In attacking the soundness of the 1977 judgement, Sorabjee and Jethmalani relied on the ‘basic structure doctrine,’ set out by the Supreme Court in its Kesavananda Bharati decision in 1974––a concept that more people know of than understand. Basic structure effectively means that the Constitution cannot be amended in a way that defeats its core principles. The list of those core principles is not exhaustive, but the Court, over the years, had made it clear that it included concepts like parliamentary democracy, secularism, federalism, the rule of law, separation of powers and judicial review.
But Bommai was not subjecting a new law or constitutional amendment to the basic structure test: it was testing the executive decision of President’s Rule. Sorabjee argued that the decision violated a basic feature of the Constitution, its federal character. For that reason, it was possible for courts to examine the Governor’s exercise of power under Article 356.
His fight was not against Article 356 itself, he explained. In fact, he was arguing for an interpretation of the provision that would preserve the federal structure without jeopardising those instances when there was a genuine breakdown of constitutional machinery. That was the key word: genuine. Jethmalani, in his expansive style, contended that the provision had never been validly used in the entire history of the Constitution.
To bring home their point, the lawyers invoked the history of the provision. The wording of Article 356 had been taken almost verbatim from Sections 45 and 93 of the Raj’s Government of India Act, 1935. The colonial government had intended those sections to be a stick with which to beat British India’s elected provincial governments. The members of the Constituent Assembly had, understandably, been concerned about using them in a free India.
B.R. Ambedkar, steering the ship of the new constitution, had agreed with these concerns:
“If at all they are brought into operation, I hope the President, who is endowed with these powers, will take proper precautions before actually suspending the administration of the provinces,” he explained, responding to arguments from fellow members of the Assembly. “I hope the first thing he will do would be to issue a mere warning to a province that has erred, that things were not happening, in the way in which they were intended to happen in the Constitution. If that warning fails, the second thing for him to do will be to order an election allowing the people of the province to settle matters by themselves. It is only when these two remedies fail that he would resort to this article.”
H.V. Kamath requested that the Constitution be amended to reflect Ambedkar’s position, and Ambedkar promised that it would. But no such changes were made, and Article 356 entered the Constitution as is.
Sorabjee and Jethmalani hoped that the court would restore the use of the provision to this original, stated intent. For actual means to curb the misuse of office, the lawyers suggested that it be made mandatory for the Governor to conduct a ‘floor test’ before concluding that a CM no longer has a majority in the House. They didn’t invent this idea: it had, in fact, already been recommended in a 1988 report put together by a Centre-State relations commission headed by Justice Sarkaria.
The Union pushed back through Banerji and Parasaran. Banerji did not deny that the judiciary could review the Governor’s recommendation to impose President’s Rule. But, he argued, it should be exercised only if the Governor’s actions were tainted by bad faith or completely incomprehensible.
The ‘basic structure’ argument was deployed by the Union, too. Banerji justified the imposition of President’s Rule on the three BJP states accused of abetting the Babri demolitionists, on the grounds that those governments had subverted the cherished secular ideal. Parasaran argued that the imposition of President’s Rule wasn’t a matter for the courts at all: the people should be left to judge the rulers and the challengers in the next elections.
The court listened to several long and detailed arguments. It delivered its verdict on 11 March 1994. Six out of the nine judges wrote opinions, with the remaining concurring with one or the other. The opinions, each of which didn’t cover all the issues, were of wildly different lengths. Taken together, they accounted for nearly 1,25,000 words.
There was unanimity on three crucial matters: Article 356 was to be invoked only in exceptional situations and not for political purposes; President’s Rule decisions would be subject to judicial review; and secularism is a basic feature of the Constitution.
On the remaining questions of law, Bommai is a tangled mess that needs careful unspooling. While a majority of judges preferred expanding the scope of the courts to examine the basis of the Governor’s recommendation, a minority favoured narrowing the court’s powers. There was also disagreement about the legality of President’s Rule in the present matter. A majority of six agreed that the dismissal of the government in Karnataka was unconstitutional. Justices Sawant and Kuldip Singh called it “a case where all cannons [sic] of propriety were thrown to wind” by the Governor. In doing so, the same majority held that the earlier precedent in Rajasthan had been decided incorrectly in so far as it held the Governor’s recommendations to the President to be beyond judicial review.
A majority of judges also accepted that the only constitutionally valid way of deciding whether a state government still enjoyed a majority in the Assembly was to hold a floor test. The Governor could not go by letters of support or dissent, newspaper reports or her own personal satisfaction. In circumstances where the Governor sent a report to the Union Government seeking imposition of President’s Rule, the court held that the reasons given had to be based on relevant information.
Significantly, and in a finding that has implications way beyond Union-state relations, a majority of judges agreed that the dismissals of the Himachal, Madhya Pradesh and Rajasthan governments were valid and unquestionable. In those instances, the imposition of President’s Rule was necessary to uphold the secular fabric of the nation and the Constitution.