Judicial review of President's rule: from State of Rajasthan to S.R. Bommai and after

Detail

1. Key terms

• President's rule (Art. 356): the Union takes over a state's government when the President is satisfied that the state "cannot be carried on" according to the Constitution. This usually happens on the Governor's report.
• Judicial review: the power of courts to check whether an action of the government follows the Constitution, and to strike it down if it does not.
• Mala fides (bad faith): using a power for a wrong or hidden purpose, such as removing a rival party's government.
• Art. 74(2): courts cannot ask what advice the Council of Ministers gave the President.
• Art. 361: the President and Governors cannot be taken to court personally for acts done in their office.

2. Before Bommai: President's rule treated as a "political" matter

• 38th Amendment (1975): passed during the 1975 Emergency. It made the President's "satisfaction" under Art. 356 final, so courts could not question it.
• 44th Amendment (1978): removed this finality clause, so the way back to court reopened.
• State of Rajasthan v. Union of India (1977):
• after the 1977 Lok Sabha election, the new Janata government moved to dissolve the assemblies of nine Congress-ruled states;
• the Court called the decision largely political;

• it said courts could step in only in narrow cases of clear mala fides.

• Art. 74(2) used as a shield: the Union said that because the advice was secret, the reasons and material behind a proclamation could not be shown either. This made review almost impossible.

• NCERT (Class 11, "Federalism") records the later change: courts have since ruled that the validity of President's rule "can be examined by the judiciary".

3. S.R. Bommai v. Union of India (11 March 1994, nine judges)

• Bench and date: a nine-judge bench interpreted Art. 356 in a judgment given on 11 March 1994 [2].
• Proclamations before the Court:
• Nagaland (1988), Karnataka (1989) and Meghalaya (1991);
• the dismissal of BJP governments in Madhya Pradesh, Rajasthan and Himachal Pradesh in 1992, after the Babri Masjid was demolished.

Holdings

Issue	What Bommai held
Can courts review a proclamation?	Yes. The President's satisfaction is justiciable (a court can decide on it). It can be challenged for mala fides or for resting wholly on extraneous (outside or unrelated) or irrelevant grounds [2].
How deep is the review?	Courts check whether relevant material existed. They do not check whether that material was enough.
Art. 74(2)	It protects only the advice. The material behind the advice is not protected, so the Union must produce it in court.
Who decides majority?	The floor test (a vote in the House on whether the government still has majority support) decides it, not the Governor's personal opinion. Where there is doubt, the House floor is "the only way of testing it" [3].
Assembly before Parliament approves	The assembly can only be suspended. Dissolving it before both Houses approve the proclamation is invalid.
Remedy	If the proclamation is struck down, the Court can restore the dismissed ministry and revive the assembly.
Secularism	Secularism is part of the basic structure (core features of the Constitution that even Parliament cannot destroy).
Results	The 1992 dismissals were upheld, because the governments were seen to have acted against secularism. The Karnataka, Meghalaya and Nagaland proclamations were held unconstitutional. Those governments were not restored because elections had already taken place.

• Parliament as a check: Bommai separated what may be done before Parliament approves the proclamation from what may be done after it [5].
• Before approval, no "irreversible" step may be taken, such as dissolving the assembly [5].
• If Parliament does not approve, the proclamation lapses after two months. The earlier position (status quo ante) then revives [5].
• Justice Jeevan Reddy's reason: otherwise the executive would tell Parliament, "The deed is done. You better approve it" [5].

4. Suspended animation

• Meaning: the assembly stays in existence, but it is "frozen". Its powers are used by or under the authority of Parliament.
• Bommai rule: the assembly should normally stay suspended until both Houses approve the proclamation (Art. 356(3), within two months).
• Why it matters: if a court later strikes the proclamation down, the same assembly and ministry can be brought back. A dissolved assembly cannot be revived in practice.

Procedure with Bommai checkpoints

1. Governor's report or other information → the President, acting on Cabinet advice, issues a proclamation under Art. 356(1). Checkpoint: relevant material must exist, and there must be no mala fides.
2. Assembly suspended → the Union runs the state, and Parliament makes the state's laws (Art. 356(1)(b), Art. 357).
3. Approval by both Houses within 2 months, by simple majority (Art. 356(3)). Checkpoint: the assembly may not be dissolved before this approval.
4. Continuation for 6 months at a time, up to a maximum of 3 years. Going beyond 1 year needs the conditions in Art. 356(5), added by the 44th Amendment (1978).
5. Judicial review at any stage. If the proclamation is struck down → the ministry and assembly can be restored.

5. Sarkaria's list of improper uses, endorsed in Bommai

• The Sarkaria Commission on Centre–State relations made 12 recommendations on Art. 356. The main one was that it should be used "very sparingly". Bommai said these recommendations "merit serious consideration" [2].
• Improper grounds for President's rule:
• no attempt was made to see whether an alternative government could be formed;
• the Governor decided the majority question alone, without a floor test;
• the ruling party in the state lost badly in the Lok Sabha polls;
• there were disturbances, but no real breakdown of the state's government;
• the complaint was maladministration or corruption in the state government;
• the state got no prior warning to correct itself;
• the real motive was a quarrel inside a party or some other outside reason.

Applying Bommai to sample cases (NCERT-style exercise)

Situation	Valid ground for Art. 356?
The party ruling the state is routed in the Lok Sabha election	No. This was the logic of 1977 and is improper after Bommai.
The Governor says the CM has lost majority but holds no floor test	No. Majority must be tested on the floor.
Hung assembly, and every attempt to form a government fails	Yes. This is a genuine breakdown.
Charges of corruption or poor administration	No. This is not a breakdown of constitutional machinery.
The state government itself acts against secularism	Yes. Secularism is part of the basic structure (the 1992 dismissals).
Local riots that the state is handling	No. These are disturbances short of a breakdown.

