Research on state emergency

This extract is taken from Judicial Review of Presidential Proclamation Under Article 356,
(1998) 6 SCC J-13 at page J-13

Negativing the plea of Government of India's arguments that by virtue of Article 74(2) of the
Constitution of India, the President's action under Article 356 is immuned from judicial scrutiny,
the nine-member Bench of the Supreme Court in S.R. Bommai case [S.R. Bommai v. Union of
India, (1994) 3 SCC 1] ruled that Article 74(2) bars courts from enquiring as to any and if so,
what advice was tendered by Ministers to the President. But the materials based on which the
advice was tendered cannot escape judicial scrutiny. Thus, a distinction was made between
advice tendered and materials upon which such advice was tendered.

2010 PL Feb 8
Changing Face of Article 356 — Judicial Zeal and Jerk

by
Dr. Arvind P. Bhan
The Court rejected the contention that judicial review of Presidential Proclamation was totally
barred. Bhagwati and Gupta, JJ. held that:

149. … merely because a question has a political complexion, that by itself is no ground
why the court should shrink from performing its duty under the Constitution if it raises an
issue of constitutional determination. … merely because a question has a political colour, the
court cannot fold its hands in despair and declare “judicial hands off”.
30

For the first time in this case, the Supreme Court departing from the earlier view adopted by
different High Courts in respect of proclamation of emergency made by the President under
Article 356(1), formulated a view that, in certain circumstances, the challenge could be
entertained for the exercise of judicial review.31

“… the satisfaction of the President is subjective and cannot be tested by reference to any
objective test. So it cannot be a fit case for judicial determination. The Court cannot go into
the correctness or adequacy of the facts and the circumstances on which the satisfaction of
the Central Government is based. But if the satisfaction is mala fide or is based on wholly
extraneous and irrelevant grounds, the Court would have jurisdiction to examine it because in
that case there would be no satisfaction of the President in regard to the matter in which he is
required to be satisfied. The satisfaction of the President is a condition precedent to the
exercise of power under Article 356(1), and if it can be shown that there was no satisfaction
of the President at all, the exercise of power would be constitutionally invalid. Of course, in
most of the cases it would be difficult, if not impossible, to challenge the exercise of power
under Article 356(1), even on this limited ground because the facts and circumstances on
 which the satisfaction is based would not be known, but what is possible, is that the existence
of satisfaction can always be challenged on the ground that it is mala fide or based on wholly
extraneous and irrelevant grounds.” 32

Sunderlal Patwa v. Union of India 47

After the demolition of Babri Masjid at Ayodhya on 6-12-1992, the President's Rule was
imposed in U.P., M.P., H.P. and Rajasthan. The imposition of President's Rule in M.P., H.P. and
Rajasthan was challenged in the respective High Courts. The Madhya Pradesh High Court
departed from the earlier decisions and held that the Presidential Proclamation can be challenged
in a court of law. The Court held that after the Forty-fourth Amendment of the Constitution,
clause (5) of Article 356 has been repealed resulting in enlarging the scope of judicial review.
Therefore, the Presidential Proclamation is open to judicial review on the ground of irrationality,
illegality, impropriety or mala fide or in short, on the ground of abuse of power.
The Court in the instant case pointed out that sudden outbreak of riot resulting in failure on the
part of the State Government to maintain public order does not justify the President's Rule in the
State. The power can be used only in an extreme difficult situation viz. where there is an actual
and imminent breakdown of the constitutional machinery, as distinguished from failure to
observe a particular provision of the Constitution or worsening of law and order situation. Since
Article 356 of the Constitution authorises serious inroads into the principles of federation. As
regards the “other information” the Court stated that the Union Cabinet cannot claim privilege.

30. … As has been held by the Supreme Court in Rajasthan case , the satisfaction of the
48

President has to be, in the scheme of the Constitution, based on the aid and advice of the
Cabinet. The decision to impose the President's Rule is virtually taken by the Cabinet and the
action of the President is subject to judicial review in a court. Although the President cannot
be made a party in a court of law, the Union Government representing the Cabinet can claim
no privilege or protection against the disclosure of such “otherwise information” in its
possession and which was made the basis of proclamation. 49

This case raised very important questions about the power of the President to issue a
proclamation under Article 356 (failure of constitutional machinery in the States) including, inter
alia, the power to dissolve State Legislative Assemblies. The Court laid down the following
propositions:

i Presidential Proclamation dissolving a State Legislative Assembly is subject to judicial

review.

ii Burden lies on the Government of India to prove that relevant material existed (to justify
the issue of proclamation).

iii Courts would not go into the correctness of the material.

iv If the court strikes down the proclamation it has power to restore the dismissed State
Government to office.

v A State Government pursuing anti-secular politics is liable to action under Article 356.
K. Ramaswamy, J. dealt with justiciability of the President's Proclamation at length. He
observed,
“The question relating to the extent, 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.

Judicial review of the Presidential Proclamation is not concerned with the merits of the decision
but to the manner in which the decision had been reached.

Yet another significant fact that now emerges is that the Supreme Court could call upon the
Union of India to disclose materials based upon which the President had formed the requisite
satisfaction in taking over the administration of a State by dismissing the popular ministry. The
majority judgment said that, “It does not bar the court from calling upon the Union Council of
Ministers to disclose to the court the material upon which the President had formed the requisite
satisfaction.