in connection with the 1993 General . Elections, there is not a word of regret as to what happened on December 6, 1992. On the contrary, the following statement occurs under the heading "Ayodhya": "Ayodhya In their actions and uttarances, the forces of pseudo-secularism convey the unmistakable impression of a deep repugnance for all things Hindu. Indeed1 in their minds 11 Hindu 11 has come to be associated with "communal". 'fhc controversy over the Ram Jan­ mabhoomi temple in Ayodhya is a powerful illustration of this phenomenon. For them 11 Sahmat 11 is secular and 11 Saffron 11 com­ munal. Although the facts of the dispute are well known, certain features merit repetition, first, it was always apparent that a vast majority of Hindus V!cre totally committed to the construction of a grand temple for Lord Rama at the site where puja has been performed uninterruptedly since 1948 and where besides, no · namaz has been offered since 1936. The structure build by the Moghul Emporer Babur was viewed by the Hindus as a symbol of national humiliation. r S.R. BOMMAI v. U.0.1. [B.P.JEEVAN REDDY,J.) 889 Second, the election of 1991 in Uttar Pradesh centred on the A Ayodhya dispute. It was a vitual referendum on Ram Janmabhoomi and the BJP with its promise to facilitate the construction the Ram Temple won the election. However, this mandate did not prevent the Congrees and other pseudo-secular parties from wilfully obstructing the initiatives of the Uttar Pradesh government. Ever­ thing, from administrative subterfuge to judicial delay, was used by the opponents of the temple to prevent the BJP government from fulfilling its promise to the electorate. On D.ecember 6, 1992 kar sevaks from all over India assembled in Ayodhya to begin the reconstruction of the Rama Temple at C the site adjoiring the garbha grina. Matters took an unexpected turn when, angered by the obstructive tactics of the Narasimha Rao government, inordinate judicial delays and pseudo-secularist taunts, the kar seveks took matters into their own hands, demolished the disputed structure and constructed a makeshift temple for Lord Rama at the garbha griha. D Owing responsibility for its inability to prevent the demolition, the BJP-government headed by Shri Kalyan Singh submitted its resignation. A disoriented Central Government was not content with the imposition of President's rule in Uttar Pradesh. In viola- E tion of democratic norms, the centre dismissed the BJP govern­ ments in Rajasthan, Madhya Pradesh and Himachal Pradesh. Further, it banned the Rashtriya Swaymsevak Sangh, Vishwa Hindu Parishad and Bajrang Dal. Worst of all, in allusion with other rootless forces the govern­ ment unleashed a vicious propaganda offensive aimed at belittling the Hindus. The kar sevaks were denigrated as fascists, lumpens and vandals, and December 6, was described as a ' 1 national shame". Recently, the CBI has filed chargesheets against leaders of the BJP and the Vishwa Hindu Parishad with the purpose of projecting G them as criminals. This relentless onslaught of the pseudo-secular forces against the people of India had very serious consequences. For a stare, it created a wide emotional gulf between the rulers and the people. Ayodhya was a popular indictment of the spurious polities of H double-standards. Far from recognising it as such, the Congress and other anti-B.TP parties used it as pretext for furthering the cause of unprincipled minorityism. It is this minorityism that prevents the Congress, Janata Dal, Samajvadi Party and the Communist Parties from coming out with an unambiguous declaration of intent on Ayodhya. This BJP is the only party which is categorical is its assurance to facilitate the construction of the Rama temple at the site of the erstwhile Babri structure. That is what the People of what desire."- The counsel further pointed out the significance of the total inaction on the part of the lop leaders of the B.J.P. present near the disputed structure at Ayodhya on December 6,1992. They took no steps whatsoever to stop the demolition. The kar sevaks had gathered there at their instance. They had appealed to the kar sevaks to gather there from all corners of D the country. Some of these leaders had been speaking of demolition of the disputed structure to enable the construction of Ram temple at that very place. Even assuming that the assault on the disputed structure was a sudden move on the part of some kar sevaks, it is not as if the demolition took place in a couple of minutes. It must have certainly taken a few hours. If the BJP leaders present there really wanted to prevent it, they should have appealed to the people and ought to have taken other effective steps to prevent the kar sevaks from demolishing the structure. There is no allegation an~where in the writ petition or other material placed before the court that they ever did so. If one reads the aforesaid statements in the manifestos of 1991 and 1993 in the light of the above facts, if would be clear,says the counsel, that the demolition of the disputed structure was the outcome of the speeches, programme and the several campaigns including Rath Yatras undertaken by the leaders of the BJP. It is neither possible nor realistic to dissociate the governments of Madhya Pradesh, Rajasthan and Himachal Pradesh from the acts and deeds of their party. It is one party with one programme. Kar sevaks were sent by and welcomed back G by the Ministers and legislators (belonging to B.J.P.) of these three States as well.Thereby they expressed and demonstrated their approval of the deed done by the kar scvaks. It is stated in the report of the Himachal Pradesh Governor that the Chief Minister himself was a member of the RSS. In the report of the Governor of Madhya Pradesh also, it is stated that the Chief Minister and other ministers swore by the values and H traditions of the RSS. The reports also indicate that these governments S.R. BOMMAI v. U.0.1. [B.P. JEEV AN REDDY, J .] 891 actively participated in organising and despatching the kar sevaks to Ayod- A - hya and welcomed them and praised when they came _back after doing the deed. Thus, a common thread runs through all the four BJ .P. governments and binds them together, say the counsel. All these four governments had launched upon a course of action in tandem with top B.J.P, leaders, which led to the demolition. Their actions and deeds were contrary t,o the provisions of the Constitution. The minifestos of the party on the basis of . B which these governments came to power coupled with their speeches and actions clearly demonstrate a commora~ess, an inseperable unity of action between the party and these four governments. The very manifestos and the'r programme of action were such as to hurt the religious feelings of the Muslim community. They negated the secular concept, a basic feature of C our Constitution. The demolition of the disputed structure was no ordinary event. The disputed structure had become the focal point, the bone of contention between two religious communities. The process which resulted in the demolition and the manner of in which it was perpetrated, dealt a serious blow to the communal harmony and peace in the country. It had adverse international repercussions as well. A number of Hindu temples D were demolished in Pakistan and Bangladesh in reprisal of the demolition at Ayodhya. It was difficult in this situation to ask the minorities in the four States to have any faith in the neutrality of these four administrations. It was absolutely necessary, say the counsel, to recreate the feeling of security among the Muslims. They required to be assured of the safety and security of their person and property. It was not possible with the BJ.P.govern- ments in power. They had to go. ' The learned counsel for the respondents submitted further that the R.S.S.was banned on December 10,1992. The Chief Ministers of Himachal Pradesh and Madhya Pradesh were said to be the members of the R.S.S.and adhering to its tenets. In such circumstances, the respective Governors were of the opinion that the said Chief Ministers cannot be expected to, or relied upon to, implement the ban sincerely. It cannot be said to be an unreasonable or unfounded opinion. It was also necessary to create a sense of confidence in the people in general and in the minorities, in particular, that the governments would be acting promptly and sternly G to prevent communal incidents. Following December 6 incident, there were reports of destruction of a large number of temples in the adjoining countries. These reports, it was apprehended, may add fuel to the fire. The situation was deteriorating. What happened on December 6 was no ordi­ nary event. It had touched the psyche of the minority community. The ·D entire nation was put in turmoil. Allowing a party which had consciously and actively brought about such a situation to continue in office in these three States would not have helped in restoring the faith of people in general and of the minorities in particular in the resolve of the central government to abide by and implement the constitutional values of equality, peace and public order. It is no answer to say that disturbance took place on a much larger scale in certain states ruled by Congress (I) party (in particular in Maharashtra) and that no action was taken against those governments. Stating the proposition in such simplistic terms is neither acceptable nor realistic. One should look at the totality of the picture,say the counsel, and not to the isolated incidents which took place either before or after the demolition. It is not even a question of punishing the govern­ ments for what happened on December 6, 1992. The real question was who created this turmoil in the life of the nation and who put the nation's soul in torment. The immediate need was the restoration of the faith of the people in the impartiality of the administration, in the secular credentials of the nation and to ensure not only that the ban on the alleged communal organisations is effectively implemented but also to ensure that the ad­ ministration acts promptly and impartially in maintaining· the law and order. The center government, submitted the counsel, acted with this perception and it cannot be said either that the said action was outside the purview of Article 356 or that it was malafide or that there was no material on which the President could be reasonably satisfied that the dismissal of these State Government was indeed called for, submitted the learned counsel for Union of India and other respondents. With a view to demonstrate his submission that judicial approach and judicial processes are not appropriate to judge the various situations calling for action under article 356, Sri Parasaran gave the following scenario: the Union Council of Ministers was apprehensive of the safety of the disputed structure once the BJ.P. came to power in Uttar Pradesh. It was repeatedly reminding the State Government in that behalf. All the time, the State Government and its Chief Minister were assuring the Union of India, the National Integration Council and even the Supreme Court, through state- G ments, affidavits and representations that the State Government was com­ mitted to the safety of the disputed structure and that it would ensure that no harm comes to it. The Central Gvernment was sceptical of these assurances. But suppose it had taken action under Article 356, dismissed the Government of Uttar Pradesh some time prior to December 6, 1992 on the ground that it did not have any faith in those assurances, the Court could well have found fault with the action.The Court would have said that I.) S.R. BOMMAI v. U.0.1. [B.P. JEEV AN REDDY, J.] 893 there was no basis for their apprehension when the State government itself A represented by the Chief Minister and other high officials was repeatedly assuring everyone including the Supreme Court that they will protect the structure. There was no reason no to believe the)n and that the action taken under Article 356 is, therefore, unjustified, being based upon mere suspicion. But, in the event, the Central Government did not take,action and the disputed structure was demolished with enormous consequences B and repercussions". This only shows, says Sri Parasaran, that these matters cannot be weighed in golden scales and that judicial approach and assump­ tions are ill-suited to such situations. Having given our earnest consideration to the matter, we are of the opinion that the situation which arose in these three States consequent upon the demolition of the disputed structure is one which cannot be assessed properly by the court. Sri Parasaran is right in his submission that what happened on 6th December, 1992 was no ordinary event, that it was the outcome of a sustained campaign carried out over a nun1ber of years throughout the country and that it was the result of the speeches, acts and deeds of several leaders of B.J.P. and other organisations. The event had D serious repurcussions not only within the country but outside as well. It put in doubt the very secular credentials of this nation and its government - and those credentials had to be redeemed. The situation had many dimen­ sions, social, religious, political and international. Rarely do such occasions arise in the life of a nation. The situation was an extraordinary one; its repercussions could not be foretold at that time. Nobody could say with definiteness what would happen and where? The situation was not only unpredictable, it was a fast-evolving one. The communal situation was tense. It could explode anywhere at any time. On the material placed before us, including the reports of the Governors, we cannot say that the President had no relevant material before him on the basis of which he could form the satisfaction that the B.J.P. governments of Madhya Pradesh, Rajasthan and Himachal Pradesh cannot dissociate themselves from the action and its consequences and that these governments, contro11ed by one and the same party, whose leading lights were actively campaigning for the demolition of the disputed structure, cannot be dissociated from the acts and deeds of the leaders of B.J.P. In the then prevailing situation, the G Union of India thought it necessary to ban certain organisations including R.S.S. and here were governments which were headed by persons who 11 swore by the values and traditions of the R.S.S." and were giving 11 overt and covert support to the associate communal organisation 11 (vide report of the Governor of Madhya Pradesh). The Governor of Himachal Pradesh 894 SUPREME COURT REPORTS [1994) 2 S.C.R. A reported that "the Chief Minister himself is a member of R.S.S.". The Governor of Rajasthan reported that the ban on R.S.S. and other organisa­ tions was not being implementeed because of the intimate connection between the members of the government and those organisations.** The three Governors also spoke of the part played by the members of the government in sending and welcoming back the kar sevaks. They also expressed the opinion that these governments cannot be expected, in the circumstances, to function objectively and impartially in dealing with the emerging law and order situation, which had all the ominous makings of a communal conflagration. If the President was satisfied that the faith of these B.J.P. government in the concept of secularism was suspect in view of the acts and conduct of the party controlling these governments and that in the volatile situation that developed pursuant to the demolition, the government of these State cannot be carried on in accordance with the provisions of the Constitution, we are not able to say that there was no relevant material upon which he could be so satisfied. The several facts stated in the counter affidavits and the material placed before us by the D Union of India cannot be said to be irrelevant or extraneous to the purpose for which the power under Article 356 is to be exercised. As pointed out by us supra (under the heading 'Judicial Review') we cannot question the correctness of the material produced and that even if part of its is not relevant to the action, we cannot interfere so long as there is some relevant material to sustain the action. If the President was satisfied that the E governments, which have already acted contrary to one of the basic features of the Constitution, viz., secularism, cannot be. trusted to do so in future, it is not possible to say that in the situation then obtaining, he was not justified in believing so. This is precisely the type of situation, which the court cannot judge for lack of judicially manageable standards. The Court could be well advised to leave such complex issues to the President and F the Union Council of Ministers to deal with. It was a situation full of many imponderables, nuances, implications and intricacies. There were too many ifs and but's which are not susceptible of judicial scrutiny. It is not correct to depict the said proclamations as the outcome of political vendatta by the political party in power at the centre against the other political party in power in some States. Probably in such matters, the ultimate arbiter is G the people. The appeal should be to the people and to people alone. The challenge to the proclamation relating to these three States is, therefore, liable to fail. The fact that the ban was held to be unsustainable later on by the appropriate Tribunal is not relevant while judging the situation obtaining in the days following the den1oli- J~._ H tion. ., S.R. BOMMAI v. U.0.1. [B.P.JEEV AN REDDY, J.] 895 We may summarise our conclusion now: (1) Article 356 of the Constitution confers a power upon the Presi­ dent 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 B 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 C precondition. 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 D 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 Constitu- E lion 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 govern­ ment 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 H A may have been kept in suspended animation gets re-activated. 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/Legislation Assembly or other competent B authority. (b) However, if the proclamation is approved by both the Houses within two months, the govermnent (which was dismissed) does not revive on the expiry of period of proclamation or on its revocation. Similarly, if the Legislative Assembly has been dissolved after the approval under C 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. D 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 E Evidence Act cover different fields. It may happen that while defending the proclamation, the minister or the concerned official 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 immnne from judicial review. 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) (which was introduced by 38th (Amendment) Act) by the 44th (Amendment) Act, removes the cloud G on the reviewability of the action. 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. It's enquiry is limited to see whether the material was relevant to the action. Even if part H of the material is irrelevant, the court cannot interfere so long as there is · ,. S.R. BOMMAI v. U.0.1. [B.P.JEEV AN REDDY, J.] 897 some material which is relevant to the action taken. A (8) If the Court strikes down the proclamation, it has the power to restore the dismissed government to office and revive and re-activate the Legislative Assembly wherever it may have been dissolved or kept under suspension. In such case, the court has the power to declare that acts done, orders passed and laws made during the period the proclamation was in B force shall remain unaffected and be treatt:d 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. > (9) The Constitution of India has created a federation but with a" bias c 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 D 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. Polities and religion cannot be mixed. Any State govern- ment which pursues unsecular policies or unsecular course of action acts contrary to the constitutional mandate and renders itself amenable to. E action under Article 356. (11) The proclamation dated April 21, 1989 in respect of Karnataka (Civil Appeal No. 3645 of 1989) and the proclamation dated Octobe< 11, 1991 in respect of Meghalaya (Transferred Case Nos. 5 and 7 of 1992) are unconstitutional. But for the fact that fresh elections have since taken place F -· in both the states - and new Legislative Assemblies and governments have come into existence - we would have formally struck down the proclarna- tions and directed the revival and restoration of the respective governments and Legislative Assemblies. The Civil Appeal No. 3645 of 1989 and Transferred Case Nos. 5 and 7 of 1992 are allowed accordingly. Civil G Appeal Nos. 193 and 194 of 1989 relating to Nagaland are disposed of in terms of the opinion expressed by us on the meaning and purport of Article 74(2) of the Constitution. ' ... "t (12) The proclamations dated January 15, 1993 in respect of Madhya Pradesh, Rajasthan and Himachal Predesh concerned in Civil Appeal Nos. H 898 SUPREME COURT REPORTS (1994] 2 S.C.R. A 1692, 1692A- 1692C of 1993, 4627-4630 of 1990, Transferred Case (C) No. 9 of 1993 and Transferred Case No. 8 of 1993 respectively are not uncon­ stitutional. The Civil Appeals are allowed and the judgment of the High Court of Madhya Pradesh in M.P. (C) No. 237 of 1993 is set aside. The Transferred Cases are dismissed. B In the light of the reasons given and conch'sions recorded hereinabove, we find ourselves in agreement with the conclusions 1, 2 and 4 to 7 in the judgment of our learned brother Sa want, J. delivered on behalf of himself and Kuldip Singh, J. We are also in broad agreement with conclusion No. 8 in the said judgment. No orders on Interlocutory Applications. There shall be no order as to costs in these matters. K. RAMASWAMY, J. The appeals and transferred cases raise ques- D tions of far-reaching consequences in the working of the federal structure under the Constitution of India. Whether the President of India can keep fiddling like Emperor Nero while Roma was burning or like Hamlet, Prince of Denmark of Shakespear keep the pendulum oscillating between "to be or not to be" for the issuance of the proclamation under Article 356 of the Constitution dismissing the State Government and dissolving the State E Legislatures and to bring the administration of the State under his rule. If he so acts, the scope and width of the exercise of the power and parameters of judicial review, by this Court, as centinal quivive, under Art. 32 or Art. 136 or High Court under Article 226 to consider the satisfaction, reached by the President under Art. 356: When the actions of one State Govern- F ment found seismeic vibrations in other states governed by the same political party, (in the language of S/Sri Parasaran and P.P. Rao, learned senior counsel, 'common thread rule' are also liable to be brought under the President Rule need to be critically examined and decided for success­ ful working of the democratic institutions set up by the suprema lex. Though the need to decide these questions pratically became academic due G to conducting elections to the State Assemblies and the new legislative assemblies were constituted in the States of U.P., Rajasthan, Madhya Pradesh and Himachal Pradesh, all the counsel requested us to decide the questions regardless of the relief to be granted in this case. As stated earlier since the decision on these questions is of paramount importance H for successful working of the Constitution, we acceded to their prayer. - -< S.R. BOMMAI v. U.0.1. [K RAMASWAMY, J.] 899 In S.R. Bhommai's appeal the facts are that on March 5, 1985 A elections held to the Karnataka State Legislative Assembly and the Jania Dal won 139 seats out of 225 seats and the Congress Party was the next largest party securing 66 seats. Sri R.K. Hedge was elected as the leader of Jania Dal and became the Chief Minister. Due to his resignation on August 12, 1988, Sri S.R. Bhommai's was elected as leader of the party and B became the Chief Minister. As on February 1, 1989 the strength of J anta Dal was 111 and the Congress was 65\nd Jania Party was 27, apart from others. On April 15, 1989 his expanding the Ministry caused dissatisfaction to some of the aspirants. One Kalyan Molakery and others defected form Jan ta Dal and he wrote letters on April 17 and 18, 1989 to the Governor enclosing the letters of 19 others expressing want of confidence in Sri C Bhommai. On April 19, 1989 the Governor of Karnataka sent a report to the President. On April 20, 1989, 7 out of 19 M.L.As. that supported Kalyan Molakery, wrote to the Governor that their signatures were ob­ tained by misrepresentation and reaffirmed their support to Sri Bommai. On the same day the cabinet also decided to convene the Assembly session D on April 27, 1989 at 3.30 P.M. to obtain vote of confidence and Sri Bommai met the Governor and requested him, to allow floor test to prove his majority and he was prepared even to advance the date of the session. In this scenario the Governor sent his second report to the President and exercising the power under Art. 356 the President issued proclamation, dismissed Bhommai Government and dissolved the Assembly on April 21, E 1989 and assumed the administr~tion of the State of Karnataka. When a writ petition was filed on April 26, 1989, a special bench of three Judges of the High Court of Kamataka dismissed the writ petition (reported in S.R Bhommai & Ors. v. Union of India, AJR (1990) Karnataka p.5. Thus this appeal by special leave. F In the elections held in February 1990, the Bhartiya Jania party, for short BJP, emerged as majority party in the legislative assemblies of Uttar Pradesh, Madhya Pradesh, Rajasthan and Hirnachal Pradesh and formed the Governments in the respective states. Due of the programmes of the G BJ.P. was to construct a temple for Lord Sri Rama at his birth place Ayodhya. That was made an issue in its manifesto'for the elections to the legislative assemblies. On December 6, 1992 Ram Janambhoomi Babri Masjid Structure (there is a dispute that after destroying Lord Sri Rama temple Babar, the Moghal invader, built Babri Masjid at the birth place of Lord Sri Rama. it is an acutely disputed question as to its correctness.) H A However Ram Janambhoomi Bahri Masjid structure .was demolished by the Kar Sewaks gathered at Ayodhya, as a result of sustained momentum generated by BJP, Vishwa Hindu Parishad for short VHF, Rashtriya Swayamsewak Sangh, for short RSS. Bajrang Dal for short BO. Shiv Sena for short SS and other organisations. Preceding thereto when the dispute B was brought to this Court, the Govt. of India was made to act on behalf of the Supreme Court and from time to time directions were issued to the State Government who gave an assurance of full protection to Sri Ram Janambhoomi Babari Masjid Structure. On its demolition though the Govt. of Uttar Pradesh, resigned, the President of India by proclamation issued under Art. 356 dissolved the state legislature on December 6, 1992. The C disasterous fall out of the demolition was in the nature of loss of precious lives of innocents, and property throughout the country and in the neigh­ bouring countries. The President, therefore, exercised the power under Art. 356 and by the proclamations of December 15, 1992, dismissed the State Governments and dissolved the legislative assemblies of Rajasthan D Madhya Pradesh and Himachal Pradesh and assumed administration of the respective states. Sri Soli Sorabjee, the learned senior counsel appearing for Sri Bum­ mai contended that power of the President under Art. 356 is not unfettered nor unlimited; its exercise is dependent upon the existence of the objective E fact, namely a situation has arisen in which the Govt. of the State cannot be carried on in accordance with the provisions of the Constitution. This condition precedent is sine quo non to exercise the power and issuance of the proclamation under Art. 356. The proclamation must set forth the grounds and reasons for reaching the satisfaction supported with the p materials or the gist of the events in support thereof. The grounds and reasons should be cogent and credible and must bear proximate nexus to the exercise of the power under Art. 356. The break down of the constitu­ tional machinery is generally capable of objective determination. The power under Article 356 cannot be exercised on the basis of the report of the Governor or otherwise of an inefficient or malfunctioning of the G Government or mere violation of some provisions of the constitutions. It could be exercised only when the Govt. misuses its power contrary to the basic scheme and purpose of the constitution or for its inability to dis­ charge its basic constitutional duties and functions due to political or economic crises which have led to completely paralysing the State ad- H ministration. ' S.R. BOMMAI v. U.O I. (K. RAMASWAMY, J.] 901 The federal character of the Constitution carries by its implication A an obligation to exercise the power under Art. 356 only when there is a total break down of the administration of the State. In interpretating Art. 356 the Court should need in view the legislative and constitutional history of Ar\. 356 and corresponding provisions of Government of India Act 1935. The exercise of the power under Art. 356 impinges upon federalism and visits with great political consequences. Therefore, court should exercise B the power of judicial review and interdict and restrict wide scope of power under Article 356. The scope of judicial review would be on the same or similar grounds on which the executive action of the state is challengeable under constitutional or administrative law principles evolved by this court, namely non-compliance with the requirements of natural justice, irrational C or arbitrary, perverse, irrelevant to the purpose or extraneous grounds weighed with the President, misdirection in law or ma/a fide or colorable exercise of power, on all or some of the principle. The Petitioner has to satisfy the court only prima facie that the proclamation is vitiated by any one or some of the above grounds and burden then shifts on the Council of Ministers to satisfy the Court of the legality and validity of the Presiden- D tial proclamation issued under article 356. The prohibition of Article 74(2) has to be understood and interpreted in that background. The legal im­ munity under art. 74(2) must be distinguished from the actions done by the President in discharge of his administrative functions under Article 356. The execntive cannot seek shelter under "or other information" mentioned in Art. 356(1) as an embargo under Article361 to state reasons or as a E shield to disclose all the materials in their custody preventing court to exercise judicial review. Only the actual advice or part of the advice tendered by the Minister or Council of Ministers alone would be beyond the ken and scn1tiny of judicial review. The administrative decision taken by the Council of Ministers is entirely different from the advice rendered F to the President, and the later cannot be equated with the grounds or the reasons for presidential proclamation. The former are not part of the advice tendered to the President by the Council of Ministers. Sri Shanti Bhushan, learned senior counsel, while adopting the above G contentions argued that the exercise of the power under art. 356 must be regarded as arbitrary when there was no constitutional break down. Every act of the State Govt. cannot be regarded as violation of the provisions of the constitution or constitutional break down. The power under Art. 356 must be exercised only when there was actual break down of the constitu­ tional machinery and not mere opinion in that behalf of the Council of H A Ministers. The Govt., to justify its action, must place all relevant materials before the Court and only when court is satisfied that the cases relate to actual break down of the constitutional machinery in the State the proclamation may be upheld. The burden of proof is always on the Govern­ ment to establish the validity or legality of the proclamation issued under Art. 356. Sri Ram Jethmalani tracing historical evidence from the debates that took place on the floor of the constituent assembly, contended that the keywords for construction are ncannot be carried on!T and !!failure of machinery". The provisions of Art. 356 would be strictly construed so as to preserve the federal character of the constitution. The State is a sovereign and autonomous entity in its own field and intervention by the Centre C would be permissible only when there is no other way for the Centre to perform its duties under Art. 356 It cannot be invoked for the sake of good governance of the State or to prevent misgovernance of the State. The words "cannot be carried on" are not to be confused with and are vitally different from the words "is not being carried on." The significance of the keyword gets accentuation from the marginal note of the Article "failure D of the constitutional machinery" and the Legislative history of Sections 45 and 93 of the Government of India act must be kept in view for proper construction of Art. 356. According to the learned counsel, Art. 356 gives an indication that extreme step of proclamation under Art. 356 could be invoked sparingly only when all the alternatives are exhausted. Secularism part of the preamble is not a part of the constitution ~nd· Religion is E fundamental right to every citizen who composes of a political party. The election law prohibits election prospects on religious grounds if the other candidate's religion is attacked. It cannot be tested on vague secularism nor be buttressed into religion right at particular to a political party. There is no pleading founded by factual base in these cases that BJP bad used F Hindutva as a ground, or criticised Islamic faith. It used in its manifesto the need for construction of Sri Ram Temple at his birth place by demolishing Bahri Masjid with most respectful and dignified language. Even otherwise s.29A and 123(3A) of R.P. Act. are ultra vires of Article 25. The consistent view of this court that corrupt practice on grounds of religion is only of the other candidate and not of the petitioner much more G so to a political party. Sri K. Parasanan, learned senior counsel for the Union and Sri P.P. Rao, learned counsel for the State of Madhya Pradesh refuted the contentions. · The crux of the question is the width of the President's power under Article 356. It finds its birth from a family of emergency provisions in Part S.R. BOMMAI v. U.0.1. [K. RAMASWAMY. J.] 903 XVIII of the Constitution. Article 355 imposes duty on the Union to A protect States against external aggression and internal distJirbance and to ensure that Govt. of every State is carried on in accordance with the provisions of the Constitution. As a correlary when the Government of the State is not being carried or in accordance with the provisions of the Constitution, a constitutional duty and responsibility is put on the Union B to set it right. The foundational factual matrics is the report of the governor or other information in possession of the union received otherwise to reach a satisfaction that a situation has arisen for the intervention by the Union of India. Then comes the exercise of the power under Article 356 by the President. On the receipt of a report from the Governor of a State or otherwise if the President (the Council of Ministers with Prime Minister as its head) is satisfied that a situation has arisen in which the Govt. of