Bommai Senior and the legal foundations of a historic verdict
As Basavaraj Bommai takes charge of the Bharatiya Janta Party (BJP) government in Karnataka, his anointment has also achieved a rare feat.
This is the second time in Karnataka’s political history that a father-son duo have held the chief minister (CM)’s post. Basavaraj’s father SR Bommai became the CM in 1988 in the wake of then CM Ramakrishna Hedge resigning over snooping charges. The other father-son duo to have achieved this feat are Janata Dal (Secular) supremo and former Prime Minister, HD Deve Gowda, and his son, HD Kumaraswamy.
Apart from the political feat, Basavaraj’s appointment also brings the focus back on a legacy in law that has been associated with his father, SR Bommai for almost three decades now.
Senior Bommai’s name is synonymous with one of the most important cases in the judicial history of the country when it comes to polity and governance, Centre-State relationship and imposition of President’s Rule.
“Awesome” is not a word routinely used in Supreme Court judgments. But when the nine-judge Constitution Bench sat down to deliver the historic verdict in Bommai’s case, it called the authority under the Constitution for imposing President’s Rule an “awesome power indeed”.
It is the apex court’s judgment in SR Bommai Vs Union of India, delivered in March 1994, that defined the contours of Article 356 of the Constitution, which allows for President’s Rule in states, and acknowledged various perplexing issues in the realm of Centre-State relations. It laid down legal principles for a lawful and valid exercise of the power under Article 356, while underscoring the federal structure and roles of the President and Governor.
Who was SR Bommai?
In 1985, the Janata Party won the assembly elections in Karnataka and Ramakrishna Hegde became the CM. Hegde had to leave the throne following the snooping charges and he was replaced by SR Bommai, also of the Janata Party, in 1988. A few months later that year, Janata Party merged with Lok Dal, forming the Janata Dal, and 13 new ministers were inducted into Bommai’s cabinet.
However, some legislators defected from the party and presented a letter to Governor P Venkatasubbaiah stating their decision to withdraw support to the Bommai government. In April 1989, the Governor sent a report to the Centre recommending President’s Rule citing breakdown of constitutional machinery, as provided under Article 356. This report was sent despite the Governor receiving 19 letters from Bommai asking for an opportunity to prove his party’s majority in the assembly. Bommai had also the presented him with a copy of the resolution passed by the Janata Dal legislature party in his support but the Governor chose not to pay heed to the demand of a floor test.
Later that month, the government of Prime Minister Rajiv Gandhi at the Centre dismissed Bommai’s government using Article 356, without giving Bommai a chance to prove his majority, and imposed President’s Rule.
Bommai challenged the proclamation of President’s Rule and the Governor’s report in this regard before the Karnataka high court but to no avail. He subsequently challenged this before the Supreme Court that noted substantial constitutional issues were involved in the matter, warranting interpretation of legal provisions and issuance of pertinent guidelines.
What were other instances before the Supreme Court in Bommai’s case?
When the nine-judge bench set about to examine the validity of proclamation for the state of Karnataka, it also scrutinised similar proclamations for some other states too.
In 1988, the Nagaland government was dismissed on the basis of a report sent by the Governor to the President. The Governor had cited horse-trading and relationship of some legislators with the insurgents as chief reason for imposition of the President’s Rule.
In October 1991, the President issued a proclamation dismissing the Meghalaya government on grounds of unconstitutional governance. The assembly was dissolved immediately after.
After the demolition of the Babri Masjid in December 1992, the Centre dismissed not just the government of Uttar Pradesh, but also the Bharatiya Janata Party (BJP) governments in Madhya Pradesh, Rajasthan, and Himachal Pradesh.
In Bommai’s case, the top court highlighted frequency of using Article 356 to dismiss governments in states and Union territories. Up to 1991, President’s Rule in states had been imposed on 82 occasions by invoking or resorting to Article 356, and on 13 occasions, President’s Rule had been imposed in union territories. On 23 of a total of these 95 occasions, assemblies were dissolved on the advice of the CMs or due to their resignations.
Issues in Bommai’s case and the six judgments
The nine-judge bench ruled on three chief issues.
One, is the Proclamation issued by the President under Article 356 amenable to judicial review? Two, if yes, what is the scope of judicial review in this respect? And three, what is the meaning of the expression “A situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution” used in Article 356(1)?
Of the nine judges on the Supreme Court Bench that heard the matter, six authored separate judgments, adjudicating on various aspects of the issues raised. But all were unanimous that the use of Article 356 was not untouchable for the constitutional courts and was indeed amenable to judicial review.
Justice P B Sawant, writing for himself and Justice Kuldip Singh, rejected the argument that the President had unrestricted power to issue proclamation under Article 356: “If… pluralist democracy and the unity and integrity of the country are to be preserved, judiciary… is the only institution which can act as the saviour of the system and of the nation,” they held.
