President's Rule: Article 356 and S.R. Bommai

Clause (4): six months at a time, three years in all. A Proclamation approved under clause (3) continues in force for six months from the date of issue and may be extended by further resolutions, but no Proclamation shall remain in force for more than three years.

Clause (5), inserted by the Forty-fourth Amendment 1978: a continuance beyond one year needs more. A resolution extending a Proclamation beyond one year may be passed only if a Proclamation of Emergency is in operation in the whole or part of the State at the time, and the Election Commission certifies that the continuance is necessary on account of difficulties in holding general elections to the State Assembly.

That clause is the reason article 356 is no longer used for long periods, and it is a good example of a safeguard added after abuse.

From State of Rajasthan to Bommai

1977: the satisfaction is very nearly unreviewable, and there is a reason nobody mentions. In State of Rajasthan v. Union of India, 1977 AIR 1361; 1978 SCR (1) 1, decided on 6 May 1977. Facts. After the ruling party lost the March 1977 general election, the Union Home Minister wrote on 18 April 1977 to the Chief Ministers of nine Congress-ruled States commending that they advise their Governors to dissolve the Assemblies under article 174(2)(b) and seek a fresh mandate, and the Union Law Minister said publicly that a clear case for dissolution had been made out because the party had been rejected by the electorate; six States sued under article 131 for a declaration that the letter was ultra vires and for injunctions restraining the Union from resorting to article 356.

Held, dismissing the suits. The choice between dissolution and re-election is a matter of political expediency under a democratic system and that seeking political power is not per se illegal; that giving electors a periodic opportunity to choose their legislature is an object of a democratic constitution, so a policy serving that end is not contrary to the basic structure; and that article 356(1) calls for an assessment of a situation which, so far as it embraces political and executive policy, the courts cannot interfere with unless a constitutional provision is shown to be contravened. Even so, the Court accepted that a Proclamation could be challenged if it were mala fide or based on wholly extraneous or irrelevant grounds.

The reason the language is so restrictive is a clause that no longer exists. Article 356(5), inserted by the Thirty-eighth Amendment, then provided that notwithstanding anything in the Constitution the satisfaction of the President shall be final and conclusive and shall not be questioned in any court on any ground. Read with article 74(2), which bars any inquiry into ministerial advice, the Court said it could determine validity only on whatever grounds remained or were admitted. The Forty-fourth Amendment 1978 omitted clause (5), and that omission is why Bommai could go where this case could not. Why it matters here is that a candidate who quotes the 1977 language without the clause is describing a Constitution that no longer exists.

1994: the satisfaction is conditioned and the floor is the test. In S.R. Bommai v. Union of India, AIR 1994 SC 1918; (1994) 3 SCC 1. Facts. A group of appeals and transferred cases about Proclamations dismissing the governments of Karnataka on 21 April 1989, Nagaland, Meghalaya on 11 October 1991, and Madhya Pradesh, Rajasthan and Himachal Pradesh on 15 January 1993 after the demolition of the disputed structure at Ayodhya. Held, in twelve conclusions. The satisfaction under article 356 is subjective but the power is conditioned and not absolute, relevant material being a precondition; that the Proclamation is not immune from judicial review and may be struck down if mala fide or based on wholly irrelevant or extraneous grounds, the court examining whether the material was relevant and not whether it was correct or adequate; that the majority of a government is to be tested on the floor of the House and not in the Governor's assessment; that a dissolution of the Assembly should not take place until both Houses have approved the Proclamation, so that the House can be revived if the Proclamation is struck down; and that secularism is a basic feature, so a State government acting against the secular character of the Constitution is amenable to action under article 356.

Why it matters is that it converted the strongest centralising provision into a reviewable one and changed the practice. The Karnataka, Meghalaya and Nagaland Proclamations were held bad; those relating to Madhya Pradesh, Rajasthan and Himachal Pradesh were upheld.

2006: and the Governor's report is examinable. In Rameshwar Prasad v. Union of India, decided on 24 January 2006. Facts. The Bihar election of February 2005 produced no majority, the Assembly was kept in suspended animation from 7 March 2005 without ever meeting, and the Governor reported on 27 April and 21 May 2005 that there was a serious attempt to cobble a majority, that members were being won over by various means, that parties were being targeted for a split, and that there were high pressure moves, allurements of caste, posts and money, and horse-trading; the Assembly was dissolved by a Proclamation of 23 May 2005. Held, by the majority. The Proclamation was unconstitutional. In its own words, there was no material, let alone relevant material, with the Governor to assume that there was no legitimate realignment of political parties and that there was a blatant distortion of democracy by induced defections through unfair, illegal, unethical and unconstitutional means. Disqualification for defection is vested in the Speaker and the Governor could not arrogate that authority to himself; the reports were almost identical to those from Karnataka and Nagaland that Bommai had invalidated; and the Governor had moved swiftly and with undue haste on finding that one party might be close to a majority, so the object was to prevent that party from staking a claim.