a State cannot be carried on in accordance with the provisions of the Constitution, the President may by proclamation: (a) assume to himself all or any of the function of the Govt. of the State and all or any of the power vested in or exercised by the Governor or any body or authority in the State other than the Legislature of the State; (b) declare that the powers or the Legislature D of the State shall be exercisable by or under the authority of Parliament; (c) make such incidental or consequential provisions as appear to the President to be necessary or desirable for given effect to the objects of the proclamation including provisions for suspending in whole or in part the operation of any provisions of the Constitution relating to any body or authorities in the State. By operation of the proviso to Clause I of Article 356, the President shall not assume to himself any of the powers vested in or exercisable by a High Court or to suspend in whole or in part the operation of any provisions for the Constitution relating to High Courts. Clause 2 of Article 356 controls the President's exercise of power, if F the proclamation is not revoked or varied by a subsequent proclamation in other words, the President, through the Council of Ministers have been given full play to reconsider the question and may revoke it before the Parliament's approval is sought. It shall remain in operation for a period of two months unless it is either revoked by another proclamation or approved by the Parliament. Clause 3 guarantees built in check and control G on the exercise of the power. It postulate that every proclamation issued under Clause I shall be laid before each house of Parliament and shall,ex­ cept where it is a proclamation revoking a previous proclamation, ceases to operate at the expiration of two months unless before the expiration of that period it has been approved by a resolution of both Houses of H A Parliament. In other words, The question of the operation of the proclama­ tion issued by the President was limit.ed only for a period of two months from the date of issue of such proclamation. Unless it is revoked or disapproved by the Parliament in the B meanwhile. It costs an obligation to lay the proclamation on the floor of both Houses of Parliament in accordance with the provisions of the Con­ stitution and the business rules. This clearly meant that it was to operate upto the time of two months and when it was in force it carries with its necessary implication that all acts done or actions taken under the proclamation during the period are legal and valid. Under the proviso to Clause 3 of Article 356 if any such proclamation not being a proclamation revoking a previous proclamation is issued at a time when House of People is dissolved or the dissolution of the House of people takes place during the period of of two months referred to in the D clause and if a resolution approving the proclamation has been passed by the Council of State but no resolution with respect to such proclamation has been passed by the House of People before the expiry of that period, the proclamation shall cease to operate at the expiration of 30 days from the date on which the House of People first sits after its reconstitution unless before the expiration of the said period of 30 days a resolution E approving the proclamation.has been also passed by the House of people. By operation of Clause 4 of Article 356 a proclamation so approved under proviso to Clause 3 shall, unless revoked, cease to operate on the expiration of a period of six months from the date of issue of proclamation · F provided that if and so often as a resolution approving the continuance in force of such proclamation is passed by both Houses of Parliament, the proclamation shall unless revoked continue in force for a further period of six months from the date on which it would otherwise have ceased to operate and no such proclamation shall in any case remain in force for more than only year with second approval. The second proviso adumberates that if the G resolution of the House of People takes place during any such period of six months and a resolution approving the continuance in force of such proclamation has been passed by the Council of States but no resolution with respect to the continuance in force•of such proclamation has been passed by the House of People during the said date the proclamation shall cease to H operate at the expiration of 30 days from the date on which the House of the r S.R. BOMMAI v. U.0.1. [K, RAMASWAMY,J.] 905 People first sits after the reconstitution unless before the expiration of the A said period of 30 days a resolution approving the continuance in force of the proclamation have also been passed by the House of the People. The third proviso is not material for. the purpose of this case. Hence omitted under Clause 5 for continuance of the proclamation beyond one year and not more than three years, two conditions are necessary i.e. (1) existence of emergency B issued under Article 352 in the whole of Indian or whole or part of the State at the time of passing the resolution and (11} the Certificate of the Election Commissioner of its inability to hold elections to the Assembly of that State. Article 357 provides the consequential exercise of legislative power by the Parliament or delegation thereof to the president to exercise them under ~~ill~ c FEDERALISM AND ITS EFFECT BY ACTS DONE UNDER ARTICLE 356 The polyglot Indian society of wide geographical dimensions habiting D by social milieu, ethnic variety or cultural diversity, linguistic multiplicity, hierarchical caste structure among Hindus, .religious pluralism, majority of rural population and minority urban habitus, the social and cultural diver- sity of the people furnish a manuscript historical material for and the founding fathers of the Constitution to lay federal structure as foundation to integrate India as an united Bharat. Federalism implies mutuality and· E common purpose for the aforesaid process of change with continuity between the Centre and the States which are the structural units operating on balancing wheel of concurrence and promise to resolve problems and promote social. economic and cultural advancement of its people and to create fraternity among the people. Article 1 is a recognition of the history F that Union of Indian's territorial limits are unalterable and the States are creatures of the Constitution and they are territorially alterable con­ stituents with single citizenship of all the people by birth or residence with no right to cessation. Under Articles 2 and 4 the significant feature is that while the territorial integrity of India is fully ensured and maintained, there is a significant absence of the territorial integrity of the Constituent States G under Article 3. Parliament may by law form a new State by separation of territory from any State or by uniting two or more States or. part of States or uniting any territory to a part of any State or by increasing area of any State or diminishing the area of any State or alter the boundary of any State. H 906 SUPREME COURT REPORTS (1994] 2 S.C.R. A IN RE: THE BERUBARI UNION AND EXCHANGE OF ENCLAVE REFERENCE UNDER ARTICLE 143 OF THE CON­ STITUTION OF INDIA - (1960] 3 SCR 250 & 285 Gajendragadkar, J. speaking for (8 Judges Bench) held that: "Unlike otherlfederations, the Federation embodied in'the said Act was not the result of a pack or union between separate and independent communities of States who came together for certain common purposes and surrendered a part of their sovereignity. The constituent units of the federation were deliberately created and it is significant that they, unlike the units of other federations, had no organic roots in the past. Hence, in the India Constitution, by contrast with other Federal Constitutions, the emphasis on the preservation of the territorial integrity of the constituent States is absent. The makers of the Constitution were aware of the peculiar conditions under which, and the reasons for which, the States (originally Provinces) were formed and the.ir boundaries were defined, and so they deliberately adopted the provisions in Article 3 with a view to meet the possibility of the redistribution of the said territories after the integration of the India States. In fact is is well-known that as a result of the states Reorganisation Act, 1965 (Act XXXVII of 1956), in the place of the original 27 States and one Area which were mentioned in part in the first Schedule to the constitution, there are now onin 4 states and 6 other areas which constitute the Union Territory mentioned in the first Schedule. The changes thus made clearly illustrate the working of the peculiar and striking feature of the Indian Constitution." The same was reiterated in State of West Bengal v. Union of India, (1964] 1 SCR 321 and State of Karanataka v. union of India, (1976] 2 SCR 1. Union and States Relations under the Constitution Tagore Law Lectures by M.C. Setalwad at page JO stated that: " .............. one notable departure from the accepted ideas underlying a federation when the power in the Central Government to redraw the boundaries of States or even to destroy them. The Constitution decentralises the governance of the States by a H four tier administration i.e. Central Government. State Government, Un!~n I )• ' S.R. BOMMA! v. U.0.l. [K. RAMASWAMY, JJ 907 territories, Municipalities and Panchayats. See Constitution for A f'.iunicipalities and Panchayats: Part IX (Panchayats) and Part IX-A (Municipalities) introduced through the Constitution 73rd Amendment Act, making the peoples participation in the democratic process from grass root level a reality. Participation of the people in governance of the State is sine qua non of fuoctional democracy. Their surrender of ·rights to be B governed is to have direct encounter in electoral process to choose their representatives for resolution of common problems and social welfare. Needless interference in self- governance is betrayal of their faith to fulfil self-governance and their democratic aspirations. The constitutional cul- ture and political morality based on healthy conventions are the fruitful soil to nurture and for sustained groy,th of the federal institutions set down by C the Constitution. In the context of the Indian constitution federalism is not based on any agreement between federating units but one of integrated whole as pleaded with vision by Dr. B.R. Ambedkar on the floor of the constituent assembly at the very inception of the deliberations and the Constituent Assembly unanimously approved the resolution of federal D c structure. He poignantly projected the pitfalls flowing from the word "federationn. The federal state is a political convenience intended to reconcile national unity and integrity and power with maintenance of the state's right. The end aim of the essential character of the Indian federalism is to place F the nation as a whole under control of a national Government, while the states are allowed to exercise their sovereign power within its legislative and co- extensive exec~1tive and administrative sphere. The common inter- est is shared by the centre and the local interests are controlled by the state. The distribution of the legislative and executive power within limits F and coordinates authority of different organs are delineated in the organic law of the land, namely the constitution itself. The essence of the fedetalism, therefore, is distribution of the force of the state among its coordinate bodies. Each is organised and controlled by the constitution. The division of the power between the union and the states is made in such a way that whatever has been the power distributed, legislative and execu- G tive, be exercised by the respective units making each a wvereign in its sphere and the rule pf law requires that there should be a responsible Government. Thus the state is a federal status. The state qua the centre has qua.si-foderal unit. In the language of Prof. KC. Wheare in his Federal Government, 1963 Edition, at page 12 to ascertain the federal character, H 908 SUPREME COURT REPORTS [1994) 2 S.C.R. A the important point is, "whether the powers of the Government are divided between coordinate independent authorities of not", and at page 33 he stated that " the systems of Government embody predominantly on division of powers between centre and regional authority each of which in its own sphere is coordinating with the other independent as of them, and if so is B that Govt. federal?" Salmond in his Jurisprndence. 9th edition brought about the distinc­ tion between unitary type of Govt. and federal form of Govt. According to him a unitary or a simple state is one which is not made up of territorial division which are states themselves. A composite state on the other hand C is one which is itself an aggregate or groups of constituent states. Such composite states can be called as imperial, federal or confederate. The Constitution of India itself provided the amendments to territorial limits from which we discern that the federal structure is not obliterated but regrouped with distribution of legislative powers and their scope as well as the co-extensive executive and administrative powers of the Union and the D States. Articles 245 to 255 of the Constitution deal with relative power of the Union and the States legislature read with Schedule Seven of the ·• ' Constitution and tbe entries in List I preserveu exclusively to the Parlia- " ment to make law and List II confines solely to the state legislature and List III concurrent ]i,t in which both the Parliament as well as the state legislature have concurrent jurisdiction to make law in the occupied field, with predominance to the law made by the Parliament, by operation of proviso to Clause (2) of Art. 254. Art. 248, gives residuary legislative powers exclusively to the parliament to make any law with respect to any matters not enumerated in the concurrent list of the state list including making any law, imposing a tax not mentioned in either of those lists. The relative importance of entries in the respective lists to the Seventh Schedule assigned to the Parliament or a State Legislature are neither relevant nor decisive though contended by Sri K. Parasaran. Indian federalism is in contra distinction to the federalism prevalent in U.S.A., Australia and Canada. In regard to distribution of executive powers constitution itself made demarcotion the Union and the States. Article 73(1) read with proviso and Art. 162 read with proviso bring ou~ this demarcation. The executive power of the Union and the State are co-extensive with their legislative powers. However, during the period of emergency Arts. 352 and 250 H envisaged certain contingencies in which the executives power of the S.R. BOMMAI v. U.O.l. [K RAMASWAMY, J.) 90~ concerned state would be divested and taken over by the Union ol India A which would last upto a period of 6 months, after that emergency in that ~ area is so lifted or ceased. The administrative relations are regulated by Arts. 256 and 258A for effective working of the Union executive without in any way impeding or B impairing the exclusive and permissible jurisdiction of the State within the territory. Articles 268 and 269 enjoin the Union to render financial assis- .... lance to the states. The Constitution also made the Union to depend on the States to enforce the union law within concerned states. The composi- tion of Rajya Sabha as laid down by Art. 80 makes the legislature of the ' state to play its part including the one for ratifying the constitutional c amendments made by Art. 368. The election of the President through the elected representative of the State legislature under Art. 54 makes the legislature of federal unit an electral college. The legislature of the state has exclusive power to make laws for such state or any part thereto with respect to any of the enumerated matters in List JI of the Seventh Schedule D by operation of Art. 246(3) of the Constitution. ~ The Union of India by operation of Arts. 340 and 245, subject to the f provisions of the Constitution, has power to make laws for the whole or any part of the territory of India and the said law does not eclipse, nor ,, become invalid on the ground of extra- territorial operation. In the national E interest it has power to make law in respect of entries mentioned in List JI. State List, in the penal fi~ld, as indicated in Art. 249. With the consent of the state, it has power to make law under Art. 252. The Union judiciary, the Supreme Court of India, has power to interpret the constitution and decide the disputes between Union and the states and the states inter se. F The law laid down by the Supreme Court is the law of the land under Art. .., 141. The High court has judicial power over territorial jurisdiction over the area over which it exercises power including control over lower judiciary. Article 261 provides full faiths and credit to the proceedings of public acts or judicial proceedings or the union and of the States throughout the G territory of India as its fulgrum. Indian judiciary is unitary in structure and operation. Articles 339, 344, 346, 347, 353, 358, 360, 365 and 371-C(2) give power to the Union to issue directions to the States. Umier Article 339(2) the Union has power to issue directions relating tribal welfare and the state -· 't is enjoined to implement the same. In an emergency arising out of war or aggression or armed rebellion, contemplated under Arts. 352 or emergency H A due to failure of the Constitutional machinery in a state envisaged under Arts. 356 or emergency in the event of threat to the financial stability or credit of India. Art. 360 gives dominant power to the Union. During the operation of emergency Art. 19 of the Constitution would become inopera­ tive and the Centre assumes the legislative power of a State unit. Existence B of All India Services under Article 312 and establishment ·of inter-state councils under Art. 263 and existence of financial relations in part 12 of the Constitution also indicates the scheme of distribution of the revenue and the primacy to the Union to play its role. Establishment of financial Commission for recommendations to the President under Art. 280 for the distribution of the revenue between the Union and the States and alloca- C tion of the respective shares of such inter- state trade and commerce envisaged in Part 13 of the Constitution and primacy to the law made therein bring out, though strongly in favour of unitary character, but suggestively for balancing operational federal character between the Union and the States make the constitution a quasi-federal. As earlier stated, the organic federalism designed by the founding fathers is to suit the parliamentary from the the Govt. to suit the Indian conditions with the objective of promoting mutuality and common purpose rendering social, economic and political justice, equality of status and opportunity; dignity of person to all its citizens transcending regional, religious, sectional or linguistic barriers as complimentary units in working the Constitution without confrontation. Institutional mechanism aimed to avoid friction to promote harmony to set constitutional culture on firm foothold for successful functioning of the democratic institutions, to bring about matching political culture adjustment and distribution of the roles in F the operational mechanism are necessary for national integration and transformation of stagnant social order into vibrant egalitarian social order with change and continuity economically, socially and culturally. In the State of West Bengal v. Union of India, [1964] 1 SCR 371, this court laid emphasis that the basis of distribution of powers and between union and the States is that only those powers and authorities, which are concerned G with the regulation of local problems are vested in the state and those which tend to maintain the economic nature and commerce, unity of the nation are left with the Union. In Shamsher Singh v. Union of India, [1975] 1 SCR 814, this court held that parliamentary system of quasi-federalism was accepted rejecting the substance of Presidential style of executive. Dr. H Ambedkar stated on the floor of the Constituent Assembly that the Con- S.R. BOMMAI v. U.0.1. [K. RAMASWAMY, J. J 911 stitution is. "both unitary as well as federal according to the requirement A ... of time and circumstances". He also further stated that the Centre would work for common good and for genera] interest of the country as a whole while the states work for local interest. He also refuted the plea for exclusive autonomy of the States. It would thus appear that the overwhelm- ing opinion of the founding fathers and the law of the land is to preserve B the unity and territorial integrity of the nation and entrusted the common wheel to the Union insulating from future divisive forces or local zealotrds to disintegrating India. It neither leaned heavily in favour of wider powers in favour of the Union while maintaining to preserve the federal character • of the States which are integral part of the Union. The constitution being the permanent and not self destructive, the Union of India is indestruc- c table. The democratic form of Govt. should nurture and work within the constitutional parameters provided by the system of law and balancing wheel has been entrusted in the hands of the union judiciary to harmonise the conflicts and adopt constitutional construction to subserve the purpose envisioned by the Constitution. D ROLE OF THE GOVERNOR The key actor in the Centre-State relations is the Governor, a bridge between the Union and the State. The founding fathers deliberately avoided election to the office of the Governor, as is in vogue in U.S.A. to E insulate the office from linguistic chauvinism. The President has been empowered to appoint him as executive head of the state under Art. 155 . in Part VI. Chapter II. The executive power of the State is vested in him by Art. 154 and exercised by him with the aid and advice of the Council of • Ministers, the Chief Minister as its head. Under Art. 159 the Governor shall discharge his functions in accordance with the oath "to protect and F defend the constitution and the law". The office of the Governor, therefore, is intended to ensure protection and sustenance of the constitutional process of the working of the constitution by the elected executive and given him an umpire's role. When a Gandhian economist Member of the Constituent Assembly wrote a letter to Gandhiji of his plea for abolition G of the office of the Governor, Gandhiji wrote to him for its retention, thus: "t "The Governor had been given a very useful and necessary place in the scheme of the team. He would be an arbiter when there was a constitu- tional dead-lock in the State and he would be able to play an impartial role. There would be administrative mechanism through which the con- stitutional crises would be resolved in the State." The Governor thus should H A play an important role, in his dual undivided capacity as an head of the State he should impartially assist the President. As a constitutional head of ~. the State Govt. in times of constitutional crisis he should bring about soberiety. The link is apparent when we find that Art. 356 would be put into operation normally based on Governor's report he should truthfully and with high degree of constitutional responsibility, in terms of oath, B inform the President that a situation has arisen in which the constitutional machinery in the State has failed and the Government of State cannot be carried on in accordance with the provisions of the constitution, with necessary detailed factual foundation. The report normally is the founda­ tion to reach the satisfaction by the President. So it must furnish material C with clarity for later fruitful discussion by the parliament. When challenged in a constitutional court it gives insight into the satisfaction reached by the President. The Governor therefore, owes constitutional duty and respon­ sibility in sending the report with necessary factual details and it does require the approval of the council of ministers; equally not with their aid and advice. DEMOCRACY AND SECULARISM Democracy stands for freedom of conscience and belief. tolerance and mutual respect. India being a plural society with multi- religious faiths, diverse creeds, castes and cultures, secularism is the bastion to build fraternity, and amity with dignity of person as its constitutional policy. It allows diverse faiths to flourish and make it a norm for tolerance and mutual respect between various sections of the people and to integrate them with dignity and fulfilment of cravings for self-realisation of religious belief with larger national loyality and progress. Rule of law has been F choosen as an instrument for social adjustment in the event of clash of interests. In a tree society. law interacts between competing claims in a continuing process to establi'h under with stability. Law should not only reflect social and religious resciellence but has also to provide a lead by holding forth the norms for continuity for its orderly march towards an ideal egalitarian social order envisioned in the preamble of the Constitu­ tion. the culture of the law, in the Indian Democratic Republic, should be on secular lines. A balance, therefore, has to be struck to ensure an atmosphere of full faith and confidence. Charles Broadlaugh in Seven­ teenth century for the first time used secularism as antagonistic to religious dogma as ethical are moral finding force. This western thought, in course H of time gained humanistic acceptance. The word secularism defined in T - ' S.R. BOMMAI v. U.O.l. [K. RAMASWAMY,J.j 913 Oxford dictionary means that "morality should be based solely in regard to A the well-being of the mankind in the present life to the exclusion of all considerations drawn from the belief in God or a future study 11 : In En­ cyclopaedia Britanica secularism is defined as 11 branch of totalitcrian ethics, it is for the physical, moral and social improvement of mankind \Vhich neither affirms nor denies theastic problems of religion". Prof. Goethinysem of the Berlin University writing on secularism in the En­ cyclopeadia of the Social Sciences (1939 ED.) defined it as "the attempt to establish autonomous sphere of Knowledge purged of supernatural, fi<leis- tic pre-suppositions 11 • He described it, in its philosophical aspect, rras a revolt against theological and eventually against metaphysical absolutes aud universals". He pointed out that "the same trend may be charted out in the C attitudes towards social and political institutions'\ so that men in general broke away from their dependence upon the Church which was regarded as the guardian of an eternal welfare which included that. in this world as well as that in the next, and , therefore, was considered entitled to primacy or supremacy ()Ver transient secular authorities. He indicates ho\V this D movement expanded in the second half of the eighteenth century, into a secularised universalism, described as "Enlightenment", which conceived of man on earth as the source of all really significant and verifiable knowledge and the light. It was increasingly realised that man depended for his welfare in this world uµon his own scientific knowledge and wisdom and their applications and upon a socio-economic system of which, willy- E nilly, he found himself a part. He had, therefore, argued that the man has to take the responsibility for and bear the consequence of his own follies and inequities and not look upon them as a part of some inscrutable design of external powers or beings controlling his destiny. G.L. Holyoake, and associate of Charles Broadlaugh in his "Principles of Secularism" in 1859 F advocated for secularism which received approval and acceptance by celebrated political philosopher J.B. Mill. Jeremy Bentham's Principles of Legislation formulated in the eighteenth century stand on moral based politics and defined law from the point of view of human welfare sought through democratic liberal channels and intended to attain "the greatest happiness of the greatest nurnber 11 , a maxim bear to democratic utilitarian G political philosophers. Secularism became means and consciously pursued for full practical necessities of humau life to liberate the human spirit from bondage, ig­ norance, superstition which have held back humanity. The goal of every H A civilised democratic society is the fnaximumisatio~ of human welfare and happiness which would be best served by a hobby organisation. Freedom of faith and religion is an integral part of social structure. Such freedom is not a bounty of the State but constitutes the very founda­ tion on which the state is erected. Human Liberty sometimes means to satisfy the human needs in one's own way. Freedom of religion is imparted in every free society because it is a part of the general structure of the liberty in such a society and secondly because restrictions imposed by one religion would be an obstacle for others. In the past religious beliefs have become battle grounds for power and root cause for supression of liberty. Religion has often provided a pretext to have control over vast majority of the members of the society. Democratic society realises folly of the vigour of religious practices in society. Strong religious consciousness not only narrows the vision but hampers rule of law. The founding fathers of the Constitution, therefore, gave unto themselves "we the people of India" the D fundamental rights and Directive Principles as State policy to establish an egalitarian social order for all sections of the society inn the supreme law of the land itself. Though the concept of the "secularism" was not expressly engrafted while making the constitution, its sweep, operation and vigibility are apparent from fundamental rights and directive principles and their related provisions. It was made explicit by amending the preamble of the Constitution 42th Amendment Act. The concept of secularism of which religious freedom is the foremost appears to visualise not only of the subject of God but also an understanding between man and man. Secularism in the Constitution is not anti-God and it is sometimes believed to be a stay in a free society. Matters which are purely religious are left F personal to the individual and the secular part is taken charge by the State on grounds of public interest, order and general welfare. The State guaran­ tee individual and corporate religious freedom and dealt with an individual as citizen irrespective of his faith and religious belief and does not promote any particular religion nor prefers one against another. The concept of the secular State is, therefore, essential for successful working of the G democratic form of Government. There can be no democracy if anti­ secular forces are allowed to work dividing followers of different religious faith flying at each other's throats. The secular Government should negate the attempt and bring order in the Society. Religion in the positive sense, is an active instrument to allow citizen for full development of his person, H not merely in the physical and material but in the non-material and non- ... S.R. BOMMAI v. U.0.I. [K RAMASWAMY, J.] 915 secular life. Prof. Goethinysem in his Article referred to hereinbefore outlined the process of secularism to life and thoughts by which religious sec­ taranism comes into contact in daily social and economic spheres of life and he summarises with "the ideal of human and social happiness through B secularisation of life all the groups of people in the country striving by most enlightened methods to establish the maximum of social justice and welfare in the world. According to Pt. Jawaharlal Nehru democracy necessarily implies rigorous self-discipline without which democracy cannot succeed, Swami Vivekanand explaining the Vedantic ideas of God and religion in comparison v.ith western thoughts stated that the religious attitude is C always to seek the dignity inside of his ownself as a natural characteristic of Hindu religion and religious attitude is always presented by making the subject close his eye looking inward. Dr. Thouless ii!. his ''Introduction to the Psychology of Religion" after analysing diverse elements and definitions of religion defined religion as "a felt practical relationship with what is D believed in a super human being or beings". The process of secularisation of life and thought consistently increasing the withdrawal and separation of religion properly so called from other spheres of life and thought which are governed by independent. form above rules and standards. According lo Sir Jam es Freezer in his "Golden Bough" religion consists· largely of not only of methodological and rituals dominated by all aspects of his life, E social, economic, political, legal, cultural, ethical or moral, but also tech­ nological. The interaction of religion and secular factors in ultimate analysis is to expose the abuses of religion and of belief in God by purely partisan, narrow or for selfish purpose to serve the economic or political interest of a particular class or group or a country. The progress of human F history is replete with full misuse of religious notions in that behalf. But the scientific and analytical spirit characterises the secularism as saviour of the people from the dangers of supposed fusion of religion with political and economic activities and inspire the people. The secularism, therefore, represents faiths born out of the exercise of rational faculities. It enables G people to see the imperative requirements for human progress in all aspects and cultural and social advancement and indeed for human survival itself. It also not only improves the material conditions of human life, but also liberates the human spirit from bondage of ignorance, supression, . irrationality, injustice, fraud, hypocracy and oppressive exploitations. In other words, through the whole course of human history discloses an H A increasing liberation of mankind, accomplished thought, all is covered by the term secularism. Trever Ling's Writing on Bhudhism spoke of it as a secular religion, which teaches eight-fold path of his mastery and virtueous conduct of ceaseless, self critical endeavour for right belief, right aspira­ tion, right speech, right conduct, right modes of livelihood, right efforts, right mindedness and right scrupture. Bhudhism rationalises the religion and civilisation to liberate individual from blind fold adherence to religious belief to rationalisation, in the language of Trever Ling "flat alluvial expan­ sion of secularism". Dr. Ambedkar believed that Bhudhism is the best religion suited to the Indian soil. Mahatma Gandhiji, father of the nation, spoke for the need of religion thus, "the need of the mankind is not one of religion, but mutual respect and tolerance of the devotees of different religions. We want to reach not a data level, but unity in diversity. The soul of all religion is one, but it is encased in the multitude of forms. The latter will persist to the end of the time." Dr. S. Radhakrishnan, the Philosopher, former President of India, in his Discovery of Faith stated that the religious impartiality of the Indian state is not to be confused with the secularism or ethism. Secularism as defined here is in accordance with the enormous religious traditions of India. It is for living in harmony with each other. This fellowship is based on the principle of diversity in unity which alone has all quality of creative­ ness. In his foreword to Dr. Abid Hussain's "The National Culture of India", Dr. S. Radhakrishnan