The Judicial appointments process provides a particularly effective case study to illustrate the way in which the construction of merit is a dynamic process which can only be carried out with reference to the qualifications of the potential candidate pool. In common with many other appointments processes, the lack of any criteria in the appointments made, has consistently been attributed to a failure to properly apply the merit principle. The Supreme Court has at instances, recognized the importance of merit but has pestered continuously that Seniority is the fundamental consideration factor and merit is an additional measure under “strong cogent reasons.”  But the authors question whether this aim of avoiding subjectivity, is doing justice to judicial independence?

The present blog seeks to do a jurisprudential analysis as to how the appointment procedure of the Chief Justice of India has the tendency to erode the concept of “merit” which is the biggest hallmark for the appointment of the Judges in any country.

The appointment procedure- Defilement of the “Sovereignty of Merit”

The lack of solid and rigid definition of merit and unclear wordings of Article 124 raises an issue of great constitutional importance that though the Constitution requires merit to be the criterion in the appointment of Judges, it does not define it. Nor has the Court defined it.

Perhaps it never had the occasion or opportunity to define it. Its closest expression on some kind of definition is the seniority rule for the appointment of the Chief Justice of India and other Judges of the Supreme Court. It goes no further. It does not apply to appointments of High Court Judges. It also fails to apply if appointments to the Supreme Court are made from the bar or from amongst the jurists. Thus, in any case, in a wide variety of situations merit for the appointment of Judges remains undefined and undiscussed.

Concept of merit in Indian Judicial system

A key feature of a strict merit-based system is that the determination of the relevant qualifications for each position should be derived solely on the basis of the functions to be fulfilled. The most qualified person is the one whose characteristics and abilities are such that they will be most likely to perform those functions effectively. Critics and supporters of existing selection systems generally agree that in order for the determination of what constitutes merit to be free from prejudice it must be constructed without taking into account the background of the members of the potential candidate pool.

The function of a merit- based selection system is the selection of the most qualified amongst those who are willing and able to occupy the position. In order for the notion of merit to be translated from an abstract principle into a set of concrete qualifications which can be used to achieve this result, there must be an assessment of the nature of the potential candidate pool.

Without knowledge about who the potential candidates are likely to be, selection systems would regularly and inevitably devise qualifications which would be pitched either too high or too low. The result would be either a failure to appoint any or enough candidates or a failure to attract sufficiently highly qualified candidates and that is the biggest drawback of the seniority convention.

The appointment of the Chief Justice of India is a regular process and for a selection system in which appointments are made on a regular basis, this process of translating merit into job qualifications and selection criteria in a way which pitches appropriately to the available candidate pool is relatively unproblematic. The biggest problem with the seniority convention is that it has reduced the appointment procedure to a mere selective group, where a group of seniors are all in line to become the Chief Justice of India.

In this regard the authors find it pertinent to state the observation of Pandian J in the Second Judges case[i]:

“It is essential and vital for the establishment of real participatory democracy that all sections and classes of people, be they backward classes or scheduled castes or scheduled tribes or minorities or women, should be afforded equal opportunity so that the judicial administration is also participated in by the outstanding and meritorious candidates belonging to all sections of the society and not by any selective or insular group.”

According to Punchi and Ahmedi J.J.[ii] “the seniority principle and principle of legitimate expectation would only push merit to the second place and seniority will have a role to play only when both candidates are of equal merit.” According, to Kuldeep Singh J. “the selection of Chief Justice of India must be based on objective standards and not by mere seniority.” The learned Judge further held that there is no existing convention of appointing the senior most puisne Judge as the Chief Justice. The appointment should be based only on merit and seniority role has no application.

In Re. Special Reference[iii] the court held that a Judge of outstanding merit can be directly appointed as the judge of the Supreme Court. This above-mentioned exception creates an unanticipated and sudden instability in the candidate pool which brings a sharp correction to this process and demonstrates very clearly the close relationship between the make-up of the potential candidate pool and the definition of merit.

This approach is not, of course, unique to the judiciary. But the strength and consistency of that commitment is arguably stronger than many other public and professional selection processes because of the particular role and function of judges. The argument that selecting a less qualified over a more qualified candidate is unjust to the candidate passed over applies to the allocation of all positions in a selective appointments system. But the extent of the unfairness is affected by the particular type of position being allocated.