Relief was nevertheless moulded: despite the unconstitutionality, the Court declined in its discretion to order status quo ante restoring the Assembly. Why it matters here is that it extended Bommai to the report on which the President acts, which is where the material actually comes from, and that it is the standing reminder that a successful challenge does not always restore anything.

A worked example

A State government loses several members to a rival party. The Governor reports that it has lost its majority and recommends a Proclamation. The Union issues one and dissolves the Assembly the same day. Both Houses approve a month later. Advise the dismissed Chief Minister.

The first argument is the floor test. Bommai holds that the majority is to be tested on the floor of the House and not in the Governor's assessment. A Governor who reports a loss of majority without calling for a floor test has substituted his own opinion for the constitutional method.

The second is the material. After Bommai and Rameshwar Prasad, the reports and the material before the President are examinable, not for adequacy but for relevance and for whether they exist at all. A report of defections without any test on the floor may be no material for the conclusion drawn.

The third is the dissolution, and it is the strongest. Bommai holds that the Assembly should not be dissolved until both Houses have approved the Proclamation, precisely so that the House can be revived if the Proclamation falls. Dissolution on the same day forecloses the remedy.

The fourth is the remedy. If the Proclamation is struck down, the Court may restore the status quo ante, reviving the Assembly and the government. In practice relief is often moulded, as it was in Rameshwar Prasad where fresh elections had been notified, and a good answer says so rather than promising restoration.

Distinctions

What it does NOT mean

It does not mean article 356 is dead. It remains available and has been used since 1994, and its use is reviewable rather than forbidden.

It does not mean a court will ask whether the material was adequate. Bommai is express that the court examines relevance, not correctness or adequacy.

It does not mean a Proclamation suspends fundamental rights. That is article 359 under a national emergency; article 356 does not touch Part III, and article 356(1)(c) expressly excludes the powers of a High Court.

And it does not mean restoration always follows a successful challenge. Relief is moulded, and in Rameshwar Prasad the elections were allowed to proceed even though the dissolution was held unconstitutional.

Quick revision

Article 355: the Union's duty to protect a State and to ensure its government is carried on in accordance with the Constitution. Article 356(1): on the Governor's report or otherwise, the President may assume the functions of the State Government and the powers of the Governor, and declare the State Legislature's powers exercisable by Parliament, but may not assume the powers of a High Court. Clause (3): approval by both Houses within two months. Clause (4): six months at a time, three years in all. Clause (5), Forty-fourth Amendment: beyond one year only with a Proclamation of Emergency in force and an Election Commission certificate. Article 357: machinery for legislative powers. Article 365: failure to comply with a Union direction makes it lawful to hold that the machinery has failed. State of Rajasthan 1977: subjective satisfaction, review only for mala fides or wholly extraneous grounds. S.R. Bommai 1994: conditioned satisfaction, relevant material a precondition, review for relevance not adequacy, the floor test, no dissolution before both Houses approve, and secularism as a basic feature. Rameshwar Prasad 2006: the Governor's report is examinable and dissolution cannot rest on his ipse dixit.

Test yourself

1. State the ground for a Proclamation under article 356 and where the President's information comes from. 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 receipt of a report from the Governor of the State or otherwise.

2. What are the time limits, and what did the Forty-fourth Amendment add? Approval by both Houses within two months, then six months at a time up to a maximum of three years. The Forty-fourth Amendment inserted clause (5), so that continuance beyond one year requires a Proclamation of Emergency to be in operation and a certificate from the Election Commission that elections cannot be held.

3. Give four of the twelve conclusions in S.R. Bommai. The satisfaction is subjective but conditioned and relevant material is a precondition; the Proclamation is reviewable and may be struck down if mala fide or based on wholly irrelevant or extraneous grounds; the majority is to be tested on the floor of the House; and the Assembly should not be dissolved until both Houses have approved the Proclamation.

4. What did State of Rajasthan decide, and how is it still useful? That the satisfaction is subjective and largely political and the Court cannot examine the correctness or adequacy of the material, but that a Proclamation made mala fide or on wholly extraneous grounds could be challenged. That exception is the foundation Bommai built on.

5. What did Rameshwar Prasad add? That the Governor's report itself is examinable, and that a dissolution cannot rest on his ipse dixit where the reports contain no material to support the conclusion that a majority was being secured by illegal means.

6. Why does Bommai's rule about dissolution matter more than it looks? Because if the Assembly is dissolved before both Houses approve the Proclamation, a court that later strikes the Proclamation down has nothing to restore. The rule preserves the remedy.