6. Rameshwar Prasad v. Union of India (2006, five judges, 3:2)

• Facts:
• the Bihar assembly election of early 2005 produced a hung house (no party or alliance had a majority);
• the assembly never met;
• Governor Buta Singh reported that a majority was being built through horse-trading (buying MLAs with money or offers);

• acting on his report of 22 May 2005, the Union dissolved the assembly by a notification dated 23 May 2005 [4].

• Majority holding: the dissolution was unconstitutional and mala fide. It used the Governor's personal view to block the formation of a government.

• Art. 361: the Governor has complete personal immunity from courts. But this "does not take away power of the Court to examine validity of the action including on the ground of mala fides" [4].
• Assembly before its first meeting: an assembly is legally constituted once results are notified under Section 73 of the Representation of the People Act, 1951. So it can be dissolved even before it first meets [4].
• Dissent (Justice Arijit Pasayat):
• review of a proclamation is "open... but to a very limited extent";

• stopping a majority built through unethical means was "not irrational or irrelevant or extraneous" [4].

• Remedy: the assembly was not restored because fresh elections were already under way. The judgment's reasons were given on 24 January 2006 [4].

• Why this matters: a ruling of illegality without restoration shows the limits of the Bommai remedy. A court's delay can turn a wrong into a fait accompli (something already done that can no longer be undone).

7. After Bommai

Uttarakhand, 2016: the floor test working in real time

• Harish Rawat's Congress government had held office since 2012. Rebel Congress MLAs said an appropriation bill had passed without a real majority, and President's rule was imposed [3].
• The Supreme Court suspended President's rule for two hours and ordered an immediate floor test [3].
• The proceedings were video-recorded, and the result was placed before the Court [3].
• Related floor-test cases [3]:
• Jagdambika Pal (1999), Uttar Pradesh: a composite floor test (one vote between rival claimants);
• Anil Kumar Jha (2005), Jharkhand;
• Chandrakant Kavlekar (2017), Goa.

In re Article 370 (11 December 2023, five judges)

• Background:
• Governor's rule was imposed in Jammu and Kashmir on 20 June 2018 [5];
• the assembly was dissolved on 21 November 2018 [5];
• President's rule under Art. 356 followed on 19 December 2018 [5];

• Constitutional Orders 272 and 273 were issued while President's rule was in force [5].

• Test for actions taken during President's rule [5]: 1. each action must have a reasonable nexus (a sensible link) with the purpose of the proclamation; 2. an action is not invalid just because it is "irreversible"; 3. the challenger must first show a prima facie case (enough evidence to justify a hearing) of mala fides or extraneous purpose; the burden then shifts to the Union to show the nexus; 4. everyday administration is not ordinarily open to judicial review.

• Court's reason: "Opening up challenge to every decision would lead to chaos and uncertainty" [5].

• Bommai's "no irreversible step" rule: the Court said it applies only before Parliament approves the proclamation. After approval, Parliament has given the action legislative legitimacy [5].
• Directions: the Election Commission was to hold J&K assembly elections by 30 September 2024, and statehood was to be restored "at the earliest" [5].
• Criticism: major and permanent changes can be made while a state has no elected assembly to object. Critics see this as a gap in federal protection.

Prelims Hooks

• 38th Amendment (1975): made the President's satisfaction under Art. 356 final. 44th Amendment (1978): deleted that finality.
• State of Rajasthan (1977): review only for clear mala fides. S.R. Bommai (1994, 9 judges): full judicial review based on the relevance of material, not its sufficiency.
• Art. 74(2): bars inquiry into the advice given to the President, but not into the material behind it (Bommai).
• Floor test as the only test of majority: first laid down in S.R. Bommai (1994) [3].
• Bommai: secularism is part of the basic structure. The 1992 dismissals of the MP, Rajasthan and HP governments were upheld; Karnataka (1989), Meghalaya (1991) and Nagaland (1988) were struck down.
• Rameshwar Prasad (2006): Bihar dissolution (May 2005) held mala fide. Art. 361 immunity is personal and does not protect the action [4].
• Section 73, RP Act 1951: an assembly is constituted once results are notified, so it can be dissolved even before its first sitting [4].
• In re Article 370 (2023): actions during President's rule are tested by "reasonable nexus". The challenger must first show mala fides, and irreversibility alone does not make an action invalid [5].
• Trap: Bommai bars irreversible steps (such as dissolution) only before both Houses approve; Art. 370 (2023) allowed such steps after approval [5].

Mains Points

• From politics to law: courts moved from treating President's rule as "political" (1977) to demanding relevant material, a floor test and suspended animation (1994). This cut its misuse sharply and strengthened cooperative federalism (the Union and states working together as partners).
• Limits of the remedy:
• in Karnataka (1989) and Bihar (2005), the courts found the action illegal but could not restore the governments, because elections had intervened;

• suggestion: fast-track hearings on Art. 356 challenges and keep the assembly suspended while a case is pending.

• The Governor's role: Bihar (2005) and Uttarakhand (2016) show Governors' reports being used to support partisan aims. Sarkaria's call to use Art. 356 "very sparingly" [2], a time-bound floor test and careful choice of Governors remain the key reforms.

• New federal gap after 2023:
• the "reasonable nexus" test and acceptance of irreversible changes allow deep restructuring of a state without its elected assembly;
• the counter-argument is that Parliament's approval supplies democratic legitimacy [5];
• a balanced view: require Parliament's special scrutiny for any permanent change made during President's rule.