S.K. Jha, C.J.
1. We have assembled today for the purpose of deciding only one incidental matter on which learned counsel for the parties insist. We give our ruling at the outset before we proceed further to hear the counsel for the parties on merits of the writ petition. That limited question as to the legality or propriety of the Governor either in his official capacity or by name described as the Governor, respondent No. 6 in the writ petition was warranted in law or was. precluded by virtue of the legal immunity attached to the Governor on account of his acts done or purported to be done in his official capacity under the provisions of Article 361 of the Constitution of India. While on the one hand, Shri N. C. Jain, learned counsel for the petitioner insists that Shri Kunwar Mehmood Ali, Governor of the State of Madhya Pradesh was a necessary party and no immunity could be enjoyed by him qua a Governor under Article 361 of the Constitution, It was not only proper but legal for him to be arrayed as one of the respondents in this petition. On the contrary, the learned Advocate General appearing for the State Government and Shri Ravindra Shrivastava, learned Standing Counsel for the Union of India asserted that whether by name or qua Governor, on the facts of the case, more so on the pleading of the petitioner, he is not only attracted the immunity clause under Article 361 of the Constitution but was not even a proper party in these proceedings.
2-3. In order to decide that limited question, we concentrate only on such aspects as are essential for the decision of the propriety and legality of the respondent No, 6 being arrayed in this case. In order to appreciate the point involved, we may at once call the salient features of the case. This is the petition under Article 226, Constitution of India filed by the erstwhile Chief Minister of the State of M.P. Shri Sunderlal Patwa (while in other linked cases, some others are the petitioners). Primarily, for the relief that an appropriate writ be issued by this Court quashing the Presidential proclamation under Article 356 of the Constitution as incorporated in Annexure-A superseding or dismissing the State Government and dissolving the Assembly 01 the State of M. P. Admittedly it is the Presidential proclamation (Annexure-A) which is sought to be quashed. No act of the Governor is sought to be quashed. Back-grounds in which the dispute with regard to the limited question at hand today arises are these :--
4. In paragraph 33 of the writ petition, it has been stated that the Government of M.P, had sent three reports on different dates, i.e. 8-12-1992, 10-12-1992 and 13-12-1992. These reports are said to be biased and are alleged to have been 'sent with mala fide intention' and, therefore His Excellency the Governor was also made a party. Shri Jain, learned counsel for the petitioners states at the bar that the Govt. of M.P., mentioned at the outset of paragraph 33 of the petition is merely a clerical error for the Governor of M.P. Be it so as we were to continue with the narration, these reports are alleged to be biased and sent with mala fide intention necessitating the Governor being made a party in the proceedings. Later on in paragraph 33, it has been stated that in his report dated 8-12-1992, the Governor recommends for proclamation of the President's rule and the dissolution of the State Legislative Assembly forthwith. In this report, there was absolutely no allegation against the State Legislature or the Legislative wing of the Govt. 'This shows that the Governor had a biased mind because the Legislative Assembly consisted of more than 2/3rd BJP M.L.As.' This is followed by a narration of the unfortunate communal disturbances and the imposition of curfew and other matters with regard to the seriousness in the law and order problem in the State and we may herein now state that prima facie this paragraph is indicative of a sort of break down in law and order machinery of the State.
Then in paragraph 34 of the petition, it has been alleged that 'the Governor had shown his political bias also by saying that the political leadership provided overt and covert support to the associates of political organisations and by this he infers that there is a break-down of administrative machinery in the State. The Governor is vague in saying so because he has not named any communal organisation.' In paragraph 37, it is alleged that 'the Governor may have his own bias against R.S.S. on the issue of Hindu-Muslim problem but it was factually incorrect to say that the R.S.S. leaders were contemplating fresh strategy and going underground.' Then the substance of the allegations or the grievances against the Governor made in the earlier paragraphs of the writ petition has been set out as if, in nut-shell, in paragraph 38 of the writ petition. It would be useful to use the language of the petition itself in paragraph 38 since it is our endeavour to show that the allegations or assertions made in paragraph 38 are more in the nature of narration of facts than allegations of malice in fact. 'According to the petitioner's information, 3 reports were sent, copies of which are Annexure-J, K & L. Thus, the notification is vague as one cannot find out from it as to which is that report which has weighed with the Governor for arriving at his satisfaction. Thus, the notification deserves to be quashed. It is also submitted that principle of natural justice do have a play in such circumstance and the Governor should have asked the State Govt. to submit its reply to the allegation and apprehension which weighed with the Governor in preparing the said report Annexure 'J', 'K' and 'L'. Article 167 provides this power to the Governor to seek information from the Chief Minister but the Governor never exercised this power and sent one-sided, colourable, at some places factually incorrect and biased report.' These are the so called grievances against the Governor or the Governor's report.
5. As we have pointed out earlier, the petition is for the writ of mandamus or any other writ or order quashing the Presidential procuration under Article 356 of the Constitution as incorporated in Annexure-A. Article 356(1) of the Constitution lays down that if the President on receipt of a report from the Governor of a State or otherwise is satisfied that the situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution, the President may issue a proclamation for purposes as laid down in the subsequent parts of Article 356 of the Constitution. The Presidential proclamation Annexure-A at the out set states 'whereas, I, Shankar Dayal Sharma, President of India, have received a report from the Governor of the State of Madhya Pradesh and after considering the report and other information received by me, I am satisfied that a situation has arisen in which the Government of that State cannot be carried on in accordance with the provisions of the Constitution ......'
Therefore, the satisfaction of the President, which is a pre-requisite for the issuance of proclamation under Article 356 is based upon his satisfaction on a perusal of the report of the Governor as well as other information received by him. As is well known in legal parlance, the legal satisfaction is the satisfaction of the Council of Ministers at the Centre. Though the President may have been made a party in the first instance, he was subsequently expunged from the records of the case by the deletion of his name by the learned counsel for the petitioner. The other Ministers including the Prime Minister have been made parties respondents to this petition, who are said to have weighed with the Prime Minister Shri P. V. Narsimha Rao, Human Resources Minister Shri Arjun Singh, Defence Minister Shri Sharad Pawar and Home Minister Shri S. B. Chavhan. Thus, the Presidential proclamation is impeached on the ground of being misconceived on the advice of the Council of Ministers, the vocal Ministers of which have been parties in this writ petition. Nothing is sought to be done in so far as the reports of the Governor are concerned. The reports are not sought to be quashed. Time and again, it has merely been mentioned that the Governor has not acted bona fide or has acted mala fide in the exercise of his power. We do not find any breath of whisper of any malice on his part in the petition on the facts as given in the petition. Four things which are clear, from the plain reading of the petition are these :--
(i) The Presidential proclamation is sought to be quashed;
(ii) The Presidential proclamation is based upon the aid and advice of the Central Council of Ministers;
(iii) The vocal members of the Central Council of Ministers like the Prime Minister Shri P. V. Narsimha Rao, the Human Resources Minister Shri Arjun Singh, the Defence Minister Shri Sharad Pawar and the Home Minister Shri S. B. Chavhan have been made parties (as to whether their aid and advice in the matter is justiciable or not is not our concern at the moment. What needs to be emphasised is that the basis of the Presidential proclamation namely the aid and advice of these Ministers has been put to test); and
(iv) No relief against the Governor nor even a relief in the shape of quashing the reports Annexures-J, K and L has been sought as being vitiated by any sort of mala fides, much less malice in fact.
6. In such circumstances, can it be said that the Governor is a necessary or even a proper party to such a proceeding. Even de hors the provisions of Article 361 of the Constitution, the simple answer to the question posed is against the petitioner. It is neither proper much less legal for the Governor to be made a party respondent in the case, either in his gubernatorial capacity or personally described as being the Governor of the State. Let us then look to the other aspect of matter as to whether the sections as are sought to be assailed on a very vague pleading of malice in fact, although we find more, or even if malice in law can be said to be inferred, the Governor or for that matter shri Kunwar Mehmood Ali as the Governor of the State attracts the immunity clause engrafted in Article 361 of the Constitution.
7. All said and done, what is sought to be impressed is that the Governor in making his reports Annexures-J, K & L has not taken the facts in their right perspective and that, therefore, the reports are biased and vitiated with mala fides. Even if that be so, he will be deemed to have acted in the purported exercise of his powers and duties as enjoined by the Constitution under Article 356 thereof. As to whether it was necessary for him to seek the aid and advice of the State Council of Ministers is a matter not germane in issue at hand today. Suffice it to say, therefore, without entering into the jumble of case law that both on facts and in law, it is neither proper nor legal for the Governor to be made party respondent in this case. We accordingly direct that the respondent No. 6 be expunged from the records of this case.
We, however, want it to make clear that the expunction of the name of the Governor either in his official capacity or in his personal capacity shall not at any later stage be taken as a ground to prejudice the right of the petitioner while attacking the presidential Proclamation to show the truth or otherwise, for whatever worth it is, of the Governor's reports as contained in Annexures-J, K and L.
This order will also govern such other cases in the batch in which the Presidential proclamation is sought to be assailed. Put up this petition on 22-2-1993.
Certified copy be furnished to all parties on usual charges, if applied for.
S.K. Jha, C.J.
