Madras Bar Association v. Union of India

The recent trend of setting up tribunals in various sectors to lighten High Courts’ burden and speed up decisions suffered a setback again when the Supreme Court struck down the National Tax Tribunal Act on grounds that it encroached upon the power of the judiciary and the principle of separation of powers.

Madras Bar Association v. Union of India

Issue arises before the Court pertains to the constitutional validity of the National Tax Tribunal Act, 2005 (hereinafter referred to as, the NTT Act). Simultaneously, the constitutional validity of the Constitution (Forty-second Amendment) Act, 1976 has been assailed, by asserting, that the same violates the basic structure of the Constitution of India (hereinafter referred to as, the Constitution), by impinging on the power of “judicial review” vested in the High Court. In the event of this Court not acceding to the aforementioned prayers, a challenge in the alternative has been raised to various provisions of the NTT Act, which has led to the constitution of the National Tax Tribunal (hereinafter referred to as, the NTT). The NTT, according to the learned counsel for the petitioners, is styled as a quasi-judicial appellate tribunal. It has been vested with the power of adjudicating appeals arising from orders passed by Appellate Tribunals (constituted under the Income Tax Act, the Customs Act, 1962, and the Central Excise Act, 1944). Hitherto before, the instant jurisdiction was vested with High Courts. The pointed issue canvassed in this behalf is, that High Courts which discharge judicial functions, cannot be substituted by an extra-judicial body. Additionally, it is maintained that the NTT in the manner of its constitution undermines a process of independence and fairness, which are sine qua non of an adjudicatory authority.

Supreme Court struck down the National Tax Tribunal Act on grounds that it encroached upon the power of the judiciary and the principle of separation of powers.

Read the Judgment

Elections in India and related Laws

Ipsita Mishra, Student of Law, NLU, Odisha

India is the largest democracy in the World. Since 1947 free and fair elections have been held at regular intervals as per the principles of the Constitution, Electoral Laws and System. The Election Commission of India has complete control over the elections. Election Commission of India is a permanent Constitutional Body. The Election Commission was established in accordance with the Constitution on 25th January 1950 ((See http://eci.nic.in/eci_main1/the_setup.aspx)).

Elections are conducted according to the constitutional provisions, supplemented by laws made by Parliament. The major laws are the Representation of the People Act, 1950, which mainly deals with the preparation and revision of electoral rolls, the Representation of the People Act, 1951 which deals, in detail, with all aspects of conduct of elections and post election disputes.

Appointment & Tenure of Commissioners

The President appoints Chief Election Commissioner and Election Commissioners. They have tenure of six years, or up to the age of 65 years, whichever is earlier. They enjoy the same status and receive salary and perks as available to Judges of the Supreme Court of India. The Chief Election Commissioner can be removed from office only through impeachment by Parliament.

Election Machinery

The Commission has a separate Secretariat at New Delhi, consisting of about 300 officials, in a hierarchical set up. Two Deputy Election Commissioners who are the senior most officers in the Secretariat assist the Commission. They are generally appointed from the national civil service of the country and are selected and appointed by the Commission with tenure. Directors, Principal Secretaries, and Secretaries, Under Secretaries and Deputy Directors support the Deputy Election Commissioners in turn. There is functional and territorial distribution of work in the Commission. The work is organized in Divisions, Branches and sections; each of the last mentioned units is in charge of a Section Officer. The main functional divisions are Planning, Judicial, Administration, Information Systems, Media and Secretariat Co-ordination.
The territorial work is distributed among separate units responsible for different Zones into which the 35 constituent States and Union Territories of the country are grouped for convenience of management. At the state level, the election work is supervised, subject to overall superintendence, direction and control of the Commission, by the Chief Electoral Officer of the State, who is appointed by the Commission from amongst senior civil servants proposed by the concerned state government. He is, in most of the States, a full time officer and has a team of supporting staff.

At the district and constituency levels, the District Election Officers, Electoral Registration Officers and Returning Officers, who are assisted by a large number of junior functionaries, perform election work. They all perform their functions relating to elections in addition to their other responsibilities. During election time, however, they are available to the Commission, more or less, on a full time basis.

The gigantic task force for conducting a countrywide general election consists of nearly five million polling personnel and civil police forces. This huge election machinery is deemed to be on deputation to the Election Commission and is subject to its control, superintendence and discipline during the election period, extending over a period of one and half to two months.

Budget & Expenditure

The Secretariat of the Commission has an independent budget, which is finalised directly in consultation between the Commission and the Finance Ministry of the Union Government. The latter generally accepts the recommendations of the Commission for its budgets.