The recent trend of the collegium shows us that the apex court has moved on with the seniority convention with respect to the appointment of the Judges at the apex court. Therefore, the seniority convention with respect to the appointment of the Chief Justice of India does not appears to be any meticulous.

If one delves into the history, then it can be seen that the seniority convention does not have any constitutional backing. Prior to the independence there has been instances where advocates have been directly appointed as the Chief Justices of the High Court. Thus it can be inferred that the seniority convention was more than an exception rather than a rule. This particular convention only began with the appointment of the Patanjali Sastri, when he was appointed as the first Chief Justice of India.

Short tenure- An injustice to the legacy of the post of Chief Justice of India

One of the biggest drawbacks of the seniority convention is that it acts as an indentation on the tenure of the Chief Justice of India in simpler terms this convention does not do justice to the post of Chief Justice of India by providing a short tenure.

Till date Justice Y.V. Chandrachud had the longest tenure of serving the Chief Justice of India for a duration of 7 years whereas Justice K.N. Singh had the shortest tenure which lasted only 18 days. On an average till date no Chief Justice of India had a tenure of more than a year. Such duration not only does injustice to such a sacred post but also prevents the Chief Justices to bring some long-term radical changes in legal profession. The same was highlighted by Justice Sathasivam the 40th CJI two days before his retirement.

The limited number of days that each CJI has in his disposition makes it hard to resolve the more critical issues that have been pervasive in the legal system. Also, when a CJI would have perceived the issue, the date of retirement moves nearer. The execution consequently stays unfulfilled. It is imperative that frequent changes cause systemic inefficiencies, raise incoherence in strategies for dealing with ongoing issues, and jeopardise the leadership stability that a large and well-respected organisation requires.

Defilement of the Consultative Procedure

The principle of independence of Judiciary cannot be equated with the seniority convention, because it fails to recognize the merit. The appointment of CJI is not based upon the consultative process which only undermines the procedure established by law.

In the Second Judges case[iv] the court emphasised that the phraseology used in Article 124(2) indicates that it was not considered desirable to vest absolute discretion of power of veto in the Chief Justice of India as an individual. The phrase “consultation” means “an opinion formed collectively” i.e. the primacy of the CJI formed after taking into account the views of his senior colleagues who are required to be consulted by him for the formation of his opinion.

However, no such opinion is taken into consideration while appointing the CJI. The appointment of the CJI is based only upon a mere recommendation which is put forth by the outgoing CJI. This process makes the CJI as the collegium where his sole recommendation has the primacy, which very much goes against the law laid down by the apex court in Second Judges case. This recommendation though not binding upon the Executive. Apart from two exceptions till date there has been no deviation from this practice.

The authors would like to contend that such vesting of power in single hand goes against the Rule of Law. Hence, violates article 14 of the Indian Constitution. An adjunct of this principle is “the absence of absolute power in one individual in any sphere of constitutional activity. Therefore, the meaning of the “opinion of the Chief Justice” is “reflective of the opinion of the Judiciary” which is formed after taking into account the views of some other Judges who are traditionally associated with this function and in the present case this consultation is absent.

CONCLUSION

A strict adherence to Seniority is badgered because of two powerful reasons, the importance of tradition and the insistence on objective criteria, and these influential forces shape the functioning of Indian Judiciary today. Seniority has unquestionably served the Judiciary well in many ways, but it is now merely an antiquated facet of tradition.

In the arena of appointments, objectivity has become synonymous to fairness and any decision made without the objective standards is instinctively met with accusations of corruption and skulduggery. This attitude hinders sound-decision making and leads to peculiar outcomes that are worse than the malice it was intended to address. A feasible alternative to this hornets’ nest could be inclusion of merit.

Moreover, the power of recommendation with the outgoing Chief Justice of India are reminiscent of a verse by Decimus Junius Juvenalis, a Roman satirist who, while condemning imperial Rome's vices, stated, "Sed quis custodiet ipsos Custodes?" (Who is to guard the guards themselves?).[v] The fact that the pater familias of such a significant and puissant Judiciary is appointed by an opaque and conventional procedure in a constitutional democracy is certainly saddening. This vast amount of power and authority, with no checks and balances, undermines judicial accountability, a crucial aspect of judicial independence in a republican democracy.

