Lex Bona Fide – Law Journal


INTRODUCTION The pressure over the constitution-makers when it was into the process of making can never be felt by us. They inculcated certain special features in the constitution of India clearly outlining their intention behind its drafting. some of those features though not very expressly used in the document of the constitution itself, are declared as the basic structures in a lot of judicial proceedings. As time passed these features of the constitution made a lot of contribution as the document evolved and the nation evolved with it but owing to the intertwined and coexisting nature of the nation and the constitution, the conflict did not remain silent in the legal history of the nation. Since ancient times the power was sourced from authority and even in the times of the present a lot of countries have been following this trend. In the course of time, some of them did show some deviation from this and new ideas came up and hence evolved the division theory more properly known as federalism – A word which is not stated expressly in the constitution of India but upheld by the judicial framework of the country time and again.   This paper aims to track down what is the word and how is it incorporated into India, taking into its stride the important role that the judiciary has played in enshrining this widely known yet conspicuous feature – federalism.   WHAT IS FEDERALISM – AND ITS FEATURES. Federalism is a concept of division of powers that slowly built up. The word federalism was never included in the constitution of the country and yet every feature that the theory holds as being essential for a country to be federal has been incorporated by India. When Dr B.R. Ambedkar was asked the reason behind India being a Union as opposed to a federation of states, he gave a beautiful answer explaining that “The Drafting Committee wanted to make it clear that though India was to be a federation, the federation was not the result of an agreement by the States to join in a federation and that the federation not being the result of an agreement no State has the right to secede from it. The Federation is a Union because it is indestructible.” the features of these federal governments are a lot easier to track than the unitary forms of the government owing to certain characteristics such as a constitution which is rigid and on paper, the judiciary which is independent, the constitution is supreme and the legislature which is bicameral. A pertinent question which then arises is what is federalism and what are all of its essential features? The essential fixtures needed to be in place for a state to be called federal are –
  1. A DUAL POLITY –A system of the union and the states which consists of the central role of the union and the states at the periphery. The Union and the states are defined and restricted with the constitution respectively in the areas and fields which are assigned to them.
  2. A CONSTITUTION WHICH IS ON PAPER – Our constitution makers wrote the lengthiest constitution of the whole world.
  3. POWERS TO BE DIVIDED BETWEEN LEVELS – The powers so conferred by the constitution are divided between the lists such as the union the state and the concurrent lists. what this also means is that a clear demarcation and separation of powers between various levels can be clearly seen and understood.
  4. THE CONSTITUTION IS SUPREME – the supreme document of the land is the constitution and that no laws can overarch and override the provisions which are specific to such a constitution.
  5. CONSTITUTION WHICH IS RIGID. – Those provisions in the constitution are concerned with the federal structure of the country – essentially meaning that they can be amended only and only by a joint action that requires both the centre and the state.
  6. THE JUDICIARY SHOULD BE INDEPENDENT AND is headed by the supreme court which enjoys a different kind of jurisdictions.
  7. BICAMERAL SYSTEM OF GOVERNANCE – The RajyaSabha also often represents the states in the federation of India while the Loksabha often represents the people of India as a whole.