The major expenditure on actual conduct of elections is, however, reflected in the budgets of the concerned constituent unit of the Union – State and Union Territory. If elections are being held only for the Parliament, the expenditure is borne entirely by the Union Government while for the elections being held only for the State Legislature, the expenditure is borne entirely by the concerned State. In case of simultaneous elections to the Parliament and State Legislature, the expenditure is shared equally between the Union and the State Governments. For Capital Equipment, expenditure related to preparation for electoral rolls and the scheme for Electors’ Identity Cards too, the expenditure is shared equally.

Executive Interference Barred

In the performance of its functions, Election Commission is insulated from executive interference. It is the Commission which decides the election schedules for the conduct of elections, whether general elections or bye-elections. Again, it is the Commission, which decides on the location polling stations, assignment of voters to the polling stations, location of counting centres, arrangements to be made in and around polling stations and counting centres and all allied matters.

Election Schedule

The Commission normally announces the schedule of elections in a major Press Conference a few weeks before the formal process is set in motion. The Model Code of Conduct for guidance of candidates and Political Parties immediately comes into effect after such announcement. The formal process for the elections starts with the Notification or Notifications calling upon the electorate to elect Members of a House. As soon as Notifications are issued, Candidates can start filing their nominations in the constituencies from where they wish to contest. These are scrutinised by the Returning Officer of the constituency concerned after the last date for the same is over after about a week. The validly nominated candidates can withdraw from the contest within two days from the date of scrutiny.

Contesting candidates get at least two weeks for political campaign before the actual date of poll. On account of the vast magnitude of operations and the massive size of the electorate, polling is held at least on three days for the national elections. A separate date for counting is fixed and the results declared for each constituency by the concerned Returning Officer. The Commission compiles the complete list of Members elected and issues an appropriate Notification for the due Constitution of the House. With this, the process of elections is complete and the President, in case of the Lok Sabha, and the Governors of the concerned States, in case of Vidhan Sabhas, can then convene their respective Houses to hold their sessions. The entire process takes between 5 to 8 weeks for the national elections, 4 to 5 weeks for separate elections only for Legislative Assemblies.

Political Parties & the Commission

Political parties are registered with the Election Commission under the law. The Commission ensures inner party democracy in their functioning by insisting upon them to hold their organizational elections at periodic intervals. Political Parties so registered with it are granted recognition at the State and National levels by the Election Commission on the basis of their poll performance at general elections according to criteria prescribed by it.

The Commission, as a part of its quasi-judicial jurisdiction, also settles disputes between the splinter groups of such recognised parties. Election Commission ensures a level playing field for the political parties in election fray, through strict observance by them of a Model Code of Conduct evolved with the consensus of political parties. The Commission holds periodical consultations with the political parties on matters connected with the conduct of elections; compliance of Model Code of Conduct and new measures proposed to be introduced by the Commission on election related matters.

Advisory Jurisdiction & Quasi-Judicial Functions

Under the Constitution, the Commission also has advisory jurisdiction in the matter of post election disqualification of sitting members of Parliament and State Legislatures. Further, the cases of persons found guilty of corrupt practices at elections which come before the Supreme Court and High Courts are also referred to the Commission for its opinion on the question as to whether such person shall be disqualified and, if so, for what period. The opinion of the Commission in all such matters is binding on the President or, as the case may be, the Governor to whom such opinion is tendered. The Commission has the power to disqualify a candidate who has failed to lodge an account of his election expenses within the time and in the manner prescribed by law. The Commission has also the power for removing or reducing the period of such disqualification as also other disqualification under the law.

Judicial Review

The decisions of the Commission can be challenged in the High Court and the Supreme Court of the India by appropriate petitions. By long standing convention and several judicial pronouncements, once the actual process of elections has started, the judiciary does not intervene in the actual conduct of the polls. Once the polls are completed and result declared, the Commission cannot review any result on its own. This can only be reviewed through the process of an election petition, which can be filed before the High Court, in respect of elections to the Parliament and State Legislatures. In respect of elections for the offices of the President and Vice President, such petitions can only be filed before the Supreme Court.

Media Policy

The Commission has a comprehensive policy for the media. It holds regular briefings for the mass media-print and electronic, on a regular basis, at close intervals during the election period and on specific occasions as necessary on other occasions. The representatives of the media are also provided facilities to report on actual conduct of poll and counting. They are allowed entry into polling stations and counting centres on the basis of authority letters issued by the Commission. They include members of both international and national media. The Commission also publishes statistical reports and other documents which are available in the public domain. The library of the Commission is available for research and study to members of the academic fraternity; media representatives and anybody else interested. The Commission has, in co-operation with the state owned media – Doordarshan and All India Radio, taken up a major campaign for awareness of voters.