remarked that the secularism does not mean licence or a thrust of material comfort. It lays thrust on universal of the supreme fellow which may be attained by variety of ways. Indian concept of secularism means 11 the equal status to all religions 11 • He said that "no~one F religion should be given preferential status or unique distincition and that no-one religion should be accorded special privileges in national life". That would be violative of basic principles of democracy. No group of citizen can so arrogate itself the right and privilege which he denies to others. No person shall suffer any form of disability or discrimination because of his religion, but also alike should be free to share to the fullest degree in the Q_ common life. This is the basic principle in separation of religion and the State. Granvelle Austin in his "The Indian Constitution the cornerstone of a Nation" stated that the constitution makers were intended to secure secular and socialist goals envisaged in the preamble of the Constitution. In Ziyauddin Burhamuddin Bukhari v. Brijmohan Ramdass Mehra & Ors., H [1975] Suppl. SCR 281 at 297, this court held that: ' -... S.R. BOMMAI v. U.0.1. [K. RAMASWAMY,J.j 917 "The Secular State rising above all differences of religion, attempts A to secure the good of all its citizens irrespective of their religious beliefs and practices. It is neutral or impartial in extending its benefits to citizens of all castes and creeds. Maitland had pointed out that such a state has to ensure, through its laws, that the existence or exercise of a political or civil right or the right or capacity to occupy any office or position under it or to perform any public duty connected with it does not depend upon the profession or practice of any particular religion." It was further pointed out: 11 0ur Constitution and the laws framed thereunder leave citizens free to work out happy and harmonious relationships between their religions and the quite separable secular fields of law and politics. But, they do not permit an unjustifiable invasion of what belongs to one's sphere by what appertains really to another. It is for courts to determine in a case of dispute, whether any sphere was or was D not properly interfered with, in accordance \vith the Constitution, even by a purported law." Thereby this court did not accept the wall of separation between law and the religion with a wider camouflage to impress control of what may be described exploitative parading under grab of religion. Throughout ages endless stream of humans of diverse creeds, cultures and races have come to India from outside regions and climate and contributed to the rich cultural diversity. Hindu religion developed resillience to accommodate and imbibe with tolerance the culture richness with religious assimilation and became.a land of religious tolerance. Swami Vivekanand stated that right of religious system and ideals is the same morality; one thing is only preached: Myself, say "Om"; others one says 11 Johova" another " Allaha ho Mohammad", another cries 11 Jesus 11 Gandhiji recognised that all religions are imperfect and because they are imperfect they require perfecting themselves rather than conducting in- G dividually. He stated: 'the separate religions - Hinduism, Islam, Chris­ tianity, Budhism are different rights converging on the same point even as the tree has the single trunk but many branches and leaves so there one perfect religion but it becomes many as it passes through the human medium. The Allaha of Muslims is the same as the God of Christians and H 918 SUPREME COURT REPORTS (1994] 2 S.C.R. A lshwara of Hindus". Making of a nation state involves increasing secularisation of society and culture. Secularism operates as a bridge to across over fro~ tradition to modernity. The Indian state opted this path for universal tolerance due to its historical and cultural background and multi-religious faiths. Secularism in the Indian context bears positive and affirmative emphasis. Religions with secular craving for spiritual tolerance have flourished more and survived for linger period in the human history than those who claimed to live in a non·human existent world of their own. Positive secularism., therefore, separates the religious faith personal to man and limited to material, temporal aspects of human life. Positive secularism believes in the basic values of freedom, equality and fellowship. It does not believe in hark back either into country's history or seek shelter in its spiritual or cultural identity de hors the man's need for his full development. It moves mainly around the state and its institution and, therefore, is political in nature. At D the same time religion does not include other socio·economic or cultural social structure. The state is enjoined to counteract the evils of social force, maintaining internal peace and to defend the nation from external aggres­ sion. Welfare State under the constitution is enjoined to provide means for well-being of its citizens; essential services and amenities to all its people. Morality under positive secularism is a pervasive force in favour of human freedom or secular living. Prof. Holyoake as stated earlier, who is the father of modern secularism stated that "morality should be based on regard for well being or the mankind in the person, to the exclusion of all considera­ tions drawn from the belief in God or a future state." Morality to him was a system of human duty commencing from man and not from God as in the case of religion. He distinguished his secularism from christianity, the living interest of the world that is prospects of another life. Positive secularism gives birth to biological and social nature of the man as a source of morality. True religion must develop into a dynamic force for integration without which the continued existence of human race itself would become G uncertain and unreal. Secularism teaches spirit of tolerance, catholacity of outlook, respect for each other's faith and willingness to abide by rules of self-discipline. This has to be for both as an individual and as a member of the group. Religion and secularism operate at different planes. Religion is a matter of personal belief and mode of worship and prayer, personal to the individual while secularism operates, as stated earlier, on the temporal H aspect of the state activity in dealing with the people professing different + S.R. BOMMAI v. U.0.l. [K. RAMASWAMY, J.] 919 religious faiths. The more a devoted person in his religious belief, the A greater should be his sense of heart, spirit of tolerance, adherence of secular path Secularism, therefore, is not anti-thesis of religious devout-· ness. Swami Vivekanand and Mahatma Gandhiji, though greatest Hindus, their teachings and examples of lives give us the message of the blend of religion and the secularism for the good of all the men. True religion does B not teach to hate those professing other faiths. Bigotory is not religion, nor can narrow minded favouritism be taken to be an index of one's loyalty to his religion. Secularism does not contemplate closing each other voices to the sufferings of the people of other community nor it postulates keeping mum when his or other community make legitimate demands any group of people are subjected to hardship or sufferings, secularism always requires C that one should never remain insensitive and aloof to the feelings and sufferings of the victims. At moments of testing times people rose above religion and protected the victims. This cultural heritage in India shaped that people of all religious faith, living in different parts of the country are to tolerate each other's religious faith or beliefs and each religion made its D contribution to enrich the composite Indian culture as a· happy blend or synthesis. Our religious tolerance received reflections in our constitutional creed. The preamble of the Constitution inter alia assures to every citizen liberty of thought, expression, belief, faith and worship. Article 5 guaran- E tees by birth citizenship to every Indian. No one bargained to be born in a particular religion, cast or region. Birth is a biological act of parents. Article 14 guarantees equality before the law or equal protection of laws. Discrimination on grounds of religion was prohibited to by Article 15. Article 16 mandates equal opportunity to all citizens in matters relating to F employment or appointment to any office or post under the State and prohibits discrimination on grounds only of inter alia religion. Article 25 while reassuring to all persons freedom of conscience and the right to freely profess, practice and propagate his religion, it does not affect the operation of any existing law or preventing the State from making any law regulating G or restricting any social, financial, political or other secular activity which may be associated with the religious practice. It is subject to provide a social welfare and reform or throwing open all Hindu religious institutions of public character to all classes of citizens and sections of Hindus. Article 26 equally guarantees freedom to manage religious affairs, equally subject to public Glder, mmality and health. Article 27 reinforces the secular H A character of Indian democracy enjoining the State from compelling any person or making him liable to pay any tax, the proceeds of which are specifically prohibited to be appropriated from the consolidated fund for the promotion or maintaining or any particular religion or religious denomination. Taxes going into consolidated funds should be used general- ly for the purpose of ensuring the secular purposes of which only some are mentioned in Articles 25 and 26 like regulating social welfare etc. Article 28(1) maintains that no religious instruction shall be imparted in any educational institutions wholly maintained out of the State funds or receiv­ ing aid from the State. Equally no person attending any educational institu- tion recognised by the state or receiving aid from the State funds should be compelled to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless person or in the case of a minor person his guardian has given his consent thereto. By Article 30(2) the State is enjoined not to discriminate, in giving aid to an D educational institution, on the ground that it is a minority institution whether based on religion or language. It would thus be clear that Con­ stitution made demarcation between religious part personal to the in­ dividual and secular part thereof. The State does not extend patronage to any particular religion, state is neither pro particular religion nor anti particular religion. It stands aloof, in other words maintains neutrality in E matters of religion and provide equal protection to all religions subject to regulation and actively acts on secular part. In Ratilal Pannachand Gandhi v. State of Bombay, [1954] SCR 1035. this Court defined the religion that it is not necessarily atheistic and , in F fact, there are well-known religions in India like Budhism and Jainism which do not believe in the existence of God or caste. A religion undoub­ tedly has different connotations which are regarded by those who profess that religion to be conducive to their spiritual well-being but it would not be correct to say or seems to have been suggested by the one of the learned brothers therein that matters of religion are nothing but matters of religious G faith and religious belief. The religion is not merely only a doctrine or belief as it finds expression in acts as well. In Con1n1issioner of lvladras v. Sri Lakshmindra Thirtha Swamiar, [ 1954] SCR 1005, know as Sirurmath case, this Court interpreted religion in a restricted sense confining to personal beliefs and attended ceremonies or rituals. The restriction contemplated in H Part-Ill of the Constitution are not the control of personal religious prac- ., ( S.R. BOMMA! v. U.0.1. [K RAMASWAMY,J.] 921 -l tices as such by the State but to regulates their activities which are secular A • in character though associated with religions, like management of property attached to religious institutions or endowment on secular activity which are amenable to such regulation. Matters such as offering food to the deity etc. are essentially religious and the State does not regulate the same, leaving to the individuals for their regulation. The caste system though B formed the Kernal of Hinduism, and as a matter of practice, for millinium l/4lh of the Indian population (Scheduled castes and Scheduled Tribes) · were prohibited entry into religious institutions like temples, maths etc. on grounds of untouchability; Article 17 outlawed it and declared such prac- ·~ tice an offence. Article 25 and 26 own open all public places and all places of public to all Hindu religious denominations or sects for worship offering c prayers or performing any religious service in the places of public worship and no discrimination should be meted out on grounds of caste or sect or religious denomination. In Keshevanand Bharati's case [1973] Suppl. 1 SCR II and Indira Gandhi v. Raj Narain, [1976] 2 SCR 347, this Court held that secularism is a basic feature of the constitution. It is true that Schedule-Ill D of the Constitution provided the form of oath being taken in the name of God. This is not in recognition that he has his religion or religious belief in God of a particular religion but he should be bound by the oath to administer and to abide by the constitution and laws as a moral being, in accordance with their mandate and the individual will ensure that he will not transgress the oath taken by him. It is significant to not that the Oath's E Act. 1873 was repealed by Oath's Act, 1966 and was made consistent with the constitutional scheme of secularism in particular, Sections 7 to 11. Equally admission into an educational institution has been made a fundamental right to every person and he shall not be discriminated on F grounds only of religion or caste. The education also should be imparted in the institutions maintained out of the State fund or receiving aid only on secular lines. The State, therefore, have a missionary role to reform the Hindu society, Hindu social order and dilute the beliefs of caste hierarchy. Even in matters of entry into religious institutions on places of public resort prohibition of entry only on grounds of caste or religion is outlawed. G r1. Dr. S. Radhakrishnan, stated that "Religion can be identified with .. -+ emotion, sentiments, intensity, cultural, profession, conscious belief of faith". According to Gandhiji "By religion 1 do not mean formal religion or customary religion but that religion which underlies all religions". The H 922 SUPREME COURT REPORTS (1994] 2 S.C.R. _ A religion to him was spiritual commitment just total but intentionally per­ sonal. In other words, it is for only development of the man for the absolution of his consciousness in certain direction which he considered to be good. Therefore, religion is one of belief to the Individual which binds him to his conscience and the moral and basic principles regulating the life B of a man had had constituted the religion, as understood in our Constitu­ tion. Freedom of conscience allows a person to believe in particular religious tenets of his choice. It is quite distinct from the freedom to perform external acts in pursuance of faith, freedom of conscience means that a person cannot be made answerable for rights of religion. lJndoub- C tedly, it means that no man possess a right to dictate to another what religion he believes in; what philosophy he holds, what shall be his politics or what views he shall accept etc. Article 25(1) protects freedom of conscience and reli1,>ion of members of only of an organised system of belief and faith irrespective of particular affiliations and does not march out of concern itself as a part of the right to freedom of conscience and dignity D of person and such beliefs and practices which are reasonable. The Con­ stitution, therefore, protects only the essential and integral practices of the religion. The religious practice is subject to the control of public order, morality and health which includes economic. financial or other secular activities. Could the religious practice control over members tc vote or not E to vot_e, to ignore the national flag, national anthem, national institutions? Freedom of conscience under Article 25 whether guarantees people of different religious faiths the right to religious procession to antagonise the people of different religious faiths or right to public worship? It is a fact of social and religious history in India that religious processions are known F to ignite serious communal riots, disturb peace, tranquillity and public order. The right to free profession of religion and exercising right to organise religious congregations does not carry with it the right to make intlarnatory speeches, nor be a licence to spread violence, nor speak religious intolerance as an aspect of religious faiths. They are subject to G the State control. In order to secure constitutional protection, the religious practices should not only be an essential part but should also be an integral part of proponent's religion but subject to state's control. Other­ wise even purely secular practices which are not an essential or an integral part of religion are apt to be quoted as religious form and make a claim for being treated as religious practices. Law as social engineer provides the t S.R. BOMMAI v_ U.O.L [K RAMASWAMY, J.] 923 means as well as lays down the rules for social control and resolution of A conflicts of all kinds in a human society. But the motive force for social, economic and cultural transformation comes from individuals who com­ prise the society. They are the movers in the mould of the law as the principle instrument of an orderly transient to a new socio-economic order or social integration and fraternity among the people. The Constitution has B chosen secularism as its vehicle to establish an egalitarian social order. I respectfully in agreement with our brethern Sawant and Jeevan Reddy, JJ. in this respect. Secularism, therefore, is part of the fundamental law and basic structure of the Indian political system to secure to all its people socio-economic needs essential for man's excellence and of moral well being, fulfilment of material prosperity and political justice. SEPARATION OF POLITICS AND RELIGION Black's Law Dictionary (6th Edn.) page 1158: defined politics as pertaining or relating to the policy or administration of the Government, D State or national; pertaining to or incidental to exercise all the functions vest in those with the conduct of the Government; relating to the manage­ ment of State as political force all are pertaining to exercise the rights and privileges or the consensus by which the individuals of a State seek to determine or control its public policy having to do with the kind of individual parties or interest they seek to control and action of those who E manage affairs of a State. Political Party was defined as an association of individuals for Parliamentary purpose to promote or accomplishing elec­ tions or appointments to public offices, positions or jobs. A political party, association or organisation which makes contributions for the purpose of influencing or attempt to influence the electoral process of any individual F or political party whose name is presented for election to any State or local elected public office, whether or not such individual is elected. Politics in positi~ely secular State is to get over their religion, in other words, in politics a political party should neither invoke religion nor be dependent on it for support or sustenance. Constitution ensures to the individual to protect religion right to belief or propagate teachings condusive for secular G living, later to be controlled by the State for betterment of human life and progress. Positive secularism concerns with such aspects of human life. The political conduct in his "Political Thought by Dr. Ambedkar compiled by R.K. Kshcrsagar, Intellectual Public House Edition 1992 at page 155, stated that: In India the majority is not a political majority. The majority is born H ----924 SUPREME COURT REPORTS [1994] 2 S.C.R. A but not made, that is the difference between a communal majority and a political majority. A political majority is not a purely majority, it is the majority which is always made, unmade and remade. A communal majority is unalterable majority in its ethics, its attitudes. "Whether the Hindu communal majority was prepared to accept the views of the minorities whether it was prepared to conceive the Constitutional safeguards to the minorities". The problems according to Dr. Ambedkar should be solved by adopting right principles which should be evolved and applied equally without fear or favour. According to him the majority community should accept a relative majority and it should not claim absolute majority. Com- munal majority is not a political majority and in politics the principle of one vote one value should be adopted irrespective of related considera­ tions. According to Abdul Kalam Azad: "India is a democracy secular where every citizen whether he is Hindu, Muslim or Sikh has equal rights and privileges. Rise of fundamentalism and communalisation in national or regional politics are anti- secular and tends to encourage separatist and D divisive forces laying the seeds to disintegrate the Parliamentary democratic system. The political parties or candidates should be stopped - to run after vote banks and judicial process must promote the citizens' active participation by interpretation of the Constitution and the laws in proper perspective in order to maintain the democratic process on an even keel. For a political party or an organisation that seeks to influence the electorates to promote of accomplishing success at an election for gover­ nance of Parliamentary form of Government, the principles are those embedded in the Directive Principles of the Constitution vis-a-vis the F fundamental rights and the fundamental duties in Part IV(A) and should abide by the Constitution and promote tolerance, harmony and the spirit of commonness amongst all the people of India transcending religious, linguistic regional or sectional diversities and to preserve the rich heritage of our composite culture, to develop humanism, spirit of reformation and G to abstain violence. Therefore, the manifesto of a political party should be consistent with these fundamental and basic features of the Constitution, secularism, socio-economic and political justice, fraternity, unity and na­ tional integrity. H Under section 29A of the Representation of Peoples' Act, 1951 for ... \ S.R. BOMMAI v. U.0.1. [K RAMASWAMY,J.] 925 short 'R.P. Act' registration of a political party, or a group of individual citizens of India calling itself a political party has been given right to make an application to the Election Commission constituted under Article 324 for its registration as political party with a copy of the memorandum or rules or regulations of the association of the body signed by its Chief Executive Officer. The applicant shall contain a specific provision that the association or the body shall bear true faith and allegiance to the Constitu­ tion of India as by law established and its members shall be bound by the socialism, secularism and democracy and would uphold the sovereignity A'_ and integrity of India. It is, therefore, a mandatory duty of very political party, body of individuals or association and its members to abide by the Constitution and the laws; they should uphold secularism, socialism and democracy, uphold sovereignity and integrity of the nation. Section 123(3) prohibits use of religion or caste in politics and declares that promotion or attempt to promote violence and hatred between different classes of citizens of India on groups of religion and caste for the furtherance of the prospect at the el.ection of the candidate or for effecting the election of D any candidate was declared to be a corrupt practice. As per Sub-section 3A of section 123 the promotion of, or attempt to promote feeling of enemity or hatred between different classes of India citizens, on grounds of religion, etc. by a candidate, his election agent or any person with his consent to further the election prospects of that candidate or for prejudi­ E cial: y affecting the election of any candidate was declared as corrupt practice. A political party, therefore, should not ignore the fundamental features of the constitution and the laws. Even its menifesto with all sophistication or felicity of its language, a political party cannot escape constitutional _mandate and negates the abiding faith and solemn respon­ sibility and duty undertaken to uphold the Constitutional and laws after it f was registered under s.29A. Equally it/they should not sabotage the same basic features of the Constitution either inOuencing the electoral process or working the Const;•·1tion or the law. The political party or the poHical executive securing the governance of the State by securing majority in the legislature through the battle of ballot throughout its tenure by its acthns and programmes, it is required to abide by the Constitution and the laws G in letter and spirit. Article 25 inhibits the Government to patronise a particular religion as State religion overtly or covertly. Political party is, therefore, positively f enjoined to maintain neutrality in religious beliefs and prohibit practices H 926 SUPREME COURT REPORTS [1994) 2 S.C.R. derogatory to the constitution and the laws. Introduction of religion into politics is not merely in negation of the Constitutional maudates but also a positive v0lation of the Constitutional obligation, duty, responsibility and positive prescription of prohibition specially enjoined by the Constitution and the R.P. Act. A political party that seeks to secure power through a religious policy or caste orientation policy disintegrates the people on grounds of religion and caste. It divides the people and disrupts the social structure on grounds of religion and caste which is obnoxious and anthema to the constitutional culture and basic features. Appeal on grounds of religion offends Secular Democracy. C An appeal to the electorates on the grounds of religion offends secular democracy. In S. Veerabadran Chettiar v. E. V. Ramaswami Naicker & Ors., [1959) SCR 1211 at 1217 & 1218, this Court held that the Courts would be cognizant to the suspetabilities of class of persons to which the appeal to religious suspetiblity is made and it is a corrupt practice. Interpreting Section 123(3A) this Court held that "the section has been intended to D respect the religions irrespective of persons of different religions or groups ......... very circumspect in such matters and to pay due regards to feelings of different class of persons with different beliefs irrespect of the Constitu­ tion whether or not they share those beliefs or whether the revisionary or otherwise". This Court in Shubnath Deogram v. Ramnarain Prasad, [1960) 1 SCR 953 at 959, held that: "it would appear that the pleasure of the deities is indicated through the cock taking the food that is given to it and that the deities only thereafter accept the sacrifice of the cock. Therefore, when the leaflet stated that food should be given to the cock in the shape of votes what was meant was that the deities would be pleased if votes were cast in the box with the cock symbol." G In Z.B. Bukhari v. Brijmohan, f 1975] Suppl. SCR 281 at 288, this court held thus: 11 0ur Constitution-makers certainly intended to set up a Secular Democratic Republic the binding spirit of which is summed up by the objectives set forth in the Preample to the Constitution. No H democratic political and social order in ivhich the conditions of >-··. _, S.R. BOMMAI v. U.O.L [K. RAMASWAMY. .I.] 927 freedom and their progressive expansion for an make srimc A regulation of all activities imperative, could endure without an agreement on the basic essentials which could unite and hold citizens together despite all the differences of religion, race, caste, community, culture, creed and language. Our political lzi.rtol)' nzade it pa1ticularZv nLcessa1y that these diff<~rences, ~vhich can generate poweiful emotion deptiving people of their powers of rational thought and action, should not be pennitted to be exploited lest the imperative conditions for the prese1vation of de1nocratic freedonzs are disturbed." In another case S .. Harclzaran Singh v. S. Sajjan Singh, [1985] 2 SCR 159, This Court fully discussed the question of what constitutes an appeal on C grounds of religion falling within the scope of s.123(3) and s.123(3A) of the R.P. Act, when there is an appeal on the ground of religion. Section 123(3) of R.P. Act should not be permitted to be circumvented to resort to technical arguments as to interpretation of the Section as our Constitution is one of secular den1ocracy. Jn S. Veerabadran Chettiar's case this court held D thus : 11 In our opinion, placing such restricted interpretation on the words of such general import) is against all established cannoqs of con­ struction. Any object, however, trivial or destitute of real value in itself, if regarded as sacred by any class of people would come E within the meaning of the .penal section. Nor is it absolutely necessary that the object, in order to be held sacred, should have been actually worshiped. An object may be held sacred by a class of persons without being worshipped by them. It is clear, therefore, that the courts below were rather cynical in so lightly brushing F aside the religious susceptibilities of that class of persons to which the complainant claims to belong. The Section has been intended to respect the religious susceptibilities of persons of different religious persuations or creeds. Courts have got to be very circumspect in such matters, and to pay due regard to the feelings and religious emotions of different classes of persons with different beliefs, G irrespective of the consideration whether or not lhey share those beliefs. or whether they are rational or otherwise, in the opinion of the court." In Sri Muilapudi Venkata Krishna Rao v. Sri Vedula Suryanarayana H (1993) 2 Scale 170 at 172 this court held thus: "There is no doubt in our mind that the offending posted is a religious symbol. The depiction of anyone, be it N.T. Rama Rao or any other person, in the attire of Lord Krishna blowing a 'shanku' and quoting the words from the Bhagavad Gita addressed by Lord Krishna to Ar.iuna that his incarnation would be born upon the earth in age after age to restore dhrama is not only to a Hindu by religion but to every Indian symbolic by the Hindu religion. The use by the candidate of such a symbol coui:;led with the printing upon it of words derogatory of rival political party must lead to the conclusion that the religious symbol was used with a view to pre.iudicialiy affect the election of the candidate of the rival politi­ cal party." The contention of Sri Ram Jethmalani that the interpretation and applicability of sub-<s. (3) & (3A) of s.123 of R.P. Act would confined to D only cases in which individual candidate offends religion of rival candidate in the election contest and the ratio therein cannot be extended when a political party has espoused, as part of its manifesto a religious cause is totally untenable. This court laid the Jaw though in the context of the contesting candidates, that interpretation lends no licence to a political E party to influence the electoral prospects on grounds of religion. In a secular democracy, like ours, mingling of religious with politics is uncon­ stitutional, in other words a flagrant breach of constitutional features of secular, democracy. It is, therefore, imperative that the religious and caste should not be introduced into politics by any political party, association or an individual and it is imperative to prevent religious and caste pollution F of politics. Every political party, association of persons or individuals contesting election should abide by the constitutional ideals, the Constitu­ tion and the laws thereof. I also agree with my learned brethren Swant and J eevan Reddy, JJ., in this behalf. G Rise of fundamentalism and communalisation of politic...;; are anti- sccularism. They encourage separatist and divisive forces an<l become breeding grounds for national disintegration and fail the Parliamentary democratic system and the constitution. Judicial process must promote Citizens active participation in electoral process uninfluenced by any cor­ rupt pr<Jctice to exercise their free and fair franchise. Correct interprcta- H tion in proper perspective would be in the defence of the democracy and S.R. BOMMAI v. U.0.1. [K RAMASWAMY,J.] 929 ) to maintain the democratic process on an even keel even in the face of A possible friction, it is but the duty of the Court to interpret the constitution to bring the political parties within the purview of constitutional parameters for accountability and to abide by the Constitution, the laws for their strict adherence. SCOPE OF JUDICIAL REVIEW OF ARTICLE 356 B ~ In the judicial review in the field of administrative law and the constitutional law, the courts are not concerned with the merits of the decision, but with the manner in which the decision was taken or order was c made. Judicial review is entirely different from an ordinary appeal. The purpose of judicial review is to ensure that the individual is given fair treatment by the authority or the Tribunal to which he has been subjected to. It is no part of the duty or power of the Court to substitute its opinion for that of the Tribunal or authority or person constituted by law or administrative agency in deciding the matter in question. Under the thin D guise of preventing the abuse of power, there is a lurking suspecion that the court itself is guilty of usurping that power. The duty of the court, therefore, is to confine itself to the question of legality, propriety or regularity of the procedure adopted by the Tribunal or authority to find whether it committed an error of law or jurisdiction in reaching the decision or making the order. The judicial review is, therefore, is a protec- E tion, but not a weapon. The Court with an. avowed endeavour to render justice, applied principles of natural justice with a view to see that the authority would act fairly. Therefore the grounds of illegality, irrationality, unreasonableness, procedural impropriety and in some cases propor- tionality has been applied, to test the validity of the decision or order apart F froll,1 its ultra vires, ma/a fides or unconstitutionality. Initially in the process of judicial review the court tested the functions from the purview of the 11 source of powern. In the course of evolution of judicial review it tested on the "nature of the subject matter", 11 the nature of the power" "the purpose 11 or "the indelible effect" of the ''order or decision on the individual or public. The public element was evolved, confining initially judicial review to the G actions of State, Public authority or instrumentality of the State but in its due course many a time it entrenched into private law field where public ' element or public duty or public interest is created by private person or corporate person and relegated purely private issues to private law remedy. This court relaxed standing in favour of bona fide persons or accredited Associations to espouse the cause on behalf of the under privileged or H 930 SUPREME COURT REPORTS (1994) 2 S.C.R. A handicapped groups of persons. Interpreting Articles 14 and 21, tested