There are more than enough reasons for the seniority convention and the non-consultative powers of Chief Justice to be given a proper send-off. It is not as objective as it claims to be, results in absurdly short tenures for chief justices, ridicules Rule of Law in a participatory democracy and is a strategic tool used when convenient. But, in order to do so, we need a different, clearly articulated method of appointment to take its place. Without it, all appointments, no matter how well-intended, will appear unscrupulous.

It is probably past time for India to demonstrate that, as a mature polity, it is willing to place its faith in decisions made by accountable public authorities using well-established and transparent procedures.



[i] AIR 1994 SC 268.

[ii] Id.

[iii] AIR 1999 SC 1.

[iv] Supra note ii.

[v] A v British Broadcasting Corporation (Secretary of State for the Home Department intervening), [2015] A.C. 588.

(Biyanka Bhatia & Shreshth Srivastava are students from University of Petroleum and Energy Studies, School of Law)


 


“Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it is the only thing that ever has.”

               ~ Margaret Mead

Introduction 

Protests are considered to be one of the most effective ways to intrigue public attention. From the day of independence till the present day, significant protests have dominated national as well as international headlines with far-reaching multidimensional outcomes, wherein women protesters have led from the front. A number of protests include the farmers’ protests against the new farm laws and the Shaheen Bagh protests in wake of the controversial Citizenship (Amendment) Act, 2019. These protests were largely led by women[1] and the immense participation of women, regardless of their age, class or religion was worth capturing. These set of protests have put a spotlight on the important role of women marking it a milestone in the struggle for equality, and leadership of nonviolent movements.

Objurgating the centre’s way of handling the farmers’ protest, the Supreme Court’s three-judge bench on January 11 observed that it will not pass any order regarding the citizens and their right to protest[2]. This was encouraging. But ensuing remarks by the Chief Justice of India S.A. Bobde has created a matter of concern. As an emphasis was added by him regarding:

 

“Why are women and elders to be kept in the protest?”

 

He also asked one of the senior advocates to sway the women and elderly protesters and to ask them to go back from the protest sites. These remarks from the Chief Justice of India irks the question- Can there be a ‘custodian’ at a given protest site so as to decide who should be ‘kept’ there and who should not be? Such a stance questions the role of women in a protest. These set of remarks gain much importance as they were made with reference to a fundamental right, the right to protest, which is regarded as the pillar of any vibrant democracy. 

 

Right to Protest: The Domestic backdrop

 

Part III of the Indian Constitution provides for the lists of rights which are fundamental in nature. However, the word “Protest” has not been defined anywhere in the constitution. Apart from providing these rights having a fundamental character, Article 19 also mentions certain restrictions which authorities may impose on such rights. Article 19(1)(a) guarantees the freedom of speech and expression, and Article 19(1)(b) guarantees the citizens the right to assemble peacefully and without arms. 

The freedom of speech under Article 19 is given to the citizens to make sure their participation in public activities. They may form an opinion and can have a word to say in public activities. This is the reason why it is regarded as an important aspect for any democracy. A person may express his views on any relevant issue or point of contention through any medium which he wishes. These set of rights in other sense constitutes our public as well as political freedom. The right to speech and expression transfigures into the freedom to express opinion on the various practices of the government. The right to speech and expression becomes the right to association for political purposes so as to collectively challenge the government’s decisions and to even aim, peacefully and legally the abuse of power. This is the foundation of our democratic system where in the citizens of the country are a valuable asset and they assist in creating a system that thrive for the betterment of its people.After understanding the essence of rights, it can be said that they not only represent the democratic values of India but also signifies the importance in any democratic regime.

Overall, the citizens have Right to protest on one hand whereas authorities are empowered to impose limitations on such protests on the other hand. The thing is those limitations must be reasonable in nature[3]. The right to peaceful protest must be respected but the idea is ‘no right is absolute’ i.e. one has a corresponding responsibility for the acts committed by him.

 

Public Demonstrations and the Rule of Law

 

The right to freedom of expression and public demonstration is one of the primary features of any democratic structure and the undermining of freedom of expression unswervingly affects the central nerve of the democratic system. The right to peaceful public demonstration is not merely a civil right which is subject to reasonable restrictions but is an appearance of uncertainty as due to various outcomes involved.

