Article 356 and the Scope of Judicial Review: A Critical Study of

State of Rajasthan v. Union of India

Submitted to:
Dr. P Subhakar Reddy
Professor Of Law

Submitted by:
Permanika Chuckal
VIth Semester
2012075

Damodaram Sanjivayya National Law University

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ACKNOWLEDGMENT

I would like to express my special appreciation and thanks to my advisor, my Faculty , who
has been a tremendous mentor for me. I would like to thank you for encouraging my research,
advice for the research has been priceless.
I would extend my thanks to the University Authorities, for providing me with is opportunity
to submit my project. I am indebted to all those who have helped me in developing this
project for their suggestion and guidance.

Permanika Chuckal
2012075

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TABLE OF CONTENTS
TABLE OF CASES & STATUTES

RESEARCH METHODOLOGY

INTRODUCTION

CHAPTER 1- JUDICIAL REVIEW

10

CHAPTER 2- JUDICIAL REVIEW OF

12

THE

PRESIDENTS

PROCLAMATION
CHAPTER 3- ISSUES DISCUSSED

16

IN State of Rajasthan
CHAPTER 4- THE DEBATE OVER
JUDICIAL

REVIEW

IN State

19

of

Rajasthan
CHAPTER 5- CONCLUSION

21

BIBLIOGRAPHY

24

TABLE OF CASES & STATUTES

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CASES
INDIAN LAW

Golak Nath v. State of Punjab, AIR 1967 SC 1643.

Hanumantha Rao v. State of A.P, AIR 1974 Ori 52.

In re A Sreeramulu, AIR 1974 A.P. 106.

Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299.

Jayantilal Amratlal v. T.N.Rana, AIR 1964 SC 648.

K.K.Aboo v. Union of India, AIR 1965 Ker. 229

Kesavananda Bharati v. Union of India, AIR 1973 SC 1461.

Minerva Mills v. Union of India, AIR 1980 SC 1789.

Rao Birendra Singh v. Union of India, AIR 1968 P&H 441.

Rao Birendra Singh v. Union of India, AIR 1968 P&H 441.

S R Bommai v. Union of India, (1994) 3 SCC 1.

Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845.

Samsher Singh v. State of Punjab, AIR 1974 SC 2192.

Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd., (1983) 1 SCC 147

Shankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458.

State of Rajasthan v. Union of India, AIR 1977 SC 1361.

AMERICAN LAW

Marbury v. Madison, 5 US (1 Cranch) 137 (1803).

Colegrove v. Greene, (1945) 328 US 549.

Baker v. Carr, (1962 ) 369 US 186

STATUTES

The Constitution of India

The Government of India Act, 1935.

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RESEARCH METHODOLOGY
AIMS & OBJECTIVES: The researcher aims to study the development of the doctrine of
judicial review and its application in relation to the powers of the President under Article 356
of the Constitution of India. It also aims to study the extent to which the above doctrine can
be used as a safeguard against the misuse of the said article.
SCOPE & LIMITATIONS: The topic of this project necessitates a detailed reference to the
case of S R Bommai. However, the surfeit of data to be dealt with and the required critique
of State of Rajasthan, made the reference to Bommai in the project, a summary one.
RESEARCH QUESTIONS:
1.

What powers does Article 356 provide?

2.

Why is Article 356 the most misused provision of the Indian Constitution?

3.

What safeguards does the Constitution provide against the misuse of Article 356?

4.

What is the doctrine of judicial review?

5.

How did the doctrine of judicial review originate?

6.

To what extent has the doctrine of judicial review developed in the Indian context?

7.

Why has the Judiciary restrained from applying judicial review to the powers under
Article 356?

8.

What is the doctrine of the political thicket?

9.

What is the case law development leading to the case of State of Rajasthan?

10. What were the issues discussed in State of Rajasthan?

11. What was the debate over judicial review in State of Rajasthan?
12. What role can the Judiciary play in protecting the states in case of misuse of Article 356,
post State of Rajasthan?
METHODOLOGY: The researcher uses both analytical and descriptive methods in
presenting the project.
SOURCES: Only secondary sources of data are used.
MODE OF CITATION: A uniform mode of citation is used
HYPOTHESIS: Judicial Review is the best safeguard against misuse of executive power
under Article 356.

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INTRODUCTION
The Constitution of a country is not merely a document. It is a living, breathing institution. It
has to change and adapt itself to suit the needs of a changing people. The Indian Constitution
is no exception. It has grown to fit the requirement of a country very different from the one
that was seen at its inception. During this evolution, it has been nurtured and led through the
various stages of its development by the judiciary. The functioning of the Constitution, as we
see it today, has been fashioned out of interpretation and review by the judiciary.
Article 356 was seen to be a dead letter 1by the framers of the Constitution. However, as a
result of various political developments like defections and Constitutional controversies like
speculation regarding the role and powers of Governors and that of the President as the
Constitutional Head of State, it has developed into the single most talked about article of our
Constitution.
This project deals with the judicial review of Presidential proclamations under Article 356 of
the Constitution, with special reference to the judgements of the honourable Supreme Court
in State of Rajasthan v. Union of India2.It attempts to critically analyze the debates relating
to the issue of judicial review of the Presidents Proclamation in the judgements in light of the
use and misuse of the provisions of this article.
ARTICLE 356: It is one of the features of a federal Constitution that the Union should
guarantee its units protection in cases of external aggression or internal disturbances 3[3]. In
fact, this obligation of the Union can be seen in various federal systems 4. Article 356 was a
response to this need felt by the framers of the Constitution. It provides for the possibility of
what the framers of the Constitution saw as breakdown of Constitutional machinery in a
State. Clause 1 of the article allows the President if satisfied on receipt of a report from the