International Co-operation

India is a founding member of the International Institute for Democracy and Electoral Assistance (IDEA), Stockholm, Sweden. In the recent past, the Commission has expanded international contacts by way of sharing of experience and expertise in the areas of Electoral Management and Administration, Electoral Laws and Reforms. Delegates of the Commission have visited Sweden, U.K, Russia, Bangladesh, and the Philippines in recent years. Election Officials from the national electoral bodies and other delegates from the several countries – Russia, Sri Lanka, Nepal, Indonesia, South Africa, Bangladesh, Thailand, Nigeria, Australia, the United States and Afganistan have visited the Commission for a better understanding of the Indian Electoral Process. The Commission has also provided experts and observers for elections to other countries in co-operation with the United Nations and the Commonwealth Secretariat.

New Initiatives by the Election Commission

The Commission has taken several new initiatives in the recent past. Notable among these are, a scheme for use of State owned Electronic Media for broadcast/telecast by Political parties, checking criminalisation of politics, computerisation of electoral rolls, providing electors with Identity Cards, simplifying the procedure for maintenance of accounts and filling of the same by candidates and a variety of measures for strict compliance of Model Code of Conduct, for providing a level playing field to contestants during the elections.

Problems faced

Increasingly money hungry elections leading to unethical, illegal and even mafia provided electoral funding.  The terribly high cost of elections in turn, has led to increased corruption, criminalisation and black money generation in various forms.

  1. With the constituents/electors being the same for all directly elected representatives from the lowest Panchayat level to the Lok Sabha level, there are competing role expectations and conflict of perception.
  2. With the electorate having no role in the selection of candidates and with majority of candidates being elected by minority of votes under the first-past-the-post system, the representative character of the representatives itself becomes doubtful or so to say their representational legitimacy is seriously eroded.
  3. Inaccurate and flawed electoral rolls and voter ID leading to rigging and denial of voting right to a large number of citizens.
  4. Problems in the conduct of elections:
    1. Booth capturing and fraudulent voting by rigging and impersonation.
    2. Flagrant use of raw muscle power in the form of intimidating voters either to vote against their will or not to vote at all, thus taking away the right of free voting from large sections of society and distorting the result thereby.
    3. Involvement of officials and local administration in subverting the electoral process
    4. Engineered mistakes in counting of votes
  1. Criminalisation of the electoral process
  2. Divisive and disruptive tendencies including the misuse of religion and caste in the process of political mobilization of group identities on non-ideological lines.
  3. An ineffective and slow process of dealing with election petitions, rendering the whole process meaningless.
  4. Fake and non-serious candidates who create major practical difficulties and are also used to indirectly subvert the electoral process.
  5. Incongruities in delimitation of constituencies resulting in poor representation.
  6. Problems of instability, hung legislative houses and their relation to the electoral laws and processes.
  7. Last but not the least, loss of systemic legitimacy due to decay in the standards of political morality and decline in the spirit of service and sacrifice in public life.

Elections in parts of the country have become synonymous with intimidation of voters specially poorer sections, rigging, booth capturing, violence against and even killing of candidates and political workers, connivance of officials at the polling stations and at times a complete hijacking of the polling process by unruly and criminal elements. Unfortunately, over a period of time local police forces have also allegedly become involved in the above by becoming partisan and by being guided by local loyalties, caste considerations, as well as by being easily bribed for connivance. What is disturbing are the sporadic allegations of even the central forces acting in a partisan way in some places. Reports of above irregularities in the conduct of elections have become so commonplace that these are not news anymore. Many suggestions have been made to address these issues and most relate to implementing our existing rules and laws effectively. But experience has shown that laws in a low accountability society like India are known more for violation than for any degree of compliance.

The Suggested Reform Options

The suggestions for reform can generally be placed into three broad categories.  The first category attempts to tackle the problems within the boundaries of the current electoral system.  The second category goes a bit further and takes a stand that the present electoral system itself needs to be modified. (The emphasis is on modification or reform and not on altering the basic framework of the system). Both of these categories have to be dealt with together because there is considerable overlapping between the two and we have to view reform suggestions as an integrated package and not piecemeal. There is a third approach which seeks to strike at the root of the problem which is that of the terrible high costs of elections and the question of finding legitimate funds for the purpose.  The suggestion is to cut down the costs drastically by following the Gandhian principles of decentralization of power down to the grassroots levels and building multitiers of Government from below in a bottom-up instead of the present topdown approach.  It is stated by those advocating this approach that the only way to conduct a meaningful electoral exercise in this country is to have direct elections only at local levels with the upper tiers filled by representatives indirectly elected by an electoral college consisting of the representatives manning the lower tiers.