8. The order in this case shall also govern the connected petitions pending in this Court raising substantially the same points being M. P. No. 906/93 (Laxmi Narayan Gupta v. Union of India), M. P. No. 429/93 (Brijendra Nath Pathak v. Union of India) and M. P. No. 4517/92 (Smt. Jaishri Banerjee v. Union of India).
8A. The petition raises a question of great constitutional importance, particularly concerning the Government of Madhya Pradesh. The petitioner has been the Chief Minister of the State! of Madhya Pradesh. By this petition, he challenges the Presidential Proclamation issued on 15th of December, 1992 published in Madhya Pradesh Rajpatra (Extraordinary) of the same date, imposing Presidential rule in the State and dissolving the State Assembly. Before we deal with the main contentions advanced by the counsel for the petitioner on the question of extent of power of the President under Article 356 of the Constitution of India and the scope of judicial review, it would be necessary to briefly state the factual back-ground in which the impugned Proclamation by the President was issued.
8B. On 6th of December 1992, a crowd, which had gathered at Ayodhya in Uttar Pradesh, demolished the Babri Masjid for installation of deity Shri Ramchandra at that place and for erection of a temple. As a reaction to the incident, wide-spread riots broke-out in several parts of the country. There were incidents of arson, looting, assaults and killings between the rival groups. It is reported and as has come on record of this case that the cities of Bhopal and Ujjain in the State of Madhya Pradesh were worst affected. In some other parts of the State, there were sporadic incidents. Instances of serious disturbances and riots were also reported from Bombay in Maharashtra and Ahmadabad and Surat in the State of Gujarat.. The Governor of the State of Madhya Pradesh on 8th' of December, 1992 reported the matter to the President (a copy of which is Annexure-J to the petition) recommending that President's rule be imposed in the State in exercise of the powers under Article 356 of the Constitution of India. The relevant parts of the letter of the Governor of Madhya Pradesh dated 8th of December, 1992 would be very relevant to decide theconstitutional validity of the impugned proclamation and those are reproduced here-under :--
'Enclosed please find herewith wireless, message/ FAZ message sent by my Secretary to your Excellency's Secretary yesterday and today. According to the latest report available, the death toll due to unabated violence for the second day in succession in various parts of Madhya Pradesh has risen to 39. About half of them are reported to be in police firing. Unconfirmed reports have put the death toll at 50 of which 34 were said to have taken place in Bhopal alone. At least 365 persons were injured in the violent incidents in the State. Of them, 62 policemen were injured in Bhopal alone. The condition of one of them was said to be serious. Total number of police persons injured in the state is said to be 90. Of the 39 deaths, 24 were in Bhopal, 4 in Burhanpur, 2 in Jaora, 8 in Ujjain and I in Jabalpur. Cutfew has been clamped for an indefinite period in 8 police stations of Old Bhopal, dusk to dawn curfew has been clamped in New Bhopal. Curfew has also been in force since yesterday in Indore, Mhow, Jabalpur (ft police station stations), Khandwa, Burhanpur, Ratlam, Jaora, Mominpura, Seoni, Ujjain, Mahidpur Dewas, Neemuch, Shajapur and Khargone. Prohibitory orders have been imposed in 29 towns of Madhya Pradesh.
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Army had been deployed in the curfew bound areas of Bhopal Despite that and shoot-at-sight orders, fresh incidents of arson, police firing and stone throwing have been reported in several localities. The manner in which the law and order situation has been handled in Bhopal is not satisfactory, which may be viewed as both the act of commission and omission, serious reports of either police indifference or callousness or in adequate presence and even police indirectly fuelling the riot frenzy and mob fury have been received from a number of delegations which met me since yesterday.
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The fast deteriorating law and order situation of the State in the wake of widespread acts of violence, arson and looting and lack of faith in the public in the ability of the State Government to stem the tide primarily because of the political leadership's overt and Covert support to the associate communal organizations seem to point out that there is breakdown of the administrative machinery bf the State. On the basis of the facts narrated above and my personal assessment of the extremely grave, tense and critical situation of law and order in the State and the way in which, it has been tackled by the State Government so far, I have reasons to be satisfied that the Government of the State is unable to preserve and maintain law and order, uphold the rule of law to the citizens and is also unable to ensure the normal functioning of community life. From the action and reaction on the part of the State Government, I am of the opinion that the Government of the State cannot be carried on in accordance with the provisions of the Consitution of India. Hence, it is recommended that your Excellency, the President of India, shoul proclaim President's rule under Article 356 of the Constitution of India and dissolve the State Legislature forthwith.
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8C. The Governor of State of Madhya Pradesh again on 10th of December, 1992 sent a letter (a copy of which is Annexure-K to the petition) and reported about the law and order situation, particularly of Bhopal and of the industrial area of Heavy Electricals Ltd., Bhopal. The relevant parts of the letter dated 10th of December, 1992 are also reproduced hereunder :--
'Kindly refer to my letter of even number dated 8-12-1992. The wave of violence that has rocked the State following the demolition of the disputed structure at Ayodhya continued yesterday and today despite imposition of prohibitory orders and clamping of curfew in serveral cities and towns. Acts of violence, arson and looting continued in Bhopal and the death toll in the capital has gone up to 62. The total number of deaths reported in the State is 82. Nine deaths were reported in Ujjain, 4 in Burhanpur, 3 in Khargone and one each in Jaora, Neemuch, Jabalpur and Indore. The total number of injured persons 15 reported to be well above 350. Of these about 300 are in Bhopal alone. The total number of arrested persons is reported to be above 5000. I have called for a detailed report about the persons who have either died or have been injured in riots and detailed information about the persons who have been arrested so far. The information from the State Government is still awaited.
On 9-12-92 violence spread to new Bhopal and BHEL area. BHEL, Bhopal was closed today in view of imposition of an indefinite curfew in Govindpura police Station near Piplani, following sporadic incidents of violence, arson and looting yesterday. It has been reported that for the first time the plant employing over 17,000 workers had to be closed down. It would result in daily production loss of about 2.5 crores. As many as 24 persons sustained injuries in the violent incidents in and around the plant. Attempts were made to kill some senior officials of BHEL. It is also reported that a number of dead bodies were lying around BHEL after the incidents took place. Several acts of arson, violence and looting rocked new Bhopal area yesterday. Yesterday the district administration extended curfew to all the three Police Stations of new Bhopal for an indefinite period.
XXX XXX XXX
More columns of Army and police force have been requisitioned in Bhopal. Today curfew was relaxed in old Bhopal for two hours for women and children. After two hours of calm in the Capital, sudden outbreak of arson incidents were reported from the old and new localities of the city. About 100 orphan children were reportedly stranded after miscreants set on fire a temple in Ghoda Nakkas locality of the old city this afternoon. In the midst of this orgy of violence a glimmer of hope is discernible from gestures of citizens of Bhopal. For example, last night the residents of four houses belonging to a minority community who live in a locality having 32 families in north T.T. Nagar were extremely panic striken. The elderly citizens belonging to the families of the majority community of the locality stood by them and asked their young members of the family to ensure protection of the residents of the four families.
New Bhopal and BHEL colony areas havenever in the past experienced this kind ofviolence. This shows that the miscreants had apre-planned strategy to extend their nefariousdesigns to areas which are known for com- munal amity.
The increasing acts of violence, arson, looting and loss of property since 7th December, 1992 and the way it is spreading even to these areas which had never expert- enced such violence in the past, seem to indicate that there was a pre-planned strategy. Hence, this poses an extremely grave danger : to the security of life and property of the innocent citizens.
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8D. The last letter in relation to the disturbances in the State was sent on 13th of December, 1992 by the Governor which in its relevant parts reads as under :--
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With the reported statement of the Chief Minister Shri Sunderlal Patwa that the decision of banning the RSS and VHP was unfortunate, the State Government's credibility to sincerely implement the Centre's directions in the matter is under a cloud. It is also reported in the Press that on a question whether he was torn between failure of Con- . stitutional responsibility vis-a-vis the ban, Shri Patwa managed a weak smile and remarked' 'let us see what happens'. From the response of the State Government so far, there is a question mark as to how BJP leaders like Shri Patwa who swore by the values and traditions, of the RSS, will be able to implement the ban both in letter and spirit.
I have been informed by the State Government that Shri Arif Aqueel, MLA, was arrested in Bhopal on 7th December, Shri Lokendra Singh former MP, BJP was arrested in Panna on 8th December, Shri Ramanand Singh, M. L. A. Janata Dal was arrested in Satna on 8th December. Shri Yogendra Rana, former MLA, BJP and Shri Sevaram Gupta, former MP, BJP were arrested at Morena on 9th December. All these arrests have been made as a precautionary measure under Section 151 Cr. P.C.. The State Government has also given me an interim reply and asked for time to give me detailed information sought for by me. Copies of my office letter dated 10-12-92 and the State Government's letter No. 11874/ 92/C-1 dated 11-12-92 are attached for ready reference.
It is significant to mention that BJP MP in Bhopal Shri Sushil Chandra Verma is reported to have described the present riot in Bhopal as a political game (copy of his statement enclosed). I have also indicated in my previous report that the current orgy of violence which has affected the peace and tranquility of an otherwise peace loving State with deep rooted traditions of communal harmony not merely in the State Capital but also elsewhere clearly brings out that the outbreak of large scale violence was surely an act of well-planned strategy and deep-rooted conspiracy. The administration was mute witness and objectly failed in its primary duty to protect the life and property of the citizens.