1 C.A.D. IX, p. 123. c.f Dr. Anirudh Prasad, Centre-State Relations In India, (Deep and Deep
Publications, New Delhi) p.238
2 AIR 1977 SC 1361
3 Supra note 1
4 Article IV, Section IV of the Constituion of the United Sates of America
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Governor or otherwise that such a situation has arisen to issue a Proclamation to the effect
that he can
Article 356 confers sweeping powers on the Central executive. Much of this power comes
from the ambiguity surrounding the circumstances that necessitate the use of this power.
Article 356 does not spell out the situations necessitating the use of power under the same. In
fact Article 365 is the only instance in the Constitution in which, the use of power under
Article 356 is specified. The instance considered under Article 365 was used by Mahavir
Tyagi5[5], who argued for the provisions of Article 356, in the Constituent Assembly. Article
365 says that it would be lawful for the President to hold that a breakdown of Constitutional
machinery had occurred in a State which refuses to comply with the executive directives of
the Centre. Tyagi argued that the provisions under Article 356 are necessary because
persistent refusal by a State to comply with the directives of the Union is not conducive to
federalism..
USE OF ARTICLE 356: The Sarkaria Commission on Centre-State relations6 examined this
issue in Chapter Six of its Report. It pointed out in the first instance that the use of article 356
has been rising with the passage of time. Whereas between 1950 and 1954, it was invoked
only on 03 occasions, it was invoked on 09 occasions between 1965 and 1969; it rose to 21
instances during the period 1975-1979 and to 18 during the period 1980-1987.
In Kerala7, in July 1959, an instance of the exercise of the powers under Article 356 took
place. Though the communist government commanded the confidence of the majority in the
legislature, it was felt that people had lost confidence in the government. Breakdown of law
and order was visible evidence of this. The Central Government advised the ministry to ask
the governor to dissolve the legislature so that fresh elections may be held. However, this
advice was not taken. Thereupon, the President issued a proclamation taking over the
administration of the state under Article 356.
In Haryana in 1967, large scale defections in the legislature resulted in a precarious
confidence of the majority in the government. Consequent to the Governors report that this,
5 C.A.D. IX, p.123. c.f Dr. Anirudh Prasad, Centre-State Relations In India, (Deep and Deep
Publications, New Delhi, ) p8
6 National Commision to review the working of the Constituion, A Consultation Paper on Article 356, (Vigyan
Bhavan, New Delhi, 2001).

7 V.N.Shukla, Constituion of India, (Eastern Book Company,Lucknow, 9th ed. , 1994 ) p.869.
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coupled with abuse of power by ministers resulted in political corruption in the state and that
there was no stable alternate to the existing government, the President issued a proclamation
dismissing the ministry of the state. The former Chief Minister of the state questioned the
Constitutionality of the proclamation8.
1.

The ministry enjoyed a majority support in the legislature and hence was carrying on
the Government of the State in accordance with the provisions of the Constitution.

2.

The proclamation did not show how the government was not carried out according to
the provisions of the Constitution and that which provisions of the Constitution were
being referred to.

The writ petition was dismissed on the following grounds.

1.

The proclamation was not an executive act of the Union of India. President was not
amenable to the High Court under Article 361(1)

2.

The reconsideration of the proclamation was a Constitutional power vested with the
Parliament, hence excluding the jurisdiction of the High Court.

3.

Mala fides could also not be considered as there was enough material in the
Governors report to validate a breakdown of Constitutional machinery.

Since the inception of the Constitution, there have been five types of instances in which a
breakdown of Constitutional machinery has been declared in a State9.

To solve the intra party problems of the party in power at the Centre.

Because an alternate ministry could not be formed.

Because party positions were fluid and uncertain in the Legislature. The 1968 use of
the provisions of Article 356 in Haryana (discussed above) was because of uncertain
composition of the Legislature.

On grounds of mass upsurge against maladministration. The example involving

Kerala discussed above, would fall under this category.

On the grounds that the Legislature had ceased to be representative of the people. The
case that forms the crux of this project, State of Rajasthan10, was a result of the use of
Article 356 on these grounds.