  IS INDIA FEDERAL? The problem with the issue of federalism today in India is mainly based on 2 different areas of conflict. while one of them believes in the fission of the followers the other tends towards the fusion. this conflicting characteristic and nature of the constitution help the evolution of the nation but on the other hand it also sometimes becomes a conflicting part and a matter of debate between the courts to decide if the nation is partially unitary or purely federal. the possibility and the chance of us being a unitary government were not there at the time when independent India emerged and hence our approach naturally shifted to being a federal state. However the word federal denotes a treaty towards our nation and hence this term of discarded in its totality by the makers of our constitution. While in the document of the constitution it is clearly mentioned that India is a ” union of states” and according to one of the stalwarts Dr B.R. Ambedkar, “the reason why the phrase union of states has been chosen over the term “ federation of states” is
  1. The Federation of India is not a result of any agreement between the states like that of the American federation
  2. The states thus accrue no right to secede from this federation. the word union holds a sense of indestructibility to it and since the federation is not indestructible it is a union. [1]
However, even after being federal in its essence, this feature is never mentioned expressly in the constitution of India and hence it’s only the judicial pronouncement by the apex and the other courts time and again which provide some validity and clarity with regards to the judicial nature of the state. however, this adaptation by this nation is not imposed but is accepted according to this very need. in addition to this, no one of these two can be placed over the other as there are a lot of examples from both sides making it very clear that both of these work very well according to the needs and the demands of a nation.   WHERE DOES THE CASE OF SR BOMMAI COME IN – Article 356 deals with the imposition of the President’s Rule over the State of India. once a state is below President’s Rule, the no appointed authorities (led by the Chief Minister and the Council of Ministers) is discharged and Council of ministers is suspended at assembly, and administration is conducted directly by the Governor of the state. The Governor is an appointee of the President and so, effectively, a trained worker of the Union Government (the central or federal government). So the imposition of the President’s Rule negates the federal character of the Indian social group, wherever administration typically is shared between the Union and State governments. It additionally militates against the democratic philosophy of popular sovereignty, since no appointive government is suspended. These reasons have created the use of Article 356 debatable. notwithstanding, it had been used repeatedly by central governments to suspend state governments. In the debates of the constituent assembly, Dr BR Ambedkar was very vociferous when he said that it was not a matter of contention that whether the constitution is good or bad. he said that it is the people on whom it ultimately depends on the power to enforce the document of the constitution. Now what this also means and at the same could also be easily inferred from the incidents when the state government stood dissolved by the Janta party and then again during the reign of Narsimha Rao when the state governments – no less than four of them stood dissolved and presidents orders were imposed and those state governments the supreme court in the case of S.R.Bommai v union of India stated that presidents power does not reside above the review by the judiciary entirely. What it also meant was that the court narrowed the ambit and the scope of such powers being exercised hence furthering the idea of the autonomy of the states in the furtherance of federalism. ”S.R Bommai v. Union of India  came before the bench of nine judges (consisting of Kuldip Singh, P. B. Sawant, KatikithalaRamaswamy, S. C. Agarwal, YogeshwarDayal, B. P. Jeevan Reddy, S. R. Pandian, A. M. Ahmadi, J. S. Verma) “[2]beneath the subsequent circumstances:   Karnataka The Janata Party being the bulk party within the Karnataka State Legislature had made the government in the leadership of S. R. Bommai. In September 1988, the Janata Party and Lok dal incorporated a replacement party referred to as Janata dal. The Ministry was expanded with the addition of thirteen members. In the course of  2 days thenceforth, K.R. Molakery,  of Janata dal defected from the party. He had given a letter to Governor PendekantiVenkatasubbaiah along with nineteen letters, allegedly signed by legislators supporting the Ministry, retreating their support. As a result, on nineteen April, the Governor sent a report back to the President stating that there have been dissensions and defections within the ruling party. He additionally also said that in the light of all the withdrawal of the support by the aforesaid people, the chief Minister, Bommai failed to command a majority within the Assembly and, hence, it absolutely was inappropriate and beneath the Constitution, for the state to be administered by an Executive consisting of Council of Ministers which failed to command the bulk in the state assembly. He, therefore, suggested to the President that he ought to exercise power given by  Article 356(1). However, on the very next day, seven out of the 19 legislators who had allegedly written the aforesaid letters to the Governor sent letters to him fretful that their signatures were obtained on letters sent before were by deceit and Affirmed their support to the Ministry. The Chief Minister and his Law Minister met the Governor on the very day and told him regarding the choice to summon the Assembly. He sent a telex message to the President. The Governor even then sent yet one more report back to the President on the very day i.e., 20-4-1989, and stated that the Chief Minister had lost the trust of the bulk within the House and his earlier request for action under Article 356(1). The Proclamation was, thenceforth approved by the Parliament as required by Article 356(3).     