A true democracy as advocated by Gandhi ensures that local, state and national representatives are accountable to the people for local, State and national matters respectively through effective transparency. Such one-to- one accountability may promote responsible politics and attract patriotic and competent professionals and social workers to politics. Our present system based on diffused accountability breeds corruption and attracts self-seekers to politics.  For this breed, interests of national development, welfare of the people and needs of god governance take lower priorities, if any.

The elected representative is too far removed from the people as there are an average of one million voters for each Lok-Sabha constituency spread over a large geographical area. To influence the choice of such a large and geographically dispersed number of voters, social action on the part of the candidate is totally inadequate. And, this creates space and scope for using both money and muscle power. It is no surprise therefore that the candidates have to spend huge amounts of money at the time of campaigning to “purchase” the votes of these distant voters. And this is done mostly through a host of intermediary brokers who become the link in this transaction. These huge election expenses breed huge corruption. This also means that the electors are in no position to hold the candidate accountable nor does the candidate consider himself accountable to these people.

Based on the Indian ethos, Gandhi had advocated a low-expense election system linked with watchdog councils and separate elected chief executives at each local level. He proposed a highly democratic and, what is more important, a highly accountable system. More thought out and more in keeping with the evolution of political culture in our country, many scholars have in recent years adapted these thoughts in their work and advocated a system of direct elections only at the grassroots of the Indian democracy. They propose that without in anyway interfering with the basic structure or features of the Constitution and while fully continuing the parliamentary system, some reforms be brought in the electoral system.  Direct elections should be held on the basis of adult franchise at the level of Panchayats and other local bodies. Panchayats and other local bodies could elect the zila parishads and they could together elect the State legislature. These three could elect the Parliament and in the last analysis the four of these could elect the President. The Prime Minister and the Chief Ministers could be elected by the Parliament and the State Legislatures concerned.  The President, the Prime Minister and the Chief Ministers in order to be elected should each necessarily secure  no less that 50%+1 of the votes cast.  Once elected, the Prime Minister or a Chief Minister should be removable only by a constructive vote of no-confidence.

The fact that the directly elected representatives are all at the grassroots level where they are in contact with their electors on a daily basis, would mean that their accountability to the people will always be high. Corruption will not get the kind of boost and inducement that it gets presently because of an unaccountable remote representative doing what he pleases.

The representatives elected at the grassroots level will also have to win on a 50%+1 vote principle so that their appeal is more universal than parochial. They would then be truly legitimate representatives of their people.  In the alternative, at the lowest tier double-member or multiple member constituencies could be considered.  Local elections do not entail heavy costs. The cost to political parties of indirect State and national elections will be low. Since the national and State governments will handle only higher-level infrastructure and coordination, indirect elections backed by party primaries will facilitate emergence of the best leadership. The ills in the present “first-past-the-post” system will be eliminated because local governments will handle all social issues and State and national governments shall be accountable to local governments as advocated by Gandhi who will have elected them. This will nurture culture, education and values and gradually eliminate social discords. Also, this election process, it is claimed, has the greatest potential to bring public service spirited and sacrifice oriented people to the fore.

There are strong arguments in favour of this Gandhian model and it would be worthwhile that this option is studied deeply and debated widely.  Part II, however, discusses some reform options that may be possible and found necessary within the four walls of the existing system of elections.

Conclusion

If there is continuous community involvement in political administration punctuated by activated phases of well discussed choice of candidates by popular participation, much of unnecessary expenditure which is incurred today could be avoided. Considerable distance may not have to be travelled by candidates nor hidden skeletons in political cupboards tactically uncovered, propagandist marijuana skillfully administered nor violent demonstrations attempted. The dawn-to-dawn multiple speeches and monster rallies, the flood of posters and leaflets and the organizing of transport and other arrangements for large numbers would become otiose. Large campaign funds would not be able to influence the decision of the electors if the selection and election of candidates becomes people’s decision by discussion and not a Hobson’s choice offered by political parties” thus observed the Hon’ble Supreme Court of India.
We have miles to go before we can achieve this ideal goal. Till then, we have no way other than to follow the advice of the Chandogya Upanishad “Yadeva vidya karoti shradhaya upanishadhaha trivisham virothavathi.” It means that if we have faith and conviction and apply our knowledge with deep analytical skills, our action becomes strong and successful. The Indian Constitution does not provide for a formal referendum. But no one can prevent an informal referendum through modern electronic means (J.M. Lyngdoh). Let us therefore join our hands together to strengthen the noble efforts of the Election Commission aimed at curbing money power so that Indian democracy becomes “speaking truth to power, to make truth powerful and power truthful.”