8 Rao Birendra Singh v. Union of India, AIR 1968 P&H 441

9 Dr. Anirudh Prasad, Centre-State Relations In India, (Deep and Deep Publications, New Delhi)
p.240
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CONSTITUTIONAL SAFEGUARDS AGAINST ABUSE OF POWER UNDER

ARTICLE 356: The fact that the Constitution does not clearly spell out the occasions that
may warrant the use of the Presidents power under Article 356 has already been discussed.
Since this ambiguity in the Constitution is the cause of misuse of the said power, one has to
look into the procedural mechanism that the Constitution has provided as safeguard against
misuse of power.
Clause 3 of Article 356 says that unless the Proclamation is approved by both houses of
Parliament, it shall cease to operate after two months. Article 4 says that the life of a
Proclamation approved by Parliament will not exceed beyond six months unless a resolution
approving its continuance in force is approved by both houses of Parliament. The life of a
Proclamation can go up to a period of three years.
These provisions make it clear that the President issues the Proclamations on behalf of the
Parliament. Therefore all of them require the sanction of the Parliament. Such sanction
however, has to be cautious and short lived. The reason that the Rajya Sabha, the Council of
the States has equal weightage in this regard is to ensure that there is no unnecessary Central
intervention in State affairs.
However problems with this safeguard occur when Parliamentary sanction is sidestepped. In
1977, the Proclamation resulting in the dissolution of nine State Legislatures was not put
before the houses of Parliament. The researcher submits that such a practice should not be
encouraged as it cannot be justified by any stretch of argument. Another Constitutional
problem arises if the Parliament refuses its assent to the Proclamation. It is regarding the legal
validity of the measures taken during the life of the Proclamation. In State of Rajasthan11, the
petitioners argued that if the President is unsure of the assent of the Legislature, he should
abstain from taking irrevocable measures like the dissolution of State Assemblies. However,
Beg C.J in his judgement gave a literal interpretation of Clause 3 of Article 35612.

10 Supra note 2
11 Supra note 2.
12 AIR 1977 SC 1361. p.1391.
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CHAPTER 1
JUDICIAL REVIEW
The Blacks Law Dictionary defines judicial review as the power of courts to review another
department or level of government.13In its most widely accepted meaning, it implies a power
of the judiciary to check the Constitutionality of acts of other organs of the government, when
the issue of Constitutionality is germane to the case pending for decision 14.This power
includes the authority to point out and even refuse to give effect to governmental acts that the
find unconstitutional.
GENESIS OF JUDICIAL REVIEW: Judicial review was Americas most important
contribution to the field of Constitutional law. The American colonists were greatly
influenced by the decisions of Sir Edward Coke, a great Chief Justice of the Kings Bench.
He held that the common law of England could even control and nullify Acts of
Parliament15.The case of Marbury v. Madison16 is perhaps the most famous case in American
legal annals. It firmly established the principle of judicial review and the power of a
Constitutional court to invalidate law as being inconsistent with the fundamental law, the
Constitution of the United States.
JUDICIAL REVIEW IN INDIA: When the framers of the Constitution decided to adapt the
British Parliamentary system, they did not make the Parliament sovereign. So the Indian
Constitution has expressly provided for judicial review, unlike an implied acknowledgement
in the American Constitution. Judicial review has been read into the Constitution as
constituting its basic structure. This principle laid down in Keshavananda Bharati17, was
13 Henry Camkel Black, Blacks Law Dictionary, (West Publishing Co., Minnesota, 6th ed., 1990)
p.849
14 Judicial review: Encyclopedia of the American Constituion, Vol 3 2 nd ed.p.1463.
15 Anil B Divan, Great Controversies and great cases, old and not so old, (1989) 1 NLSJ 109.
16 5 US (1 Cranch) 137 (1803) c.f. Anil B Divan, Great Controversies and great cases, old and not so
old, (1989) 1 NLSJ 109
17 Kesavananda Bharati v. Union of India, AIR 1973 SC 1461
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reiterated by the Supreme Court in its various other judgements. In the Minerva Mills Case18,
the Court stated that judicial review is fundamental to the maintenance of democracy and the
rule of law.
But in Indira Nehru Gandhi v. Raj Narain19, Chandrachud J has said that through provisions
of the Constitution which expressly excluded judicial review, its framers have indicated that
they did not regard judicial review as an indispensable part of the Constitution 20. Also,
in S.P.Sampath Kumar v.Union of India and others, the Supreme Court considered
the Minerva Mills judgement and said that any Constitutional amendment that takes away
from the High Court, the power of judicial review, would not be violative of the basic
structure doctrine, so long as it is substituted by a body as competent to judicial review as the
High Court.
Under our Constitution, judicial review can conveniently be classified under three heads:
(1) Judicial review of Constitutional amendments.-This has been the subject-matter of
consideration in various cases by the Supreme Court; of them worth mentioning
are: Shankari Prasad case21,Sajjan Singh case22, Golak Nath case23, Kesavananda Bharati
case24, Minerva Mills case25,Sanjeev Coke case26 and Indira Gandhi case27. The test of
validity of Constitutional amendments is conforming to the basic features of the Constitution.
18 Minerva Mills v. Union of India, AIR 1980 SC 1789
19 AIR 1975 SC 2299.
20 G.Ramaswamy, Status of Judiciary and the Scope of Judicial Review, Indian Bar Review,Vol.
23(2) 1996
21 Shankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458.

22 Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845.

23 Golak Nath v. State of Punjab, AIR 1967 SC 1643
24 Kesavananda Bharati v. Union of India, AIR 1973 SC 1461
25 Minerva Mills v. Union of India, AIR 1980 SC 1789.
26 Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd., (1983) 1 SCC 147.
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(2) Judicial review of legislation of Parliament, State Legislatures as well as subordinate

legislation.-Judicial review in this category is in respect of legislative competence and
violation of fundamental rights or any other Constitutional or legislative limitations;
(3) Judicial review of administrative action of the Union of India as well as the State
Governments and authorities falling within the meaning of State. The researchers
emphasis is in this direction.