The term “public order” under Article 19(2) is a legitimate ground of restriction and it can be sensible only when there are certain evidences that the protesters had incited lawless or rebellious acts, or these acts may result in their further happenings in the possible time. Further, the freedom to assemble and public demonstration, bounds to impede the ordinary rights- one of them being the right to freedom of movement and these set of protests may cause a certain level of disarray to ordinary life and encounter supplementary aggression. The protesters in case may block roads, occupy public spaces, and cause disturbance or even can harm the public assets- for this the authorities may find it necessary to prevent or regulate such behaviour. The courts, as being part of the state, can’t be oblivious of their duty to safeguard this right[4]

Further, the apex Court in the landmark judgement of Maneka Gandhi v. Union Of India[5], observed that, it is clear that every citizen must be entitled to participate in the process of democracy, the government being of the people, for   the people and by the people and enabling him/her to intelligently exercise his right of creating a choice, free and general dialogue of public matters is absolutely essential.

In Romesh Thappar v. The State Of Madras[6], the Hon’ble Court observed that the security of a State is a reasonable restriction under Article 19 (2) of the Constitution. However, the words used in the impugned article are ‘public order and safety’. The Court further held that the 2 terms have to be read together so as to define the purpose for which restrictions were allowed for the wider purpose of public order.

 

In particular, all the cases are judged on their own virtue and facts, and over the years it has broadened the scope of freedom of expression and public demonstration. There is no widespread or accurate or conventional standard that can be considered but reasonable restrictions mentioned in the constitution [Article 19(2) – Article 19(6)] can only monitor the law.

              

Women’s Symbolization in Public protests

A typical stereotype with regards to the perception of protests is that- As men are at the forefront of clashes with the law enforcement authorities the patriarchal norms must traditionally exclude women. This assumption principally becomes problematic when the cause for a particular protest is revolving around the rights and lives of women, as was in the case of farmers’ protest. Another thing is the designation of spaces for protests. As the public space is occupied by men, women and members of the LGBTQ+ community as well, the court must opine about the collective role of every member of the community with regards to their dissent.

The problem with this view is that the Court seems to outlook the public spaces as gender- neutral spaces, but the reality is that public spaces are acutely gendered in nature[7]. Further, the phrase like “women are kept in the protests” underrates their potential and contributions in the agricultural sector.

In order to understand the imperative role of women in protests, one has to go through the gendered dimensions in details. For this, the series of three Articles - 14, 15 and 16 have a key role in addressing the Constitutional Right of a person. Article 14 of the Constitution of India comprehends that- "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”.Further, Article 15 endows the protection with respect to discrimination by the State on the grounds of cast, race, religion, birth, etc. The first of two significant phrases in Article 14 is "equality before the law", which means among equals, the law must be equal and equally administered as well[8]. Talking about the role of women in any protest-the movement is not only made up of women, but also men who work and fight equally to safeguard the public interest. There have been many women leaders who have played a key role in local or world history but, the problem is that despite the socital progress in terms of legal safeguard and equal rights, women still assume a lower-status in a traditionally patriarchal society like ours. To get around the 'negative concept' problem, the phrase "no person should be denied equality before law" was added later[9]. This is a 'affirmative concept' which means no individual or person can be excluded from securing the equal protection of the law and, for that reason, special laws can be framed to help the disadvantaged groups and other members of society.

According to Article 19(1)(a) of the Indian Constitution freedom of speech and expression is regarded as a fundamental right given to its citizen against the state, which includes carrying out the peaceful public demonstration, so it can be aptly presumed that a protester’s right can only be exercised within the bounds of citizenship. Thus, it becomes important to examine the scope of citizenship through the lens of gender as well. When the protesting women are asked to return from public spaces wherein their interests and rights are at stake, their status as subordinate citizens is magnified. If there is equality with regards to claiming of rights, then why would they be singled out when it comes to women who are asked to return as if those sorts of protests did not concern them as it did men? 

This quote also questions the presence of women at protest sites where issues concerning the common good or public interest are involved. In the case of farm laws, the presence of women raises concern specifically due to the fact that their interests are portrayed as gendered specific with regards to occupying the public spaces and engaging with the State. But, the thing is citizenship is not merely a passive concept but is also an active conception[10], which goes beyond mere status and formal rights (of equality) and ought to be viewed as a relationship that promotes agency and participation, which is why women’s presence at protest sites ought to be welcomed and not questioned.