Article 356 of the Constitution: A Critical Analysis

Dr. Seema Sharma, Assistant Professor, MMH College, Ghaziabad, UP, India

Article 356, which empowers the President to impose President’s rule in the States, has been in controversy right from its inclusion in the Constitution. Article 356 incorporated in the Constitution of India gives the President, the power to impose President’s rule in States, where he, on receipt of a report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution. This is an emergency provision where the Union Government may extend its powers into domains normally reserved for the States. Both houses of the Parliament must ratify this proclamation: failure to do this would result in the proclamation expiring in two months. If the proclamation is ratified, it cannot last beyond six months. The use of the word ‘otherwise’, which was not included in the original draft, has received a lot of flak over the years, as it makes the President more susceptible to pressure from those in power.

Since independence this Article has been flagrantly misused on numerous occasions to suit the purposes of a dominant Centre. There has been a constant demand from different parties to scrap this provision. This paper is an endeavor to discover the answer of the question:  whether Article 356 should be scrapped?

Historical Background           

Doubts and fears were expressed in the Constituent Assembly that this power in the hands of the Chief Executive might be misused by the Centre against the States for partisan ends when the parties governing the Centre and the States would be different.  Prof. Shibban Lal Saxena felt that by these Articles, the autonomy of the States had been reduced to a farce ((Constituent Assembly Debates, Vol. IX at 144)).Pandit H.N. Kunzru maintained that the instability resulting from a large number of political groups in a State Legislature would not justify Central intervention. Dr. Ambedkar hesitantly admitted to the possibility of the emergency provisions being employed for political reasons by stating:

“The proper thing we ought to expect is that such article will never be called into operation and that they would remain a dead letter ((Id. at 177)).”

Article 356 in Practice          

In Indian politics the period until 1967 has been described as the period of “one dominant party system”.  During this period the imposition of President’s rule was not frequent. The reason was that by and large the ruling party at the Centre and in the States was the same and this act ensured that the tensions arising between them could very often be resolved through the mechanism of the party set up.  There was a sharp rise of these occasions from 1967 onwards.  The fourth General Elections saw the emergence of a multiparty polity ending the Congress monopoly of power.  There was a sea change in the political scene.  Coalition ministries were formed in a number of States for the first time. Many of them were unstable being based on convenience rather than principle. From here began the saga of frequent misuse of Article 356 for political ends thereby disturbing the federal structure of our Constitution and endangering democracy in our country.

The provision, which was thought of as a “safety-valve”, proved to be a political weapon of the Centre against the States.  The provision, which was intended to be a “dead letter”, has proved to be a “death letter” for a number of State Governments. Different grounds, which were never thought of by the framers of the constitution, have been used for the imposition of President’s rule in the States to suit the political interests of the party in power at the Centre. Every party plays the game at its pleasure: when in opposition, ask for the amendment or abrogation of Article 356 and when in power at the Centre, misuse the power for political ends. President’s rule has been imposed in the States mainly on the following grounds:

  • Breakdown of law and order.
  • Where no ministry could be formed.
  • Political instability as a result of defections.
  • Popular agitation against the ministry.
  • Complete paralysis of the State Administration.
  • Corruption and mal-administration.
  • To end party rivalry.
  • To prevent or facilitate the bifurcation of the State.
  • Pending elections in newly created States.
  • Where the State government belongs to a party which has suffered an overwhelming defeat in the election to the Lok Sabha.
  • Where a State government works against   secularism.

It is submitted that the grounds (vii) and (x) are totally unjustified.  Losing the Central election does not per se amount to a situation where it could be concluded that the State government has lost the mandate of the people of that State. The State government should complete its full term if it is administering the State properly.  Grounds (ii), (iii), (ix) and (xi) are totally justified.  In other cases it is for the President to be satisfied whether the situation is so grave leading to the breakdown of the constitutional machinery.

Failure of Constitutional Machinery in a State

The crux of the problem is that the Constitution has not specified the circumstances, which can be construed to mean, “The failure of the constitutional machinery” in the State. The expression had been left unexplained during its inception in the Constitution. Dr. Ambedkar on being asked by Pandit Kunzaru about the meaning of this expression, had left it undefined vaguely by comparing it the Government of India Act, 1935 ((Ibid)).This answer of Dr. Ambedkar according to Seervai is an evasion of the difficulty pointed out by Pandit Kunzru.  A heavy price had to be paid for this evasion in the years to come ((H.M. Seervai, Constitutional Law of India at 3089 (4th edn., 1996).)), it seems that by not giving any explanation about the meaning of this phrase, Dr. Ambedkar intended to keep it vague.