CHAPTER 2
JUDICIAL REVIEW OF THE PRESIDENTS PROCLAMATION
The very nature of Presidents power unde Article 356 is that the courts cannot be of much
help. In analyzing the amount of influence the courts can wield in the area of Article 356, not
only do we have to keep in mind the dignity of the Presidents office, we also need to look
into the manner in which the power has to be exercised.
The manner of exercise of the power is another factor that restrains the judiciary in
interfering with the Presidents power. Article 356 makes it clear that the only condition
precedent to the exercise of power under Clause 1 is the Presidents satisfaction of a
breakdown of Constitutional machinery from the Governors report or otherwise. This
satisfaction is effectively that of the Union Council of Ministers under Article 74(1). The
satisfaction of the Central Government is a subjective one. The reasoning on which the
satisfaction is based cannot be subjected to any objective tests. The reason that the
satisfaction has a subjective basis is because the questions before it when deciding it would
have a lot of political implications. The executive branch of the Central Government is in the
best position to answer them. All of them will have to be answered before determining
whether the government of a state cannot be carried on in accordance with the provisions of
the Constitution. This brings the researcher to the issue of the political thicket.
THE POLITICAL THICKET: The political thicket, found in American law as the
doctrine of the political question was discussed in Marbury v. Madison28 and has been an
essential segment of law ever since. The boundaries of the political question represent the
27 Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1.
28 Anil B Divan, Great Controversies and great cases, old and not so old, (1989) 1 NLSJ 109.
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extent of justiciability of courts.The doctrine says that the Judiciary must refrain from
adjudicating political questions from a Constitutional and a practical perspective.
In Marbury v. Madison29, Marshall J. had defined the political question as a tension between
the Executive and the Judiciary. He said that the province of his court is solely to decide the
rights of individuals, not to inquire how the executive or executive officers perform duties
involving discretion and that questions which are by their very nature, political, could never
be answered by his court. Similarly, other courts in the United States when confronted with
the political question doctrine have linked it to the separation of powers. Courts which have
decided the issue on a Constitutional rationale, have said that what is needed to be checked
when deciding a political question is the probability of a clash between various branches of
government at the same level.
Precisely this sentiment was voiced by Justice Frankfurter, in Colegrove v. Greene30, who is
given the distinction of first having used the term political thicket, who said that, it is
hostile to a democratic system to involve the courts in the politics of the people.
However, while discussing the political thicket, one cannot forget to leave out the
contributions made by Justice Bennan in the landmark American decision of Baker v. Carr31.
In deciding judiciability of the question of whether people underrepresented in their
government were being deprived of the equal protection of laws, he held that the doctrine of
the political question, being primarily a function of the separation of powers doctrine, was
inapplicable to the federal Judiciarys relationship with the states. In doing so, he was
redefining the limits of the doctrine of the political question.

JUDICIAL REVIEW OF THE PRESIDENTS PROCLAMATION- HISTORY OF

CASES:
K.K.Aboo v. Union of India32
29 Anil B Divan, Great Controversies and great cases, old and not so old, (1989) 1 NLSJ 109
30 (1945) 328 US 549, c.f. Rachel E.Barkow, The rise and fall of the political question doctrine and
the rise of judicial supremacy, 102. Colum L.Rev.237.
31 (1962 ) 369 US 186, c.f. Abver J Mikva, Justice Brennan and the political process: Assessing the
legacy of Baker v. Carr, 1995 U. Ill. L. Rev. 683.
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The petitioner had in his affidavit, expressed his doubts about the maintainability of such a
petition. However, he maintained that although the acts of the President or the Governor may
not be justiciable, the Constitutionality of the Proclamations could be questioned because
they were in substance issued by their respective governments. He had in fact, not included
the President or the Governor as respondents in his suit because he felt that though the
Proclamation was issued in the name of the President, in light of Article 74, it was in fact
issued by the Government of India.
The Judge concluded that the safeguards against a capricious act by the President are that of
impeachment by the Parliament under Article 61 or the non-approval of the Proclamation by
the Parliament, under sub-clause 3 of Article 356.
Rao Birendra Singh v. Union of India33
The petitioners contended that satisfaction as used in Art. 356 actually meant the
satisfaction of the Union Home Minister. This was because; Article 355 speaks of the duty
cast upon the Union to protect its units. Hence, if a Proclamation was issued under Article
356 to protect its units, it would be an executive action. Consequently, it would be possible to
contest such an action in a court of law. He also argues that if the President, when issuing the
Proclamation, was not acting on the advice of the Council of Ministers, then the Proclamation
would be unconstitutional and illegal per se.
The Attorney General replied that the President has Constitutional powers that were distinct
from the Executive powers of the Union. The Presidents Constitutional powers included the
power to issue a proclamation under Art. 356. He cited the case of Jayantilal Amratlal
v. T.N.Rana34in which the Supreme Court has held that the Constitutional powers of the
President under Art 356 were quite different from the executive powers under Articles 53, 73
and 77.
The court held that the Proclamation was not an executive action and consequently, not
amenable to the jurisdiction of any High Court under Art 361(1). Moreover, the
reconsideration of the Proclamation being a Constitutional power vested in the Parliament, it
was not within the ambit of the Judiciary.
32 AIR 1965 Ker. 229
33 AIR 1968 P&H 441
34 AIR 1964 SC 648.
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In re A Sreeramulu35
In the view of the learned judge, Chinnappa Reddy J., although the power of the President
under Article 356 was not Executive action of the Government of India under Article 77(1) it
did not mean that the President acted wholly independently of the Cabinet. He classified the
exercise of power under the said Article to be of a Constitutional nature, different from the
exercise of executive power. He said that the power exercised by an administrative agency
was quite different from that of a power entrusted on the President by the Constitution.
Bijayamanda v. President of India36
A similar conclusion was reached at by the Orissa High Court in this case. It held that the
Proclamation is not justiciable on the following grounds. Firstly, that the Constitution had
specifically ousted the Judiciary from adjudicating on the issue through Art. 74(2).
[59]Moreover, the deluge of information that could be contained under the words or
otherwise of Article 356 makes it clear that neither the Presidents satisfaction, nor the basis
for it are justiciable.
Hanumantha Rao v. State of A.P37
The Andhra Pradesh High Court reached the zenith of abdication of judicial review. It held
that Courts cannot examine the appropriateness or adequacy of the grounds for the taking of a
decision by the President, nor any bad faith can be permitted to be attributed to him. The
Court must keep a judicial hands-off in connection with this Presidential exercise of
emergency power.
The above discussion of High Court decisions on the issue of judicial review surrounding the
Presidents Proclamation under Article 356, brings out two reasons as to why the Judiciary
should not review the exercise of power by the President under Article 356.