  

Conclusion

After one goes through the past happenings it can be said that the mobilization of poor women and those from marginalized communities are originally intended to address the outcomes of failed state-led development systems rather than directly dealing with gender injustices. However women’s participation in both these movements resulted in an increased awareness of gender injustices and the importance of female. Even when a women’s rights concern has been identified, women’s’ groups have demonstrated different strategies of political participation.

Although women are increasingly participating to challenge the existing understandings of gender roles, the path to gendered equality in India would be long and arduous. There is a need to create a strong and sustainable alliance among women’s rights group that could lead to future improvements for women’s rights in India.

(Mayank Shyamsukha is a 3rd year student of Institute of Law, Nirma University)


[1]  M R Shamshad, Tale of two protests, The Indian Express, (January 25, 2021, 8:38 PM), available at https://indianexpress.com/article/opinion/columns/farmers-protests-caa-citizenship-act-stir-7161330/

[2]  Krishnadas Rajagopal, SC says it intends to stay farm laws, The Hindu (January 11,2021, 12:51 PM), available at https://www.thehindu.com/news/national/sc-farmers-protest-farm-laws/article33548219.ece

[3] Mazdoor Kisan Shakti Sangathan v Union of India, (2018) 17 SCC 324

[4] V. Venkatesan Supreme Court’s Shaheen Bagh Judgment Will Lead to Fresh Curbs on Right of Peaceful Protest, The Wire (October 08,2020 00:00 hours) available at https://thewire.in/law/supreme-court-shaheen-bagh-judgment-fresh-cubs-right-of-peaceful-protest

[5] Maneka Gandhi v. Union of India, (1978) 1 SCC 248.

[6] Romesh Thapper v. State of Madras, AIR 1950 SC 124

[7]Rajkarnikar, R., 2021. Gender perspective : neutral public space. [online] Cardinalscholar.bsu.edu. Available at: https://cardinalscholar.bsu.edu/handle/123456789/193375

[8]Lachmandas v. State of Bombay, 1952,  S.C.R. 710 (726)

[9] Stephen’s college v. university of Delhi, 1992 1 SCC 558: AIR 1992 SC 1630: 1991 Supp (3) SCR 121

[10]Plato.stanford.edu.2021. Citizenship, Stanford Encyclopedia of Philosophy/Fall 2017 Edition. [online] Available at: <https://plato.stanford.edu/archives/fall2017/entries/citizenship/> [Accessed 3 September 2021].


Federalism is the key strength of constitution and government structure in India.While drafting the constitution the word “union” was chosen rather than the word “federation”just to show that the people may be divided into different states for convenience of administration but the country is one integral whole, its people a single people living under a single imperium derived from a single source.[1] But there are many ways of transforming a federal system into a unitary one, the simplest way is by proclaiming emergency. Even after including federalism in a part of basic structure[2], the central government by taking unfair benefit under part XVIII of the Indian Constitution has violated the basic structure of the government administration. One of the provisions included in this part is state emergency, Articles 356 and 357 of the Constitution offer certain measures for dealing with a condition that arises from a state's constitutional machinery failing.[3]

In this article we will discuss about the provisions of state emergency and instances of misuse and what is the Supreme Court’s perspective on this.

FAILURE OF CONSTITUTIONAL MACHINERY IN STATE

In the words of Dr. Bhim Rao Ambedkar “such articles will never be called into operation and that they would remain a dead letter.”[4]Even after the constitution makers declared it a dead letter, the central government has repeatedly used and abused it in their own favor. Article 356 provides for proclamation of state emergency on the satisfaction of president on the drastic situation of state where it can be functioned according to law.

CONTROVERSY OVER INCLUSION OF “OTHERWISE”

Article 356 includes proclamation on the basis of “governor’s report”on failure of state administration to the president’s or “otherwise”.[5] H.V. Kamath, an Indian Politician has criticized the word ‘otherwise’ and said only god knows what this ‘otherwise’ means.[6]

What happens, however, if the Governor declines to recommend initiative under Article 356? Because of these circumstances, the framers of the constitution added the words “or otherwise” to Article 356(1). As also stated by Dr. B.R. Ambedkar that:

“We must give liberty to the President to act even when there is no report by the Governor and when the President has got certain facts within his knowledge on which he thinks fit to act in the fulfilment of his duty”.[7]

As also stated by Supreme Court that “whenever the said satisfaction is required of the President or the Governor, it should be in the constitutional sense and not otherwise”.[8]

So, from the above discussion, it can be concluded that the inclusion of “otherwise” is necessary but due to inclusion of this particular word it is on the sole discretion of the president who,under article 74 of Indian Constitution, act on the advice of the council of ministers to impose state emergency under article 356 or not.