Shri Santhanam in the Constituent Assembly had tried to categorize this expression into “physical breakdown”, “political breakdown” and “economic breakdown” ((See supra note 1 at 162)). The Sarkaria Commission has categorized this under the following heads ((Id. at 153)).

  • Political crisis.
  • Internal subversion.
  • Physical break-down.
  • Non-compliance with constitutional directions of the Union Executive.

To Scrap it or retain it: Mixed Reactions

Frequent misuse of this Article in ousting the people’s elected governments, of the opposition parties, have generated arguments to scrap this Article from the Constitution.  The Rajamannar Committee appointed by the Government of Tamil Nadu in 1969 and the Resolution adopted by West Bengal in 1977 had suggested the deletion of this Article.  But the Sarkaria Commission did not recommend its deletion but said that the Article 356 should be used very sparingly and as a measure of last resort in case of genuine breakdown of Constitutional machinery in a State ((The  Report  of  the Commission  on  Centre-State  Relations, Part I at 171 (1988).)).The National Commission to Review the Working of the Constitution (NCRWC) in 2002 also reiterated the findings of the Sarkaria Committee, saying that Article 356 could not be deleted but the state should be allowed to offer an explanation and the governor’s report should be a ‘speaking document’, containing an unbiased lucid view of the facts. It only recommended a constitutional amendment concerning non-dissolution of the state assembly until the proclamation is approved by Parliament.

Judicial Review

Judiciary now has assumed an important role to check the misuse of this provision.  Prior to the case of State of Rajasthan v. Union of India ((AIR 1977 SC 1361)),the High Courts were of the view that there could be no judicial review of the satisfaction of the President. In this case, one of the crucial questions which the court had to answer related to the “political question” doctrine. It was argued that having regard to the political nature of the problem, it was not amenable to judicial review and the court must abstain from inquiring into the same. The leading judgment of Bhagwati and A.C. Gupta, JJ. categorically rejected the contention and held:

“[M]erely because a question has a political complexion, that by itself is no ground why the court should shirk 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”.

The learned judges further observed that the satisfaction of the President is a subjective one and cannot be tested by reference to any objective tests. But this does not mean that the judges totally abandoned the idea that the exercise of these powers could be subject to judicial review.  Bhagwati, J. observed that if the satisfaction is mala fide or is based on wholly extraneous and irrelevant grounds, the court would have jurisdiction to examine it.Imposition of President’s rule in the State of Karnataka on April 21, 1989 was challenged before the Karnataka High Court in S.R Bommai v. Union of India ((AIR 1990  Kant 5(FB).)). The Presidential satisfaction was based on the Governor’s report and on “other information”. The Full Bench held that Proclamation made under Article 356 of the Constitution was justiciable, and that the courts could look into the materials or the reasons disclosed for issuing the Proclamation to find out whether those materials or reasons were wholly extraneous to the formation of the satisfaction and had no rational nexus at all to the satisfaction reached under Article 356 of the Constitution.

In the case of S.R. Bommai v. Union of India ((Id.)),the Apex Court has finally settled the position. The Court took  note of the Sarkaria Commission’s Report, regarding  the situations which will not warrant resort to Article 356.Some of them are as follows:

  1. A situation of maladministration in a State where a duly constituted Ministry enjoys majority support in the Assembly.
  2. Where a Ministry resigns or is dismissed on losing its majority support in the Assembly and the Governor recommends imposition of President’s rule without exploring the possibility of installing an alternative government..
  3. Where, a Ministry which has not been defeated on the floor of the House, the Governor declines to dissolve the Assembly and without giving the Ministry an opportunity to demonstrate its majority support though the “floor test’, recommends its suppression and imposition of President’s rule merely on his subjective assessment
  4. Where   in the General Elections to the Lok Sabha, the ruling party in the State, has suffered a massive defeat.
  5. Where in a situation of “internal disturbance”, not amounting to or verging on abdication of its governmental powers by the State Government, all possible measures to contain the situation by the Union in the discharge of its duty, under Article 355, have not been exhausted.
  6. Where no prior warning or opportunity is given to the State Government   to correct itself in cases where directives were issued under Article 256, 257, etc.
  7. Where the power is used to sort out internal differences or intra-party problems of the ruling party.
  8.  Where there are serious allegations of corruption against the Ministry.
  9. Where there are only stringent financial exigencies of the State.