A writ petition was filed on twenty-six April 1989 contesting the validity of the proclamation. A special bench of three judges of the Karnataka High Court dismissed the legal petition.   Meghalaya On eleven October 1991, the president issued a proclamation under Article 356(1) dismissing the govt. of Meghalaya and dismissing the lawmakers. The Proclamation said that the President had received a report from the Governor that matters had arisen within which the govt. of the State couldn’t be carried on in accordance with the provisions of the Constitution. the govt. was discharged and also the Assembly was dissolved consequently.   Nagaland On seven August 1988, the president issued the proclamation on the premise of the Governor Report and discharged the govt. of Nagaland thus dismissing the party people. Vamuzo, leader of the opposition party, challenged the validity of the Proclamation in the Gauhati state supreme court. A Division Bench comprising the justice and Hansaria, J. went through the petition. The Bench differed on the impact and operation of Article seventy-four (Constitution of India) and therefore the matter was referred to the third bench. however before the third learned bench might hear the matter, the Union of India headed by Rajiv Gandhi’s Congress Party affected this Court for grant of special leave that was granted and also the proceedings within the state supreme court have stayed.   Madhya Pradesh, Rajasthan and Himachal Pradesh On account of the Babri skeleton demolition, communal riots structure within the entire country. The Central Government beneath the leadership of Shri P V Narasimha Rao of the Congress party banned RSS, VHP and Bajrang Dal. The Central Government discharged the BJP Governments of Madhya Pradesh, Rajasthan and Himachal Pradesh. As a result, on fifteen December 1992, the president issued the proclamation beneath Article 356 dismissing the State Governments and dissolving the Legislative Assemblies of Madhya Pradesh, Himachal Pradesh and Rajasthan. The validity of those proclamations was challenged by the Writs within the acceptable High Courts. The Madhya Pradesh High Court allowed the petition, however, an instrument petition concerning Rajasthan and Himachal Pradesh was taken to Supreme Court.   The aforesaid petition contained similar question of law and so they were detected jointly by the Hon’ble Supreme Court. The arguments in S.R. Bommai’s case commenced within the 1st week of Oct 1993 and were over within the last week of December 1993.   THE CONTENTIONS OF THE CASE
  1. R. Bommai v. Union of India raised a serious question of law about the Proclamation of President’s Rule and dissolution of Legislative assemblies per Article 356 of the Constitution of India.
The first and most significant question that the Supreme Court had to work out was whether or not the Presidential Proclamation underneath Article 356 was justiciable and if therefore to what extent. The second rivalry was whether or not the President has unshackled powers to issue Proclamation underneath Article 356(1) of the Constitution.   It was contended that since the Proclamation under Article 356 would be issued by the President on the recommendation of the Council of Ministers given under Article 74(1) of the Constitution and since Clause [2] of the same Article bars inquiry into the question whether or not any, and if so, what recommendation was tendered by Ministers to the President,  the judicial review assessing the constitutional validity of the proclamation stands barred. It was also contended whether or not the validity of the Proclamation issued underneath Article 356(1) can be challenged even once if it’s been approved by each house of Parliament under Article 356(3).   It was conjointly contended that whether or not any relief is granted once the validity of proclamation is challenged and whether or not the court will grant an interim stay against holding the recent election. it had been contended that Secularism is a basic feature of the Constitution, a regime is dismissed if it’s guilty of nonsecular acts as the dissolution of the president was without the assent of each of the parliament. THE RULING OF THE COURT The SC set down sure pointers so as to stop the misuse of Article 356 of the constitution.
  1. the powers that are enjoyed by the Council of Ministers shall be tested on the ground of the House.
  2. The Centre ought to provide a warning to the state and a basic time of 1 week to reply.
  3. The court will not question the recommendation tendered by the governor to the President however it can question the fabric behind the satisfaction of the President. Hence, the review can involve 3 queries only:
  4. Is there any reasoning behind the proclamation
  5. is the reasoning relevant.
  6. Was there any mala-fide use of power?
  7. If there’s improper use of Article 356 then the court can offer a remedy.
  8. underneath Article 356(3) it’s the limitation on the powers of the President. Hence, the president shall not take any irreversible action till the proclamation is approved by the Parliament i.e. he shall not dissolve the assembly.