NO DEFINITE BOUNDARIES

As discussed in the previous topic, it is on the sole discretion of the government to invoke article 356 in a state or not. It has no definite boundaries like mentioned in Article 352 other than moral conscience of the bench.

While Article 352 can only be invoked in three cases of war, external aggression, or armed rebellion, Article 356 applies at any time when constitutional machinery collapses in a state in number of ways, including political breakdown in the state, the inability of a stable ministry to hold public office, the breakdown of law and order, corruption or misuse of its authority,subversion of constitution or of the democratic social fabric, etc.[9]

D.D. Basu made the distinction as one being the response to the existence of state and other being response to the dissolution of constitutional machinery in a state.[10]

Article 356 has given wide scope in order to maintain law and order situation in a state but the central government has molded it to take advantage and remove the rule of opposite party government sometimes in some states.

INSTANCES OF USE AND MISUSE

Article 356 has been misused several of times like in 2002 the president’s rule imposed in the state of Uttar Pradesh on the report of the governor, who didn’t even pay heed to the actual situation going in UP. Other similar instances arisein 1953 in Pepsu, in 1954 in Andhra,in 1951 in Punjab, in 1956 in Travancore-Cochin and in 1961 in Orissa, in all these situations Governor of the respective state on unreliable sources and without taking into consideration the actual situation of state made its report and the president based on that report, imposed state emergency.[11]

Another dramatic instance happened in 1977, after the 1975 emergency people’s anger came out and congress lost the general election and overtaken by the Janata Party, which later dissolved all congress ruled state at that time under President’s rule. History repeated itself in 1980 where congress again emerged as the majority and dismissed the Janata government from 9 states under article 356. These proclamations were highly questioned as they were not based on any Governor’s report as also observed by Sarkaria commission that -

“these all cases are typical instances of wholesale misuse of article 356 for political purposes, extraneous to the one for which the power has been conferred by the constitution”[12]

Wade and Forsyth[13] also criticizes the political nature of the decision making where courts are incapable of taking any cognizance of misuse of power.

Untilthe year 2000, article 356 has been invoked as many as 100 times. In present day, it seems difficult to use the power under article 356 as the NDA government enjoys majority in the LokSabha but lacks the majority in Rajya Sabha.

JUSTICIABILITY OF THE PROCLAMATION UNDER ARTICLE 356

Judicial review under article 356 was first came up under consideration in KK Aboo v. UOI, where thewrit petition challenging the center's proclamation was dismissed by the Kerala High Court.[14]Again, in Rao Birinder Singh v. The Union of India, the court ruled that it has no jurisdiction to question president’s satisfaction and don’t even have authority to make him disclose the material on which he formed his satisfaction.[15] In Jyotirmoy Bose v Union of India, the Calcutta High Court rejected writ petition challenging president’s proclamation issued under article 356. The court also rejected the contention of petitioner that president should act on his own discretion and not on the advice of council of ministers while proclamation of emergency.[16]

Bijayananda Patnaik v President of India[17] is anextremely informative decision on article 356 given by Orissa High Court, where the court ruled that the governor must act independently, not with the assistance and advice of the ministers, when sending his report to the president.  And that report cannot be challenged in a court of law, whether it is false or based on fictitious evidence.Because of the governor's immunity under Article 361(1) of the Constitution, it is not justiciable.[18]

The court also recommended that, upon the collapse of the ministry, the governor should ask the opposition leader to form the government. also, the governor should not be concerned with whether or not the opposition government will be stable in the future.[19]

The Andhra Pradesh High Court also asserted that the satisfaction of the presidentwas not a justiciable matter.[20] (Para 15).

The matter of doubt was cleared by the Constitution (thirty-eighth Amendment) Act, 1975, which declared that the ‘satisfaction’ of president “shall be final and conclusive and shall not be questioned in any court on any ground”.[21]However, the constitution's Forty-fourth Amendment later repealed this provision.