administrative orders or actions or process on grounds of arbitrariness, irrationality, unfairness or unjustness. It would thus be apparent that in exercising the power of judicial review, the constitutional Courts in India testing the constitutionality of an administrative or constitutional acts did not adopt any rigid formula universally applicable to all occasions. There­ fore, it serves no useful purpose to elaborately consider various decisions or text-books referred to us during the course of hearing. Suffice to state that each case should be considered, depending upon the authority that exercises the power, the s9urce the nature or scope of the power and indelible effects it generates in the operation of law or effects the individual or society without laying down any exhaustive or catalogue of principles. Lest it would itself result in standardised rule. To determine whether a particular policy or a decision taken in furtherence thereof is a fulfilment of that policy or is a accordance with the constitution or the law, many an imponderable feature will come into play including the nature of the decision, the relationship of those involved on either side before the D decision was taken, existence or non-existence of the factual foundation on which the decision was taken or the scope of the discretion of the authority or the functionary. Supervision of the court, ultimately, depend upon the analysis of the nature of the consequences of the decision and yet times upon the personality of the authority that takes decision or individual circumstances in which the person was called upon to make the decision; E acted on and the decision itself. The scope of judicial review of the presidential proclamation under Article 356 was tested for the first time by this court in State of Rajasthan v. Union of India [1978] 1 SCR 1. In that case clause (5) inserted by the Constitution 38th Amendment Act prohibited judicial review of the presidential proclamation, which was later on substituted by the Constitu­ tion 44th Amendment Act, was called into operation. Before its substitu- tion the constitutionality of the letter issued by the Home Minister and dissolution of the Assemblies of Northern India States were in question. The reason for the dissolution was that the Congress party was routed G completely in 1977 Parliamentary elected in all those states and thereby the people's mandate was against the legitimacy of the Governments of the States represented by the Congress Party to remain in office. Suits under Articles 133 and Article so were filed in this Court. In that context this Court held that though the power of the judicial review was excluded by Clause (5) of Article 356, as then stood, judicial review was open on limited .... S.R. BOMMAI v. U.0.1. [K. RAMASWAMY,J.] 931 grounds, namely ma/a [ides, wholly extraneous or irrelevant grounds A withoui nexus between power exercised and the reasons in support thereof. The contention of Sri Parasaran, learned counsel for the Union, as stated earlier, is that though judicial review is available, he paused and fell upon the operation of Article 74{2), and contended that the Union of India need not produce the records; burden is on the writ petitioners to prove that the orders are unconstitutional or ultra vires; the exercise of power by the President under Article 356 is constitutional exercise of the power life one under Article 123 or Legislative Process and the principles evolved in the field of administrative law are inapplicable. It should be tested only on the grounds of ultra vires or unconstitutionality. The reasons in support of the satisfaction reached by the President are part of the advice tendered by C the Council of Ministers. Therefore, they are immuned from judicial scrutiny though every order passed by the President does not receive the protection under Article 74(2) or Section 123 of the Evidence Act. The question, therefore, is what is the scope of judicial review of the presidential proclamation under Article 356. Though the arm of the Court D is long enough to reach injustice wherever it finds and any order or action is not beyond its ken, whether its reach could be projected to Constitutional extraordinary functionary of the coordinate branch of the Government, the highest executive, when it records subjective satisfaction to issue proclama- tion under Article 356. The contention of S/Sri Shanti Bhushan. Soli Sorabji and Ram Jethmalani that all the principles of judicial review of administra­ tive action would stand attracted to the presidential proclamation under Article 356 cannot be accepted in to to. Equally the wide proposition of law canvassed by Sri Parasaran also is untenable. At the cost of repetition it is to reiteration that judicial review is the basic feature of the Constitution. This court has constitutional duty and responsibility, since judicial review having been expressly entrusted to it as a constituent power, to review the acts done by the co-ordinate branches, the executive or the legislature under the Constitution, or .under law or administrative orders within the parameters applicable to a particular impugned action. This court has duty and responsibility to find the extend and limits of the power of the co-ordinate authorities and to find the law. It is the province and duty of G this Court, as ultimate interpreter of the Constitution, to say what the law is. This is a delicate task assigned to the Court to determine what power Constitution has conferred on each branch of the Government. Whether it is limited to and if so what are the limits and whether any action of that 932 SUPREME COURT REPORTS (1994] 2 S.C.R. A branch transgresses such limits. The action of the President under Article 356 is a constitutional function and the same is subject to judicial review. Sri T.R. Andhyarujina the learned Advocate General of Maharashtra, contended that though the presidential proclamation is amenable to judi- , cial review, it is in the thicket of political question and is not generally B justiciable. Applying self imposed limitations this Court may be refrained to exercise judicial review. This contention too need to be qualified and circumscribed. Judicial review must be distinguished from justiciability. The two concepts are not synonymous. The power of judicial review goes to the C authority of the Court, though in exercising the power of judicial review, the Court in an appropriate case may decline to exercise the power as being not justiciable. The Constitution is both the source of power as well as it limits the power of the an authority. Ex necissitate. Judiciary has to decide the source, extent, limitations of the power and legitimacy in some D cases of the authority exercising the power. There is no hard an fast fixed rules as to justiciability of a controversy. The satisfaction of the President under Article 356(1) is basically subjective satisfaction based on the material on record. It may not be susceptible to scientific verification hedged with several imponderables. The question, therefore, may be looked at from the point of view of common sense limitation, keeping E always that the Constitution has entrusted the power to the highest execu­ tive, the President of India, to issue proclamation under Article 356, with the aid and advice of the Council of Ministers, again further subject to his own discretion given in proviso to Article 74(1). Whether the question has raised for decision is judicially based on manageable standards? The F question relating to the extents scope and power of the President under Article 356 though wrapped up with political thicket, per se it does not get immunity from judicial review. However, a distinction be drawn between judicial review of the inter­ pretation of the order or the extent of the exercise of the power by the G President under Article 356. In the latter case the limits of the power of the President in issuing the proclamation under Article 356 and the limits of judicial review itself are to be kept in view. The question of justiciability would in either case mutually arise for decision. In this behalf, the question would be whether the controversy is amenable to judicial review in a limited H area but the later depends upon the nature of the order and its contents. The ; S.R. BOMMAI v. U.0.1. [K. RAMASWAMY, J.] 933 \ question may be camoflauged with a political thicket, yet since the Constitu- A tion entrusted that delicatetask in the scheme of the Constitution itself to this court, in an appropriate case, the Court may unwrap the dressed up ques- tion, to find the validity thereof. The doctrine of political thicket is founded on the theory of separation of powers between the executive, the legislature and the judiciary. The Constitution of the United States of America, gave no B express power of judicial review to the Supreme Court of USA. Therefore, the scope of political question, when came up for consideration in Baker v. Ca" (1962) 2 7 L.Ed. 2nd 663 at 686, It was held in a restricted sense, but the same was considerably watered down in later decision of that Court. Vi de Gillegan v. Morgan (1973), 37 L.Ed. 2nd 407 at 416. But in deciding the political question the Court must keep in forefront whether the Court has c judicially discoverable and manageable standards to decide the particular controversy placed before it, keeping in view that the subjective satisfaction was conferred in the widest term to a co-ordinated political department, by the Constitution itself. Jn the State of Rajasthan's case Chandrachud, J., as he then was, held at p.61 that "probing at any greater dept. into the reasons given by the Home Minister is to enter a field from which Judges must scrupulously keep away. The field is reserved for the politicians and the Courts must avoid tresspass- ing into it". Bhagwati. J., as he then was, speaking per himself as Gupta, J ., E held at p.81 that "it is not a decision which can be based on what the Supreme Court of United States has described as judicially discoverable and manage- able standards. It would largely be a political judgement based on assessment of diverse and varied factors, fast changing situation, potential consequen- ces, public reaction, motivations and responses of different classes of people and their anticipated future behaviour an a host of other considerations in F the light of experience of public affairs and pragmatic management of com- plex and often curious adjustments that go to make up the highly sophisti- cated mechanism of a modern democratic Government. It cannot, therefore, by its very nature be a fit subject matter for judicial determination and hence it is left to the subjective legislation of the Central Government which is best G in a position to decide it." Utwalia. J., at p.94 laid down that "Even if one were to assume such a fact in favour of the Plaintiff or the Petitioner, the - 't facts disclosed undoubtedly lie in the field or an area purely of a political nature which are essentially non-justiciable. It would be legitimate to char- acterise such a field as prohibited area in which it is neither permissible for the Courts to enter, nor should they ever take upon themselves the hazardous H A task of entering into such an area." Fazal Ali, J. reiterating the same view held, that "it is manifesty clear that the Court does not possess resources which are in the hands of the Government to find out the political needs that they seek to subserve and the feelings or the aspirations of the nation that require a particular action to be taken at a particular time. It is difficult for B the Court to embark on an enquiry of that type." Beg, C.J. at p.26 held that "In so far as Article 356 ( 1) may embrace matters of political and executive policy and expediency, Courts cannot interfere with these unless and until it is shown what constitutional provision the President is going to contravene." We respectfully agree that the above approach would be the proper C course to tackle the problem. Yet another question to be disposed of at this stage is the scope of Article 74 (2). Jn the cabinet system of the Government the Council of Ministers with the Prime Minister as the head would aid and advise the President to exercise the functions under the Constitution except where the power was expressly given to the President D to his individual discretion. The scope thereof was considered vis-a-vis the claim of privilege under s. 123 of the Evidence Act. At the outset we say that s. 123 of Evidence Act is available to tbe President to claim privilege. In R.K Jain v. Union of India, [1993] 4 SCC 119, in paragraph 23 at page 143 it was held that the President exercises his executive power through the Council of Ministers as per the rules of business for convenient E transaction of the Government business made under Article 77(3). The Government of India (Transaction of Business) Rules, 1961 provides the procedure in that behalf. After discussing the scope of the cabinet system of Government'in paragraphs 24 to 28 it was held that the cabinet known as Council of Ministers headed by the Prime Minister is the driving and F steering body responsible for the governance of tbe country. They enjoy the confidence of the Parliament and remain on office so long as they maintain the confidence of the majority. They are answerable to the Parliament and accountable to the people. They bear collective respon­ sibility. Their executive functions comprises of both the determination of the policy as well as carrying its executive, the initiation of legislation, G maintenance of order, promotion of social and economic welfare and direction of foreign policy. In short the carrying on or supervision of the general administration of the affairs of the Union which includes political activity and carrying on all trading activities, etc. and they bear collective responsibility of the Constitution. It was also held therein that subject to H the claim of privilege under s. 123 of the Evidence Act, the Minister was · 1'" ., ) S.R. BOMMAI v. U.0.1. [K. RAMASWAMY, J.J 935 constitutionally bound under Article 142 to assist the court in producing A the documents before the court and the court has to strike a balance between the competing interest of public justice and the interest of the State before directing to disclose the documents to the opposite party. But the documents shall be places before the court for its perusal in camera. Article 74(2) provides that the question whether any, and if so what, service was rendered by Ministers lo the President shall not be inquired into in any Court. In other words it inte.nds to give immunity to the Council of Ministers lo withhold production of the advice for consideration by the Court. In other words it is a restrictive power. Judicial review is a basic and fundamental feature of the Constitution and it is the duty and respon­ sibility of the constitutional court tc:> exercise the power of judicial review. Article 142, in particular, gives power to this court in its excercise of the jurisdiction to make any necessary order "for doing complete justice in any cause or matter pending before it" and shall be enforceable throughout the territory of India is such manner as prescribed by or under any law made D · by the Parliament and subject to such law. The said restriction is only in matter of procedure and does not effect the power under Article 142. This court has all or every power to make any order to secure the "attendance of any person, discovery or production of any documents or "investigation". Thereby the power of this court to secure or direct production of any document or discovery is a constitutional power. The restrictive clause E under Article 74(2) and the wider power of this court under t\.rticle 142 need to be harmonised. In R.K. I uin 's case it was held that the court is required to consider whether public into is so strong to over-ride the ordinary right and interest F of the litigant that he s hall be able to lay before a c~urt of justice the relevant evidence in balancing the competing interest. It is the duty of the court to see that there is a public interest and that harm shall not be done to the nation or to the public service by disclosure of the document and there is a public interest that the administration of justice shall not be frustrated by withholding the documents which must be produced, if justice G is to oe done. It is, therefore, the paramount right and duty of the court, not of the executive, to decide whether the document will be produced or withheld. The court must decide which aspect of the public interest predominate s, in other words which public interest requires that the docu­ ment whether should be produced for effectuating justice and meaningful H 936 SUPREME COURT REPORTS [1994) 2 S.C.R. A judicial review performing its function and/or should it not be produced. In some. cases, therefore, the court must, in a clash of competing public interests of the State and administration 0f justice, weigh the scales and decide where the balance lies. The basic question to which the court would, therefore, has to address itself for the purpose of deciding the validity of B the objection would be, whether the document relates to· affairs of the State, in other words, is of such a character that is disclosure would be, against the interest of the State or the public service and if so whether public interest in its non-disclosure is so strong that it must prevail over the public interest in administration of justice. On that account it should not be allowed to be disclosed. (vide paras 16 & 17) · o When public interest immunity against disclosure of the State docu­ ments in the transaction of lhe business by the Council of Ministers of a class character was claimed, in the clash of this interest, it is the right and duty of the court to ·~e~~·l the balance in that case also and that the harm shall not be done to the nation or the public service and in the administra­ tion of justice each case must be considered on its backdrop. The President has no implied authority under the · Constitation to withhold the document. On the other hand it is his solemn constitutional duty to act in aid of the court to effectuate judicial review. {Vide paragraphs 54 E and 55). That was a case of statutory exercise of power, in accordance with the business rules in appointing the President of CEGA T and considering - the facts in that case, it was held that it was not necessary to direct disclosure of the documents to the other side. In view of the scheme of the Constitution and paramount judicial review to be complete justice it must be considered F in each case whether record should be produced. But 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 incurred into the question whether and if so what advice was rendered by the Minister. In other words, the records other then the advice tendered by the Minister to the President, if found necessary, may be required to be produced before the constitutional G court. This restrictive interpretation would subserve the wider power under Article 142 given to this court and the protection accorded by Article 74(2) maintaining equl-balance. Article 74(2) creates bar of enquiry and not a claim of privilege for H decision in the exercise of the jurisdiction whether and, if so, what advice ' S.R.BOMMAI v. U.0.1,,[K.RAMASWAMY,J.) 937 was tendered by the Council of Ministers to the President. The power of A Article 74(2) applied only to limited cases where the matter has gone to the President for his orders on the advice of the Council of Ministers. Exercise of personal discretion calling the leader of a political party that secured majority to form the Government or the leader expressing his inability, to explore other possibilities is not liable to judicial scrutiny. B Action based on the aid and advice also restricted the scope, for instance, the power of the President to grant pardon or appointing a Minister etc., is the discretion of the President. Similarly prorogation of the Parliament or dissolution of the Parliament done under Article 85 is not liable to Judicial review. The accountability is of the Prime Minister to the people though the President acts in his discretionary power, with the aid and C advice of the Prime Minister. Similarly, the right of the President to address and send message to the Lok Sabha and Rajya Sabha as under Article 86 are also in the area of the discretion with the aid and advice of the Council of the Ministers. The power of President to promulgate an ordinance under Article 123 an<1 the assent of the Bills under Article 200, are reserved for D consideration under Article 201. As stated earlier, the discretion of the President on the choice of the Prime Minister is his personal discretion though paramount consideration in the choice would be of the person who should command the majority in the House. Equally when the Government has lost its majority in the House and refuse to lay down the office, it is his paramount duty to dismiss the Government. Equally as said earlier, the E dissolution of the Lok Sabha would be on aid and advice of the Prime Minister, the President while dissolving the Lok Sabha without getting involved in politics would exercise his discretion under Article 85, but the ultimate responsibility and the accountability for such advice is of the Prime Minister and the President would act consistant with the conventions with an appeal to the people of the necessity to dissolve the House and their need to express their will at the Polls. In this area the communication of the aid and advice whether receives confidentiality and bar the enquiry as to the nature of the advice or the record itself. Therefore, the enquiry under Article 74 (2) is to the advice and if so, what advice was tendered to the President would be confined to limit power but not to the decision G taken on adn\inistrative routine though expressed in the name of the President under Article 73 read with Article 71 of the Constitution. The matter can be looked at from a different perspective that under Article 361. the President shall not be answerable to any Court for the H ~ ' 938 SUPREME COURT REPORTS [1994] 2 S.C.R. A exercise or the performance of his power and duty of his office or for any act purported to have been done by him in the exercise and performance of those powers and duties. When the President acts not necessarily on the aids and advice of the Council of Ministers but only "or otherwise i.e. "on ( any other information" under Article 356(1) his satisfaction is a subjective B one that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution and issues the proclamation required under Article 356(1) of the Constitution. When it was challenged and asked to give his reasons, he is immuned from judicial process. The Union of India will not have a say for the exercise or the satisfaction reached by the President on otherwise self satisfaction:" for c his issuing his proclamation under Article 356. Then no one can satisfy the Court the grounds for the exercise of the powers by the President. There- fore, we are of the considered view that the advice and, if so, what advice was tendered by the Council of Ministe" for exercise of the power under Article 356(1) would be beyond the judicial enquiry under Article 74(2) of D the Constitution. Nevertheless, the record on the basis of which the advice was tendered constitute the material. But, however, the material on record, the foundation for advice or a decision, does not receives total protection under Article 74(2). Normally the record may not be summoned by "rule nisi 11 or 11 discovery order nisin. Even if so summoned it may not be looked into unless a very strong case is made out from the pleadings, the order of E proclamation if produced and other relevant material on record. If the court after due deliberation and, reasoned order by a High Court, issues "discovery order nisi" the record is liable to be reproduced pursuant to discovery order-nisi issued by this Court or the High Court subject to the claim under s.123 of Evidence Act to examine the record in camera. At this juncture we are to reiterate that judicial review is not con- cerned with the merits of the decision but with the decision making ~ process. This is on the premise that modern democratic system has choosen that political accountability is more important than other kinds of account- ability and the judiciary exercising its judicial review may be refrained to do so when it finds that the controversy is not based on judicially dis- coverable and manageable standards. However, if a legal question camouflaged by political thicket has arisen, the power and the doors, of constitutional Court are not closed, nor can they be prohibited to enter in t the political field under the grab of political thicket in particular, when the H Constitution expressly has entrusted the duty to it. If it is satisfied that a -r - ' . .,. S.R. BOMMAI v. U.0.1. [K RAMASWAMY, J.] 939 judicially discoverable and manageable issue arises, it may be open to the A court to issue discovery order nisi and consider the case and then issue rule nisi. It would thus be the duty and responsibility of this Court to determine and found law as its premise and lay the law in its duty entrusted by the Constitution, as ultimate interpretator of the Constitution, though it is a delicate task and issue appropriate declaration. This Court equally declare and determine the limit, and whether the action is in transgression of such limit. Interpretation of the Constitution and Scope of value orientation. Before discussing the crucial question it may be necessary to preface C that the constitution is intended to endure for succeeding generations to come. The best of the vision of the founding fathers eould not visualise the fitfalls in the political governance, except the hoary history of the working of the emergency provisions in the Government of India Act and Wished that Article 356 should 'not be "put to operation" or be a 'dead latter' and D at best "sparingly" be used. In working the Constitution, Article 356 has been used 90 times so far a daunting exercise of the power. Bnt it is settled·. law that in interpretating the Constitution neither motives nor bad faith nor abuse of power be presumed unless in an indi;,;dual case it is assailed and arise for considerat;on on that premise. Section 114 (e) of the Evidence Act raises statutory presumption that official acts have been" regularly E performed. Prof. Bork in his "Neutral Principles and Some First Amendments Problems", 47 Ind. Law Journal, p. 1 at p. 8, 1971 Edn. st.ated that the choice of fundamental values by the courts cannot be justified. When F constitutional materials do not clearly specify the value to be preferred, there is no principle weighing to prefer any claimed human value to any other. The Judge must stick close to the text and the history and their fair implications and not to constant new rights. The same ·'Neutral Principle was preferred by Prof. Hans Linde in his Judges ·"Critics and Realistic Traditions" 82 Yale -Law Jo>1rnal 127 at 254, (1972) that "the judicial G responsibility begins and ends with determining the present scope and meaning of a decision that the nation, at an earlier time, articulated and enacted into constitutional text. Prof. Ely in his "Wages of Crying Wolf' a comment on the Rea v. Ved, (1982) Yale Law Journal, 1920 at (1949) and (1973) stated that a neutral principle if it lacks connection with any value, H 940 SUPREME COURT REPORTS [1994) 2 S.C.R. A the constitution marks it as special. It is not a constitutional principle <!fid, the court has no business in missing it. In Encyclopedia of the American Constitution by Leonard W. Levy at p. 464 it is stated that "the Constitution is a political document it serye~'· political ends; its interpretations are political acts." Any theory of constitutional interpretation therefore pre- B supposes a normative theory of the Constitution itself- a theory, for ex' ample, about the constraints that the words and intentions of the adopters should impose on those who apply or ioterpret the Constitution. As Ronald Dworkin observed. "Some parts of any constitutional theory must be inde­ pendent of the intentions or beliefs or indeed the acts of the people the C theory designates as Framers. Some part must stand on its own political or moral theory; otherwise the theory would be wholly circular". The conrts an interpreters are called upon to fill was significant constitutional gaps io variety of ways. The conrt should vigorously describe, as determiners, of public values as and small revolution and principles. Their sonrce of moral foundation, available at the time when momentus issues based on ethical D or moral principles arise. What is left for the other social decision makers, the state, the legislative and the executive? Where does the non-original political process fit in? Prof. Neil K. Komuser in his "The Features of Interpreting Constitution" North Western Law Review. (1986-87) p. 191 at p. 202 to 210 stated that the non-originalist ioterpreterists leave the above questions largely unanswered. He says, they seem or busy of timiog to convince the world that one cannot and should not have a non narrow originalist approach" nor that one or another branch of philosophy of language should prevail for they have failed to address an essential-to my miod, the essential question of constitutional law. Who decides? None of the non-originalists vaguely phrased assignments for the judiciary, such as "search for public or traditional values 11 , or 11 protection of principles 11 or "evolution of morals" tell us what the courts should do or hold or describe, what they actually do." The judiciary can be seen as doing everything or nothing under these schemes. If the judiciary is meant merely to list values or principles that might be considered by political process, the judicial role G is toothless. The list of values or priociples that might be justiciably considered is virtually iofinite. Anyone with the slighest sophistication can find some benefit, value or justiciable priociples virtually in any legislation. That is how the minimal scrutiny or rational review techniques of judicial review generally have been employed. This level of review is no review at H all. On the other hand one close up to the tenor of the arguments that the ) - ·, S.R. BOMMAI v. U.0.1. [K. RAMASWAMY, J.] 941 non-originalists can be seen as giving the judicial task of balancing the A conflicting public values for proclamation which principles triumph. Here the judiciary becomes the central societal decision makers. The resolution of conflicts among public values is co-terminous with social decision making. It is what the legislature, the executive and even the judiciary do. Put simply, the value formulations of the non-originalists do not address B the essential issue raised by the earlier discussions. How shall responsibility for decisions be allocated in a word of highly imperfect decision makers? How would these scholars have judiciary (let alone the other institution) face such terms as distrust, uncertainity and ignorance? One does not have to be hostile to a substantial r@le for judicial review to be concerned when so much constitutional scholarship skirts so central an issue. Indeed, one C could allow for significantly more judicial activism than our constitutional history reveals without approaching the limits inherent in the nebulous formulations of the vari~us non-originalists positions. As a general matter even in the most activist spirit, for example 'the Lochner and Warrah's Courts Eras", the judiciary seems to have decided, not to decide more D questions leaving the discovery of the public values or moral evolution in more areas to otlter societal decision makers. Although such things are within the measures, it seems that there is legislative, executive and to a greater extent administrative agencies, interpreters, have actively in­ fluenced only a small percentage of public decision making. This it seems to me the non-originalists literature threatens to be largely irrelevant to E 11 constitutional analysis" so long as it doe~ not consider with greater care: under what circumstances the usually passive mode of judicial interpreta­ tionis to be replaced by the less common, but more important active m&de. Bennion on statutory interpretation at p. 721 stated that since con.sti~utional law is the framework or the state it is not to be altered by a side wind. A F caveat is needed to be entered here. In interpreting the constitution, to give effect to personal liberty or rights of a section of the society, a little play proVides teeth to operate the law or filling the yearning gaps even 'pur­ posive principle" would be adaptable which may seek ,to serve the law. But we are called to interpret the constitutional operation in political field, whether it would be permissible is the question. G SATISFACTION OF THE PRESIDENT AND JUSTICIABILITY The satisfaction of the President that a situation has arisen in which the Government of the State cannot be carried out in accordance with the H 942 SUPREME COURT REPORTS [1994) 2 S.C.R. A of the Constitution is founded normally upon from the Governor or any other information which the President ha' in possession, in other words, the 11 Council of Ministers", "the President 11 reached a satisfaction. Normally, the report of the Governor would form basis. It is already stated that the Governor's report should contain material facts relevant to the satisfaction B reached by the President. In an appropriate case where the Governor was not inclined to report to the President of the prevailing situation con­ templated by Article 356. the President' may otherwise have information through accredited channels of communications and have it is their custody and on consideration of which the President would reach a satisfaction that a situation has arisen in which the Government of a State cannot be carried C on in accordance with the provisions. "OTHERWISE" The word "otherwise" in Article 356(i) was not originally found in the D Draft Article 278, but it was later introduced by an amendment. Dr. Ambedkar supported the amendment on the floor of the Constituent Assembly stating that, "the original Article merely provided that the presi­ dent could on the report of the Governor, "or otherwise' was not there. Now it is felt that in view of the facts that Article 277A (now Artide 355) which precedes the Article 278 (Article 356 imposed a duty and obligation E upon the Centre. That it would not be proper to restrict and confine action of the President which undoubtedly he will be taking in the fulfillment of the duty, the report made by the Governor of the province. It may be that the Governor does not make the report. I think as a necessary consequence to the effectuation of Article 277 A we must give liberty to the President to F act even when there is no report of the Governor and when the President got certain facts even from his knowledge that he thinks he ought to have acted in fulfillment of his duty.' The width of the power is very wide, the satisfaction of the President is subjective satisfaction. It must be based on relevant materials. The doctrine that the satisfaction reached by an ad­ ministrative officer based on irrelevant and relevant grounds and when G some irrelevant grounds were taken into account, the whole order gets vitiated has no application to the action under Article 356. Judicial review of the Presidential procla.'llation is not concerned with the merits of the decision, but to the manner in which the decision had been reached. The satisfaction