In the Bommai judgment the scope of Article 356 was discussed at length some of the conclusion of the judgment are as follows:

  • The Proclamation under Article 356 is not immune from judicial review.  The Supreme Court or the High Court can strike down the Proclamation if it is found to be mala fide or based on wholly irrelevant or extraneous grounds.
  • Article 74(2) bars judicial review so far as the advice given by the Ministers is concerned, it does not bar scrutiny of the material on the basis of which the advice is given.
  • If a State Government works against secularism, President’s rule can be imposed.
  • Strength of the ministry should be tested on the floor of the House, which is the sole constitutionally ordained forum. The assessment of the strength of the Ministry is not a matter of private opinion of any individual, be he the Governor or the President.
  • Though the power of dissolving of the Legislative Assembly could 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 the Houses of Parliament under clause (3) and not before. The dissolution of the 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.
  •  In an appropriate case and if the situation demands, the High Court/Supreme Court can also stay the dissolution of the Assembly but not in such a manner as to allow the Assembly to continue beyond its original term.
  • If the Court strikes down the Proclamation, it has the power to restore the dismissed Government in office and revive and reactivate the Legislative Assembly wherever it may have been dissolved or kept under suspension.  In such a case, the Court has the power to declare that the period the Proclamation was in force shall remain unaffected and be treated as valid.

Ramaswamy, J. dissenting with the majority observed that there is no express provision in the Constitution to revive the Assembly dissolved under the Presidential Proclamation or to reinduct the removed Government of the State. He further observed that the political parties must seek a fresh mandate from the electorates and establish their credibility by winning majority seats.  The possibility of reinduction creates functional hiatus.

Seervai supported ((See supra note 9 at 3107))the dissent of Ramaswamy, J.,while Soli Sorabjee favoured the majority judgment. According to Sorabjee, the decision in the Bommai case marks the high watermark of judicial review.  It is a very salutary development and will go a long way in minimising the Centre’s frequent onslaught on the States ((Soli J. Sorabjee, “Decision of the Supreme Court in S.R. Bommai v. Union of India :  A Critique”, (1994) 3 SCC (J) 28)).

Uttar Pradesh in 1998 when Governor Romesh Bhandari, being of the view that Chief Minister Kalyan Singh Ministry had lost majority in the Assembly dismissed him without giving him opportunity to prove his majority on the floor of the House and appointed Shri Jagdambika Pal as the Chief Minister which was challenged by Shri Kalyan Singh before the High Court which by an interim order put Shri Kalyan again in position as Chief Minister. This order was challenged by Shri Jagdambika Pal before the Supreme Court which directed a “composite floor test” to be held between the contending parties which resulted in Shri Kalyan Singh securing majority. Accordingly, the impugned interim order of the High Court was made absolute ((Jagdambika Pal v. Union of India, (1999) 9 SCC 95)).

In the year 2005, the Governor of Jharkhand was ordered by the Supreme Court for holding a floor test to determine which party/political alliance commanded a majority in Jharkhand. The Court made it clear that the discretionary power under Article 164(1) of the Governor is subject to judicial review. And the exercise of such power can constitutionally be insured by conducting floor test. Thus, the democratic principle propounded in Bommai case was again sounded in this case and so as with Arjun Munda v. Governor of Jharkhand (([2005] 3 SCC 399)).

Rameshwar Prasad and Others v Union of India (([2006] 2 SCC 1))is  the first of its kind where even before the first meeting of the Legislative Assembly its dissolution had been ordered on the ground that attempts were being made to cobble together a majority by illegal means and to lay claim to form the government in the State. The judgment concentrated on the Governor’s role and reiterated earlier recommendations about the type of persons who should or should not be appointed as Governors. It appeared to be too soft on the role of other players particularly the Union Cabinet when it merely said: “the Governor may be the main player, but Council of Ministers should have verified facts stated in the report of the Governor before hurriedly accepting it as a gospel truth as to what Governor stated. So, in the facts and circumstances of the case the “council of ministers should have verified facts stated in the report of the governor before hurriedly accepting it as a gospel truth”. Clearly, the Governor has misled the Council of Ministers…” And we might add that the Council of Ministers misled the President. The Court held that in view of the election process was set in motion and was at an advance stage, in the larger interest, it would not be proper to order revival of a state assembly. Rameshwar Prasad case has reiterated the principles enunciated in State of Rajasthan and Bommai case with more constitutional conscience. The Court made it clear that Article 356 contains an emergency power and this emergency power should be used not as normal power.