Considering this and looked in the background of the RSS etc. Contemplating on a fresh strategy to chalk out its future plan and possibility of the leaders of the banned organisations going underground taking advantage of the soft reaction of the adminis-tration, 1 have reasons to be convinced that there should not be any further delay in imposition of President's rule according to Article 356 of the Constitution of India.
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Along with these three letters submitted to the President, letters from the Secretary of the Governor sent to the Chief Secretary of the State dated 10th December, 1992 (Annexure-M), letter from the Dy. Secretary, Home to the secretary to the Governor dated 11-12-1992 (Annexure-N), letter from the Executive Director, Heavy Electricals, Bhopal dated 11-12-92 to the Secretary to the Governor and the letter 11-12-92 (Annexure-O) of Shri Khalil-Iulla Khan, Chairman, Human Rights Commission, M.P. to the Governor were also sent to the President.
8E. The Union of India supported the Presidential Proclamation in the State of Madhya Pradesh in its return as also in the oral submissions before us advanced on its behalf by the Solicitor General, Shri Dipankar Gupta. The principal submission made on behalf of the Union of India is that the Act of President in exercise of power vested in him under Article 356 of the Constitution is not justiciable in Court of law. It is submitted that the satisfaction of the President is beyond judicial review. Article 361 of the Constitution of India is relied upon to contend that the President or the Governor of a State cannot be made answerable to any Court for the exercise and performance of the powers and duties of their offices or for any act done or purported to be done by them in exercise and performance of their powers and duties under the Constitution. It is also argued that the ministerial advise tendered to the President by the Council of Ministers or the Union Cabinet cannot also be enquired into by a Court of law as Article 74(2) of the Constitution disables the Court from making any enquiry into the existence or nature of contents of the ministerial advise to the President. According to the Solicitor General, the reports of the Governor of the State, based upon his assessment of the situation in the State, left no manner of doubt that the erstwhile Government had miserably failed to protect the citizens and the properties of the State against the internal disturbances and as such, it became the constitutional duty of the President to take recourse to Article 356 of the Constitution, on being reasonably satisfied that the imposition of President's rule in the State was imminently warranted to ensure that the Government of State is carried on in accordance with the Constitution. The Proclamation issued under Article 356 of the Constitution is sought to be supported stating that it was intended to achieve the constitutionally authorised purpose and is beyond judicial scrutiny.
8F. It was then submitted by the Solicitor General that the Presidential Proclamation issued on 15-12-1992 was laid before the Parliament on 18-12-92 and after due deliberations, both the Houses of Parliament have approved. Both the Houses of Parliament after consideration of the circumstances, the reports of the Governor as also the President's satisfaction, based on Cabinet advise, having approved the Proclamation, the matters are not justiciable in Court of law.
8G. Before dealing with the contentions advanced on behalf of the petitioner by Shri N. C. Jain, ex-Advocate General of the State, supported by Shri N. S. Kale, Senior Advocate, who appeared in the connected case M.P. No. 4517 of 1992 on the same subject and by Shri R. N. Singh, Advocate in M.P. No. 906 of 1993, filed on behalf of an ex Minister and M.L.A. of the State of Madhya-Pradesh, it would be necessary at the threshold to first understand the ambit and extent of the power of the President under Article 356 of the Constitution of India, which has been invoked to impose the President's rule. Article 356 of the Constitution in its relevant parts reads as under :--
'356. Provisions in case of failure of constitutional machinery in States.-
(1) If the President on receipt of a report from the Governor of a State or otherwise is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution, the President may by Proclamation.-
(a) assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercis-able by the Governor or any body or authority in the State other than the legislature of the State.
(b) declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament;
(c) make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this Constitution relating to any body or authority in the State;
Provided that nothing in this clause shall authorise the President to assume to himself any of the powers vested in or exercisable by a High Court, or to suspend in whole or in part the operation of any provision of this Constitution relating to High Court.
(2) Any such proclamation may be revoked or varied by a subsequent Proclamation.
(3) Every Proclamation under this Article shall be laid before each House of Parliament and shall, except where it is a Proclamation revoking a previous Proclamation, cease to operate at the expiration of two months unless before the expiration of the period it has been approved by resolutions of both Houses of Parliament :
Provided. .....
(4) A Proclamation so approved shall, unless revoked, cease to operate on the expiration of a period of six months from the date of issue of the Proclamation.
Provided that if and so often as a resolution approving the continuance in force of such a Proclamation is passed by both Houses of Parliament, the Proclamation shall, unless revoked, continue in force for a further period of six months from the date on which under this clause it would otherwise have ceased to operate, but no such Proclamation shall in any case remain in force for more than three years.
Provided.....
Provided.....
(5) Notwithstanding anything contained in Clause (4), a resolution with respect to the continuance in force of a Proclamation approved under Clause (3) for any period beyond the expiration of one year from the date of issue of such Proclamation shall not be passed by either. House of Parliament unless-
(a) a Proclamation of Emergency is in operation, in the whole of India or, as the case may be, in the whole or any part of the State, at the time of the passing of such resolution, and
(b) the Election Commission certifies that the continuance in force of the Proclamation approved under Clause (3) during the period specified in such resolution is necessary on account of difficulties in holding general elections to the Legislative Assembly of the State concerned.
Provided that nothing in this clause shall apply to the Proclamation issued under Clause (1) on the 11th day of May, 1987 with respect to the State of Punjab. For the purpose of controversy before us, it is necessary to keep in mind that Clause (5) of Article 356 of the Constitution, as it stands today, had been substituted by the Constitution (Forty Fourth Amendment) Act, 1978 in place of the earlier clause inserted by the Constitution (Thirty Eighth Amendment) Act, 1975. The original clause, which sought to bar the judicial review of Proclamation under Article 356 on any ground, reads as under :-- 'Notwithstanding anything in this Constitution, the satisfaction of the President mentioned in Clause (1) shall be final and conclusive and shall not be questioned in any Court on any ground.'
9. The other connected Articles, which can be read as aid for construction and interpretation of Article 356 are Articles 355 and 365 as under :--
'355. Duty of the Union to protect States against external aggression and internal disturbance.-
It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of this Constitution.' '365. Effect of the failure to comply with, or to give effect to, directions given by the union.- Where any State has failed to comply with, or to give effect to, any directions given in the exercise of the executive power of the Union under any of the Provisions of this Constitution, it shall be lawful for the President to hold that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution.'
10. It may also be noted that 'internal disturbance' could be one of the grounds for Proclamation of emergency under Article 352 of the Constitution of India prior to substitution of the words 'internal disturbance' by the words 'armed rebellion' by the Constitution (Forty Fourth Amendment) Act, 1978. It would thus be seen that 'internal disturbance' in the State or any part of the territory of India is no longer a ground for imposition of emergency and it is only disturbance of the nature of 'armed rebellion' which could be a ground for Proclamation of emrgency in the whole or a part of the State.
11. Article 356 of the Constitution came for consideration and interpretation by the Supreme Court in its well known seven Judges' Bench case, hereinafter called as the Rajasthan case, i.e. The State of Rajasthan v. The Union of India, AIR 1977 SC 1361. That decision was rendered by the Supreme Court prior to Forty Fourth Amendment to the Constitution when Clause (5) introduced to Article 356 of the Constitution by the Thirty Eighth Amendment Act, 1975 was in force, which barred judicial review of Proclamation under Article 356 of the Constitution on any ground. Though the seven Judges, in Rajasthan case, gave different opinions, there was a fair consensus in the majority opinion followed in the subsequent case of A. K. Roy, i.e. A. K. Roy v. The Union of India, AIR 1982 SC 710 that the Proclamation under Article 356 of the Constitution is open to judicial review, where it has been made, upon consideration, which is wholly extraneous, irregular and irrelevant to the purpose for which the power under Article 356 of the Constitution has been conferred by the Constitution. In other words, where there is no 'reasonable nexus' between the reasons disclosed for the Proclamation and the satisfaction of the President, it would give rise to an inference that there did not exist 'satisfaction' of the President for the valid exercise of the sweeping or drastic power conferred on the President under Article 356 of the Constitution of India for imposing the Presidential rule in State and dissolving its Assembly. It may also be taken note of, as a settled legal position, that as the bar to judicial review imposed by the foregoing Clause (5) in Article 356 of the Constitution was repealed by Forty Fourth Amendment Act, 1978, it can be held that the Presidential Proclamation is open to judicial review on the ground of illegality, irrationality, impropriety or mala fide or, in short, on the ground of abuse of power. This question incidentally came before the Constitution Bench of the Supreme Court in the case of A. K. Roy (AIR 1982 SC 710) (supra) and the Supreme Court observed thus (at p. 724 of AIR):
'The Rajasthan case AIR 1977 SC 1361 is often cited as an authority for the proposition that the Courts ought not to enter the 'political thicket'. It has to be borne in mind that at the time when that case was decided, Article 356 contained Clause (5) which was inserted by the 38th Amendment by which the satisfaction of the President mentioned in Clause (1) was made final and conclusive and that satisfaction was not open to be questioned in any Court on any ground. Clause (5) has been deleted by the 44th Amendment and, therefore, any observations made in the Rajasthan case on the basis of that Clause cannot any longer hold good. It is arguable that the 44th Constitution Amendment Act leaves no doubt that judicial review is not totally excluded in regard to the question relating to the President's satisfaction.'