of the President cannot be equated with the discretion con- , H [erred upon an administrative agency of his subjective satisfaction upon ... •· ) S.R. SOMMA! v. U.0.1. [K. RAMASWAMY,J.] 943 objective material like in detention cases administrative action or by sub- A ordinates legislation. The analogy of the provisions in the Government of India Act or similar provision in the Constitution of Pakistan and the interpretation put upon it by the Supreme Court of Pakistan do not assist us. The exercise of the power under Article 356 is with the aid and advice of the Council of Ministers with the Prime Minister as its head. They are answerable to the Parliament and accountable to the people. To test the satisfaction reached by the President there is·no satisfac­ tory criteria for judicially discoverable and manageable standards that what grounds prevailed. with the President to reach his subjective satisfaction. There may be diverse. varied and variagated considerations for the Presi­ dent to reach the satisfaction. The question of satisfaction basically a political one, practically it is an impossible question to adjudicate on any judicially manageable standards. Obviously the founding fathers entrusted that power to the highest executive. The President of India, with the aid and advice of the Council of Ministers. The satisfaction of the President D being subjective, it is not judicially discoverable by any manageable stand­ ards and the court would not substitute their own satisfaction to that of the President. The President's satisfaction would be the result of his com­ prehending in his own way the facts and circumstances relevant to the satisfaction that the Government of the State cannot be carried on in accordance with the provisions of the constitution. There may be wide E range of situations and sometimes may not be enumerated, nor there be any satisfactory criteria, but on a conspectus of the facts and circumstances the President may reach the satisfaction that the Government of the State cannot be carried on in accordance with the provisions of the constitution. Therefore, the subjective satisfaction is not justiciable on any judicially F manageable standards. Moreover, the executive decision of the President receives the flavour of the legislative approval after both Houses of the Parliament approved the proclamation and executive satisfaction ceases to be relevant. Article 100 of the Constitution protects the parliamentary approval from assailment on any ground. The judicial review becomes unavailable, that apart a writ petition under Article 226, if is maintainable G to question the satisfaction, equally a declaration that a situation has arisen in the state to clamp emergency or to declare President Rule by judicial order is permissible and cannot be wished away. Could it be done? The use of the world "may" in clause (1) of Article 356 discerns H 944 SUPREME COURT REPORTS [1994) 2 S.C.R. A discretion vested in the President (Council of Ministers) to consider whether the situation contemplated under Article 356 has arisen and discernable from the report submitted by the Governor or other informa- ( lion otherwise had necessitated to dismiss the State Government and dissolve the Assembly to take over the administration of a State or any one of the steps envisaged in sub-clauses (a) to (c) of Clause 1. The issuance of proclamation is subject to approval which includes (disapproval in inappropriate case) by both Houses of Parliament. In other words, the issuance of the proclamation and actions taken in furtherance thereof re subject to the Parliamentary control which itself is a check and safeguard to protect the Federal character of the State and democratic form of · C Government. The President is not necessarily required to approve the advice given by the Council of Ministers to exercise the power under Article 356. The proviso to sub-Article (i) of Article 74, brought by Constitution 44th Amendment Act, itself is a further assurance that it was issued after due and great deliberations. It also assures that the President D actively applied his mind to the advice tendered and the material placed before him to arrive at his subjective satisfaction. In an appropriates case be may require the Council of Ministers to reconsider .such advice, either generally or he may himself suggest an alternative course of action to the proposed advice tendered by the Council of Ministers. By necessary im­ plication it assures that the President is an active participant nor merely E acted as a constitutional'head under Article 73, but also active participent in the decision making process and the proclamation was issued after due deliberations. The court cannot, therefore, go behind the issue of proclamation under Article 356 and substitute its own satisfaction for that of the President. F "CANNOT BE CARRIED ON'' - MEANING AND SCOPE We are to remind ourselves that application of 'principle of the source" from Part 18, the family of emergency provisions conveniently employed or the grammarian's rule would stultify the operation of Articles G 356 wisely incorporated in Constitution. Instead placing it in the spectrum of "purposive operation' with prognosis would yield its efficacy for succeed­ ing generations to meet diverse situations that may arise in its operation. The phrase 'cannot be carried on' in Clause 1 of Article356 does not mean that it is impossible to carry on the Government of the State. It only means H that a situation has so arisen that the Gover~ent of the State cannot be ;-· S.R. BOMMAI v. 1.).0.1. (K. RAMASWAMY, J.] 945 carried on its administration in accordance with the provisions of the A Constitution. It is not the violation of one provision or another of the Constitution which bears no nexus to the object of the action under Article 356. The key word in the marginal note of Article 356 that "the failure of Constitutional machinery" open up its mind of the operational area of Art. 356(1) Suppose after general elections held, no political party or coalition B of parties or groups is able to secure absolute majority in the legislative assembly and despite the Governor's exploring the alternatives, the situa- tion has arisen in which no political party is able to form stable Govern­ ment, it would be a case of completely demonstrable inability of any political party to form a stable Government commanding the confidence of the majority members of the legislatures. It would be a case of failure of constitutional machinery. After formation of the ministry, suppose due to internal dissentions, a deliberate dead-lock was created by a party or a group of parties or members and the Governor recommends to the Presi­ dent to dissolve the assembly, situation may be founded on imponderable variable opinions and if the President satisfied that the Government of the D State cannot be carried on and dissolved the assembly by prociamation under Article 356, would it be judicially discoverable and based on manageable standard to decide the issued? On a ministry is voted by motion of no confidence but the Chief Minister refuses to resign or he resigns due to loss of support and no other political party is in a position E to form an alternative Government or a party having majority refuses to form the Ministry would not a constitutional dead-lock be created ? When in situ_ations the Governor reported to the President, and President issued proclamation could it be said that it would be unreasonable or ma/a fides exercise of power ? Take another instance where the Government of a F State, although enjoying the majority support in the assembly, it has deliberately conducted, over a period of time, its administration in dis­ regara of the constitution and the law and while ostensibly acting withih the constitutional form, inherently flouts the constitutional principles and conventions as a responsible Government or in secret collaboration with G the foreign powers or agencies creates subvertive situation, in all the cases each is a case of failure of the constitutional machinery. While it is not possible to exhaustively catalogue diverse situation when the constitutional break down may justifiably be inferred from, for instance (i) large scale break down of the ·law and order or public order H 946 SUPREME COURT REPORTS (1994] 2 S.C.R. situation; (ii) gross mismanagement of affairs by a State Government; (iii) corruption or abuse of its power; (iv) danger to national integration or security of the state or aiding or abetting national disintegration or a claim for independent sovereign status, and (v) subversion of the constitution while professing to work under the Constitution or creating disunity or disaffection among the people to disintegrate democratic social fabrics. The Constitution itself provides indication in Article 365 that on the failure of the State Government to comply with or to give effect to any directions given by the Union Government in exercise of its executive powers and other provisions of the Constitution it shall be lawful for the C President to hold. that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution. For instance, the State failed to preserve the maintenance of means of communication declared to be of national or material 1neans envisaged under Art. 257(2) of the Constitution and despite the directions, the State Govt. fails to comply with the same. It would be an instance envisaged under Art. 356. Similarly protection of the railways within 'the State is of paramount importance. If a direction issued under Art. 257(3) was failed to be complied with by the State to protect the railways, it would be another instahce envisaged under Art. 365. In these or other analogous situations the warning. envisaged by Dr. Ambedkar need to be given and failure to comply with the same would be obvious failure of the constitu­ tional machinery. During proclamation of emergency under Art, 352 if directions issued under Art. 353A were not complied with or given effect to, it would also be an instance under Art. 365. Equally directions given under Art. 360(3) as to observance of financial propriety or the proclama­ tion as to financial emergency is yet another instance envisaged by Art. 365. The recent phenomena that the Chief Minister gets life size photo publish­ ed in all national and regional dailies everyday at great public expenditure. Central government has responsibility to prevent such wasteful .expendi­ ture. Sufficient warning given yielded no response nor the Chief Minister G desisted to have it published it is not a case for action under Article 356? These instances would furnish evidence as to the circumstances in which the President could be satisfied that the Government of the State cannot be carried on in accordance \vith the provisions of the Constitution. These instances appear to be of curative in nature. In these cases forward may H be called for before acting under Art. 356. ' , ., S.R. BOMMAJ v. U.0.1. [K. RAMASWAMY, J.] 947 Take another instance that under Article 339{2) of the Constitution A the Union of India gives direction to the State to draw and execute the schemes specified therein for the welfare of the Scheduled Tribes in that state and allocated funds for the purpose. The state, in defiance, neither· grew the plans nor execute the schemes, but diverted the finances allocated for other purposes. It would be failure of the constitutional machinery to elongate the constitutional purpose of securing socio-economic justice to B the tribals envisaged in the directive principles warranting the President to reach his satisfaction that the Government of the state is not carried on in accordance with the provisions of the constitution. Where owing to armed rebellion or extra-ordinary natural calamity, like earth-quake, the Govern­ ment of the State is unable to perform its duty in accordance with the C · .• provisions of the Constitution, then also satisfaction of the president that the government of the State is unable to perform as a responsible Govern­ ment in accordance with the provisions of the Constitution is, not justici­ able. Conversely, on the resignation of the Chief Minister the Governor without attempting or probing to form an alternative Government by an opposition party recommends for dissolution of the Assembly, it would be an obvious case of highly irrational exercise of the power. Where the Chief Minister himself express inability to cope with his majority legislators, recommends to the Governor for dissolution, and dissolutiqn accordingly E was made, exercising the power by the President, it would also be a case of highly irrational exercise of the power. Where the Governor recom­ mends to the President to dissolve the Assembly on the ground that -the Chief Minister belongs to a particular religion, caste on creed, it would also be a case that the President reached satisfaction only on highly irrational p consideration and does not bear any nexus or correla!ion to the ap­ proximate purpose of the Action. It is clearly unconstitutional. Take an instance that national language is Hindi. Centre directs a non-Hindi speak- ing state to adopt Hindi in the Devnagari script as state language, though predominantly 95% of the population do not know Hindi, nor have need to adopt it as lingua franca, the violation of the directives does not entail G with imposition of President rule. The exercise of power under Article 356 by the President through Council of Ministers Places a great responsibility on it and inherent therein are the seeds of empittemess between the Union of India and the states. H A A political party with people's mandate of requisite majority or of coalition with value based principles or programmes and not of convenience are entitled to form Government and carry on administration for its full term unless voted down from power in accordance with the Constitution. We have multi-party system and in recent past regional pa~ties are also emerg- ing. So one political party would be in power at the Centre and another at the State level. In particular, when the Union of India seeks to dismiss a State Ministry belonging to a different political party, there 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 enour- D mous election expenditure to the State and the candidates. It also generates disbelief in the efficacy of the democratic process which is a death knell to 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 pain or to get rid of an inconvenient State Governments for good or bad governance. but only in cases of failure . of the constitutional machinery of the State Government. As stated earlier, the constitutional and political features should be nurtured and set conventions be laid by consensus among the political F parties either by mutual agreement or resolution passed in this behalf. It is undoubted that Sarkaria Commission appointed by the Union of India and Rajamannar commission appointed by the State Govt. of Tamilnadu suggested certain amendments to Art. 356, distinguished Judges gave guidelines. Though they bear weight, it is for the consideration of the political parties or Governments, but Judicially it would not be adapted as G guidance as some of them would be beset with difficulties in implementa­ tion. However, their creases could be ironed out by conference or by consensus of the political parties. As regards horse-trading by the legis­ lat<Jrs, there are no judicially discoverable and manageable standards to decide in judicial review. A floor test may provide impetus for corruption H and rank force and violence by muscle men or wrongful confinement or ,. ., S.R. BOMMAI v. U.0.1. [K. RAMASWAMY, J.] 949 volitional captivity of legislators occur till the date of the floor test in the A House to gain majority on the floor of the House. At some quarters it is believed that power under Article 356 was mis-used. We are not called to examine each case. A bird's eye view of the proclamations issued by the president under article 356 it would appear that on three occasions the Speaker if the legislative assembly created B dead-lock to pass the financial bills. The power was used to resolve the deadlock. When there was break down of law and order and pnblic order due to agitations for creation of a separate states for Telangana and Andhra; the Andhra Pradesh legislative assembly was dissolved and the Congress Ministry itself was dismissed while the same party was in power C at the centre. Similar instance would show that the power under Article 356 was used when constitutional machinery failed. This would establish that the width of the power under Article 356 cannot be cut down, clipped or crapped. Moreover, the elected representatives from that State repre- sent in the Parliament and do participate in the discussion of the presiden- tial proclamation when its approval was sought and the transaction of D legislative business concerning that state and express their dissent when it was mis-used. though temporarily the democratic form Government was not in the governance of that State. The basic feature of the Constitution, namely democracy is not affected for the governance by the elected execu­ tives temporarily at times maximum period of three years. The President being the highest executive of the State, it is imper­ missible to attribute personal ma/a [ides or bad faith to the President. The proviso to Article 74(1) presumptively prohibits such a charge unless established by unimpeachable evidence at the threshold. For the exercise the power under Article 356 the Prime Minister and his Council of Mini- F sters, ·he/they are collectively responsible to the Parliament and account- able to the people. The only recourse, in case of misuse or abuse of power by the President, is to take either impeachment proceedings under Article 61 against the President or seek confidence of the people at the polls. These conclusions do not reach the journey's end. However, it does G not mean that the court can merely be an onlooker and a helpless spec­ tator to exercise of the power und_er Art. 356. It owes duty and respon­ sibility to defend the democracy. If the court, upon the material placed before it finds that the satisfaction reached by the President is unconstitu­ tional, highly irrational or without any nexus, then the court would consider H 950 SUPREME COURT REPORTS. [1994] 2 S.C.R. A the contents of the proclamation or reasons disclosed therein and in extreme cases the material produced pursuant to discovery order nisi to find the action is wholly irrelevant or bears no nexus between purpose of the action and the satisfaction reached by the President or does not bear any rationale to the proximate purpose of the proclamation. In that event the court may declare that the satisfaction reached by the President was either on wholly irre.levant grounds or colourable exercise of power and consequently proclamation issued under Article 356 would be declared unconstitutional. The court cannot go into the question of adequacy of the material or the circumstances justifying the declaration of the President Rule. Roscoupoun in his Development of the Constitutional Guarantees of C liberty, 1963 Edn. quoted Jahering that, "Form is sworn enemy of caprice, the twin sisters of liberty, fixed forms are the school of discipline and order and thereby of liberty itself'. The exercise of the discretion by the President is hedged with the constituitional constraint to obtain approval or the Parliament within two months from the date of the issue, itself is an assurance of proper exercise of the power that the President exercises the D power properly and legitimately that the administration of the state is nor carried on in accordance with the provisions of the Constitution. SCOPE OF REINDUCTJON OF THE DISMISSED GOVERNMENT, RENOTIFICTJON AND REVIVAL OF DISSOLVED ASSEMBLY AND ITS EFFECT Contention was raised that until all avenues of preventing failure of the machinery by appropriate directions by the Central Government failed or found it absolutely impossible for the State Govt. to carry on the administration in accordance with the provisions of the Constitution or by dual exerGise of the power partly by state and partly by the President or alternatively with dissolution of the Assembly should be deferred till ap- proval by the Parliament is given and stay the operation of the Presidential proclamation till that time have been convassed by the counsel for the States. It is already considered that warnings are only in limited areas in the appropriate cases of financial mismanagement, but not in all the other situations. CONSTITUTIONAL CONVENTIONS PROVIDE FLESH WHICH CLOTHES DRY BONES OF LAW H Eversince Article 356 was put in operation convention has been ' ) S.R. BOMMAI v. U.O.l. [K. R~ASWAMY, J.] 951 developed that the legislative Assembly is dissolved, the State Government A is removed and the executive power assumed by the President is entrusted to the Governor to carry on the executive actions with the aid and advice of the appointed Advisors. The Parliament exercises the legislative powers of the entries in List II of the Schedule and delegates legislative power to the President. The President makes incidental and consequential provisions. The Government of the State is· thus under the administration of the Union Government. The Constitution though provided an elaborate procedure with minute details, that in the event of the Parliament did not approve the proclamation issued under Article 356, the contingency of restitution of removed government and restoration of dissolved Assembly, obviously with the fond hope that Article 356 would remain a "dead letter" or it wiJI 11 not be put to operation", or at best 11 sparingly" used. Dr. Ambed­ kar in his closing speech in the constituent Assembly stated that "The Conventions and political morality" would held successful working of the constitution. Constitution cannot provide detailed rules for every even­ tuality. Conventions are found in all established Constitutions. The CQn- D ventions are meant to bring about Constitutional development without formal change in the law. Prof. K.C. Wheare in his book "the Statute of Westminister and Dominion status" (fourth Edition) defined the conven­ tionsthus: "The definition of conventions may thus be amplified by saying that E their purpose is to define the use of constitutional discretion. To put this in slightly different words, it may be said that conventions are non-legal rules regulating the way in which legal rules shall be applied." Sir W. Ivon Jennings, in his "Law and the Constitution" (Fifth Edition) · F elaborated the constitutional convention: "Thus within the framework of the law there is room for the development of rules of practice, rules which may be followed as consistently as the rules of law, and which determine the procedure G which the men concerned with government must follow." · · The Constitutional conventions provide the flesh which clothes the dry bones of the law; they make the constitution work; they keep it in touch with the growth of ideas. A constitution does not work itself; it has to be worked by men. It is an instrument of national cooperation which is as H A necessary·as the. instrument. The conventions are the rules elaborated for effecting that cooperation. Convention enirust power granted in. the Con­ stitution from one person to the other when the law is exercised by whom they are granted, they are in practice by some other person or body of persons. The primary role of conventions i.s to regulate the exercise of the B discretion facing that irresponsible abuse of power. K.C. Wheare in his book ''Modem Constitutional" (1967 edition) stated that : "flie conventions not only give discretionary powers to the Government but also in executive governance and a legislature or executive relations, where such rules and practice operate. They may be found in C other spheres of constitutional activities also". He stated that: 'A course of conduct may be persisted over a period of time and gradually attain first pursuasive and then obligatory force. A convention may arise much more quickly than that. There may be an agreement among the people concerned to work in a particular way and to adopt a particular rule of conduct''. Sir D W. Ivor Jennings had stated that "The law provides only a framework; these who put the laws into operation give the framework a meaning and fill in the interstices. Those who take decisions create precedents which otll.ers tend to follow, and when they have been followed long enough they acqu)re the sanctity and the respectability of age. They not only are followed but they have to be followed." One of us, learned brother Kuldip Singh. J. had E elaborately considered the scope of conventions which obviated the need to tread the path once over and held in the Supreme Court Adw,>cates on Record Association and Ors. v. Union of India, JT (1993) 5 SC 479 that: "The Written Constitution. cannot provide for every eventuality. Constitutional institutions are often cre~ted by lhe provisions which are generally worded. Such provisions are interpreted with the help of conventions which grow by the passage of time. c9n­ ventions are vital in so far a they fill-up the gaps in the Constitution itseff, help, solve problems of interpretation and allow for the futme development of the Constitutional frame work. Whatever the nature of the Constitution, a great deal may be left unsaid in legal rules allowing enormous discretion to the constitutional functionaries. Conventions regulate the exercise of that discretion". The conventien in working Art. 356 of the Constitution has been H established and became the constitutional law filling the interstices of ,· ) . '" S.R. BOMMAI v. U.0.1. [K. RAMASWAMY,J.] 953 legislative process. The actions done by the President in accordance with A the choice left to him by Sub- clauses (a) to (c) of Article 356 and by Parliament under Art. 357, i.e. dissolution of the legislative assembly, removing the State Government, assumption of administration and entrust­ ment of the administration and the executive power to the Governor of that State with the aid and advice of the appointed Advisors and to take over · B legislative fµnctions by the Parliament and the power of promulgation of Ordinance by the President,etc. by operation of Article 357 and making all incidental and consequential provisions for convenient administration of executive Government of the State attained status of constitutional law. This constitutional convention firmly set the working of the Constitution on smooth working base and is being operated upon all these years. We hold C that that upsetting the settled convention and the law and adopting value oriented interpretation would generate uncertainty and create constitution- al crises in the administration and the Government and would lead to failing the Constitution itself. PRESIDENTIAL PROCLAMATION -SO FAR PARLIAMENT DID NOT D DISAPPROVE The proclamation issued under Article 356 requires to be laid before each House of Parliament within two months from the date of its issue. Unless it receives the approval, it shall cease to operate at the expiration E of two months. The legal consequences of the proclamation, as stated earlier, is that the State Government is removed, the legislative Assembly is dissolved and in exercising the power mentioned in. sub-clauses (a)(b) & (c) of Clause (1) of Article 356 the.President takes either steps mentioned therein and the Parliament exercises the power under Article 357 confer­ ring the Legislative power on the President and arrangement for con­ venient administration made while. exercising legislative powers. in the entries in-List II of Schedule VII of the Constitution·. The contention is that till ei<piry of two months the _legislative assembly should not be dissolved and on the approval received from both the Houses of Parliament the President should dissolve it. If the President fails to get the approval then G the dissolved Assembly must be revived and the dismissed Ministry should be reinducted into office. We find it difficult to give acceptance to this contention and if given acceptance it would beset with grave incongruities and result in operational disharmony. The Parliament did not disapprove any proclamation so far issued. There is no express provision engrafted in the Constitution to fill in this contingency. In Rajasthan's case this Court H A considered the contingency and held that dissolution ·of the Legislative Assembly is part of the same proclamation or by a subsequent order and that even if the Parliament does not approve the proclamation the dissolved Assembly and the removed Ministry cannot be restored. We respectfully agree with the view for the reasons we independently give hereinunder. B FUNCTIONAL INCONGRUITY AND DISHARMONY The executive power of the Union or the State is co-extensive with their legislative powers respectively. When the President assumed ad­ ministration of the State under Article 356, without dissolving the Legisla· C tive Assembly could the President discharge the executive powers without legislative powers being armed with by the Parliament? Could the Presi­ dent discharge the duties under the directions of the State Legislature, if need arises for passing appropriate legislative sanctions. By camera! opera­ tion of the legislative and executive powers both by the State legislature D and Parliament in List II of VII Schedule is an anthema to the democratic principle and constitutional scheme, The question of conflict of parliamen­ tary supremacy and executive over-bearing is more imaginary than actual or real. /E The reinduction of the government of the State also besets with several incongruities. It cannot be assumed that the President lightly removed the State government. It must be for formidable grounds, though not judicially discoverable nor discernable to strict judicial scrutiny. All the proclamations so far issued were not disapproved by the Parliament. The dismissed Government, if restituted into power, may violate ~th impunity the provisions of the Constitution and Laws for the balance period taking advantage of majority in the legislature and full scale corruption or other unconstitutional acts will have their free play. The political party itself and all their members of the legislature should collectively own responsibility for the removal of their Government and their unconstitutional governance writes its own death warrant. Restitution thereby puts a premium on failing G the Qbnstitiltion. The political party must seek afresh mandate from the electorates .an<festablish their credibility by winning majority seats. The existence oL.tlie legislative council which is not dissolvable, like Rajya Sabha, cannot by itself transact any business, in particular the finance bills or appropriate bills or annual financial statements. Therefore, its con- H tinuance shall render no criteria to the continuance of legislature or to ) , S.R. HOMMA! v. U.0.1. [K. RAMASWAMY, l.] 955 assume it be not dissolved on grammarian rule to reconstitute the dissolved A legislative assembly of which the majority members belong to the same party. No doubt dissolution of the legislature literally would include legis­ lative council but not every State has a council. No distinction between two types of States, one with Council and another without Council and the former would be eligible for revival and later per force would not be, was B not meant by the Constitution. Grammarian rules carries no consistance. Moreover this problem could also be tested from the expediency and functional efficacy. The possibility of reinduction creates functional hiatus. Suppose the court grants stay till the Parliament approves the proclama- tion, if urgent ne~d arose to issue ordinance or transact legislative or financial business, who would do it? The suspended Assembly cannot do C nor the Parliament. The dismissed Ministry cannot transact the legislative business. Even if permitted to function and ultimately the proclamation is approved by the Parliament, what would happen to the validity of the executive and legislative acts done in the intreghum. As stated, is there no possibility of large scale abuse of office for personal or political gain? If D the orders ate issued by the Courts on value based opinion, where is the finality and at what point a stop is to be put? If stay is granted, by a High Court and writ petition is not disposed of and the term of the legislative Assembly expires what would happen to the Ministry in office? Whether it would continue by order of the Court? How elections are to be conducted by the Election Commission? Is it under the orders of the Court or by the E Exercise of the power under Article 324. Is day to day executive, legislative and administrative actions are to be done under the writ of the Court? If a High Court issues a direction to allow the dissolved assembly its. full course of balance period including the suspended period what would happen? Is it not violative of Article 172? ·whether it could be prevented F to be done? If such Order is not complied with, is not the President liable to contempt of the Court and if so what happens to the protection of Art.361? Instead of solving the problems, does not the writ of the court creates constitutional crisis? Giving deep and anxious consideration and visualising the far reaching constitutional crisis, we are firmly of the view that the self restraint constitutions us to express no value opinion, leaving G to the Parliament to ponder over and if deemed necessary amend Art. 356 suitably. The Constitution was amended more than 77 times and Article 356 itself was amended six times through the Constitution s.38th Amendment H 956 SUPREME COURT REPORTS (1994] 2 S.C.R. A Act; 42nd Amendment Act: 44th Amendment Act; 59th Amendment Act; 64th Amendment Act and 68th Amendment Act. Apart from the Congress Party, three non congress political parties were in power at the centre during these 44 years and no amendment was brought to Article 356 {3) that on disapproval of the proclamation by the Parliament the dissolved B Assembly stands revived and removed Government stood reinducted. The statutory construction fortifies this conclusion. CASUS OMISSUS - WHETHER PERMISSIBLE.TO SUPPLY The question, further arises whether by interpretative process, would C it be permissible to fill in the gaps. Though it is settled law that in working the law and finding yearning gaps therein, to give life and force to the legislative intent, instead of blaming the draftsman, the Courts ironed out the creases by appropriate technique of interpretation and infused life into dry bones of law. But such an interpretation in our respectful view is not D permissible, when we are called upon to interpret the organic Constitution and working the political institutions created therein. When Parliament has had an opportunity tq consider what exactly is going wrong with the political sy~tem designed by the Constitution but took no steps to amend the Constitution in this behalf, it is a principle of legal policy, that the law E should be altered deliberately, rather than casually by a sidewind only, by major and considered process. Amendment of the Constitution is a serious legislative business and change in the basic law, carefully workout, more fundamental changes are brought out by more through going and indepth consideration and specific provisions should be made by which it is imple- mented. Such is the way to contradict the problem by the legislative process of a civilised State. It is a well established principle of construction that a statute is not to be taken as affecting Parliamentary alteration in the