RAJASTHAN V. INDIA[22]

The matter was heard by a seven-judge constitutional bench after the State of Rajasthan (along with several other states) filed an original suit under Article 131 challenging the Union of India's invocation of Article 356 in these states. The court's general stance is that it will not intervene with the center's exercise of power under article 356 solely because it encompasses "political and executive policy and expediency unless any constitutional provision was being violated."[23]

And, under article 356(5), the court cannot investigate or challenge the president's satisfaction on any basis unless and until it is shown that the president used "patent abuse of this clause or an excess of authority on admitted facts" on grossly perverse and irrational grounds.[24]

Bhagwati J, emphasizedthat –

“The satisfaction of President under article 356 is ‘subjective and cannot be tested by reference to any objective test’ or by ‘judicial review’. But if it can be shown that there is no satisfaction of the president at all, the exercise of the power under article 356(1) would be constitutionally invalid”.[25]

Most of the justices said that if the satisfaction is not genuine or is based on completely irrelevant and superfluous grounds, the court has authority to investigate it because there would be no satisfaction of the president in the matter in which he is expected to be satisfied.

SR BOMMAI[26]

The great significance of this case can be gauged from the fact that the Supreme Court had to decide the validity of six promulgation issued in six different state arising due different scenario’s ranging from ram janmbhoomi-babri demolition to defection of ministers.

Seven opinions were rendered by a nine-judge bench that considered the different issues raised in these cases. On the basis of the judges' consensus, the following key propositions can be stated:

The majority of chief minister in the house will be determined on the floor of the house, not in governor’s chamber overruling the Karnataka High Court’s order in the Bommai case.[27]

Rather than blatantly writing the letter to the president, the governor should first try to explore the possibility of establishing an alternative ministry.[28]

The president should declare a state of emergency based on some material evidence that the state government cannot function in accordance with the law. The validity of content can also be challenged in court.[29]

The satisfaction cannot be challenged if based on such valid material.

The legislative assembly's dissolution is not an inevitable or mandatory result of the proclamation's issuance. It can only be used when it is absolutely necessary to accomplish the proclamation's goal. Article 356(3) makes it illegal to dissolve the assembly until the parliament approves the proclamation.[30]

If the proclamation is declared unconstitutional by the court notwithstanding the parliament's approval, the president's decision is rendered null and void.[31]

In Bommai, the Supreme Court, by showing its judicial creativity, aims to promote a set of fundamental constitutional principles like parliamentary system, secularism, federalism and control over the executive.

The court stated that power conferred under article 356 is not an absolute power but a conditioned power. The court went on to say that a state government may enjoy a majority in the assembly, but if it subverts the basic value of secularism, it can be dismissed under Article 356(1).[32]

(Vishal Singh is 2nd year student of Rajiv Gandhi National University of law, Patiala)


[3]Shetty, President’s Power under Article 356 of the Constitution-Theory and Practice, in ILI, Constitutional Developments Since Independence, 335 (1975), ILI, President’s Rule in the States; Report of the Sarkaria Commission.

[4]Constitutional Assembly Debates, India, available at: http://loksabhaph.nic.in/writereaddata/cadebatefiles/C04081949.html. (Visited on April 28, 2021).

[5]The Constitution of India, art. 356.

[9]M.P. Jain, Indian Constitutional Law 742 (LexisNexis, Haryana, 8th edn., 2020).

[10]DD Basu, Commentary on the Constitution of India, (LexisNexis, 8th edn., 2011).

[11]Supra Note 9.

[12]Report, 175, pg. 18.

[13]Wade William and Christopher Forsyth, Administrative Law, 420-421, (Oxford University Press, England, 9th ed.).

[14]KK Aboo v. UOI, AIR 1965 Ker 229.

[15]Rao Birinder Singh v. The Union of India and Ors., AIR 1968 P&H 441.

[16]Jyotirmoy Bose v Union of India, AIR 1971 Cal 122.

[17]Bijayanand v President of India,AIR 1974 Ori 52.

[18]Ibid, at 15.

[19]Ibid, at 25.

[21]the Constitution (thirty-eighth Amendment) Act, 1975.

[23]Ibid, at 28.

[24]Ibid, at 7.

[25]Ibid, at 10-11.

[27]Ibid, at 127-128.

[28]Ibid, at 277.

[29]Ibid, at 2.

[30]Ibid, at 48.

[31]Ibid, at 124.

[32]Ibid, at 219. 


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