'Rajasthan case' decided by the Supreme Court, was considered and relied upon by the Full Bench of Karnataka High Court in a decision reported in S. R. Bommai v. Union of India, AIR 1990 Kant 5, A detailed discussion of facts of the above decision cited is not required, because in none of the above cases, Proclamation under Article 356 of the Constitution was issued on the ground of 'internal disturbances' in any State.
12. Having thus examined the settled legal position with regard to the scope of judicial review of the action of the President under Article 356 of the Constitution, we propose to first take up the question of extent and scope of power of the President under Article 356 of the Constitution. A close reading of the provisions of Articles 355 and 365 would clearly show that the two Articles together are intended to achieve a common purpose. The former stipulates the duty of the Union towards the States to protect them against any external and internal disturbances to ensure that the Government of every State is carried on in accordance with provision of the Constitution. The Article empowers the President to fulfil that duty within the frame work specified therein. Therefore, the extent and limitation of the powers of the President mentioned in Article 356 of the Constitution must be determined in the light of the provisions of Article 355 and for all practical purpose, they have to be read together. When they are so read, it is amply clear that the powers of the President under Article 356 of the Constitution is confined to the performance of the duty of restoring the normal situation in which the constitutional machinery in a State can function in accordance with the Constitution by protecting the State against 'external aggression' and 'internal disturbances'.
13. The Proclamation by the President under Article 356 of the Constitution only to a limited extent is screened from judicial review, because of the provisions contained in Article 356(1), as the President is not answerable to any Court in the exercise and performance of powers and duties of his office. The review of his action has specifically been restricted by the Constitution to the Parliament; but the consequences, which flow from the Proclamation under Article 356, are drastic. The question whether there is any limitation on these powers may require examination of the scheme and language of different clauses of Article 356 of the Constitution. No doubt exercise of these powers plainly and unmistakably direct at the root of federal principles. It vests executive powers of the State, which, in the federal structure, is exercisable by the Governor with the aid and advise of his Ministers and takes away the powers of the Legislature of the State which are then exercisable by the Parliament. The administration of the State for all purposes is taken over by the President who assumes all powers of the Governor, It will thus be seen that Article 356 of the Constitution authorises serious inroads into the principles of federation and that is permitted because in the 'subjective satisfaction' of the President, as the situation has arisen in which the Government of the State 'cannot be carried on in accordance with the provisions of the Constitution' and the President is required to ensure that the Government of State is carried on in accordance with Article 355 of the Constitution. See observation of Retired Judge of the Supreme Court, Shri J. L. Kapoor, in his Article 'Federal Structure of Indian Republic Its Nature and Extent', published in the Journal of the Indian Law Institute (21 J.I.L.I. 1979 at page 242).
14. The learned author, B. Shiva Rao in his famous book 'Framing of India's Constitution -- A Study at pages 10 and 11 has traced the history of the debates in the Constituent Assmebly on the provisions of Article 356 of the Constitution, a draft Article of which was 278. The aforesaid provision relating to a situation in a State where there was a break-down of constitutional provisions and particularly those on the respective roles of the Governor and the Union Government and the functions and powers to be exercised by them, evoked considerable discussion in the Drafting Committee. In the long and lively discussion on these articles, anxiety was voiced by some members lest in the name of an emergency, there should be in roads into the autonomy of the units. Shri H.V. Kamath was critical of the position likely to be created by these amendments, since the President could thereby intervene in a State even without a threat to peace and order, on the ground that the Government of the State could not be carried on in accordance with the provisions of the Constitution. The President's interventions should be invoked, the learned Member, Shri Kamath argued, on the pretext of resolving a ministerial crisis or of reforming mal-administra-tion in a State. For such purpose, the remedy would be in the dissolution of the Legislature and a fresh reference to the electorate. Shri Sibbanlal Saxena supported this view of Shri Kamath and in his view, the article would reduce the provincial autonomy to a farce'. Shri Hridayanath Kunjru also saw some danger in the misuse of the power under Article 356 of the Constitution. According to him, if the powers were given to the Centre is intervene, there was clear danger and whenever there was dissatisfaction in a State, appeals would be made to the Central Government to come to its rescue and the provincial electorate would be able to transer its responsibility to the Central Government. This would also, according to him, create serious discontent, to describe the draft article in his impression 'nothing but the undiluted autocracy of the Centre.' There were several members who supported the provisions in the Article as it stands. The prime architect, Dr. Ambedkar, too in defending the provision expressed the view that before suspending the Constitution in a State, the Central Government would first give warning to the State concerned, and that if the warning failed, it would order an election, allowing the people of the State to settle matters themselves; it was only when these remedies failed that the President would resort to the power of imposition of President's rule. The Assembly then accepted the provisions on the premises, as explained by Dr. Amedkar, that the Union action under the Article must not be a pure invasion on provincial autonomy. This Article was accepted in spite of serious criticism -and protest to the same by several learned Members, because it was found in the face of unconstitutional challenge to any authority within the Union, the only power in a position to safeguard the States, the Union and the Constitution is the Central Executive and there is no escape from it. See also 'The Indian Constitution Cornerstone of a Nation' by Granville Austin at page 213.
15. We have ventured to recall the opinions expressed by several members in the Constituent Assembly, when the Constitution was being framed, only with a limited purpose to understand the provisions under Article 356 of the Constitution, as was also done by the seven Judges in Rajasthan case (AIR 1977 SC 1361). In interpreting the Constitution, the role of the judiciary is first to make an attempt to interpret the language of the Constitution in terms of the meaning which that language had or is supposed to have had at the time when the Constitution was adopted. 'In any event, it is not an easy task to discover the content, which particular words had in the minds of our forefather. Further more, the Constitution is a permanent document and has to operate upon the phenomena about which the founding fathers could have had no opinion'. The famous words of Justice Holmes, as Spokesman of the Supreme Court in United States, in Missouri v. Holland, (1920) 252 US 416, 433-34 may, at the same time, be recalled on the subject of interpretation of the Constitutional provisions like the one before us :--
'When we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realise or to hope that they had created an organism, it has taken a century and has cost their successor much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience, and not merely in that of what was said a hundred years ago.'
The above exercise by us is with a view to judge the validity of the present proclamation in the light of the past history, the apprehensions expressed by the members of the Constituent Assembly and with the aid of experience of the said provision by the people of this country in these past more than 40 years of the working of the Constitution. In interpreting a Constitutional provision, the principles made applicable are far more different than interpreting or construing an ordinary piece of Legislation. Mauro Capelletti in his work' 'The Judicial Process in Comparative perspective on the question of 'Mighty Problem of Judicial Review' at page 163 has the following suggestions to offer :
'Constitutions have a life of their own, and even old constitutions cannot close themselves up like ivory towers, notwithstanding the fact that their drafters were unaware of the problems which are only now emerging in modern societies (or rather of problems which are only now coming to the full awareness of Societies). This is indeed the ultimate role of constitutional adjudication to keep the Constitution alive. As a leading French legal scholar aptly said in his comment to the Conseil Constitutionne's abortion (sic) decision, the dilemma of judicial review, in the face of vague, imprecise, and often mute provisions of the constutitons is either to be bravely creative or to be utterly ineffective.'
'It is therefore, clear then, that if we are to solve the modern problems in terms of the constitution, some one must read the new content into old language. It is equally clear that if anything that meets the desires of an interested party can be read into the constitution without reference to the basic pattern prescribed in the document, a written Constitution loses most of its meaning. Actually, the constitutional system operates in such a way as to embrace new concepts within the words of the Constitution while at the same time guarding the essential features of the system.'
See 'The Growth of Constitutional Power in the United States' by Carl Brent Swisher.