If we accept the premise that the President acts in his own discretion, then the courts
jurisdiction is ousted on the ground that the satisfaction of the President is of a nonjusticiable nature. Even if we accept the argument in Samsher Singh that throughout

35 AIR 1974 A.P. 106

36 AIR 1974 Ori 52.
37 (1975) 2 AWR 277, c.f. Soli Sorabjee, Decision of the Supreme Court in S R Bommai v. Union of India,
(1994) 3 SCC (Jour)1.

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the Constitution the word President is used merely as an anagram for the Union
Council of Ministers, it can be argued that the nature of the satisfaction is such that it
cannot be justiciable.

If we accept the premise that when the President acts under Article 356, he is acting
on the aid and advice of the Council of Ministers, then the courts have argued that their
jurisdiction in this regard have been specifically ousted through Article 74(2).

CHAPTER 3
ISSUES DISCUSSED IN State of Rajasthan38
THE ATMOSPHERE: Apart from the facts involved in the case, there were a few other facts
and issues which heavily influenced the debates which took place in the Court[63].
1.

A seven judge bench of the Supreme Court, in Samsher Singh v. State of Punjab39,
decided that the President and the Governor always exercised their power (including
the power under Art. 356) on the aid and advice of the Council of Ministers.

2.

After the 38th amendment of the Constitution, Clause 5 of Article 356 read that
notwithstanding anything in the Constitution, Presidential satisfaction mentioned in
Clause 1 was final and conclusive, and could not be questioned in any court, on any
ground.

3.

The 44th amendment of the Constitution only codified the Supreme Court ruling
in Samsher Singh40. Article 74(1) of the Constitution read that there shall be a Council
of Ministers with the Prime Minister at its head to aid and advice the President, who in
exercise of his functions, acts in accordance with such power.

Apart from these facts, another issue which heavily influenced the debates was that the issue
reached the Supreme Court prematurely compared to the cases discussed supra. Consequent
to the case reaching the Judiciary before the Presidents Proclamation was issued; all the
issues that could have been discussed never got debated.

38 State of Rajasthan v. Union of India,AIR 1977 SC 1361.

39 AIR 1974 SC 2192.
40 Ibid.
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FACTS OF THE CASE: In the General Elections of 1977, the Congress Party which was in
power suffered a massive defeat not getting even a single seat in certain states. The Janata
Dal came into power. The Union Home Minister, Mr. Charan Singh sent letters to nine
Congress-governed State Chief Ministers, asking them to advice their Governors to dissolve
their respective Legislative Assemblies. The reasoning given was along these lines. Resulting
from the virtual rejection of the ruling party in some states, there was an element of
uncertainty in various levels of government. The letter said that it has been the opinion of
Constitutional experts that when a legislature no longer reflects the wishes of its electorate, it
would be most appropriate to dissolve the legislature with a view to obtain a fresh mandate.
Added to this was a press statement by the Union Minister for Law Mr. Shanti Bhushan who
said that the State governments which chose to rule despite losing the broad consent of the
electorate were unconstitutional since democracy was a basic tenet of the Constitution. He
also argued that since under Article 355, a duty had been cast upon the Union to see that the
state governments were carried on in accordance with the provisions of the Constitution.
Six suits on behalf of six of the states affected, and three writ petitions by some MLAs were
filed. Because of the common elements involved in each, they were permitted to be argued
together.
PRAYERS IN THE PLAINTS:
1.

The Council of Ministers is not liable to resign and the Legislative Assembly of the
plaintiff is not liable to be dissolved on the ground that the Congress Party which holds
a majority in the Legislative Assembly, had lost in the Lok Sabha elections and the
Janata Party has come into power at the Centre

2.

The Executive of the defendant is not entitled to encroach upon the sole prerogative of
the Council of Ministers as to the nature of advice the latter thinks fit to render to the
Governor.

3.