Describing democracy and federalism to be parts of the basic structure of the Constitution, the judges maintained that the power vested de jure in the President but de facto in the Council of Ministers under Article 356 has all the latent capacity to emasculate the two basic features of the Constitution. “Hence, it is necessary to scrutinise the material on the basis of which the advice is given and the President forms his satisfaction more closely and circumspectly… Such scrutiny will also be within the judicially discoverable and manageable standards,” they ruled.
The judges further asserted that the federal principle, social pluralism and pluralist democracy, which form the basic structure of our Constitution, demand that the judicial review of the proclamation issued under Article 356 is not only an imperative necessity but is a stringent duty and the exercise of power under the said provision is confined strictly for the purpose and to the circumstances mentioned therein and for none else. “It also requires that the material on the basis of which the power is exercised is scrutinised circumspectly...any situation short of (total constitutional breakdown) does not empower the issuance of the proclamation,” the judges said.
Justice SR Pandian wrote that Article 356 should be used very sparingly and only when President is fully satisfied that a situation has arisen where the government of a 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 of every State who has to discharge his constitutional functions will be in perpetual fear of the axe of Proclamation falling on him...,” held justice Pandian.
On his part, Justice K Ramaswamy cautioned that Article 356 should never be used for political gain or to get rid of an inconvenient state government. Frequent elections would belie people’s faith in the parliamentary system, he said, and warned that loss of belief in the democratic process would sound the death-knell for the parliamentary system.
Justice JS Verma, authoring a separate judgment for himself and Justice Yogeshwar Dayal, said: “The facts which attract the legal fiction that the constitutional machinery has failed are specified and their existence is capable of objective determination. It is, therefore, reasonable to hold that the cases falling under Article 365 are justiciable.”
Justice AM Ahmadi, in his judgment, held: “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 extraneous to the said provision and, therefore, legally mala fide.” He added that the power conferred by Article 356 is of an extraordinary nature that must be exercised in grave emergencies. The judge clarified that that a proclamation for emergency can be challenged on the limited ground that the action is mala fide or ultra vires of Article 356 itself.
Justice BP Reddy, writing for himself and Justice SC Agrawal, proceeded to hold that not only a constitutional court had the power to examine a proclamation for emergency but it would also be open to the court to restore a state government to its office in case it strikes down the proclamation as unconstitutional. “If this power were not conceded to the court, the very power of judicial review would be rendered nugatory and the entire exercise meaningless,” they said.
The two judges further noted that when a proclamation is challenged by making out a prima facie case with regard to its invalidity, the burden would be on the Union government to satisfy that there existed sufficient material to impose President’s Rule. In appropriate cases, the court will have power to restrain the holding of fresh elections to the Assembly as an interim measure to ensure a legal challenge to a proclamation is not defeated through an election.
Floor test to prove majority
Bommai’s judgment unequivocally laid down the supremacy of the floor test in determining the support enjoyed by the party in power.
Justices Reddy and Agrawal held that in cases where a government is alleged to have lost majority, a floor test is the valid method of proving majority. The judges said: “Wherever a doubt arises whether the council of ministers has lost the confidence of the House, the only way of testing it is on the floor of the House except in an extraordinary situation where 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.”
The two judges wrote extensively on the necessity of a floor test before the Governor makes any recommendation under Article 356. “If only one keeps in mind the democratic principle underlying the Constitution and the fact that it is the legislative assembly that represents the will of the people and not the Governor the position would be clear beyond any doubt,” said the judges, holding that the floor test is obligatory.
The judgment ruled in favour of Bommai and the proclamation was struck down for being malafide and unconstitutional. However, by the time the judgment came, elections had since been held to the legislative assembly of Karnataka and a new House had come into being.
The judgment still resonates
Bommai’s ruling prescribes important constitutional guarantees against the abuse of Article 356 and for the maintenance of the federal structure. Bommai’s judgment has earned the distinction of being the most quoted verdict in the country’s political history, and continues to resonate in contemporary times. Take just a few recent instances.
This judgment was relied upon by the Supreme Court in 2016 while restoring the Nabam Tuki Government in Arunachal Pradesh and criticising the Governor for “humiliating the elected Government of the day”.
In the same year, the central Government imposed President’s Rule in Uttarakhand just a day before chief minister Harish Rawat was to take a trust vote to prove his majority. The Centre justified its actions on the basis of a sting operation showing Rawat allegedly indulging in bribery with some of the legislators. But the Supreme Court, citing Bommai’s case, ordered a floor test, which ultimately led the dismissed government being reinstated.
In May 2018, Congress and Janata Dal (Secular) approached the Supreme Court against the order of Karnataka Governor to allow BJP’s BS Yeddyurappa to form the government in the state. Lending credence to Bommai’s judgment, the court, after a pre-dawn hearing, ordered an immediate floor test. Yeddyurappa later resigned on the floor of the House without facing the floor test.
Similarly, in November 2019, the top court ordered a floor test on a petition by Shiv Sena-Nationalist Congress Party (NCP)-Congress alliance which complained against the manner in which Devendra Fadnavis took power, in a secretive oath ceremony. Fadnavis resigned hours later and the Shiv Sena-NCP-Congress alliance formed government.