16. Keeping these basic principles in our mind about the judicial role in interpretating the Constitutional document, which is of a permanent nature, and which is to operate on the social life of a community for all times in future, we now proceed to determine the extent and power of the President to issue a Proclamation in the State of M. P. and to determine the extent of judicial review. The heading of the Article 356 is 'provision in case of failure of constitutional machinery.' With this heading to the Article, the other important expression used is 'a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution'. According to us, if the key expression 'failure of the constitutional machinery in the State' and 'in a situation in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution,' are compared with Clause (I) of Article 352 of the Constitution, it is evident that Article 356(1) does not speak of any 'emergency' of any kind. In fact, the word 'emergency' is not used any where in Article 356 of the Constitution. It is a proclamation intended either to safeguard against the 'failure of the constitutional machinery in a State' or to repair the effect of breakdown. As held in Rajasthan case (AIR 1977 SC 1361) 'it may be either preventive or curative action.' A Court can, however, and must interfere with such an action by the President where there is no break-down of the constitutional machinery. That would be an instance of ultra vires, i.e. use of the power for a purpose other than intended by the Article. The marginal note to Article 356 used the words 'failure of constitutional machinery in the State.' Clause (1) of the Article use the words 'cannot be carried on in accordance with the provisions of this Constitution.' The words are of widest import and if applied literally, they might mean failure on the part of the State Government to comply with each and every provision of the Constitution and whatever might be degree or extent of such failure. In Rajasthan case, two expressions in the margin and in the main clause, in some of the observations of the learned Judges have been read as equivalent and interchangeable. Now if the history of the provision is any guide, the interpretation and observations of the architect Dr. Ambedkar on the point that the use of the Article should be confined to the sense of break-down of the constitutional machinery and this was an exceptional provision. This article could be only applied as a last resort. Dr. Ambedkar even accepted that 'such an Article will never be called into operation and that would remain a dead letter.' In the working of the Constitution for more than 40 years, however, we find that this Article was resorted to by the Union Government on more than 88 occasions and there is consensus among impartial observers and academicians, the views of some we have noted above, that this extraordinary power should not be permitted to be used or abused to achieve the political ends and the only way in which it can be rectified is to construe it in the original narrow sense in which it has been explained by the makers of the Constitution. Even excluding the marginal note to Article 356 and confining the interpretation to the words 'in accordance with the provisions of the Constitution', they should not mean to convey failure to comply with any particular provision of the Constitution or inability to maintain law and order in a part of the State. It should be a case of failure to maintain the form of the Constitution, which, in relation to the provincial part of the Constitution means the form of responsible Government. Article 355 is intended to be supplementary to Article 356. The expression 'in accordance with the provisions of the Constitution' in Article 355 is, therefore, to be intepreted in the light of other two serious situations which precede these expressions namely, 'external aggression' and 'internal disturbance.' The very fact that the provisions in Article 356 is included in Part XVIII as an emergency provision, even though it has no relation to emergency of the kind dealt in Article 352, would lead to the conclusion that the situation contemplated in Article 356 is not one of mere irregularity or difficulty; but the one in the nature of emergency 'break-down of the constitutional machinery', which calls for an abnormal remedy. In the light of the views expressed by Dr. Ambedkar and other supporters of the provisions in the Constituent Assembly, as discussed above, the proper view would be, whether the purpose be preventive or curative, that the power can be used only in an extreme difficult situation, viz. where there is an actual and imminent breakdown of the constitutional machinery, as distinguished from failure to observe a particular provision of the Constitution or worsening of law and order situation. In order to justify the application of Article 356 of the Constitution, mere failure on the part of the State Government to maintain public order cannot be a good ground for suspension of the Government. To justify invoking of Article 356 of the Constitution, public disorder must be of such an aggravated form as to result in failure of entire law and order machinery of the State. The expression 'internal distur-bance' used in Article 355 of the Constitution can furnish a ground of action under Section 356 of the Constitution only when an 'internal disturbance' is of such a serious magnitude and extent that the local Government is unable to control it. It should be a case of more serious magnitude than the ordinary breaches of public peace, such as a affray or riots which can be quelled by police force or by calling the Army. The internal disturbance for invoking Article 356 of the Constitution should be of such magnitude so as to satisfy the President that it would be impossible for the Government to carry on in accordance with the Constitution. It is true that instead of words 'domestic chaos', as is used in other Constitutions, the words 'internal disturbance' have been used in Article 355, but it is not only law and order situation, which is contemplated by twin Articles 355 and 356. The two Articles confer extraordinary powers on the Union Government with a purpose to ensure that the Government of the State is carried on in accordance with the provisions of the Constitution. Any exercise of power designed to achieve a different purpose must be held invalid. The other purpose of the provision is to take steps to set the machinery functioning again where there is failure. If the President In imposing proclamation is actuated this dominant purpose, the exercise of power cannot be held to be invalid. But if the dominant purpose is either deliberately overlooked or not kept into consideration, the exercise of power would be vitiated and open to judicial review.
17. The issue about the justiciability of the satisfaction of the President in relation to Article 356 of the Constitution arose in Rajas-than case (AIR 1977 SC 1361) at the time when by Constitution 38th Amendment Act by insertion of Clause (5) barred judicial scrutiny. The question of proclamation of emergency under Article 352 and its continuance came for decision in the minority judgment of Bhagwati, J. in Minerva Mills case Minerva Mills v. Union of India, AIR 1983 SC 1789. The minority view has dealt with that aspect of the case. It was held that the Presidential satisfaction can be questioned if the facts and circumstances mentioned in support of the Presidential action are outside the purview of the Article or in conflict with any constitutional provision. It is also questionable whether the reasons given are wholly extraneous or based on irrelevant ground for the formation of the Presidential satisfaction. In Minerva Mills's case (supra), it has been observed that the power to judicial scrutiny did not prevent challenge on the above ground, as in such a case, what was challenged was not the propriety, but the existence of satisfaction. The statement of objects and reasons of the 44th Amendment expressly refers to the deletion of the clause ousting judicial scrutiny by stating that a provision is being expressly made for omission of the clause which makes satisfaction of the President final and conclusive. In our opinion, the fact that the Parliament by 38th Amendment introduced ouster of judicial scrutiny and by 44th Amendment repealed it, the scope of judicial scrutiny in relation to the exercise of power by the President under Article 356 of the Constitution has been enlarged and judicial interference on settled principles in such an action is permissible. The decision of Full Bench of Karnataka High Court (AIR 1990 Kant 5) (supra) also supports this view.
18. The stage has now been reached in the course of our decision making to consider the facts of the present case and to determine whether the proclamation issued by the President imposing his rule in the State and dissolution of the Assmebly is constitutionally valid.
19. It is beyond controversy between the parties that demolition of Babri Masjid in Ayodhya sparked off reactionary incidents of arson, looting and killing of innocent persons; but that was in several cities of the State, although, as reported, the cities like Bombay in Maharashtra; Ahmedabad and Surat in Gujarat; Bhopal, Ujjain and Burhanpur in M.P. and a few cities in U.P. were worst affected, where number of deaths and injured persons was much more compared to other places.
20. The learned ex-advocate General, Shri N. C. Jain contended that the Union Government belonging to the ruling party has selected only the States ruled by Bhartiya Janta Party for imposing the President's rule.
This is said to be obviously to gain the advantage of taking chance of fresh elections in those States. He argued that the power has thus, been exercised for a purpose alien to Article 356 of the Constitution. The satisfaction of the President reached on the advise of the cabinet is described as vitiated being based on irrelevant facts.
21. The learned Solicitor General in his reply contended that the Court cannot sit on judgment over the assessment of the gravity of the situation by the President, which was based on the reports of the Governor received by him and the advise of the Cabinet.
22. Having considered the rival contentions of the learned counsel appearing for parties before us and on close examination of the contents of the reports of the Governor as also the documents accompanying them, we are of the opinion that the satisfaction reached by the President in the case before us, on the advise of the Cabinet, is based on the circumstances not relevant for invoking Article 356 of the Constitution of India.
23. As has been explained by us above, such 'internal disturbance' alone, which has actually resulted or has potentiality to result in failure of constitutional machinery in the State so as to disable the State from functioning in accordance with the Constitution, can be a valid basis of a Proclamation of Presidential rule and the consequent dissolution of the Assembly. Incidents of less or more magnitude of arson, looting and killing, as a reaction to Masjid demolition at Ayodhya, had disturbed several parts of the States in the country, giving rise to necessity of gearing up the law and order machinry, in the affected States to restore peace and harmony. This was so in the State of M.P. as also in other States like Gujarat and Maharashtra.
24. The Union of India has not been able to support on any material produced before us the imposition of the President's rule only in the States rules by Bhartiya Janta Party. We are informed that in Himachal Pradesh, where also the Bhartiya Janta Party ruled, there were no disturbances whatsoever of the types described to have taken place in the State of M. P. and the imposition of the President's rule in that State was wholly uncalled for.
25. There was no occasion to raise any inference of failure of constitutional machinery under Article 365 of the Constitution, because there were no Central directives, which were disobeyed or disrespected by the State of M.P. In the reports of the Governor, there is no specification of alleged deeds or misdeeds of the State Government in meeting the law and order situation in the State. Mere worsening of law and order situation in a State due to sudden outbreak of violence, does not call for extreme step of imposition of President's rule unless to the satisfaction of the President, the law and order situation in a State, due to sudden disturbances, has made it or likely to make the functioning of the Government impossible in the State. The Central intervention in such an extreme difficult situation may be justified deploying the Army in the affected area or by extending help to the State by sending its reserved force. Although Article 257A, permitting the deployment of Army by the Central Government in a State, has been repealed by the 44th Amendment; but the executive power of the Union extends to the Legislative field in List I, Entry 2-A, of the Seventh Schedule to the Constitution, which permits deployment of Army or reserved force of the Union in a State in aid of its civil power.
26. In capacity or helplessness of a State to meet a threat to public order or peace is not a permissible ground unles it results in non-functioning of the Government in the State. In fact, Article 355 of the Constitution enjoins upon the Union to help the State in maintaining its Government. That duty is not to be discharged only by Proclaiming the Presidential rule. 'Internal disturance', which falls short of resulting into 'failure of the constitutional machinery' in the State so as to make it impossible to function, is not intended in the Constitution to be a valid ground for making complete inroads by the Union by taking over completely all executive and legislative wings of a State. The learned commentator Basu in his Silver Jubilee Edition of his book 'Commentary on the Constitution of India', Vol-IN THE HIGH COURT OF MADHYA PRADESH at page 32 has the following comments to make :--
'The broad category of improper use of the extraordinary power is where it is used for political purpose against a State Government which does not belong to the Party in power at the Union or to secure the purposes of that party in forming a Government of their own in a particular State, taking advantage of fortuitous cirucumstances.'