general law unless it shows words that are found unmistakably to that conclusion. No motive or bad faith is attributable to the legislature. Ben­ nion at page 336 extracting from the Institute of the Law of Scotland vol. G 3 Page 1 of The Practice by David Maxwell at page 127 abstracted that "where a matter depends entirely on the construction of the words of a statute, there cannot be any appeal to the nobile officium.' He stated at page 344 that "where the literal meaning of the enactment goes narrower than the object of the legislator, the court may be required to apply a H rectifying construction. Nowadays it is regarded as not in accordance with I ' , S.R. BOMMAI v. U.0.1. [K. RAMASWAMY, J.] 957 public policy to allow a draftsman' s ineptitude to prevent justice being A .. done. This was not always the case". Where the language of a statute is clear and unambiguous, there is no room for the application either of the doctrine of. i:qsus omissus or of pressing into service external aid, for in such a case the words used by the Constitution or the statute speak for themselves and it is not the function of the court to add words or expres- B sions merely to suit what the courts .think is the supposed intention of the legislature. In American .Jurisprudence 2d Series, vol. 73 at page 397 in para 203 it is stated that, "It is a general rule that the courts may not, by construction insert words or phrases in a statute or supply a casus omissus by giving force 1md effect to the language of the statute when applied to a C subject about which nothing whatever is said, and which, to all appearan- ces, was not in the minds of the legislature at the time of the enactment of the law". Under such circumstances new provisions or ideas may not be interpolated in a statute or ingrafted thereon. At page 434 in para 366 it is further stated that "While it has been held th~t it is duty of the courts to interpret a statute as they find it without.reference to whether its provisions D are expedient or unexpedient. It has also been recognised that where a statute is ambiguous and subject to more than one interpretation, the expediency of one constitution or the other is properly ~nsidered. Indeed, where the arguments are nicely balanced, expediency may tip the scales in favour of a particular construction. It is not the function of a court in the· E intepretation of statutes, to vindicate the wisdom of the law. The mere fact that statute leads to unwise l'f'SUlts is not sufficient to justify the court in rejecting the plain meaning of unambiguous words or in giving to a statute a meaning of which its language is not susceptible, or in restricting the scope of a statute. By Jhe same taken, an omission or failure to provide for contingen• F cies, which it may seem wise to have provided for specifically, does not justify any judicial addition to the language of the statute. To the contrary, it is the duty of the courts to intepret ti statute as they find it without reference to whether its provisions are wise or unwise, necessary or unnecesslll)'; ap­ propriate or inappropriate, or well or ill conceived". Craies on Statute Law, 7th Edition, at page 69 states that the second consequence of t.he rule of casus omissus is that the statute inay not be extended to meet a case for which provision has clearly and undoubtedly not been made. In Construction of Statutes by Crawford at page 269 in lI A paragraph 169 it is stated that omissions in a statute cannot, as a general rule, be supplied by construction. Thus, if a particular case is omitted from the terms of a statute, e,ven though such a case is within the obvious purpose of the statute and the omission appears to have been due to accident or inadvertence, the court cannot include the omitted case by B supplying the omission. This is equally true where the omission was due to the failure of the legislature to foresee the missing case. As is obvious, to permit the court to supply the omissions in statutes, would generally constitute an encroachment upon the field of the legislature. In construing the constitution we cannot look beyond the letter of the constitution to adopt something which would command itself to our minds as being C implied from the context. In State of Tasmania v.The Commonwealth of Australia and State of Victoria, [1904] 1 CLR 329, 358-59, Connor. J. dealing with the question observed thus: "It appears to me the only safe rule is to look at the Statute itself and to gather from it what is its intention. If we depart from that rule we are apt to run the risk of the danger described by Pollack, O.B., in Mille v. Sa/omons., If he says, 'the meaning of the language be plain and clear, we have nothing to do but to obey it is to administer it as we find it; and , I think, to take a different course is to abandon the office of Judge, and to assume the province of legislation. Some passages were cited by Mr. Glynn from Black on the 'Interpretation of laws', which seem to imply that there might be a difference in the rules of interpretation _to be applied to the Constitution and those to be applied to any other Act of Parlia­ ment, but there is no foundation for any such distinction. The intention of the enactment i' to be gathered from its word. If the words are plain, affect must be given lo them; if they are doubtful, the intention of legislature is to be gathered from the other provisions of the statute aided by a consideration of surrounding circumstances. In all cases in order to discover the intention you may have recourse to contemporaneou~ circumstances - to the history of the law, and you may gather from the instrument itself the object of the Legislature in passing it. In considering the history of the law, you may look into previous legislation, you must have regard to the historical. facts surrounding the bringing of law into existence. In the case of a Federal Constitution the field of inquiry is naturally more extended than in the case of a State Statute, but I r .. ,, ) S.R. BOMMAI v. U.0.1. [K. RAMASWAMY, J.] 959 the principles to be applied are the same. You may deduce the A intention of the Legislat:Jre from a consideration of the instrument itself in the light of these facts and circumstances, but you cannot go beyond it. If that limitation is to be applied in the interpretation of an ordinary act of Parliament, it should at least be as stringently applied in the interpretation of an instrument of this kind, which not only is a statutory enactment, but also embodies the compact by which the people of the several colonies of Australia agreed to enter into an indissoluble Union." In Encyclopedia of the American Judicial System the Constinaional Interpretation by Craig R. Ducat it is stated that the standard for assessing C constitutionality must be the words of the Constitution, not what the judges would prefer the Constitution to mean. The constitutional supremacy neces­ sarily assumes that a superior n1le is what the Constitution says1 it is not 1vhat the judges prefer it to be, vide page 973,. (emphasis supplied) In j11dicial tributes balancing the competing interest Prof. Ducat quoted with approval D the statement of Bickel at page 798 trust: "The judicial process is top principle-phone and principle-pound - it has to be, there is no other justification or explanation for the role it plays, it is also too remote from conditions, and deals, case by case, with too narrow a slice of reality. It is not acessible to all E the varied interests that are in play in any decision of great consequence. It is, very properly, independent. It is passive. it has difficulty controlling the stages by which it approaches a problem. It rushes forward too fast, on it lags, its pace hardly even seems just right. For all these reasons, it is, in a vast,° complex, changeable F society, a most unsuitable instrument for the formation of policy. 11 In the Modes of Constitutional Interpretation by Craig R. Ducat, 1978 Edition at p.125. he stated that the judges decision ought to mean society values not their own. He quoted Cardozo's passage from the Nature of Judicial process at page 108 that, "a judge,"! think would err if he were to G impose upon the community as a rule of life his own idiosyncracies of conduct or belief." The court when caught in a paralysis of dilema should adopt self-restraint, it must use the judicial review with greatest caution. In clash of political forces in political statement the interpretation should only be in rare and auspicious occasions to nullify ultra vires orders in highly H 960 SUPREME COURT REPORTS (1994] 2 S.C.R. A arbitrary or wholly irrelevant proclamation which does not bear any nexus to the pte-dominant purpose for which the proclamation was issued, to delcare it to be unconstitutional and no more. thus: Frankfurter, J. Says in Dennis v. United States,341VS494, 525. (1951] "But how are competing interests to be assessed? Since they are not subject to quantitative ascertainment, the issue necessarily resolves itself into asking, who is to make the adjustment?--who is to balance the relevant factors and ascertain which interest is in the circumstances to prevail? Full responsibility for the choice cannot be given to the courts. Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their judgment is best informed, and therefore most dependable, 0 within narrow limits. Their essential quality is detachment, founded. on independence. History teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political. economic and social pressures Regionalism, lingualism and religious fundamentalism have become divisive forces to weaken the unity and integrity of the country. Lingualistic chaunism aiding its fuel to keep the people poles apart. Communalism and castism for narrow political gains are creating foul atmosphere. The seces­ sionist forces are working from within and out side the country threatening F national integration. To preserve the unity and integrity of the nation, it is necessary to sustain the power of the president to wisely use Article 356 to stem them out and keep the Government of the state function in accordance with the provisions of the Constitution. Article 356 should, therefore, be used spraingly in only cases in which the exercise of the power is called for. It is not possible to limit the scope of action under Article . G 356 to specific situations, since the failure of the constitutional machinery may occur in several ways due to diverse causes be it political, internal subversion or economic causes and no straight- jacket formula would be possible to evolve. The founding father. s thus confided the exercise.:Jc.gf the . power in the highest executive, the President of India, through his Council H _,.of Ministers headed by the Prime Minister of the country who is account, ---(. ( ,. ) S.R. BOMMAI v. U.0.1. [K. RAMASWAMY, J.] 961 able to the people of the country. A STAY OF ELECTIONS WHETHER COULD BE MADE: Under Article 168 for every State there shall be Legislative Assembly afld in some states legislative council. Article 172(1) provides that every B Legislative Assembly of every State, unless sooner dissolved shall continue for five years from the date appointed for its first meeting and "no longer" and the expiration of such period of five years shall operate as dissolution of the Assembly. The proviso to Clause (1) or Sub- clause (2) are not relevant. It is thereby declared the constitutional policy that five years tenure of the Legislature starts running from the date appointed for its first C meeting and expiration of the period operates constitutionally as date of dissolution of the Assembly. The phrase " no longer" reinforces its man­ datory character. Article 324(1) enjoins the Election Commission to con­ duct elections to the Parliament and to the Legislature of every State, etc. The R.P. Act, Rules and the instructions prescribes the procedure to D conduct and complete elections four months before the expiry of the date of dissolution. Article 329(b) issues an injunction that "no election to either House of Parliament or to the House of the Legislature of a State shall be called in question" except by an election petition presented to such authority and in such manner as may be provided for by or under any law made byJhe appropriate Legislature. In other words, the election process E once set in ihotion should run its full course and all election disputes shall be resolved in accordance with the procedure established by R.P. Act. In N.P. Ponnuswami v. Returning Officer, Namakkal Constituency, (1952] SCR 2181. at the earliest Constitution Bench of this Court held that F having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognised to be a · matter of first importance that elections shall be concluded as early as possible according to the time schedule and all controversial matters and all di<putes arising out of elections should be postponed till after the G elections are over, so that the election proceedings may not be unduly retarched or protracted. In Lakshmi Charan Sen v. A.KM Hassan Uz­ zaman, (1985] Suppl. 1 SCR 493, another Constitution Bench considered the effect of interim stay of general elections to West Bengal legislative Assembly granted by the Calcutta High Court in a writ proceeding, held that the High Court must observe self imposed limitation on their power H A to act under Article 226 by refusing to pass orders or giving directions which wiU inevitably result in an indefinite postponement of elections to legislative bodies, which are the very essence of the democratic foundation and functioning of our Constitution. That limi.tation ought to be observed irrespective of the fact whether the preparation and publication of electoral rolls are a part of the process of election within the meaning of Article 329(b) of the Constitution. It is the duty of the court to protect and preserve the integrity of the Constitutional institutions which are devised to foster democracy and when the method of their functinning is ques­ tioned, which is open to the citizen to do, the court must examine the aUegations with more than ordinary care. Vary often the exercise of juris­ diction especially the writ jurisdiction involves questions of propriety rather than of power. The fact that the court has power to do a certain thing does not mean that it must exercise that power regardless of consequences. Holding the elections to the legislatures and holding them according to law are both matters of paramount importance and is the constitutional obliga- D tion imposed by Article 168. The pragmatic approach was couched at 523 thus: " ................ .India is an oasis of democracy, a fact of contemporary History which demands of the Courts the use of wise statesmanship in the exercise of their extraordinary powers under the Constitu­ tion. The High Courts must observe a self-imposed limitation on their power to act under Art. 226, by refusing to pass order or give directions which will inevitably result in an indefinite postpone­ ment of elections to legislative bodies, which are the very essence of the democratic foundation and functioning of our Constitution. That limitation ought to be observed irrespective of the fact whether the preparation and publication of electoral rolls are a part of the process of 'election' within meaning of article 329(b) of the Constitution ........... " There are plethora of precedents in this behalf, but suffice for the limited G purpose to say that the exercise of the power either under Article 226 or Article 32 or Article 136 staying the elections to the dissolved Assembly under Article 356 not only flies in the face of the constitutional mandates and the law laid down by this court, but creates uncertainty and constitu­ tional crises as stated hereinbefore. Enlightened public opinion both inside H or outside the Parliament, informed public objective criticism, objective r ·~ ) ' .. . ~ S.R. BOMMAI v. U.0.1. [K. RAMASWAMY,J.] 963 assessment of the ground realities would inhibit misuse of power and A hinder highly irrational exercise of the power. The question, finally emerges is whether issuance of the proclamation under article 356 without affording a particular Chief Minister to test hi, majority support of his party in the Legislatures of Janta Dal or coalition B on the floor of the House is arbitrary and bears no reasonable nexus or irrational. Having given our anxious consideration to the facts inBommai's case and in the light of the discussion made hereinbefore that the fluid situation prevailing during the relevant period appears to have persuaded the president that he had constitutional duty to maintain the purity of the democratic process and required to stamp out horse-trading among the C Legislatures which had resulted in the failure of the constitutional machinery, satisfied himself that necessitated to issuance of the proclama- tion under Article 356. Though the majority strength of the ruling party or coalition in the legislative Assembly may be tested on the floor of the House and may be a salutary principle as recommended by the Conference D of the governors, it would appear that in its working there emerged several fitfalls and so it was not found enforceable as a convention. It is for the political parties or the Chief Ministers conference to take a decision in that behalf and it is not judicially manageable for the Court to give any decla­ ration in this behalf. In regard to dissolution of U.P. Assembly, though there is no writ petition filed, since the Government machinery of that E Government had failed to prevent destruction of Sri Ram J anambhoomi­ Babri Masjid disputed structure and failed to protect the religious proper- ty, be it belong to Hindus or Muslims and in that surged atmosphere when it was done, it cannot be concluded that the President acted unconstitu­ tionally or that there is no proximate nexus between the action and the F demolition to exercise the power under Article 356. Equally regarding dissolution of Legislative Assemblies of Madhya Pradesh, Rajasthan and Himachal Pradesh, the reports of the Governors do disclose that some of the Ministers and some Chief Ministers actively associated or encouraged Kar Sewaks to participate in the demolition of Ram Janambhoomi-Babri Masjid disputed ·structure and also criticised the imposition of ban on G R.S.S. The law and order situation or public order situation do not appear to have been brought under control. The common thread of breach of secularism ban through the events and with prognosis action was taken. Our learned brother Jeevan Reddy, J. elaborately considered the pleadings of the parties and arguments by the respective counsel He also deduced H 964 SUPREME COURT REPORTS (1994] 2 S.C.R. A the conclusions. The need for discussion once over is thereby redundant. We respectfully agree with him and in case of Meghalaya also. We con­ clude that the satisfaction reached by the President cannot be adjudicated with any judicially discoverable and manageable standards, but one stark fact that emerged is that due to sustained campaign by the BJP and other organisations Sri Ram Janambhoomi-Babri-Masjid disputed structure was destroyed. Consequential situation that has arisen due to which the Presi­ dent satisfied that Governments of the States of Madhya Pradesh , Rajas­ than and Himachal Pradesh cannot be carried on in accordance with the provisions of the Constitution and they breached the basic features of the Constitution, namely secularism. Therefore the satisfaction reached by the C President cannot be said to be irrelevant warranting interference. As regards Meghalaya is concerned, though a declaration may possibly be made on the validity of the Presidential proclamation, since the elections have already been held; Its need became fiat accompli. D CONCLUSIONS 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 E integrity, but a permanent entity with its boundaries alterable by a Jaw made by the Parliament. Neither the relative importance of the legislative entries in Schedule VII, List 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 F to 254 of the Constitution. The state qua the Constitution as federal in structure and independent in the exercise of legislative and executive power. However, being the creature of the constitution the State has no right to secede or claim sovereignity. 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 G socio-economic and political justice to the people, to preserve and elongate the constitutional goals including secularism. The preamble of the Constitution is an integral pari of the Constitu­ tion. Democratic form of Government, federal structure. Unity and in­ H tegrity of the nation, secularism, socialism, social justice and judicial review ,. . ' " . ) S.R. BOMMAI v. U.0.1. [K. RAMASWAMY,J.] 965 are basic features of the Constitution. The office of the Governor is a vital link and a channel of impartial and objective communication of the working of the Constitution by the State Government to the Preside11t of India. He is to ensure protection and sustenance of the constitutional process of the working of the Constitution in the State playing an impartial role. As head of the executive he should truthfully with high degree of constitutional responsibility inform the Presi­ dent that a situation has arisen in which the constitutional machinery has failed and the State cannot be carried on in accordance with the provisions of the Constitution with necessary factual details in a non-partisan at­ titude. The Union of India shall protect the State Government and as corollary under Article 356 it is enjoined that the Government of every state should be carried on in accordance with the provisions of the Con­ stitution. On receipt of a report from the Governor or otherwise the President (Council of Ministers) on being satisfied that a situation has L arisen in which the Government of a State cannot be carried on in accord­ ance with the provisions of the constitution, is empowered to issue proclamation under Article 356( 1) and impose President rule in the State in the manner laid down in Clauses (a) to (c) of Article 356(1) of the Constitution. E The exercise of the power under Article 356 is an extra-ordinary one and need to be nsed sparingly when the situation contemplated by Article 356 warrants to maintain democratic form of Government and to prevent paralysing of the political process. Single or individual act or acts of violation of the Constitution for good, bad or indifferent administration F does not necessarily constitute failure of the constitutional machinery or characterises that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution. The exercise of power under Art. 356 should under no circumstance be for a political gain to the party in power in the Union G Govt. It should be used sparingly and with circumspection that the Govt. of the State function with responsibility in accordance with the provisions of the Con5titution. · Rule of law has been chosen as an instrument ofsoci31 adjustment and resolution of conflicting soi:~ .P,Ioblein~ to integrate diverse sectio~ H . ' ' 966 SUPREME COURT REPORTS (1994) 2 S.C.R. of the society professing multi-religious faiths, creed, caste or region foster­ ing among them fraternity, transcending social, religious, linguistic or regional barriers. Citizenship is either by birth or by domicile and not as a member· of religion, caste, sect, region or language. Secularism has both positive and negative contents. The Constitution struck a balanc~ between temporal parts confining it to the person professing a particular religious faith or belief and allows him to practice, profess and propagate his religion, subject to public order, morality and health. The positive part of secularism has been entrusted to the State to regulate by law or by an executive order. The State is prohibited to patronise any particular religion as State religion and is enjoined to observe neutrality. The State strikes a balance to ensue an atmosphere of full faith and confidence among its people to realise full growth of personality and to make him a rational being on secular lines, to improve individual excellence, regional growth, progress and national integrity. Religion being suspectible to the individuals or groups of people professing a particular religion, antagonis- D tic to another religion or groups of persons professing different religion, brings inevitable social or religious frictions. If religion is allowed to over-play, social disunity is bound to erupt leading to national disintegra­ tion. Secularism is a part of the basic features of the Constitution. Political parties, group of persons or individual who would seek to influence elec- toral process with a view to come to political power, should abide by the Constitution and the laws including secularism, sovereignity, integrity of the nation. They/he should not mix religion with politics. Religious tolerance and fraternity are basic features and postulates of the Constitution as a scheme for national integration and sectional or religious unity. Program­ mes or principles evolved by political parties based on religion amounts to recognising religion as a part of the political governance which the Con­ stitution expressly prohibited it. It violates the basic features of the Con­ stitution. Positive secularism negates such a policy and any action in furtherance thereof would be violative of the basic features of the Constitu­ tion. Any act done by a political party or the Government of the State run by that party in furtherance of its programme or policy would also be in G violation of the Constitution and the law. When the President receives a report from a Governor or otherwise had such information that the Government of the State is not being carried on in accordance with the provisions of the Constitution, the President is entitled to consider such report and reach his satisfaction in accordance with law. '· ·~ . .. . ., S.R. BOMMAI v. U.0.1. [K. RAMASWAMY, J.] 967 A person who challenges the presidential proclamation must prove A strongprima facie case that the presidential proclamation is unconstitution- al or invalid and not in accordance with law. On the Court's satisfying that the strong prima facie case has been made out and if it is a High Court, it should record reasons before issuing "discovery order nisi 1 1, summoning the records from the Union of India. The Government is entitled to claim privilege under Section 123 of the Indian Evidence Act and also the claim under Article 74(2) of the Constitution. The Court is to consider the records in camera before taking any further steps in the matter. Article 74(2) is not a barrier for judicial review. It only places limitation to examine whether any advice and if so what advice was tendered by the Council of Ministers to the President. Articles 74(2) receives only this limited protec­ tive canopy from disclocure, but the material on the basis of which the advice was tendered by the council of Ministers is subject to judicial scrutiny. The Union of India, when discovery order nisi is issued by this Court, D would act in aid of the Court under Article 142(2) and is enjoined to produce the material, the foundation for action under Art. 356. As held earlier before calling upon the Union to produce the material, the Court must first find strongprima facie case and when the records are produced they are to be considered in camera. Judicial review is a basic feature of the Constitution. This Court/High Courts have constitutional duty and responsibility to exercise judicial review as centinal quevive. Judicial review is not concerned with the merits of the decision, but with the manner in which the decision was taken. The exercise of the power under Article 356 is a constitutional exercise of the F power, the normal subjective satisfaction of an administrative decision on objective basis applied by the Courts to administrative decision by subor­ dinate officers or quasi-judicial or subordinate legislation does not apply to the decision of the President under Article 356. Judicial review must be distinguished from the justiciability by the G Court. The two concepts are not synonymous. The power of judicial review is a constituent power and cannot be abdicated by judicial process of interpretation. However, justiciability of the decision taken by the President is one of exercise of the power by the Court hedged by self-imposed judicial restraint. It is a cardinal principle of our Constitution that no-one, how- H %8 SUPREME COURT REPORTS [1994] 2 S.C.R. A soever lefty, can claim to be the sole judge of the power given under the Constitution. Its actions are within the confines of the powers given by the Constitution. This court as final orbiter in interpreting the Constitution, declares what the law is. Higher judiciary has been assigned a delicate task to determine what powers the Constitution has conferred on each branch of the Government and whether the actions of that branch transgress such limitations, it is the duty and responsibility of this court/High court to lay down the law. It is the constitutional duty to uphold the constitutional values and to enforce the constitutional limitations as the ultimate inter- C preter of the Constitution. The Judicial review, therefore, extends to ex­ amine the constitutionality of the procla~ation issued by the President under Article 356. It is a delicate task, though loaded with political over­ tones, to be exercised with circumspection and great care. In deciding finally the validity of the proclamation, there cannot be any hard and fast rules or fixed set of rules or principles as to when the President's satisfac- ' D ti on is justiciable. and valid. Justiciability is not a legal concept with a fixed content, nor is it siisceptible of scientific verification. Its. use is the result of many pressures or variegated reasons. J usticiability may be looked at from the point of view E of common sense limitation. Judicial review may be avoided on questions of purely political nature, though pure legal questions camouflaged by the political questions are always justiciable. The Courts must have judicially manageable standards to decide a particular controversy, Justiciability on a subjective satisfaction confered in the widest terms to the political F co-ordinate executive branch created by the constitutional. scheme itself is one of the considerations to.· be kept in view in exercising• judicial review. There is an initial presumption that the acts have been regularly performed by the President. The provision to Article 74(1) re-enforces that on the advice G tendered by the Council of Ministers to the President, the latter actively applies his mind and reaches the satisfaction that a situation has arisen in which the Government of the State cannot be carried on in accordance with tlie provisions of the Constitution. The word "otherwise" enlarges the Width and ambit of satisfaction reached by the President. In some cases H such satisfaction lacks judicially manageable standards for resolution. The .