The provisions of Article 356 of the Constitution are not liable to be invoked by the
President because the party which has a majority in the Legislative Assembly might
have lost heavily in the Lok Sabha elections.

4.

The Legislative Assembly of the plaintiff is not liable to resign before the expiry of its
Constitutionally assigned term because the views of the electorate have undergone a
change.

5.

The reasons and circumstances stated for an action under Article 356 are wholly
unconstitutional and mala fide and hence a proclamation made, would be void.

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6.

A declaration that the directive contained in the letter of the Home Minister of the
defendant to the Chief Minister of the plaintiff state is unconstitutional and ultra vires.
Hence that the plaintiff state is not Constitutionally obliged to comply with it.

7.

State of H.P asked for a permanent injunction for (a) restraining the defendant from
issuing any Proclamation under Article 356 of the Constitution unless in a situation
contemplated by the framers of the Constitution and (b) to restrain the defendants
government from dissolving its legislative assembly until the proclamation is ratified
by both houses of the parliament

Principal Common Submissions of the Plaintiffs

1.

The letter of the Home Minister to the plaintiff states discloses the reasons for the
impending proclamation under Article 356. These reasons are prima facie outside the
scope of Article 356.

2.

Since the reasons given for the proposed action are outside Constitutionally
authorized objectives and purposes, it makes the action on the face of it mala fide and
unconstitutional.

3.

The condition precedent to the dissolution of the Legislative Assemblies is the

ratification by both houses of Parliament

Replies By the Union of India

1.

The questions which arise for gauging the existence of a situation for the exercise of
Article 356 are inherently non-justiciable and are made expressly so by Art. 356(5). So
the dispute between the government of the state and the Union Government are entirely
outside the sphere of justiciable matters. Argument: The final action or result is nonjusticiable. Therefore, the defendants cannot be challenged by challenging the process
which might bring about this apprehended action.

2.

Neither the letter of the Union Home Minister or the speech of the Union Law
Minister indicates action being taken under Art. 356 on grounds which fall outside the
wide scope of Art. 356.

3.

The freedom of the highest organs of the Union executive to take executive action
should not be interfered by the judiciary, except in grave cases. Here, the submission
was that the judiciary is not justified in giving a prohibition to act under Article 356 on
the basis of facts which are fully under the purview of Art. 356 because at this juncture,
nothing cannot be said about the facts which might lead to action in the future.

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It is in the last of the aforementioned replies of the Union of India that the researchers
interests lie. The next chapter deals with the arguments which were put forward by the
defendants in this regard and the opinions of the judges.
CHAPTER 4
THE DEBATE OVER JUDICIAL REVIEW IN State of Rajasthan41
In this chapter, the researcher discusses the various issues relevant to the debate over judicial
review in the case stated.
CAN THE JUDICIARY INTERFERE?: The respondents, Union of India, making an
allusion to the political thicket, contended that a decision on whether a situation had arisen
in a state, so as to declare a breakdown of Constitutional machinery, was the Unions alone.
In reply, Beg C.J summed up his opinion on the issue.
If what was proposed to be done under the threat of a Constitutionally prescribed mode of
executive action, could, in no circumstances, be done under Art 356 we may be able to check
a misuse or excess of Constitutional power, provided judicial control over all purported
exercise of power of issuing proclamations, under Article 356, is not expressly or impliedly
barred even if an act is plainly ultra vires42
He then explains why the court cannot interfere in this particular case.
According to him, the Judiciary can go into the issue of excess of power under Article 356,
only if it is shown as to what Constitutional provisions are contravened by the President. In
this case these are not shown in the plaint. The researcher traces out his arguments on this
opinion as follows.
1.

Justice Beg acknowledges the fact that, had there been a Constitutional provision that
expressly barred the Union Executive from dissolving a State Legislature before
completion of its Constitutionally assigned term of six years, the Judiciary could have
declared the proposed executive action to be ultra vires. Moreover, by the very nature
of a democratic system which advocates a quest for power through the formation of
political parties, it is not per se illegal or unconstitutional to form political parties and
follow policies that give them more power.

41 Supra note 2.
42 Supra note 2 at p.1377.
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2.

He says that the view taken by the Home Minister and the Law Minister makes it
constitutional to dissolve the Legislative Assembly.43He reasons this out by stating that
one of the purposes of our Constitution is to give the political sovereign, the periodic
opportunity to determine the character of its government. The question as to whether
the people should exercise their franchise now or later, in his opinion, falls in the
political thicket because a choice between dissolution and re-election is a matter of
executive policy. Hence this issue cannot be gone into by the courts.

3.

From there he concludes that the proposed executive action does not contravene any
Constitutional provisions.