The Constitution of India is a mixture of unitary and federal form of Government. It is federal in peace and unitary in times of war, emergency and grave situatioins, such as, failure of constitutional machinery envisaged in Article 356 of the Constitution. As has been commented by the learned commentator Basu, 'failure of constitutinal machinery' means such a 'break-down, which calls for immediate resort to Article 356, cause the situation is such that it cannot be remedied by any other means.'
27. After more than 40 years of independence, the constitutional democracy in India is reaching a stage of maturity. The possibility of Government of different ideologies and complexions being formed in different States and at the Centre is becoming a reality, which was foreseen by the Constitution makers. The democracy in India can be described as successful when the Government headed by political parties of different ideologies in different States and the Union are allowed to smoothly function within the framework of the Constitution for achieving the constitutional goals. This mixed type of 'co-operative federalism' envisaged in the constitutional set up has to be protected to maintain the sound constitutional and democratic traditions. The role of judiciary in a growing democratic society is greater because being a non-political branch of the government of a nation, it is its bounden duty to maintain and enforce the standards of conduct expected of the constitutional functionaries by the founding fathers of the Constitution.
28. The learned counsel appearing for the Union heavily relied on In re A. Sreeramulu, AIR 1974 Andh Pra 106 in which the exceptional circumstances justifying invocation of Article 356 of the Constitution have been mentioned to include the situation where a State Ministry fails to meet an extraordinary situation, such as, out-break of unprecedented violence. But even in such cases the attitude of the Union is expected to be one of assistance as the first step, as envisaged by Article 355, and Article 356 can be invoked only as a last resort, such as, where the State Government refused to co-operate or had flouted the directions issued by the Union to alleviate the distress. The Andhra Pradesh decision (supra) is to some extent helpful but is a case prior to 44th Amendment Act of the Constitution and is also distinguishable on facts. In the Andhra Pradesh case, the working of Government was paralysed by large scale strikes of the Government employees and agitations by the public.
29. The Governor in his letter has mentioned the acts of omissions and commissions' on the part of the State; but has failed to specify them. Reference has also been made by him to the dilemma of the Chief Minister due to the ban on RSS imposed under the provisions of the Unlawful Activities (Prevention) Act, 1967. The Governor has nowhere mentioned that the Government, at any point of time, had actually failed to implement the ban on RSS.
30. The learned Solicitor General argued that the President could act not only on Governor's report; but on any 'other information' received from other sources. It is further argued that the President is protected from being compelled to disclose such 'other information' received by him to the Court in discharge of his constitutional functions. As has been held by the Supreme Court in Rajasthan case (AIR 1977 SC 1361), the satisfaction of the President has to be in the scheme of the Constitution, based on the aid and advice of the Cabinet. The decision to impose the President's rule is virtually taken by the Cabinet and the action of the President is subject to judicial review in a Court. Although the President cannot be made a party in a Court of law, the Union Government representing the Cabinet can claim no privilege or protection against the disclosure of such 'otherwise information' in its possession and which was made the basis of proclamation. As has been held above, the Presidential Proclamation issued under Article 356 is open to judicial review on the settled principles and limits within which any other administrative action of the Government is so reviewable. This is the effect of the lifting of the bar on judicial review by deletion of Clause (5) of Article 356 by the 44th Amendment Act which was introduced by 38th Amendment Act to the Constitution.
31. The Governor's reports on the worsening of the law and order situation in Bhopal and two other cities of M.P. as aftermath of Ayodhya incident, could not in itself constitute a relevant material having a reasonable nexus for the satisfaction of the President in imposing his rule in the State of M.P. There is no other material in existence either in the report of the Governor or from any other sources to hold that the Government in the State of M.P. could not be carried on in accordance with the Constitution and that there was failure of the constitutional machinery in the State.
31 A. It is hard to accept, as argued by the learned Solicitor General, that failure on the part of the Government to save the lives and properties of citizens in few cities in the State, as a result of sudden out-break of violence, could reasonably lead to the satisfaction of the President that the Government was unable to function in accordance with the Constitution of India and this Court cannot sit on judgment over the same.
32. The Presidential Proclamation, therefore, for the reasons given by us above, 'deserves to be quashed being an invalid exercise of power under Article 356 of the Constitution.
33. The next ground urged on behalf of the Union of India is that the Proclamation having been approved after full consideration of all circumstances and deliberations by the two Houses of the parliament is beyond the scrutiny of the Court. The learned counsel appearing for the petitioner in his counterreply submitted that the Presidential Proclamation issued was not on valid ground and within the scope of Article 356 of the Constitution. The approval of the two Houses of the Parliament could not validate such an invalid proclamation. The counsel for the petitioner referred to the following passage from the Third Edition of 'Practice and Procedure of Parliament' by M. N. Kaul and S.L. Shakdhar at pages 534 and 535, which reads as under :--
'the life of a Proclamation, unless revoked earlier by the President is two months. There is no provision under which Parliament can cut it short. It is only if the Proclamation is to continue in force beyond two months that parliament has to approve of it in a manner similar to that in the case of a Proclamation of Emergency.
It has been held that an amendment to the resolution seeking to approve the President's Proclamation is out of order if the amendment is negative in character or is beyond the scope of the resolution, or is contradictory to the text of the resolution. An amendment seeking to give conditional approval to the proclamation is also inadmissible.
The House may either adopt or not adopt a resolution which seeks to approve the Proclamation. The resolution before the House cannot take any other form. As such, no amendments/substitute motions can be moved to such a resolution. A resolution seeking disapproval of the Proclamation is inadmissible as there is no provision under Article 356 for such a resolution.'
34. On the effect of grant of approval to the Proclamation by the Parliament, the contention advanced by the Union of India does not appear to be acceptable. The Proclamation, in any case, is valid for a period of two months under Sub-Article (3) of Article 356 of the Constitution and it is so irrespective of its approval or disapproval by the two Houses of Parliament. Its life for a period of two months cannot be cut short by the Parliament. The constitutional provision in Article 356 Sub-clause (3) of the Constitution is very clear in that respect. The approval of the Parliament, merely gives the Proclamation further lease of life for six months. The Parliament, therefore, or disapproving the Proclamation does not sit in judgment over the satisfaction of the President reached on the advise of the Central Cabinet for imposing the Presidential rule for two months. But the Parliament only considers the desirability of the Proclamation being continued beyond two months. The apprpval granted by the two Houses of Parliament, therefore, does not amount to approving or disapproving the Presidential Proclamation, which, in any event, is valid for a period of two months. The action of the President in imposing its rule in a State and dissolution of the Assembly is irreversible. Disapproval of the Proclamation by the Parliament can also have no such effect of restoring the position ante, i.e. of resuscitating the already dissolved Assembly. The Presidential Proclamation issued, therefore, for an initial period of two months can neither be validated or invalidated by the Parliament by its approval or disapproval. The contention advanced to the contrary by the learned counsel for the Union of India, therefore, has to be rejected.
35. The last question, which remains to be decided, is about the desirability and validity of the dissolution of the Assembly by the impugned Proclamation. The learned ex Advocate General, Shri N. C. Jain, contended that the alleged 'internal disturbance' in the State and the failure of the executive branch of the Government to deal with it satisfactorily, furnished no justification for dissolving the Assembly, which could be allowed to remain intact or in suspended animation. His line of argument was towards indicating that the Proclamation intends, in fact, to achieve the political advantage of taking a fresh election in the State.
36. We have held above that the Proclamation was invalid and beyond the scope of Article 356 of the Constitution. It is, therefore, not necessary for us to decide the question of justification of dissolution of the Assembly. The entire Proclamation, in our opinion, being based on the grounds not material and warranted for invoking the extraordinary powers of the Proclamation and along with it the action of dissolving the Assembly, should fall with it.
37. As a result of the discussion aforesaid and the conclusions drawn, the petition succeeds and is hereby allowed. The Presidential Proclamation dated 15-12-1992 (Annexure-A) is hereby quashed. All consequential effects thereon shall follow. In the circumstances, we make no order as to costs. The amount of security deposited by the petitioner be refunded to him.
K.M. Agarwal, J.
38. I regret my inability to subscribe to the views expressed and conclusions reached by my Lord the Chief Justice in his draft order and, therefore, I proceed to record my own reasons for a different conclusion by writing this separate order.
39. A few simple facts relevant to the matter in issue may be reiterated with a view to maintain the coherency in expression of my views and reasons for a different conclusion. The incident of Ayodhya that took place on the 6th of December, 1992 had repercussions all over the country Communal frenzy resulted in riots, loot and arson; and injuries and loss of life and property at various places in different States. The State of Madhya Pra-desh under the rule of Bhartiya Janta Party, (in short, the 'B.J.P.'), was not an exception. The cities of Bhopal Ujjain in Madhya Pra-desh were worst affected by the communal disturbances as compared to other towns in the State. These two cities witnessed atrocities of such a magnitude and to such an extent as were never seen before. Impelled by his own reasons, while sending his report or reports dated 8th, 10th and 13th of December, 1992 to the President of India about the said incidents, the Governor of Madhya Pradesh also made recommendation for issuance of a Proclamation under Article 356(1) of the Constitution, which weighted in the mind of the President and the impugned Proclamation was issued on 15-12-1992 and also published on the same day in the Madhya Pradesh Rajpatra (Extraordinary). Incidentally the Congress Party was in power at the Centre at the time of Proclamation and is still in power.