Concluding Remarks

It is evident from this study that a provision – Article 356 – which was incorporated in the Constitution for a noble cause of ensuring the governance in the States according to the provisions of the Constitution has been frequently misused by the parties at the Centre to achieve their political ends. The hopes and expectations of Dr. Ambedkar that this provision would remain a dead letter are belied and the apprehensions of many others have been proved true.Since the coming into force of the Constitution of India on January 26, 1950, President’s rule has been imposed on more than 100 occasions and on all these occasions it was seldom used and often misused.  The Union Government has not adopted a uniform pattern in accepting the causes and circumstances   which may warrant the invocation of Article 356. The expression “failure of constitutional machinery in the State” has been liberally used by the parties at the Centre at their pleasure taking undue advantage of the vagueness of this expression.

It is evident that there was divergence of views among judges about the issues of interim relief and the re-induction of the dissolved assembly status quo ante.  The majority judgments came in the affirmative, contrary to the strong dissent of Ramaswamy,J.

Regarding the “floor test”, the dissent of  Ramaswamy,J. is worth mentioning. He had observed that a floor test may provide impetus for corruption and rank force and violence by musclemen or wrongful confinement or vocational capacity of legislators.It is submitted that the only purpose of the “floor test” is to test the majority in the legislature. It is not the sole test for negating the Presidential Proclamation.  The government in power may have majority support in the legislature and yet there may be a breakdown of the constitutional machinery.  In Rao Birinder Singh case ((Rao Birinder Singh v. Union of India, AIR 1968 P&H 441)), President’s rule was  imposed in Haryana in November 22,1967.The dismissed government led by Rao Birinder Singh enjoyed the majority support in the Assembly, but due to frequent defections the administration of the State was totally paralysed.  In the Bihar case, likewise, the Rabari Devi Government enjoyed   the majority support in the legislature, still the Central government had recommended the invocation of Article 356 in the State on   September 22,1998. On the reiteration of the early recommendation of the cabinet, President’s rule was imposed in Bihar on February12, 1999 ((See supra note 2. Also see, Arshi Khan, “Politics of President’s Rule in Bihar”, 37(10) Mainstream 7(1999); Kamla Prasad, “President’s Rule and Bihar Politics”, 37(14) Mainstream 9(1999).)). Similarly if the State government does not comply with the direction or instructions from the Centre issued under Article 257, there can be failure of constitutional machinery in spite of the majority support in the legislature, thereby making fit case for the invocation of Article 356.

It is crystal clear that power under Article 356 has been misused due to vagueness of the expression “failure of constitutional machinery”.  But at the same time, it is not possible to limit the scope of action under Article 356 to specific situations as the failure of constitutional machinery may occur due to various causes all of which cannot be foreseen or put in the strait jacket of a statute.  It is difficult to give an exhaustive list of all the situations.  It is suggested that healthy conventions should be developed for the proper use of Article 356 keeping in mind the recommendations of Sarkaria Commission and Bommai judgment

 I would conclude my paper by saying that, in the ultimate analysis, it is the men and women, who work the law, who make it good or bad.  I would say with Dr. Rajendra Prasad on the day, the Constitution of India was adopted.

… If the people who are elected are capable and men of character and integrity, they would be able to make the best even of a defective Constitution.  If they are lacking in these, the Constitution cannot help the country.  After all, a Constitution like a machine is a lifeless thing.  It acquires life because of the men who control it and operate it, and India needs today nothing more than a set of honest men who will have the interest of the country before them…

It is not a good exercise to scrap a provision, which was inserted in the Constitution after great deliberations with a noble perception. The best exercise is to retain it and practice it with great caution as our Founding Fathers expected, keeping in mind the interest of the people so as to ultimately benefit them, when they are genuinely hampered by dysfunctional governance.

Judicial Review Of Administrative Action

Author : Sushant Rochlani
“Administrative law and judicial review of administrative action” is a very important subject in modern times. According to Wade, administrative law is the law relating to the control of powers of the executive authorities. To consider why such a law became necessary, we have to consider its historical background. Up to the 19th century the functions of the State in England were confined to (i) defense of the country from foreign invasion, and (ii) maintenance of law and order within the country.

Feudal, agricultural society was relatively simple and social relations were uncomplicated. There were few laws, mainly customary (not statutory). But with the advent of industrial revolution in the 18th and 19th centuries, society became complex. Concentration of people in urban areas called for new regulatory State authorities for town planning, housing improvement, public health, education, factory management, street lighting, sewerage, drainage, sanitation, schemes for providing water, electricity, etc. Also the early 20th century laid the foundation for a Welfare State dealing with health insurance, unemployment allowance, sickness and old age benefits, free and compulsory education, etc. Continue reading “Judicial Review Of Administrative Action”