Justice Beg raises the issue of the political question in the context of the subjective
satisfaction of the President also. He says that it would be impossible to substitute the courts
judgement with that of the Presidents. His argument is picked up by Chandrachud J44, who
says that even if the reasons cited in the Home Ministers letter do not necessitate the
conclusion that there is a breakdown of Constitutional machinery, the court cannot sit in
judgement over the question of whether any other view is reasonably possible.
Justice Bhagwati did not subscribe to the respondents view that considering the political
nature of the question of whether a situation necessitating the use of Article 356 had arisen in
the state, the courts should not adjudicate on the issue. Acknowledging the fact that if a
question before it is of a purely political nature, the court would not go into it, he contends
the respondents view saying that, merely 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. He even went to the extent
of saying that the field of Constitutional law is where law meets politics. He quoted
from Baker v. Carr45 that, merely because a suit seeks to protect a political right, does not
mean that it presents a political question. Maintaining that though the court must interfere
where there is a manifest excess use of power, he said that the Judiciary can go only so far as
determining the limits of executive action. In fact, he declared that it would be the obligation

43 Supra note 2 at p. 1376

44 Supra note 2 at p. 1400.
45 (1962) 369 US 162.
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of the courts, to see that the Constitution remains the supreme law in the nation and that all
executive actions are circumscribed by Constitutional provisions.
HOW CAN THE JUDICIARY INTERFERE?: Although the bench agreed on the fact that
it was not up to the Judiciary to substitute its judgement for that of the Central Government,
there was an extended debate regarding when and how the Judiciary could interfere.
Justice Beg started his arguments on the basic premise that the three branches of the
government had their own ambits to function within and that it was not for one of the other
two to correct one merely because a mistake was committed. This was the cornerstone of the
concept of the supremacy of the Constitution. However, if either the Legislature or the
Executive exceed their powers, their actions come into the region where they can be struck
down by the Judiciary. Using these, he tried to define the situations in which the Judiciary can
do so.

CHAPTER 5
CONCLUSION
ANALYSIS OF THE JUDGEMENT: When we locate State of Rajasthan in the list of cases
which dealt with the issue of Judicial Review and Article 356 before 1977, it is understood
without much controversy that it was the most important in a series of important cases. The
judgement needs to be appreciated because of the bold step it took in acknowledging the fact
that Article 356 can be subject to judicial review. However, many aspects of the judgements
can be subjected to criticism. The researcher attempts an analysis of the debate over judicial
review in the case.

State of Rajasthan has to be read in the context of the preceding High Court
judgements which did not consider the Presidents Proclamation under Article 356 to
be amenable to judicial review. The cases of K.K.Aboo46, Rao Birendra Singh47, A

46 (1962 ) 369 US 186, c.f. Abver J Mikva, Justice Brennan and the political process: Assessing the
legacy of Baker v. Carr, 1995 U. Ill. L. Rev. 683
47 Art 356
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Sreeramulu48 andBijayamanda49 discussed the various reasons as to why the courts

should not review the Presidents Proclamation. Since State of Rajasthan50 came in the
wake of Samsher Singh51and the 44th Amendment Act, no distinction was drawn
between the Constitutional and executive powers of the President.

Much of the debate surrounded the fact that the only condition precedent to the
Proclamation was the subjective satisfaction of the President. The lack of any standards
by which it can be judged and the veritable deluge of information that could be
contained in the words or otherwise were discussed in Bijayamandas52 case. The
bench in State of Rajasthan, conceded the fact that making a judgement on the
Presidents satisfaction would be deciding on a political question. Moreover, ever since
the 44th Amendment Act, the satisfaction of the President is effectively the satisfaction
of the Union Council of Ministers and Article 74(2) expressly forbids any judicial
scrutiny into the advice given to the President. However, the court overcame this
hurdle. With the court holding that there should be a rational nexus between the reasons
and the action taken, the Judiciary, without questioning the satisfaction itself, can
question the actual presence of any satisfaction the condition precedent to any
Proclamation under Article 356.

Chandrachud J makes it clear that a judgement on whether there was any rational
nexus between reasons and action taken could only be made on the basis of the reasons
given by the government53.However, the government need not always divulge the
actual reasons for a Proclamation under Article 356. It was common knowledge that the
suspension of the nine Legislative Assemblies in 1977 was a politically motivated
move and that the reasons admitted by the government (in the letter by Mr. Charan

48 AIR 1968 P&H 441.

49 AIR 1974 A.P. 106.
50 Rachel E.Barkow, The rise and fall of the political question doctrine and the rise of judicial
supremacy, 102. Colum L.Rev.237.
51 State of Rajasthan v. Union of India,AIR 1977 SC 1361
52 AIR 1974 A.P. 106
53 Per Chandrachud J, State of Rajasthan v. Union of India, AIR 1977 SC 1361 at p.1400
22 | P a g e

Singh) were not the actual reasons for the Proclamation. Despite this, the government
at the Centre was able to issue the Proclamation with complete impunity. However, had
it been possible for the court to check the existence of material (the correctness or truth
of the facts) on which the Presidents satisfaction is based; this problem would not have
arisen. This opinion is shared by Justices Sawant and Kuldip Singh in S R
Bommaiv. Union of India54.If this opinion becomes the law, if a prima facie case is
made out against the Union of India, the burden of proof will be upon the Union to
prove that a situation meriting a proclamation did in fact exist. This view was contested
by Justices Jeevan Reddy and Aggrawal. The Justice Sarkaria Commision on CentreState Relations, taking a similar view, recommended that an appropriate amendment
made in the Constitution so that the material facts on which it is based, become part of
the Proclamation itself.