40. Pausing a little more, it may be mentioned that it is factually correct that by 38th Amendment to the Constitution, Clause (5) to Article 356 was introduced by which the satisfaction of the President mentioned in Clause (I) thereof was made final and conclusive and beyond challenge in any Court on any ground and that this provision was in existence at the time the decision of the Supreme Court in State of Rajasthan v. Union of India, AIR 1977 SC 1361, was rendered. It is equally true that this provision in Article 356, imposing a bar to judicial review, was deleted by 44th Amendment to the Constitution and, therefore, it is arguable as subsequently pointed out by the Supreme Court in A.K. v. Union of India, AIR 1982 SC 710, that 'the 44th Constitution Amendment Act leaves no doubt that judicial review is not totally excluded in regard to the question relating to the President's satisfaction. But the question remains, what should be the limit or extent of judicial review?
41. Leaving aside the bar to judicial review introduced by 38th Amendment by inserting Clause (5) in Article 356 of the Constitution, the Chief Justice M.H. Beg and all other Judges of the Supreme Court constituting the Bench in Rajasthan case (supra), considered the 'objections to the maintainability of suits and petitions even apart from the specific bar in Article 356(5)'. (See paragraph 34 of AIR 1977 SC 1361); and almost came to a common conclusion, as pointed out by my Lord the Chief Justice in paragraph 11 of his draft order that 'the Proclamation under Article 356 of the Constitution is open to judicial review, where it has been made, upon consideration, which is wholly extraneous, irregular and irrelevant to the purpose for which the power under Article 356 of the Constitution has been conferred by the Constitution.' What is meant by the words 'wholly extraneous, irregular and irrelevant' may be gathered from pargraphs 34, 59, 71,75, 82 and 83; 124, 125, 127, and 128; 144; 169,177 to 180 and 201 of the decision of the Supreme Court in the said Rajasthan case. To quote the words of Chandrachud, J. from paragraph 124 of the Rajasthan case;
'..... The sine qua non of the exercise of that power (under Article 356) is the satisfaction of the President that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution. The reasons contained in the Home Minister's letter may not be such as to necessarily lead to the conclusion that there is a break-down of constitutional machinery in the nine States. But the test of proof by preponderance of probabilities, leave along the test of circumstances being consistent with a sole hypothesis, is entirely out of place in considering the constitutional validity of a Presidential proclamation. It is for the President to judge whether a situation of the particular description has arisen necessitating the issuance of a proclamation for assumption of all or any of the powers mentioned in Clauses (a), (b) and (c) of Article 356(1). He is expected and ought to judge fairly but we cannot sit in judgment over his satisfaction for determining whether any other view of the situation is not reasonably possible. So long as the reasons, if any, are disclosed, given for the action proposed or taken, bear a reasonable nexus with the exercise of the particular power, the satisfaction of the President must be treated as conclusive. It will then not be open to judicial scrutiny. If, however, the reasons given are wholly extraneous to the formation of the satisfaction, the proclamation would be open to the attack that it is vitiated by legal mala fides.'
Neither the draft order of Hon. the Chief Justice has noticed, nor it was shown to us by any of the learned counsel for the parties that there exists any authority to the contrary. As against this, the view was subsequently affirmed by the Supreme Court in the case of A.K. Roy, AIR 1982 SC 710 and followed by the Full Bench of Karnataka High Court in S.R. Bommai v. Union of India, AIR 1990 Kant 5 by concluding in paragraph 38(1) of the judgment:
'That the proclamation made under Article 356 of the Constitution is justiciable and that the Courts could look into the materials or the reasons disclosed for issuing the proclamation, to find out whether those materials or reasons were wholly extraneous to the formation of the satisfaction and had no rational nexus at all to the satisfaction reached under Article 356 of the Constitution.'
42. In the context of the legal position aforesaid, when I proceed to find out the nexus for exercise of power under Article 356(1) of the Constitution by the President, I find that the report or reports dated 8th, 10th and 13th of December, 1992 sent by the Governor to the President do depict a picture of serious law and order problem and that as held by the Andhra Pradesh High Court in re A. Sree-ramulu, AIR 1974 Andh Pra 106, and noted with approval by the Supreme Court in paragraph 71 of its judgment in the case of Rajasthan (AIR 1977 SC 1361) (supra); 'An outbreak of unprecedented violence which the Government is unable to curb may be consideration' for exercise of powers under Article 356 of the Constitution. To quote the Andhra Pradesh High Court; (at p. 110 of AIR)
'..... And what are the considerations which may lead the President to conclude that the Government of the State cannot be carried on in accordance with the provisions of the Constitution? The petitioner seems to labour under the impression that if a party has an undisputed majority in the Legislature to enable its leader to form a Ministry, it can never be said that a situation has arisen where the Government of the State cannot be carried on in accordance with the provisions of the Constitution. That is not correct. There may be many diverse and varied considerations. An outbreak of unprecedented violence which the Government is unable to curb may be a consideration. A great natural calamity like a severe earthquake or a flood creating a situation which the Government of a State is unable to meet may be a consideration. A large epidemic leading to mass deaths and exodus may be another, in all these cases there may be such a failure of the Government of the State as to amount to an abdication of its Governmental power.'
Thus, the reasons given for issuing the impugned Proclamation hears a reasonable nexus with the exercise of power under Article 356 of the Constitution and, therefore, I am of the view that the satisfaction of the President in the present case must be held to be conclusive. Accordingly it is not open to judicial scrutiny. The reason is afforded in paragraph 75 of the judgment of the Supreme Court in Rajasthan case (supra), which may be reproduced hereinbelow:
'Whenever the exercise of power to issue a proclamation under Article 356(1) of the Constitution has been challenged in a High Court it has been held that sufficiency of grounds on which the order is based could not be questioned. Some of the dicta found there seem to lay down that the exercise of power to issue proclamations is not justiciable at all under any circumstances. This Court has not gone so far as that. If it is actually stated on behalf of the Union Government that an action was taken on a particular ground which really falls completely outside the purview of Article 356(1), the proclamation will be vitiated, not because the satisfaction was challenged or called in question on any ground but because it was admitted to be on matters outside Article 356(1).'
A few sentences from paragraph 124 of the judgment in Rajasthan case, reproduced hereinbelow, may throw further light on what I wish to convey:
'..... It is for the President to judge whether a situation of the particular description has arisen necessitating the issuance of a proclamation for assumption of all or any of the powers mentioned in Clauses (a), (b) and (c) of Article 356(1). He is expected and ought tojudge fairly but we cannot sit in judgment over his satisfaction for determining whether any other view of the situation is not reasonably possible. So long as the reasons, if any, are disclosed, given for the action proposed or taken, bear a reasonable nexus with the exercise of the particular power, the satisfaction of the President must be treated as conclusive. It will then not be open to judicial scrutiny.'
43. With due respect, what I find is that. Hon. the Chief Justice has not come to any conclusion that a serious law and order problem cannot form the basis for exercise of powers under Article 356 of the Constitution, but what he has inferred in paragraph 12 of his draft order is that; 'the extent and limitation of the powers of the President mentioned in Article 356 of the Constitution must be determined in the light of the provisions of Article 355 and for all practical purpose, they have to be read together.' Here I find it difficult to agree. In re. A. Sreera-mulu, AIR 1974 Andh Pra 106, the question came up for consideration before the Andhra Pradesh High Court and the argument that the internal disturbance could never be a ground for action under Article 356 since it was provided for by Article 355 was repelled. To borrow the words of Andhra Pradesh High Court (at p. 110 of AIR);
'..... Sri Choudhary urged that internal disturbance could never be a ground for action under Article 356 since it was provided for by Article 355 of the Constitution. There is no substance in this submission. True, Article 355 casts a duty on the Union Government to protect every State against internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of the Constitution. But in a given situation, the President may come to the view that is not enough to save the situation but action under Article 356 is necessary. There is nothing to prohibit the President from proceeding to act under Article 356 in cases of internal disturbance.
It, therefore, follows that Article 356 is independent of Article 355 of the Constitution and the exercise of power thereunder cannot be regulated by the duty cast on the Union under Article 355 to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of the Constitution. Even otherwise, on the face of Article 355, the action taken under Article 356 of the Constitution can be justified on the ground that the duty cast on the Union to protect every State against internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of the Constitution is discharged by issuing a Proclamation under Article 356. This view finds support from what was said by Beg. C.J. in paragraph 40 of the judgment in Rajasthan case (AIR 1977 SC 1361) (supra), which is as follows:
'..... Now, the provisions dealing with the proclamation of emergency under Article 352, which has to be grave and imminent, seem to be covered by the first part of the duty of the Union towards a State mentioned in Article 355, but the second part of the duty mentioned in Article 355, seems to be of a some what different and broader characater. The second part seems to coyer all steps which are enough 'to ensure' that the Government of every State is carried on in accordance with the provisions of Constitution. Its sweep seems quite wide. It is evident that it is this part of the duty of the Union towards each State which is sought to be covered by a proclamation under Article 356.