--< ' I . ., S.R. BOMMAI v. U.O.l. [K. RAMASWAMY, J.] 969 abuse of the power by high constitutional functionaries cannot be assumed, A but must be. strictly proved. It also cannot be assumed that the presidential proclamation was lightly issued. The exercise of discretionary satisfaction may depend on diverse varied and variegated circumstances. The constitu- tion confided exercise of the power under Article 356 io the highest executive of the land, the President of India aided and advised by the Council of Mioisters at its head by the Prime Minister. The Prime Minister and his Council of Ministers are collectively and individually responsible to the Parliament and accountable to the people. Confidence reposed on the highest executive itself is'a circumstance to be kept in view in adjudging whet.her the sati,faction reached by the President is vitiated by law. It is impermissible to attribute bad faith or personal ma/a fides to the President in the face of constitutional prohibition of answerability by Article 361. But if the proof of ma/a fide abuse of power is available, appropriate remedy would be available in the Constitution under Article 61. The decision can b~ tested on the ground of legal ma/a fides, or high D irrationality in the exercise ofJhe discretion to issue presidential proclama­ tion. Therefore, the satisfaction reached by the President for issuing the proclamation under Article 356 must be tested only on those grounds of unconstitutionality, but not on the lirounds that the material which enabled him to reach the satisfaction was not sufficient or ioadequate. The traditional parameters of judicial review, therefore, cannot be extended to the area of E exceptional and extra-ordinary powers exercised under Article 356. The doctrine of proportionality cannot be extended to the power exercised under Article 356. The ultimate appeal over the action of the President is to the electorate and judicial self-restraint is called in aid, io which event the faith of the people in the efficacy of the judicial review would be strengthened and the judicial remedy becomes meaningful. Under Article 356 as soon as the proclamation was issued, under sub-clause (3) of Article 356, the President shall seek its approval from both Houses of Parliament within two months from the date of its issue unless it is revoked in the meanwhile. A consistent constitutional conven­ tion has been established that on issuing the proclamation the President on his assumption of the function of the Government of the State directs the Governor to exercise all the executive functions of the Government of the State with the aid and advice of the appointed Advisors. He declares that the po.wer of the legislature of the state shall be exer-cisable by or under H 970 SUPREME COURT REPORTS [1994) 2 S.C.R. A the authority of the Parliament and makes incidental and consequential provisions necessary to give effect to the object of proclamation by suspending whole or any part of the operation of any provision of the Constitution relating to any body or authority of the State which includes dissolution of the Legislative Assembly and removal of the State Govern- ment. The Parliament exercises the legislative power thereon under Article 357 and in turn it confers on the President the powers relating to entries in List II of the Vil Schedule. The governor of the State with the aid and advice of the advisors exercise the executive functions on behalf of the President. The convention attained the status of law. This consistent law has been operating without any constitutional hiatus. Granting of stay of C operation of presidential proclamation creates constitutional and ad­ ministrative hiatus and incongruity. The Union and the State simultaneous­ ly cannot operate the legislative a\ld executive powers in List II of Schedule 7 of the Constitution. Thereby the simultaneous bycameral functions by the Union and the State is an anthema to the democratic principle and D constitutional scheme. It would lead to incongruity and incompatability. There is no express provision in the Constitution to revive the As­ sembly dissolved under the Presidential proclamatiLn or to reinduct the removed Government of the State. In interpreting the constitution on the working of the democratic institutions set up under the Constitution, it is E impermissible to fill the gaps or to give directions to revive the dissolved assembly and to reinduct the dismissed government of the State into office. Equally stay cannot be granted of the operation of the presidential proclamation till both Houses of Parliament approve the presidential proclamation. The suspension without dissolution of the legislative As- F sembly of the State also creates functional disharmony leading to constitu­ tional crisis. The grant of stay of elections to the legislative assembly, occasioned pursuant to the presidential proclamation, also creates con­ stitutional crisis. Therefore, the courts should not issue such directions leaving it to the Parliament to amend the Constitution if need be. G The floor lest, may be one consideration which the Governor may keep in view. But whether or not to resort to it would depend on prevailing situation. The possibility of horse trading also to be kept in view having regard to the prevailing political situation. It is not po;sible to formulate or comprehend a set of rules for the exercise of the power by the Governor H to conduct floor test. The Governor should be left free to deal with the ' ,. . S.R. BOMMAI v. U.0.1. [VE[\MA, J.] 971 situation according to his best judgment keeping in view the Constitution A and the conventions of the Parliamentary system of Government. Though Sarkaria Commission and Rajamanner Commission, headed by two distin­ guished Judges of this land, recommended floor test, it could only mean that is consideration which must cross the mind of the Governor. It would be suffice to say that the Governor should be alive to the situation but the sole Judge on the question whether or not conditions are conducive to resort to floor test. The satisfaction reached by the President in issuing presidential proclamation and dissolving the legislative assemblies of Madhya Pradesh, Rajasthan and Himachal Pradesh cannot be faulted as it was based on the C fact of violation of the secular features of the constitution which itself is a ground to hold that a situation has arisen in which the Government of the concerned states cannot be carried on in accordance with the provisions of the Constitution. Therefore, the satisfaction cannot be said to be unwar­ ranted. The appeals of the Union from the judgment of the Madhya D Pradesh High Court is allowed accordingly and the judgment of the High Court is set aside. The dissolution of the Meghalaya Assembly though vulnerable to attack as unconstitutional, it has become infructuous due to subsequent elections and the newly elected state legislature and the Government of the State of Meghalaya are functioning thereafter. There­ fore, no futile writs could be issued as the court does not act in vain. The E appeal of Bommai's and the transferred petitions are accordingly dis­ missed, but in the circumstances without costs. VERMA, J. This separate opinion is occasioned by the fact that in our view the area of justiciability is even narrower than lhat indicated in F the elaborate opinions prepared by our learned brethren. The purpose of this separate note is merely indicate the area of such difference. It is unnecessary to mention the facts and discuss the factors which must guide the exercise of power under Article 356 which have been elaborately discussed in the other opinions. Indication of these factors including the G concept of seculafism for proper exercise of the power does not mean necessarily that the existence of these factors is justiciable. In our view, these factors must regulate the issuance of a proclamation under Article 356 to ensure proper exercise of the power but the judicial scrutiny thereof is available only in the limited area indicated hereafter, the remaining area being amenable to scrutiny and correction only by the Parliament and the H A subsequent electoral verdict. There is no dispute that the proclamation issued under Article 356 is subject to judicial review. The debate is confined essentially to the scope of judicial review or the area of justiciability in that sphere. It does appear that the area of justiCiability is narrow in view of the nature of that power and the wide discretion which inheres its exercise. This indication appears also from the requirement of approval of the proclamation by the Parlia­ ment which is a check provided in the Constitution of scrutiny by political process of the decision taken by the Executive. The people's verdict in the election which follow is intended to be the ultimate check. To determine the justiciable area, we prefer to recall and keep in view that which was said in K. Ashok Reddy v. The Government of India Or.i., JT (1994) 1 S.C. 401 thus: "21. A useful passage from Craig's Administrative Law (Second Edition) is as under: "The traditional position was that the courts would control the existence and extent of prerogative power, but not the manner of exercise thereof, ....... The traditional position has however now been modified by the decision in the G.C.H.Q. case.· Their Lordships emphasised that the reviewability of discretionary power should be dependent upon whether its source was statute or the prerogative. Certain exercises of prerogative power would, because of their subject-matter, be less justiciable, with Lord Roskill com- piling the broadest list of such forbidden territory ............. " (at page 291) 22. In Council of Civil Service Unions and Others v. Minister for the Civil Service, {1985) AC. 374 [G.C.H.Q.], Lord Roskill stated thus: "But I do not think that that right of challenge can be unqualified. It must, I think, depend upon the subject matter or the prerogative power which is exercised. Many examples were given during the argument of prerogative powers which as at present advised I do not think could properly be made the subject of judicial review. Prerog3.tive powers such as those relating to the making of treaties, The defence of the realm, the prerogative of mercy, the grant of .. S.R. BOMMAI v. U.O.l. [VERMA, J.] 973 honours, the dissolution of Parliament and the appointment of A ministers as well as others are not, I think, susceptible to judicial review because their nature and subjCct matter are such as not to be amenable to the judicial process ......... " (at page 418) 23. The same indication of judicial self-restraint in such matters is to be found in De Smith's Judicial Review of Administrative Action, thus: 11 Judicial self-restraint was still more marked in cases where attempts were made to impugn the exercise of discretionary powers by alleging abuse of the discretion itself rather than alleging non­ existence of the state of affairs on which the validity of its exercise was predicated. Quite properly, the courts were slow to read implied limitations into grants to wide discretionary powers which might have to be exercised on the basis of broad considerations of national policy ........... "(at page 32) It is also useful to refer to Puhlhofer and Anr. v. Hi/lingdon London Borough council, (1986) Appeal Cases 484, wherein Lord Brightman with whom the other Law Lords agree, stated thus: 11 Where the existence or non existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting pe.rver.sely. 11 In our view, this principle is equally applicable in the present case to determine the extent to which alone a proclamation issued under Article 356 is justiciable. The question now is of the test applicable to determine the situation G in which the power of judicial review is capable of exercise or, in other words, the controversy is justiciable. The deeming provision in Article 365 is an indication that cases falling within its ambit are capable of judicial scrutiny by application of objective standards. The facts which attract the legal fiction that the constitutional machinery has failed arc specified and H A, their existence is capable of objective determination. It is, therefore, reasonable to hold 'that the cases falling under Article 365 are justiciable. The expression 'or otherwise' in Article 356 indicates the wide range of the materials which may be taken into account for the formation of opinion by the President. Obviously, the materials could consist of several imponderables including some matter which is not strictly legal evidence, the credibility and authenticity of which is .incapable of being tested in law. courts. The ultimate opinion formed in such cases, would be mostly a subjective political judgement. There are no judicially manageable stand­ ards for scrutinising such materials and resolving such a controversy. By its very nature such controversy cannot be justiciable. It would appear that all such cases are, therefore, not justiciable. lt would appear that situations wherein the failure of constitutional machinery has to be inferred subjectively from a variety of facts and circumstances, including some imponderables and inferences leading to a D subjective political decision, judicial scrutiny of the same is not permissible for want of judicially manageable standards. These political decisions call for judicial hands of envisaging correction only by a subsequent electoral verdict, unless corrected earlier in Parliament. In other words, only cases which permit application of totally objec­ tive standards for deciding whether the constitutional machinery has failed, are amenable to judicial review and the remaining cases wherein there is any significant area of subjective satisfaction dependent on some im­ ponderables or inferences are not justiciable because there are no judicially manageable standards for resolving that controversy; and those cases are subject only political scrutiny and correction for w~a!ever its value in the existing political scenario. This appears to be the constitutional scheme. The test for adjudging the validity of an administrative action and the grounds of its invalidity indicated in 77ie Barium Chemicals Ltd. and Anr. G v. 77ie Company Law Board and Ors., (1966] Supp. SCR 311, and other cases of that category have no application for testing and invalidating a proclamation issued under Article 356. The test applicable has been indi­ cated above and the grounds of invalidity are those mentioned in State of Rajasthan & Ors. Etc. Etc. v. Union of India Etc. Etc., [1978] 1 SCR l. H Article 74(2) is no bar to production of the materials on which the ... S.R. BOMMAI v. U.0.1. [VERMA, J.) 975 ministerial advice is based, for ascertaining whether the case falls within A the justiciable area a!ld acting on it when the controversy, is found justici­ able, but that is subject to the claim of privilege under Section 123 of the Evidence Act, 1872. This is considered at length in the opinion of Sawant, J. We, therefore, regret our inability to concur with the different view on this point taken in State of Rajasthan & Ors. v. Union of India etc. etc., (1978] 1 SCR 1, even though we agree that the decision does not require any reconsideration on the aspect of area of justiciability and the grounds of invalidity indicated therein. In the above view, it follows that no quia timet action would be permissible in such cases in view of the limited scope of judicial review: C and electoral verdict being the ultimate check, courts can grant substantive relief only if the issue remains live in cases which are justiciable. In Kihoto Hol/ohan v. Zachil/hu and Ors., [1992] Supp. SCC 651, it was stated thus: "In view of the limited scope of judicial review that is available on account of the finality clause in Paragraph 6 and also having regard D to the constitutional intendment and the status of the repository of the adjudicatory power i.e. Speaker/Chairman, judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman and a quia timet action would not be per­ missible. Nor would interference be permissible at an interlocutory E stage of the proceedings." It is also clear that mere parliamentary approval does not have the effect of excluding judicial review to the extent permissible. In Sarojini Ramaswami (Mrs.) v. Union of India & Ors., (1992] 4 SCC 506, it has been stated thus: F "72. We may, however, add that the intervention of the parliamen- tary part of the process, in case a finding of guilty is made, which according to Shri Sibal would totally exclude judicial review there­ after is a misapprehension since limited judicial revie\l<' even in that G area is not in doubt after the decision of this Court in Keshav Singh. 11 73. At this stage, a reference to the nature and scope of judicial review as understood in similar situations is helpful. In Administra- tive Law (Sixth Edition) by H.W.R. Wade, in the chapter "Con- H A stitutional Foundations of the Powers of the Courts" under the heading 'The Sovereignty of Parliament', the effect of Parliament's intervention is stated thus: (at page 29) " ...... There are many cases where some administrative order or regulation is required by statute to be approved by resolutions of the Houses. But this procedure in no way protects the order or regulation from being condemned by the court, under the doctrine of ultra vires, if it is not strictly in accordance with the Act. Whether the challenge is made before or after the Houses have given their approval is immaterial. 11 Later at p. 411, Wade has said that "in accordance with constitu­ tional principle, parliamentary approval does not affect the normal operation of judicial review''. At p. 870 while discussing 'judicial Review', Wade indicates the position thus: ' 1 As these cases show, judicial review is in no way inhibited by the fact that rules or regulations have been laid before Parliament and approved, despite the ruling of the House of Lords that the test of unreasonableness should not then operate in its normal way. The Court of appeal has emphasised that in the case of subordinate legislation such as in Order in council approved in draft by both House;1the Courts would without doubt be competent to consider whether or not the order was properly made in the sense of being intra vires '." 74. The clear indication, therefore, is that mere parliamentary approval of an action or even a report by an outside authority when without such approval, the action or report is ineffective by itself, does not have the effect of excluding judicial review on the per­ missihle grounds. 11 Applying this principle, only the Meghalaya case is justiciable and G that proclamation was invalid while those relating to Madhya Pradesh, Himachal Pradesh, Rajasthan and Karanataka are not justiciable. There is rightly no challenge to the proclamation relating to U ttar Pradesh. However, in view of the subsequent elections held in Meghalaya, that is no longer a live issue and, thirefore, there is no occasion to grant any H substantial relief, even in that case. ., S.R. BOMMAI v. U.0.1. [AHMADI,J.] 977 It is to this extent our view differ's on the question of justiciability. A On this view, it is unnecessary for us to express any opinion on the remaining matters. According to us, except to the extent indicated, the decision in State of Rajastha11 & Ors. Etc. Etc. v. Union of India Etc. Etc., [1978] 1 SCR 1, does not require reconsideration. AHMADI, J. I have had the advantage of perusing the views ex­ pressed by my esteemed colJeagues P.B. Sawant, K. Ramaswamy and B.P. Jeevan Reddy. JJ. and while I am largely in agreement with the 'conclusions' recorded by K. Ramaswamy, J. I would like to briefly indicate the area of my agreement. In a country geographically vast, inhabited by over 850 million people belonging to different religions, castes and creeds, majority of them living in villages under different social orders and in abject poverty, with a constant tug of war between the organised and the unorganised sectors, it is not surprising that problems crop up time and again requiring strong D and at times drastic state action to preserve the unity and integrity of the country. Notwithstanding these problems arising from time to time on account of class conflicts, religious intolerance and socio- economic im­ balances, the fact remains that India has a reasonably stable democracy. The resilience of our Republic to face these challenges one after another has proved the peoples' faith in the political philosophy of socialism, E secularism and democracy enshrined in the Preamble of our Constitution. Yet, the fact remains that the nation has had from time to time with increasing frequency to combat upheavals occasioned on account of militancy, communal and class conflicts, politico religious turmoils, strikes, bandhs and the like occurring in one corner of the country or the other, at F times assuming ugly proportions. We are a crisis-laden country; crisis situations created by both external and internal forces necessitating drastic State action to preserve the security, unity and integrity of the country. To deal with such extraordinarily difficult situations exercise of emergency power becomes an imperative. Such emergency powers existed under the Government of India Act, 1935, vide Sections 93 and 45 of that enactment. G However, when similar powers were sought to be conferred on the Presi· dent of India by the Constitution, there was a strong opposition from many members of the Constituent Assembly, vide constituent assembly Debates on draft Articles 277 and 277A. Dr. Ambedkar pacified the members by stating: H 07g SUPREME COURT REPORTS [1994] 2 S.C.R. "In fact I share the sentiments expressed ....... that the proper thing we ought to expect is that such Articles will never be called into operation and that they will remain a dead letter. If at all, they are brought into operation, I hope the President who is endowed with all these powers will lake proper precautions before actually suspending the administration of the provinces. I hope the first thing he will do would be to issue a clear 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". Dr. Ambedkar's hope that in rarest of rare cases only there will be an C occasion to invoke the emergency provisions was soon belied as we were told al the Bar that the provisions of Article 356 of the Constitution have had to be invoked over ninety times by now. What was, therefore expected to be a 'dead letter' has in fact become an oft-invoked provision. This is not the occasion to embark on an inquiry into the circumstances leading D lo the utilisation of this emergency power, but the fact remains that the President has had to invoked the power quite frequently. This may be on account of the degradation in the political environment of the country. Since I am not probing into the circumstances in which the said power had to be invoked, I do not express myself on the question whether or not there existed adequate justification for resorting to this emergency power. Although the emergency provisions found in Part XVIII of the Constitution are more or less modelled on the pattern of similar provisions contained in the Government of India Act, 1935, the cxcrt:ise of that power under the said provisions cannot be compared with its exercise under the Constitution for the obvious reason that they operated under totally dif­ ferent conditions. Under the Government of India Act, 1935, the Governor General and the Governor exercised as representatives of the Crown near absolute powers, only limited powers were given to the elected govern­ ments and those too could be taken away if it was foll that the concerned Government could nol be carried on in accordance therewith. So also G reference to the British Joint Parliamentary Report is inapposite for the simple reason that the situation under the constitution is not comparable with that which formed the basis for the Report. The Power conferred on the President of India under Article 356 has to be exercised in a wholly different political set up as compared to that obtaining under the Govern­ ment of India Act, 1935. The constitutional philosophy of a free country is H totally different from the philosophy, of a similar law introduced for the ,. S.R. BOMMAI v. U.0.1. [AHMADI, J.] 979 . governance of a country by its colonial masters. It is, therefore, unnecessary A to examine the case law based on the exercise of similar powers under the Government of India Act, 1935. FEDERAL CHARACTER OF THE CONSTITUTION India, as the Preamble proclaims, is a Sovereign, Socialist, Secular, B Democratic Republic. It promises liberty of thought, expression, belief, faith and worship, besides equality of status and opportunity. What is paramount is the unity and integrity of the nation. In order to maintain the ' unity ·and integrity of the nation our founding fathers appear to have leaned in favour of a strong centre while distributing the powers and functions C between the Centre and the States. This becomes obvious from even a cursory examination of the provisions of the Constitution. There was considerable argument at the Bar on the question whether our Constitution could be said to be 'Federal' in character. In order to understand whether our Constitution is truly federal, it D is essential to know the true concept of federalism. Dicey calls it a political contrivance for a body of states which desire Union but not unity. Federalism is, therefore, a concept which unites separate States into a Union without sacrificing their own fundamental political integrity. Separate States, therefore, desire to unite so that all the member-States E may share in formulation of the basic policies applicable to all and par­ ticipate in the execution of decisions made in pursuance of such basic policies. Thus the essence of a federation is the existence of the Union and the States and the distribution of powers between them. Federalism, there­ fore, essentially implies demarcation of powers in a Federal compact. The oldest federal model in the modem world can be said to be the Constitution of the United States of America. The American federation can be described as the outcome of the process of evolution, in that, the separate States first formed into a Confederation (1781) and then into a Federation (1789). Although the States may have their own Constitutions, the Federal Constitution is the suprema-lex and is made binding on the G States. That is because under the American constitution, amendments to the Constitution are required to be ratified by three-fourths of the States. . • Besides under that constitution there is a single legislative list enumerating the powers of the Union and, therefore, automatically the other subjects are left to the States. This is evident from the Tenth Amendment. Of H A course, the responsibility to protect the States against invasion is of the Federal Government. The States are, therefore, prohibited from entering into any treaty, alliance, etc., with any foreign power. The principle of dual sovereignty is carried in the judicial set up as well since disputes under federal laws are to be adjudicated by federal courts, while those under B State Laws are to be adjudicated by State Courts, subject of course to an appeal to the Supreme Court of the United States. The interpretation of the Constitution is by the United States Supreme Court. We may now read some of the provisions of our Constitution. Article 1 of the Constitution says: India, that is Bharat, shall be a Union of States. C Article 2 empowers Parliament to admit into the Union, or establish, new States on such terms and conditions as it thinks fit. Under Article 3 Parliament can by law form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State; increasing the area of any State; diminishing D the area of any State; altering the boundaries of any State; or altering the name of any State. The proviso to that Article requires that the Bill for the purpose shall not be introduced in either House of Parliament except on the recommendation of the President and unless, where the proposal contained in the Bill affects the area, boundaries or name of any of the States, the Bill has been referred by the President to the Legislature of that State. for expressing its views thereon. On a conjoint reading of these Articles, it becomes clear that Parliament has the right to form new States, alter the areas of existing States, or the name of any existing State. Thus the Constitution permits changes in the territorial limits of the States and does not guarantee their territorial integrity. Even names can he changed. Under Article 2 it is left to the Parliament to determine the terms and conditions on which it may admit any area into the Union or establish new States. In doing so, it has not to seek the concurrence of the State whose area, Boundary or name is likely to be affected by the proposal. All that the proviso to Article 3 requires is that in such cases the President shall G refer the Bill to the legislatures of the concerned states likely to be affected 'to express their views'. Once the views of the States ~re known, it is left to Parliament to decide on the proposed changes. The Parliament can, therefore, without the concurrence of the concerned state or States change the boundaries of the State or increase or diminish its area or change its name. These provisions show that in the matter of constitution of States, H . Parliament is paramount. This scheme substantially differs from the federal S.R. BOMMAI v. U.0.1. [AI·IMADl,J.] 981 set up established in the United States of America. The American States A were independent sovereign States and the territorial boundaries of those independent States cannot be touched by the Federal Oovernment. It is these independent sovereign units which together decided to form into a Federation unlike in India where the States were not independent sovereign units but they were formed by Article 1 of the Constitution and their areas and boundaries could, therefore, be altered, without their concurrence, by Parliament. It is well- known that since independence, new States have been created boundaries of existing States have been altered, States have been renamed and individual States have been extinguished by Parliamentary legislation; 2. Our founding fathers did not deem it wise to shake the basic structure of Government and in distributing the legislative functions they, by and large, followed the pattern of the Government of India Act, 1935. Some of the subjects of common interest were, however, transferred to the Union List, thereby enlarging the powers of the Union to enable speedy D and planned economic development of the nation. The scheme for the distribution of powers between the Union and the States was largely maintained except that some of the subjects of common interest were transferred from the Provincial List to the Union List thereby strengthen- ing the administrative control of the Union. It is in this context that this Court in 'State of West Bengal v. union of India, (1964] 1 SCR 371 at E 397,observed: "The exercise of powers, legislative and executive, in the allotted fields is hedged in by the numerous restrictions so that the powers of the States are not co-ordinate with the Union and are not in many respects independent." · In Union of India v. H.S. Dhillon, AIR (1972) SC 1061 at 1067 (Paragraph 14) = (1972] 2 SCR 33, another feature in regard to the distribution of Legislative power was pointed out, in that, under the Government of India Act, 1935, the residuary power was not given either G to the Union Legislature or to the provincial Legislatures, but under our Constitution, by virtue of Article 248, read with Entry 97 in List I of the VII Schedule, the residuary power has been conferred on the Union. This arrangement substantially differs from the scheme of distribution of powers in the United States of America where the residual powers are with the H A States. The Preamble of our Constitution shows that the people of India had resolved to constitute India into a Sovereign Secular Democrati_c Republic and promised to secure to all its citizens Justice, Liberty and Equality and to promote among them all Fraternity assuring the dignity of the individual and the unity and integrity of the Nation. In the people of India, therefore vests the legal sovereignty while the political sovereignty is distributed between the Union and the States. Article 73 extends the executive power of the Union to matters with respect to which Parliament has power to make laws and to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement. The executive power which is made co-extensive with Parliament's power to make laws shall nat, save as expressly provided by the Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State also has power D to make laws. Article 162 stipulates that the executive power of a State shall extend to matters with respect to which the Legislature of the State has power to make laws provided that in any matter with respect to which the legislature of State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by the Constitution or by any law made by Parliament upon the Union or authorities thereof. It may also be noticed that the executive power of every State must be so exercised as not to impede or prejudice the exercise of the executive power by the Union. The executive power of the Union also extends to giving such directions to a State as may appear to the Government of India to be necessary for those purposes and as to the construction, maintenance of means of communica­ tion declared to be of national or military importance and for protection of railways. The States have to largely depend on financial assistance from the Union. Under the scheme of Articles 268 to 273, States are in certain cases allowed to collect and retain duties imposed by the Union; in other cases taxes levied and collected by the Union are assigned to the States G and in yet other cases taxes levied and collected by the Union are shared with States. Article 275 also provides for the giving of grants by the Union to certain States. There is, therefore, no doubt that States depend for financial assistance upon the Union since their power to raise resources is limited. As economic planning is a concurrent subject, every major project H must receive the sanction of the Central Government for its financial · ' S.R. BOMMAI v. U.0.1. [AHMADl,J.] 983 assistance since discretionary power under Article 282 to make grants for A public purposes is vested in lhe Union or a State, notwithstanding that the purpose is one in respect to which Parliament or State Legislature can make laws. It is only after a project is finally sanctioned by the Central Government that the State Government can execute the same which demonstrates the control that the Union can exercise even in regard to a matter on which the State can legislate. In addition to these controls Article B 368 confers powers on the Parliament to amend the Constitution, albeit by a specified majority. The power extends to amending matters pertaining to the executive as well as legislative powers of the States if the amendments are ratified by the legislatures of not less than one-half of the States. This provision empowers Parlian1ent to so amend the Constitution as to curtail the powers of the States. A strong Central Government may not find it difficult to secure the requisite majority as well as ratification by one-half of the legislatures if one goes by past experience. These limitations taken together indicate that the Constitution of India cannot be said to be truly federal in character as understood by lawyers in the United States of D America. In State of Rajasthan v. Union of India, A.LR. (1977) S.C. 1361 [1978] 1 S.C.R. 1 Beg. C.J., observed in paragraph 51 as under :- "A conspectus of the provisions of our Constitution will indicate E that whatever appearances of a federal structure our Constitution may have, its operations are certainly, judged both by the contents of power which a number of its provisions carry with them and the use that has been made of them, more unitary than federal."· Further, in paragraph 52, the learned Chief Justice proceeded to add :- F 11 In a sense, therefore, the Indian Union is federal. But, the extent of federalism in it is largely watered down by the needs of progress and development of a country which has tq be nationally in­ tegrated, politically and economically co-ordinated, and socially, G intellectually and spiritually uplifted. In such a system, the States cannot stand in the way of legitimate and comprehensively planned development of the country in the manner directed by the Central Government. 11 Pointing out that national planning involves disbursement of vast amount H A of money collected as taJCes from citizens spread over all the States and placed at the disposal of the Central Government for the benefit of the ·states, the learned Chief Justice proceeds to observe in paragraph 56 of the judgment :- "If then our Constitution creates a Central Government which is 'amphibian' in the sense that it can move either on the federal or unitary plane, according to the needs of the situation and cir­ cumstances of a case, the question which we are driven back to consider is whether on assessme.nt of the 'situation' in which the Union Government should move either on the Federal or Unitary plane are matters for the Union Government itself or for this Court to consider and determine. 11 When the Union Government issued a notification dated 23rd May, 1977 constituting a Con1mission of Inquiry in exercise of its power under section 3 of the Commissions of Inquiry Act, 1952, to inquire into certain allega- D tions made against the Chief Minister of •he State, the State of Karnataka instituted a suit under Article 131 of the Constitution challenging the legality and validity of the notification as unjustifiable trespass upon the domain of State powers. While dealing with the issues arising in that suit The State of Kamataka v. Union of India A.I.R. (1978) S.C. 68 = (1978] 2 E S.C.R. 1 - Beg, C.J., once again examined the relevant provisions of the Constitution and the Commission of Inquiry Act, 1952, and observed in paragraph 33 as under :- 11 In our country, there is, at the top, a Central or the Union Government responsible to Parliament, and there are, below it, State Governments, responsible to the State Legislatures, each functioning within the sphere of its own powers which are divided into two categories, the exclusive and the concurrent. Within the exclusive sphere of the powers of the State Legislature is local Qovernment. And, in all States there is a system of local Govern­ ment in both Urban and Rural areas, functioning under State enactments. Thus, we can speak of a three tier system of Govern­ ment in our country in which the Central or the Union Government comes at the apex ...... 