Gupta and Bhagwati JJ defined the scope of judicial review of Article 356. They said
that if the satisfaction of the President is mala fide or based on wholly extraneous
reasons, then the court would have the right to examine it. Although they thought it
prudent not to go into the issue of whether the reasons stated in the Home Ministers
letter were extraneous to the action taken, they decided to discuss it because it was
argued. They said that the defeat of a ruling party in the State Assembly elections per
se, did not constitute enough reason to issue a Proclamation under Article 356.
However they drew a distinction between mere defeat and the total rout that the
Congress Party faced in 1977. He felt that, under the circumstances, there is no way
that the Judiciary can hold that there is a mala fide exercise of power.

In the working of the executive branch of the government and its relationships with
the Legislature, the Constitution is regulated to a large extent by rules which do not
belong to the normal legal categories. These rules are Constitutional conventions.
Constitutional conventions provide the flesh which clothes the dry bones of the law;
they keep it in touch with the growth of ideas.These words of Sir Ivor Jennings gain
great prominence in the context of Article 356 and the inability of the Judiciary to enter
into the executive realm. Chief Justice Beg felt that the subject of Presidents power
under Article 356 is one where healthy conventions need to be developed 55. This view

54 Soli Sorabjee, Decision of the Supreme Court in S R Bommai v. Union of India, (1994) 3 SCC
(Jour)
55 Supra note 2, at p. 1384.
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was endorsed by the Sarkaria Commission on Centre State Relations. The

commission suggested that an appropriate amendment should be made to the
Constitution so that neither the Governor nor the President should dissolve the
Legislative Assemblies before receiving the assent of both the houses of Parliament.
However Beg, C.J also recognized the fact that it is not up to the courts to formulate
and enforce conventions, that being a duty entirely within the executive field.
IS JUDICIAL REVIEW THE ANSWER TO THE MISUSE OF POWER UNDER ARTICLE
356?: As we trace out the history of case law dealing with Presidential Proclamations under
Article 356, we find a steady development of the law. Through around 50 years of growth of
this area of Constitutional Law, the Judiciary has declared that it is possible to review the use
of power under Article 356 and strike down an order if it does not have bona fides or is found
to have been issued on wholly extraneous reasons. State of Rajasthan made it clear that
judicial review of a Presidential Proclamation is possible .Bommai however, was unable to
take any concrete steps forward. It said that judicial review is possible, but the opinion was
divided on the extent to which the courts can enter the executive field.However, it took a
giant step when it said that the natural result of finding a lack of bona fides in a Presidential
Proclamation would be to restore the state government back to power. Consequently, the
number of times Article 356 has been invoked has reduced drastically.
Judicial Review is not a complete safeguard against the misuse of Article 356. It is limited to
a large extent by the fact that courts can only interfere after a Proclamation has been made.
The very concept of Judicial Review makes it imperative that there has to be an executive or
legislative action so that the courts can strike it down if there is seen to be a mala fide or ultra
vires exercise of power. But considering the history of use and misuse that Article 356 has
and the limitations under which the Judiciary can enter the executive domain, judicial review
is a very good safeguard that the states have against any mala fide exercise of power under
Article 356. This can be seen through the empirical evidence of the number of times Article
356 has been invoked since the Bommai decision. In fact, President K R Narayanan, when
advised to dissolve the Bihar Legislative Assembly, asked the Central government to
reconsider its decision. This was done in the light of the Bommai decision.
However, a better defence for the states would lie in the development of healthy conventions.
The researcher endorses the Sarkaria Commision recommendation that the President should
dissolve the Legislative Assembly only after the Proclamation has had the acceptance of both
houses of Parliament. Such a practice has the advantage of being a pre-emptive safeguard. As
24 | P a g e

opposed to judicial review, this practice would ensure that no action with far-reaching
consequences is taken on the strength of the President proclaiming a breakdown of
constitutional machinery in a state without the consent of both houses of Parliament. As
discussed in the introduction to the project, waiting for the consent of the Rajya Sabha would
not be against any constitutional provisions. The dissolution of a Legislative Assembly is
capable of disturbing the composition of the Rajya Sabha, which in turn can affect matters of
constitutional importance like constitutional amendments and the election of the President.
Consequent to the development of this practice into a convention, an amendment can be
made in the Constitution to this effect.
The researchers hypothesis that Judicial Review is the best safeguard against misuse of
Article 356, stands corrected.

BIBLIOGRAPHY
BOOKS:

Anirudh Prasad, Centre-State Relations In India, (Deep and Deep Publications, New
Delhi)

Ivor Jennings, Constituional and Adminstartive Law, (Longman, London, 1971)

T Devidas et al., Cases and Materials on Constituional Law (National Law School of
India University, Bangalore, 1998)

V.N.Shukla, Constituion of India, (Eastern Book Company, Lucknow, 9th ed. , 1994)

ARTICLES:

Abver J Mikva, Justice Brennan and the political process: Assessing the legacy
of Baker v. Carr, 1995 U. Ill. L. Rev. 683.

Anil B Divan, Great Controversies and great cases, old and not so old, (1989) 1 NLSJ
109.

Baldev Singh, Jurisprudential Basis of Judicical Review in India, Indian Bar Review
Vol 21 (1)

Justice Syed Shah Mohammed Quadri, Judicial Review of Adminstrative Action,

(2001) 6 SCC (Jour) 1

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R. Krishnakumar, Article 356 should be abolished, (Frontline, July 04 July 17,

1998)

Soli Sorabjee, Decision of the Supreme Court in S R Bommai v. Union of India,

(1994) 3 SCC (Jour)1

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