44. It seems to me that Hon'ble the Chief Justice having found in paragraph 23 of his draft order that' 'internal disturbance' alone, which has actually resulted or has potentiality to result in 'failure of constitutional machinery in the State', so as to disable the State from functioning in accordance with the Constitution, can be a valid basis of a Proclamation of Presidential rule and the consequent dissolution of the Assembly' and that incidents of less or more magnitude of atrocities as a reaction to the Ayodhya incident had disturbed several parts of the States in the country, including the State of Madhya Pradesh, 'giving rise to necessity of gearing up to law and order machinery', did not intend to go so far as to say that the impugned Proclamation under Article 356 of the Constitution was made for reasons which were wholly extraneous to the formation of the satisfaction contemplated under Article 356. It appears that according to Hon. Chief Justice, atrocities limited to a few cities of the State could not be considered to be a law and order problem of such a magnitude so as to call for an extreme action under Article 356 of the Constitution, particularly when:
(i) no material was produced for imposition of President's rule only in the States ruled by B.J.P. and not in the States of Maharashtra and Gujarat, where incidents were more serious and severe in nature;
(ii) 'There was no occasion to raise any inference of failure of constitutional machinery under Article 365 of the Constitution, because there were no Central directives, which were disobeyed or disrespected by the State of M.P.';
(iii) situation could be met by deployment of Army in the affected area or by extending help to the State by sending the reserved forces of the Union;
(iv) 'Article 355 of the Constitution enjoins upon the Union to help the State in maintaining its Government', which duty is 'not to be discharged only by proclaiming the Presidential rule'; and
(v) the aspirations, hopes and expectations of the Makers of the Constitution were frustrated by the manner in which the power under Article 356 was exercised in the present case.
I am afraid, this line of reasoning is heardly permissible or possible without violating the dictum laid down by the Supreme Court in Rajasthan case (AIR 1977 SC 1361) (supra), that 'sufficiency or adequacy of the grounds for action under Article 356(1) of Constitution is quite another matter. We do not think that we can go into that at all here.' (See last two sentences of paragraph 73 of AIR 1977 SC 1361). Once it is established that there was a nexus for the action taken under Article 356, 'the satisfaction of the President must be treated as conclusive. It will then not be open to judicial scrutiny', as held by the Supreme Court in the said Rajasthan case.
45. In the light of what I have said hereinbefore, it is abundantly clear that the impugned action under Article 356 of the Constitution cannot be said to be vitiated on the ground that power was exercised only in relation to the 4 States under the B.J.P. rule and not in relation to other States under the Congress rule, though the incidents in such Congress ruled States could be said to be more serious or severe in nature; otherwise it would lead to entering into the prohibited field of political thicket. So also absence of materials to draw an inference under Article 365 of the Constitution about failure of constitutional machinery; or possibility of controlling the situation by deployment of Army and reserved forces of the Union; or the failure of the Union to discharge its duties under Article 355 of the Constitution can hardly be a ground for holding the action of the President under Article 356 as invalid, bad or vitiated.
46. As pointed out by G.P. Singh in his celebrated book, 'Principles of Statutory Interpretation', 'the weight of authority is in favour of the view that the marginal note appended to a section cannot be used for construing the section.' So far as historical facts and surrounding circumstances are concerned, it is permissible to take into account 'such external or historical facts as may be necessary to understand the subject-matter of the statute' or to have regard to 'the surrounding circumstances' which existed at the time of passing of the statute, but an argument based on history is not to be pushed too far as 'the inferences to be drawn therefrom are exceedingly slight.' (See G.P. Singh's 'Principles of Statutory Interpretation', 2nd Edition under sub-head, 'Historical facts and surrounding circumstances' at Pp. 154 and 155). At page 145 of his book, G.P. Singh further says that the 'Supreme Court has, speaking generally, enunciated the rule of exclusion of Parliamentary history in the way it is enunciated by English Courts but on many an occasion, the court has used this aid in resolving questions of construction.' In State of Trav. Co. v. Bombay Co. Ltd., AIR 1952 SC 366, it has been held that speeches made by the members of the Constituent Assembly in the course of the debates on the draft Constitution cannot be admitted as extrinsic aid to the construction of the Constitution. The reason of the rule is explained in A. K. Gopalan v. State of Madras, AIR 1950 SC 27, in the following words:
'..... A speech made in the course of the debate on a bill could at best be indicative of the subjective intent of the speaker, but could not reflect the inarticulate mental process lying behind the majority vote which carried the bill. Nor is it reasonable to assume that the minds of all those legislators were in accord.'
In State of West Bengal v. Union of India AIR 1963 SC 1241, it was said (at p. 1247 of AIR);
'..... A statute, as passed by Parliament, is the expression of the collective intention of the legislature as a whole, and any statement made by an individual, albeit a Minister, of the intention and objects of the Act, cannot be used to cut down the generality of the words used in the statute.'
Similarly the amendments considered during the progress of the bill have also been ruled out as inadmissible for purposes of construction of Act. Patanjali Shastri, C.J. speaking for majority of the Court in Aswini Kumar v. Arabinda Bose, AIR 1952 SC 369, observed:
'..... It was urged that acceptance or rejection of amendment to a Bill in the course of Parliamentary proceedings forms part of the pre-enactment history of a statute and as such might throw valuable light on the intention of the Legislature when the language used in the statute admitted of more than one construction. We are unable to assent to this proposition.
'The reason why a particular amendment was proposed or accepted or rejected is often a matter of controversy, as it happened to be in this case, and without the speeches bearing upon the motion, it cannot be ascertained with any reasonable degree of certainty. And where the Legislature happens to be bicameral, the second Chamber may or may not have known of such reason when it dealt with measure.'
This principle was again referred to by the Supreme Court in Express Newspapers (Pvt.) Ltd. v. Union of India AIR 1958 SC 578, Bhagwati, J. speaking for the Court observed that there is a consensus of opinion that the circumstances under which a particular word came to be deleted from the original Bill as introduced in the Parliament and the fact of such deletion when the Act came to be passed in the final shape are not aids to the construction of the terms of the statutes. He, however, added a rider; 'It is only when the terms of the statute are ambiguous or vague that resort may be had to them for the purpose of arriving at the true intention of the legislature.' And for all these reasons, I am of the view that all those anxieties voiced during the discussion on Article 356 (then Article 278) by H.V. Kamath and other members of the Constituent Assembly and what was said by Dr. Ambedkar while defending the provisions, cannot be of any help while interpreting the provisions of Article 356, when these provisions are clear and unambiguous. Similarly what Dr. Basu has said about the broad category of improper use of the extraordinary power under Article 356 is of help in the interpretation of the provisions therein made. The reason may be gathered from paragraphs 59 and 124 of the decisions rendered in Rajasthan case (AIR 1977 SC 136J) (supra) by Beg C.J. and Chandrachud, J., which run as follows:--
(i) 'Undoubtedly, the subject is one on which appropriate and healthy conventions should develop so that the power under Article 356(1) is neither exercised capriciously or arbitrarily nor fails to be exercised when a political situation really calls for it. If the views of the Union Government and the State Government differ on the subject, there is no reason why the Union Government should not aid the development of what it considerss to be a healthy practice or convention by appropriate advice or direction, and, even to exercise its powers under Article 356(1) for this purpose when it considers the observance of such a directive to be so essential that the Constitutional machinery cannot function as it was meant to do unless it interferes. This Court, cannot at any rate, interdict such use of powers under Article 356(1) unless and until resort to the provision, in a particular situation, is shown to be so grossly perverse and unreasonable as to constitute patent misuse of this provision or an excesss of power on admitted facts. On the allegations before us we cannot reach such a conclusion. And, it is not for Courts to formulate, and, much less, to enforce a convention however necessary or just and proper a convention to regulate the exercise of such an executive power may be. That is a matter entirely within the Executive field of operations.'
(Para 59)
(ii) '.....It is for the President to judge whether a situations of the particular description has arisen necessitating the issuance of a proclamation for assumption of all or any of the power mentioned in Clauses (a), (b) and (c) of Article 356(1). He is expected and ought to judge fairly but we cannot sit in judgment over his satisfaction for determining whether any other view of the situation is not reasonably possible.'
47. As a necessary corollary, I would like to dismiss this petition and all other connected petitions challenging the validity of the impugned proclamation.
48. So far as the approval of Proclamation by Parliament is concerned, I see no reason to take a different view than the one taken by Hon'ble the Chief Justice and, therefore, it is not necessary for me to discuss the matter at any length. However, the last question, referred to in paragraph 35 of his draft order by my Lord Chief Justice deserves attention as it has not been touched at all by him for his own reasons given in paragraph 36
49. The argument about desirability and or validity of the dissolution of the assembly by the impugned Proclamation also deserves to be rejected as soon as the Proclamation under Article 356 is held to be valid, because that power to dissolve is inherent in Article 356 of the Constitution. In this connection paragraphs 71 to 73; 120 to 124; 138 to 141 and 210 to 212 of the judgment in Rajasthan case (supra) may be referred.
50. In the result, I am of the view that this petition and all other connected petitions have no force and accordingly deserve to be dismissed, but without any order as to costs.
CONCLUSION : According to the majority view namely those of S. K. Jha, C.J., and D.M. Dharmadhikah, J., this petition succeeds and is hereby allowed. The Presidential Proclamation dated 15-12-1992 (Annexure A) is hereby quashed. All consequential effects thereon shall follow. In the circumstances, we make no order as to costs. The amount of security deposited by the petitioner be refunded to him.