11 It would thus seem that the Indian Constitution has, in it, not only features H of a pragmatic federalism which, while distributing legislative powers and • " ~ "1 S.R. BOMMAI v. U.0.l. [AHMADI,J.) 985 indicating the spheres of Governmental powers of State and Central A Governments, is overlaid by strongly 'unitary' features, particularly ex­ hibited by lodging in Parliament the residuary legislative powers, and in the Central Government the executive power of appointing certain Constitu­ tional functionaries including High Court and Supreme Court Judges and issuing appropriate directions to the State Governments and even displac­ B ing the State Legislatures and the Government in emergency situations, vide Articles 352 to 360 of the Constitution. It is common knowledge that shortly after we constituted ourselves into a Republic, the Princely States gradually disappeared leading to the unification of India into a single polity with duality of governmental agen- c cies for effective and efficient administration of the country under Central direction and, if I may say so, supervision. The duality of governmental organs on the Central and State levels reflect demarcation of functions in a manner as would ensure the sovereignty and integrity of our country. The experience of partition of the country and its aftermath had taught lessons D which were too fresh to be forgotten by our Constitution-makers. It was perhaps for that reason that our founding fathers thought a strong centre was essential to ward off separatist tendencies and consolidate the unite and integrity of the country. A Division Bench of the Madras High Court in N.Karnnanidhi v. E Union of India, A.I.R. {1977} Madras 192, w_hile dealing with the contention that the Constitution is a federal one and that the States are autonomous having definite powers and independent rights to govern, and the Central Government has no right to interfere in the governance of the State, observed as under :- F 11 •••••••••• There may be a federation of independent States, as it is in the case of the United States of America. As the name itself denotes, it is a Union of States, either by treaty or by legislation of the concerned States. In those cases, the federating units gave G certain powers to the federal Government and retained some. To apply the meaning to the word 'federation' or 'autonomy' used in the context of the American Constitution, to our Constitution will be totally misleading." After tracing the history of the governance of the country under the British H A rule till the framing of our Constitution, the court proceeded to add as follows:- "The feature of the Indian Constitution is the establishment of a Government for governing the entire country. In doing so, the Constitution prescribes the powers of the Central Government and the powers of the State Governments and the relationship between the two. In a sense, if the word 'federation' can be used at all, it is a federation of various States which were designated under the Constitution for the purpose of efficient administration and gover­ nance of the country. The powers of the Centre and the States are demarcated under the Constitution. It is futile to suggest that the States are independent, sovereign or autonomous units which had joined the federation under certain conditions. No such State ever existed or acceded to the Union." Under our Constitution the State as such has no inherent sovereign power or autonomous power which cannot be encroached upon by the Centre. The very fact that under our Constitution, A. tide 3, Parliament may by law form a new State by separation of territory from any State or by uniting two or more State or parts of States or by uniting any territory to a part of . any State, etc., militates against the view that the States are sovereign or autonomous bodies having definite independent rights of governance. In fact, as pointed out earlier in certain circumstances the Central Govern­ ment can issue directions to States znd in emergency conditions assume far-reaching powers affecting the states as well, and the fact that the President has powers to take over the administration of states demolishes F the theory of an independent or autonomous existence of a State. It must also be realised that unlike the Constitution of the United States of America which recognises dual citizenship (Sec.1 {1), Fourteenth Amend­ ment), the Constitution of India, Article 5, does not recognise the concept of dual citizenship. Under the American Constitution all persons born or naturalised in the United States, and subject to the jurisdiction thereof, are G citizens of the United States and of the State wherein they reside whereas under Article 5 of the Indian Constitution at its commencement, every person domiciled in the territory of India and (a) who was born in the territory of India; or (b) either of whose parents was born in the territory of India; or {c) who has been ordinarily resident in the territory of India H for not less than five years immediately preceding such commencement .., S.R. BOMMAI v. U.0.1. [AHMADI, J.] 987 . shall be a citizen of India. Article 9 makes it clear that if any person A voluntarily acquires the citizenship of any foreign country, he will cease to be a citizen of India. These provisions clearly negative the concept of dual citizenship, a concept expressly recognised under the American Constitu­ tion. The concept of citizenship assumes some importance in a federation because in a country which recognises dual citizenship, the individual would owe allegiance both to the federal Government as well as the State Government but a country recognising a single citizenship does not face complications arising from dual citizenship and by necessary implication negatives the concept of State sovereignty. Thus the significant absence of the expressions like 'federal' or C 'federation' in the constitutional vocabulary, the Parliament's powers under Articles 2 and 3 elaborated earlier, the extraordinary powers conferred to meet emergency situations, the residuary powers conferred by Article 248 read with Entry 97 in List I of the VII Schedule on the Union, the power to amend the Constitution, the power to issue directions to States, the D concept of a single citizenship, the set up of an integrated judiciary, etc., etc., have led constitutional experts to doubt the appropriateness of the appellation 'federal' to the Indian Constitution. Said Prof. K.C. Where in his work 'FederaJ Government' "What makes one doubt that the Constitution of India is strictly E and fully federal, however, are the powers of intervention in the affairs of the States given by the Constitution to the Central Government and Parliament." Thus in the United States, the sovereign States enjoy their own F separate existence which cannot be impaired; indestructible States having constituted an indestructible Union. In India, on the contrary, Parliament can by law form a new State, alter the size of an existing State, alter the name of an existing State, etc., and even curtail the power, both executive and legislative, by amending the Constitution. That is why the Constitution of India is differently described, more appropriately as 'quasi-federal' G because it is a mixture of the federal and unitary elements, leaning more towards the latter but then what is there in a name, what is important to .i bear in mind is the thrust and implications of the various provisions of the Constitution bearing on the controversy in regard to scope and ambit of the Presidential power under Article 356 and related provisions. H A SECULARISM UNDER THE CONSTITUTION India can rightly be described as the world's most heterogeneous society. It is a country with a rich heritage. Several races have converged in this sub-continent. They brought with them their own cultures, lan­ guages, religions and customs. These diversities threw up their own B problems but the early leadership showed wisdom and sagacity in tackling them by preaching the philosophy of accommodation and tolerance. This is the message which saints and sufis spread in olden days and which Mahatma Gandhi and other leaders of modern times advocated to main­ tain national unity and integrity The British policy of divide and rule, C aggravated by separate electorates based on religion, had added a new dimension of mixing religion with politics which had to be countered and which could be countered only if the people realised the need for national unity and integrity. It was with the weapons of secularism and non-violence that Mahatma Gandhi fought the battle for independence against the mightly colonial rulers. As early as 1908, Gandhiji wrote in Hind Swaraj: "India cannot cease to be one nation, because people belonging to different religions live in it .......... Jn no part of the world are on nationality and on religion synonymous terms; nor has it ever been so in India." Gandhiji was ably assisted by leaders like Pandit Jawaharlal Nehru, Maulana Abu! Kalam Azad and others in the task of fighting a peaceful battle for securing independence by uniting the people of India against separatist forces. In 1945 pandit Nehru wrote: "I am convinced that the future government of free India must be secular in the sense that government will not associate itself directly with any religious faith but will give freedom to all religious functions." G And this was foEowed up by Gandhiji when in 1946 he wrote in Harijan: " I swear by my religion. I will die for it. But it is my personal affair. The State has nothing to do with it. The State will look after your secular welfare, health, communication, foreign relations, currency and so on, but not my religion. That is everybody's personal •· .. ' S.R. BOMMAI v. U.0.1. [AHMADI, J.] 989 concern. 11 The great Statesman-Philosopher Dr. Radhakrishnan said: 'When India is said to be a secular State, it does not mean that we reject reality of an unseen spirit or the relevance of religion to life or that we exalt irreligion. It does not mean that Secularism B itself becomes a positive religion or that the State assumes divine prerogatives. Though faith in the Supreme is the basic principle of the Indian tradition, the Indian State will not identify itself with or be controlled by any particular religion. We hold that no one religion should be given preferential status, or unique distinction, that no C one religion should be accorded special privileges in naiional life or international relations for that would be a violation of the basic principles of democracy and contrary to the best interests of religion and government. This view of religious impartiality, of comprehension and forbearance, has a prophetic role to play within the national and international life. No group of citizens shall D arrogate to itself rights and privileges which it denies to others. No person should suffer any form of disability or discrimination be­ cause of his religion but all like should be free to share to the fullest degree in the common life. This is the basic principle involved in the separation of Church and State." E (Recovery of Faith, New york, Harper brothers 1955, p. 202) (Emphasis supplied.) Immediately after we attained independence, the Constituent Assembly, aware of.the danger of communalism, passed the following resolution on F April 3, 1894-: 11 Whereas it is essential for the proper functioning of democracy and growth of national unity and solidarity that communalism should be eliminated from Indian life, this Assembly is of the G opinion that no communal organisation which by its Constitution or by exercise of discretionary power vested in any of its officers and organs admits to, or excludes from, its membership persons on grounds of religion, race and caste, or any of them should be permitted to engage in any activities other than those essential for the bonafide religious, cultural, social and educational needs of the H community, and that all steps, legislative and administrativ.e, neces­ sary to prevent such activities should be taken." Since il was felt that separate electorates for minorities were respon­ sible for communal and separatist tendencies, the Advisory Committee resolved that the systen• of reservation for minorities, excluding SC/ST, should be done away with. Pursuant to the goal of secularism, the Con­ stituent Assembly adopted clauses 13, 14 and 15 roughly corresponding to the present Articles 25, 26 and 27. During the debates Prime Minister Jawaharlal Nehru declared that secularism was an ideal to be achieved and that establishment of a secular state was an act of faith, an act of faith above all for the majority community because they will have to show that they can behave to others in a generous, fair and just way. When objection was sought to be voiced from certain quarters, Pandit Laxmikantha Mitra explained: "By Secular State, as I understand, it is meant that the state is not going to make any discrimination whatsoever on the ground of religion or community against any person professing any particular form of religious faith. This means in essence that no particular religion in the state will receive any state patronage whatsoever. The state is not going to establish, patronize or endow any par­ ticular religion to the exclusion of or in preference to others and that no citizen in the state will have any preferential treatment or will be discriminated against simply on the ground that he professed a particular form of religion. In other words, in the affairs of the State the preferring of any particular religion will not be taken into consideration at all. This I consider to be the essence of a secular State. At the same time we must be very careful to see that in this land of ours we do not deny to anybody the right not only to profess or practice but also propagate any particular religion. 11 G This in brief was the notion of secularism and democracy during the pre-independence era and immediately before we gave unto ourselves the Constitution. We may now very briefly not,ce the provisions in the Con­ stitution. Notwithstanding the facl that the words 'Socialist', and 'Secular' were H added in the Preamble of the Constitution in 1976 by the 42nd Amend- ) ~·· .. S.R.BOMMAI v. U.0.1. [AHMADl,J.) 991 ment, the concept of Secularism was very much embedded in our Constitu- A tional philosophy. The term 'secular' has advisedly not been defined presumably because it is a very elastic term not capable of a precise definition and perhaps best left undefined. By this amendment what was implicit was made explicit. The Preamble itself spoke of liberty of thought, expression, belief, faith and worship. While granting this liberty the Preamble promised equality of status and opportunity. It also spoke of promoting fraternity, thereby assuring the dignity of the individual and the unity and integrity of the Nation. While granting to its citizens liberty of belief, faith and worship, the Constitution abhorred discrimination on grounds of religion etc., but permitted special treatment for Schedule Castes and Tribes, vide Articles 15 & 16. Article 25 next provided, subject to public order, morality and health, that all person shall be entitled to freedom of conscience and the right to profess, practice and propagate religion. Article 26 grants to every religious denomination or any section thereof, the right to establish and maintain institutions for religious pur­ poses and to manage its own affairs in matters of religion. These two D articles clearly confer a right to freedom of religion. Article 27 provides that no person shall be compelled to pay any taxes, the proceeds whereof are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination. This is an important article which prohibits the exercise of State's taxation power if the proceeds thereof are intended to be appropriated in payment of E expenses for the promotion and maintenance of any particular religion or religious denomination. That means that State's revenue cannot be utilised for the promotion and maintenance of any religion or religious group. Article 28 relates to attendance at religious instructions or religious wor- ship in certain educational institutions. Then come Articles 29 and 30 which refer to the cultural and educational rights. Article 29 inter alia provides that no citizen will be denied admission to an educational institn- tion maintained wholly or partly from State funds on grounds only of religion, etc. Article 30 permits all minorities, whether based on religion or language, to establish and administer educational institutions of their choice and further prohibits the State from discriminating against such G institutions in the matter of granting aid. These fundamental rights enshrined in Articles 15, 16 and 25 to 30 leave no manner of doubt that they form part of the basic structure of the Constitution. Besides, by the 42nd Amendment, Part IVA entitled 'Fundamental Duties' was introduced 992 SUPREME COURT REPORTS (1994) 2 S.C.R. A which inter a/ia casts a duty on every citizen to cherish and follow the noble ideals which inspired our national struggle for freedom, to uphold and protect the sovereignty, unity and integrity of India, to· promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities, and B to value and preserve the rich heritage of our composite culture. These provisions which I have recalled briefly clearly bring out the dual concept of secularism and democracy, the principles of accommodation and tolerance as advocated by Gandhiji and other national leaders. I am, therefore, in agreement with the views expressed by my learned colleagues Sawant, Ramaswamy and Reddy, JJ, that secularism is a basic feature of C our Constitution. They have elaborately dealt with this aspect of the matter and I can do no better than express my concurrence but I have said these few words merely to complement their views by pointing out how this concept was understood immediately before the Constitution and till the. 42nd Amendment. By the 42nd Amendment what was implicit was made D explicit. After the demise of Gandhiji national leaders like Pandit Nehru, Maulana Azad, Dr. Ambedkar and others tried their best \o see that the secular character of the nation, as bequeathed by Gandhiji, was not jeop­ ardised. Dr. Ambedkar, Chairman of the Drafting Committee, aware of the E undercurrents cautioned that. India was not yet a consolidated and in­ tegrated nation but had to become one. This anxiety was also reflected in his speeches in the Constituent Assembly. He was, therefore, careful while drafting the Constitution to ensure that adequate safeguards were provided in the constitution to protect the secular character of the country and to F keep divisive forces in check so that the interests of religious, linguistic and ethnic groups were not prejudiced. He care fully weaved Gandhiji's con· cept of secularism and democracy into the constitutional fabric. This becomes evident from a cursory look at the provisions of the Constitution referred to earlier. G JUDICIAL REVIEW AND JUSTICIABILITY: Having noticed the nature of the federal structure under the Con­ stitution, the possibility of different political parties ruling at the centre and in one or more States cannot be ruled out. The Constitution clearly permits H it. Therefore, the mere defeat of the ruling party at the centre cannot by \ S.R. BOMMAI v. U.0.1. (AHMADI, J.] 993 itself, without anything more, entitle the newly elected party which comes A· to power at the centre to advise the President to dissolve the Assemblies of those States where the party in power is other than the one in power at the centre. Merely because a different political party is elected to power at the Centre, even if with a thumping majority, is no ground to hold that 'a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution', which is the requirement for the exercise of power under Article 356(1) of the Constitution. To exercise power under the said provision and to dissolve the State Assemblies solely on the ground of a new political party having come to power at the centre with a sweeping majority would, to say the least, betray intolerance on the part of the Central Government clearly basing the exercise of power under Article 356(1) on considerations ex­ traneous to the said provision and, therefore, legally ma/afide. It is a matter of common knowledge that people vote for different political parties at the centre and in the State and , therefore, if a political party with an ideology different from the ideology of the political party in power in any State D comes to power in the centre, the Central Government would not be justified in exercising power under Article 356(1) unless it is shown that the ideology of the political party in power in the State is inconsistent with the constitutional philosophy and, therefore, it is not possible for that party to run the affairs of the State in accordance with the provisions of the Constitution. It is axiomatic that no State Government can function on a programme which is destructive of the Constitutional philosophy as such functioning can never be in accordance with the provisions of the Constitu- tion. But where a State Government is functioning in accordance with the provisions of the Constitution and its ideology is consistent with the con­ stitutional philosophy, the Central Government would not be justified in F resorting to Article 356(1) to get rid of the State Government 'solely' on the ground that a different political party has come to power at the centre with a landslide victory. Such exercise of power would be clearly ma/afide. The decision of this Court in The State of Rajasthan v. The Union of India, [1978] 1 SCR 1, to the extent it is inconsistent with above discussion, does not, in my humble view, lay down the law correctly. G . Since it was not disputed before us by the learned Attorney General as well as Mr. Parasaran, the learned counsel for the Union of India, that a proclamation issued by the President on the advice of his Council of Ministers headed by the Prime Minister, is amenable to judicial review, the H J.. controversy narrows down to the determination of the scope and ambit of judicial review i.e. in other words, to the area of justiciability. The debate al the Bar was limited to this area; the learned Attorney General as well as Mr. Parasaran contending for the view that the law laid down in the Rajasthan case in this behalf was correct and did not require reconsidera- B tion while the counsel for the concerned State Governments which were superseded by exercise of power under Article 356(1) contending that the said decision required reconsideration. Before I deal with the said issue I may dispose of the question whether the provision of Article 74(2) of the Constitution permits withhold- C ing of the reasons and material forming the basis for the ministerial advice tendered to the President. Article 74(1) ordains that the President 'shall' act in accordance with the advice tendered by the Council of Ministers. The proviso, however, entitles him to require the Council of Ministers to reconsider its advice if he has any doubts or reservation but once the D Council of Ministers has reconsidered the advice, he is obliged to act in accordance therewith. Article 74(2) then provides that 'the question whether any, and if so what, advice was tendered to the President shall not be inquired into in any Court'. What this clause bars from being inquired into is 'whether any, and if so what, advice was tendered' and nothing beyond that . This question has been elaborately discussed by my learned colleagues who have examined in detail its pros and cons in their judgments and therefore, I do not consider it necessary to traverse the same path. It would suffice to say that since reasons would form part of the advice, the Court would be precluded from calling for their disclosure but I agree that Article 74(2) is no bar to the production of all the material on which the ministerial advice was based. Ofcourse the privilege available under the Evidence Act, sections 123 and 124, would stand on a different footing and can be claimed de hors Article 74(2) of the Constitution. To the extent the decision in Rajasthan case conflicts with this view, I respectfully disagree. That takes me to the question of the scope and extent of judicial G review i.e. the area of justieiability insofar as the subjective satisfaction of the President under Article 356(1) of the Constitution is concerned. Part XVIII, which deals with Emergency Provisions provides for exercise of emergency powers under different situations. Article 352 provides that 'if the President is satisfied' that a grave emergency exists threatening the H security of India or any part thereof, whether by war or external aggression S.R. BOMMAI v. U.0.1. [AHMADI, J.] 995 or armed rebellion, the President may make a declaration to that effect A specifying the area of its operation in the Proclamation. Notwithstar.ding ., the use of the language 'if the President is satisfied' which suggests that the decision would depend on the subjective satisfaction of the President, counsel agreed that such a decision cannot be made the subject matter of judicial scrutiny for the obvious reason that the existence or otherwise of B a grave emergency does not fall within the purview of judicial scrutiny since -· the Courts are ill- equipped to undertake such a delicate function. So also under_ Article 360 the exercise of emergency power is dependent on the satisfaction of the President that a situation has arisen whereby the finan- cial stability or credit of India or any part thereof is threatened. The C decision to issue a proclamation containing such a declaration is also based on the subjective satisfaction of the President, i.e. Council of Ministers, but the Court would hardly be in a position to x'ray such a subjective satisfac- tion for want of expertise in regard to fiscal matters. These provisions, therefore, shed light on the extent of judicial review. The marginal note of Article 356 indicates that the power conferred by that provision is exercisable 'in case of failure of constitutional machinery in the States'. While the text of the said article does not use the same phraseology, it empowers the PreSident,on his being satisfied that, 'a situation has arisen' in which the Government of the State 'cannot' be E carried on in accordance with the provisions of the Constitution, i.e. on the failure of the constitutional machinery; to take action in the manner provided in sub-clause (a), (b) and (c) and clause (1) thereof. This action he must take on receipt of a report from the Governor of the concerned State or 'otherwise', if he is satisfied therefrom aoout the failure of the constitutional machinery. Article 356(1) confers extra-ordinary powers on the President, which he must exercise sparingly and with great circumspec­ tion, only if he is satisfied from the Governor's report or otherwise that a situation has arisen in which the Government of the State cannot be carried out in accordance with the provisions of the Constitution. The expression 'otherwise' is of very wide import and cannot be restricted to material G capable of being tested on principles relevant to admissibility of evidence in courts of law. It would be difficult to predicate the nature of material which may be placed before the President or which he may have come across before taking action under Article 356(1). Besides, since the Presi- A dent is not expected to record his reasons for his subjective satisfaction, it would be equally difficult for the court to enter 'the political thicket' to ascertain what weighed with the President for the exercise of power under the said provision. The test laid down by this Court in The Barium Chemi­ cals Ltd. v. The Company Law Board & Ors., (1966] Suppl. SCR 311 and B subsequent decisions for adjudging the validity of administrative action can have no application for testing the satisfaction of the President under Article 356. It must be remembered that the power conferred by Article 356 is of an extraordinary nature to be exercised in grave emergencies and, therefore, the exercise of such power cannot he equated to the power exercise in administrative Jaw field and cannot, therefore, be tested by the C same yardstick. Several imponderables would enter consideration and govern the ultimate decision, which would be based, not only events that have preceded the decision, but would also depend on likely consequences. to follow and, therefore, it would be wholly incorrect to view exercise of the President's satisfaction on par with the satisfaction recorded by execu- D tive officers in the exercise of administrative control. The opinion which the President would form on the basis of the Governor's report or other­ wise would be based on his political judgment and it is difficult to evolve judicially manageable norms for scrutinising such political decisions. It, therefore, seems to me that by the very nature of things which would govern E the decision making under Article 356, it is difficult to hold that the decision of the President is justiciable. To do so would be entering the political thicket and questioning the political wisdom which the Courts of law must avoid. The temptation to delve into the President's satisfaction may be great but the courts would be well advised to resist the temptation p for want of judicially manageable standards. Therefore, in my view, the Court cannot interdict the use of the constitutional power conferred on the President under Article 356 unless the same is shown to be malafide. Before exercise of the Court's jurisdiction sufficient caution must be ad­ ministered and unless a strong and cogent prima fade case is made out, G the President i.e. the executive must not be called upon to answer the charge. In this connection I agree with the observation of Ramaswamy, J. I am also in agreement with Verma, J. when he says that no quia time/ action would be permissible in such cases in view of the limited scope of judicial review in such cases. I am, therefore,in respectful agreement with the view expressed in the Rajasthan case as regards the extent of review .. S.R BOMMAI v. U.0.1. [S.R. P ANDIAN, J.] 997 available m relation to a proclamation issued under Article 356 of the A Constitution. In other words it can be challenged on the limited ground that the action is malafide or ultra vires Article 356 itself. Applying the above test I am in agreement with the view that the proclamations issued and consequential action taken against the States of Madhya Pradesh, Himachal Pradesh, Rajasthan and Karnataka are not B justiciable while the proclamation issued in connection with Meghalaya may be vulnerable but it is not necessary to issue any order or direction in that behalf as the issue is no more live in view of the subsequent develop­ ments that have taken place in that State after fresh election. I am, therefore, in respectful agreement with the final order proposed by Verma C and Ramaswamy, JJ. I may also add that I agree with the view expressed by all the three learned colleagues on the concept of secularism. This also indicates the areas of agreement and disagreements with the views expressed by Sawant and Reddy, JJ. D Before concluding , I must express my gratitude for the excellent assistance rendered by the learned Attorney General and all the learned counsel who appeared for the contesting parties. S. RATNAVEL PANDIAN, J. I have had the privilege of going E through the erudite and scholarly judgments of my learned brothers making an exhaustive and indepth analysis, evaluating the constitutional mechanism and exploring the whole realm of constitutional imperatives as envisaged by the founding fathers of the Indian Constitution on Central-State rela­ tions and throwing abundant light on the controversial role of State Gover- F nors inviting President's Rule and the mode by which the Union Cabinet and Parliament discharged their responsibility in this regard with reference to Articles 74(2), 163, 355, 356, 357 and the other allied constitutional provisions. I find myself in agreement with the opinion of P.B. Sawant, J. on his G conclusion 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 a brief opinion on the constitutional question of substantial importance in relation HJ .\ to the powers of the President to issue proclamations under Article 356(1) of the Constitution. 3 The Indian Constitution is both a legal and social document. It provides a machinery for the governance of the country. It also contains the ideals expected by the nation. The political machinery created by the Constitution is a means to the achieving of this ideal. To what extent we have been successful in achieving the Constitu­ tional ideals is a question with a wide spectrum which needs an elaborate debate. Harking back to the question involved in this case. The framers of the Constitution met and were engaged for months together with the formidable task of drafting the Constitution on the subject of Centre-State relationship that would solve all the problems pertaining thereto and frame a system which would ensure for a long time to come. During the debates and deliberations, the issues that seemed to crop up at every point was the •) States' rights vis-a-vis the Central rights. Some of the members seem to have expressed their conflicting opinions and different reasonings and sentiments on every issue influenced and inspired by the political ideology to which they were wedded. The two spinai issues before the Constituent Assembly were (1) what powers were to be taken away from the States; and (2) how could a national supreme Government be formed without completely eviscerating the power of the State. Those favouring the forma­ tion of a strong Central Government insisted that the said Government should enjoy supreme power while others supporting States' rights expos­ tulated that view. The two sides took turns making their representations but finally realising that all might be lost, they.reached a compromise that resolved the dead look on the key issue and consequently the present form of Government, more federal in structure, came into being instead of a unitary Government. It is and undeniable fact that the Constitution of India was ordained and established by the people of India for themselves for their own gover­ nance and not for the governance of individual States. Resultantly, the Constitution acts directly on the people by means of power communicated directly from the people. In regard to the Central-State relationship there are various reports ' ,/ .., .. , ; S.R. BOMMAI v. U.0.1. [S.R. PANDIAN,J.] 999 suggesting certain recommendations for the smooth relationship of both A the Governments without frequently coming into conflicts thereby creating constitutional crisis. The reports }\JJggesting recommendations are that of (1) Administrative Reforms Commission Report 1969; (2) Rajmanner Committee Report 1969; and (3) Sarkaria Commissiou Report 1987. When the question with regard to the Centre-State relations stands B thus, the publication issued by the Lok Sabha Secretariat giving an analyti­ cal tabular form with significant details pertaining to the President's proclamation made under Article 356(1) of the Constitution and under Section 51 of the.Government of Union Territories Act 1963 during the last 41 years of the Republic, that is upto 1991, indicates the frequency of C us.:r of Article 356(1). IL appears from the summary table given in the tabular form (Appendix IV) that on 82 occasions the President's Rule in States have been imposed by invoking or resorting to Article 356(1) and on 13 occasion the President's Rule have been imposed in Union Ter­ ritories including erstwhile Union Territories which have become States D under Section 51 of the Government of Union Territories Act. 1963. All to.ta! upto 95 times, of which on 23 occasions the assemblies were dissolved on the advice of the Chief Ministers/or due to their resignations. ff may be recalled that on 18 occasions the assemblies suspended were subsequent! y revived. The above statistics does not include the proclamations which are E presently under challenge before us. We may hasten to add that the proclamations were made on different occasions on the advice of the Council of Ministers of the Central Government belonging to different political complexions. Some of the States, dissolved valiantly fought, honourably bled and pathetically lost their legal battle. Since my learned brothers have elaborately dealt with the constitu­ tional provisions relating to the issue of the proclamation and as I am in agreement with the reasoning given by B.P. Jeevan Reddy, J. it is not necessary for me to make further discussion on this matter except saying that I am of the firm opinion that the power under Article 356 should be G used very sparingly and only when 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 H 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. All the matters are disposed of accordingly with no order as to costs. G.N.