  9. Article 356 is applicable if and only if there has been a breakdown of constitutional machinery and not body machinery
  Article 356 shall be used carefully by the union, otherwise, it’s sure to destroy the constitutional structure between the union and also the states. Even Bhimrao Ambedkar envisaged it to stay a ‘dead letter’ within the constitution. Based on the report of the Sarkaria commission the supreme court went on to say that – Imposition of President’s rule a state would be correct within the following situations:
  • wherever once general elections are held to the assembly, no party secures a majority.
  • wherever the party having a majority within the assembly declines to create a ministry and also the governor cannot realize a coalition ministry commanding a majority within the assembly.
  • wherever a ministry resigns once its defeat within the assembly and no alternative party is willing or able to form a ministry commanding a majority within the assembly.
  • wherever a constitutional direction of the Central government is deliberately forgotten by the regime.
  • Internal subversion wherever, for instance, a government is deliberately acting against the Constitution and also the law or is expecting a violent revolt.
  • Physical breakdown wherever the govt. wilfully refuses to discharge its constitutional obligations endangering the protection of the state.
  Under the same rulings, the supreme court went on to say that The imposition of President’s rule a state would be improper underneath the subsequent situations:
  • wherever a ministry resigns or is discharged on losing majority support within the assembly and also the governor recommends imposition of President’s Rule
  • wherever the governor makes his own assessment of the support of a ministry within the assembly and recommends imposition of President’s Rule while not permitting the ministry to prove its majority on the ground of the Assembly.
  • wherever the ruling party enjoying majority support within the assembly has suffered a vast defeat within the general elections to the Lok Sabha like in 1977 and 1980.
  • Internal disturbances not amounting to internal subversion or physical breakdown.
  • Maladministration within the state or allegations of corruption against the ministry or rigorous monetary exigencies of the state.
  • wherever the regime isn’t given a previous warning to rectify itself except just in case of utmost urgency resulting in fatal consequences.
  • wherever the facility is employed to sort away out intra-party issues of the ruling party, or for a purpose extraneous or inapplicable to the one that it’s been given by the Constitution.
The second question that was taken into thought by the court was that whether or not the President has unshackled powers to issue Proclamation underneath Article 356(1) of the Constitution of India. It had been contended that The Supreme Court during this regard stated that the facility given by Article 356 on the President may be a conditioned power. it’s not absolute power. This satisfaction is also shaped on the premise of the report of the Governor or on the premise of alternative data received by the president. The dissolution of the Legislative Assembly should be resorted to only if it’s necessary for achieving the needs of the proclamation. The exercise of the facility is created subject to the approval of each house of the Parliament.   CONCLUSION – There are only a limited number of cases in the Indian parlance where the judges seem to have different opinions regarding the same thing. The case below is a significant example of this very thing, where 4 judges together expressed their views on federalism. The different views of the judges in the case are significant to note at this juncture.
  1. Justice Ahmadi – according to justice Ahmadi since the constitution nowhere in its entire document mentions the word federal, it is a quasi-federal constitution.
  2. Justice Kuldeep and Justice Sawant – federalism is a very essential feature of the constitution
  3. Justice Ramaswamy – he declared the nation as federal but an organic federation which is designed as per the demands and needs of the parliament
  4. Justice JeevanReddy and Justice Aggarwal – the federalism in the constitution have a meaning which is very different from that of the context of the constitution. what this case also supposed to is the arbitrary use of article 356 of the constitution of India.
Hence the court has upheld the issue of federalism and has been very clear in stating that India is a federal country with specific powers given to the centre and the states and that the constitution-makers were careful enough to not give unlimited powers in the hands of anyone person.     BIBLIOGRAPHY / SOURCES OF INFORMATION
  1. Indian Express.com
  2. Drishtiias.com
  3. jagranjosh.com
  4. ighhsipapers.org
[1]Matthew Idiculla, Federalism and fairness, The Hindu,April3,2018 at Pg 7 [2]1994 AIR 1918