When was the impact of the Bommai Judgement first seen?
here's how the Bommai Judgement of 1994 first affected Indian jurisprudence
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Subterfuge by purportedly neutral governors to help cobble together majorities in state governments on behalf of India’s ruling parties: a practice as old as the Indian republic.
Take Madras’s first Legislative Assembly elections after the Constitution came into force in 1952. With 152 seats, the Congress emerged as the single largest party, but fell way short of a majority. Communist, socialist and caste-based parties put together a coalition called the United Democratic Front (UDF) to stake a claim to government, and put up a chief ministerial candidate, Tanguturi Prakasam.
The Governor, Sri Prakasa, a lifelong Congressman, did not swear him in. Instead, he administered the oath to C. Rajagopalachari, a Congressman who hadn’t even fought the election. Then, leveraging high office, the Congress proceeded to steadily break up the UDF from within. It wasn’t long before it had a majority in the Assembly. 
That was only the first instance. Until fairly recently in modern Indian history, governors also weaponised another route of interference: President’s Rule. In 1977, one of the first things the Janata government did after winning the general elections was to dismiss seven state governments that were run by the Congress. Governors of these states promptly shot off reports to Delhi that the defeat of the Congress in the national elections meant that state governments did not have the “moral authority” to continue in office. In 1980, Indira Gandhi got her own back after her party returned to power at the Union level, and had Janata Party-ruled state governments dismissed for the same flimsy reason.
Cut to 2016. When the Bharatiya Janata Party government attempted to dismiss governments in Uttarakhand and Arunachal Pradesh, it used the old playbook: engineer defections, then gently nudge the governor to address a report to Delhi detailing a breakdown of constitutional machinery in the state. As recently as 2019, Indians watched agog as Governor Bhagat Singh Koshyari swore in the BJP’s Devendra Fadnavis as chief minister of Maharashtra early one morning after election results, even as the BJP’s rivals, who had the collective majority, were parlaying hectically over cabinet berths.
But there’s a key difference between then and now. In 1952, when it was approached by members of the UDF questioning the swearing-in of Rajagopalachari, the Madras High Court refused to interfere in such political issues.  In 2019, the Supreme Court thwarted the BJP’s bid in Maharashtra by ordering a ‘floor test’ within 48 hours. Fadnavis, unlike Rajagopalachari, didn’t have the luxury of time and office to muster a majority. He was forced to step back.
It was one landmark judgement, delivered by the Supreme Court on 11 March 1994, that caused this change. Nearly three decades on, the decision stands out as a fantastic example of constitutional change being driven by courts, as opposed to the legislature.  Its triumph lies in the fact that it produced not only a change in norm, but also practice. To generations of law students, lawyers and journalists, it is known simply as ‘Bommai.’
n the last week of July 2021, on instructions from the central command of the BJP, B.S. Yediyurappa resigned as the chief minister of Karnataka. His replacement was his home minister, Basavaraj Bommai.
Followers of Karnataka politics didn’t take too long to draw the link between this Bommai and that Bommai. That Bommai was Basavaraj’s father, a former chief minister who lent his name to a milestone litigation—S.R. Bommai vs Union of India—that changed the dynamics of Union-state relations.
On 13 August 1988, the Janata Party’s Somappa Rayappa Bommai was sworn in as the eleventh chief minister of Karnataka after Ramakrishna Hegde resigned from the post under the cloud of a phone-tapping scandal. At the time of his elevation, Bommai was seen as a shrewd politician who had played his cards well in a faction-ridden party. But some political commentators seemed to have overestimated Bommai’s survival skills. His government was brought down after barely nine months in office, and President’s Rule imposed in the state. (In India Today magazine, Chidanand Rajghatta and Prabhu Chawla described Bommai as “vapid and colourless,” and his brief tenure “inglorious.”) 
Then Bommai made the fatal mistake that has been the bane of many a Karnataka chief minister: he expanded his cabinet.
The circumstances of the dismissal were unusual. Janata Party had clung to its single party majority after Hegde’s resignation, but its hold over the Assembly was shaky. Bommai’s position was somewhat improved by the national-level merger of Janata Party with Lok Dal and other parties, to form the Janata Dal. But then Bommai made the fatal mistake that has been the bane of many a Karnataka chief minister: he expanded his cabinet.
The inclusion of 13 new ministers meant that there were twice as many MLAs in his party disgruntled at not having been chosen. Within two days of the expansion, an MLA called K.R. Molakery submitted a letter to Governor P. Venkatasubbaiah, noting the withdrawal of his support for the government. A senior journalist from Bengaluru, who asked not to be named, told me that Molakery got into an autorickshaw and distributed copies of his resignation letter to the newspaper offices on M.G. Road. There was one person he hadn’t informed though—the chief minister.
Bommai was then at his official residence in Bengaluru, blissfully unaware of the machinations under way. When the journalist went to see him with a copy of the resignation, he found Bommai relaxed and watching Zanjeer. The news of the resignation took him by complete surprise.
The very next day, the Governor received a second letter. This time, it was on behalf of 19 legislators from the Janata Dal who had withdrawn their support for the government. The number of supporting seats was now officially below the figure of 112, the halfway mark in Karnataka’s assembly. 
Venkatasubbaiah, a Congress appointee to the post of governor, wasted no time swinging into action. A bumbling CM, a party tearing itself apart, and a Governor who was one of their own—what could possibly go wrong for the Congress, which had sniffed out an opportunity to gain power in Karnataka after six years?
Meanwhile, the Janata Dal continued its hectic efforts to save the government. Seven of the 19 legislators came forward to claim that their signatures had been forged even as smaller parties and independents in the Assembly sent letters of support. It was all in vain: the government was dismissed on the basis of Venkatasubbaiah’s report to the President contending that Bommai had lost the support of the Assembly. The whole affair had taken six days from start to finish.
Now, Bommai’s short and tempestuous tenure was not exceptional in the context of Karnataka politics. Twenty-three different men have been chief minister since the state’s inception in 1956. Only Devaraj Urs and Siddaramaiah have managed to complete a full term of five years,  and only Urs has ever been re-elected right after serving a term. Tellingly, and across parties, chief ministers have often been toppled by their own party or alliance. In other words, Karnataka has historically provided fertile ground for Union interference.
But unusually, that summer of 1989, Bommai did not go quietly into the proverbial night. Along with R.N. Narasimhamurthy, the then Advocate General of Karnataka, he devised a strategy to wrest back power.
ommai decided to challenge the governor’s decision in the Karnataka High Court. This was a risky move at the time because Bommai was swimming against the tide of the law laid down by the Supreme Court. Back in 1977, when the Janata Party was dismissing Congress-ruled state governments, one of its targets had been the Rajasthan state government, which approached the Supreme Court to challenge its loss of mandate.
At the time, a seven-judge bench had refused to interfere on the ground that the dismissal of a state government was a “pure political call.” That was more or less in line with how courts had called these cases, stretching all the way back to the Madras High Court in 1952. (The High Courts and smaller benches of the Supreme Court were bound by these decisions, unless there were compelling enough reasons to suggest that the earlier cases had been incorrectly decided.)
The Karnataka High Court offered no relief to Bommai, considering itself bound by the Supreme Court precedent. Bommai, undeterred, went to the Supreme Court. Specifically, he challenged the correctness of its 1977 decision in the State of Rajasthan vs Union of India.
But the courts can hardly keep up with political developments. Even as all this was happening, Karnataka’s political drama continued. Elections were held in August 1989. By the end of November, the Congress formed a government after winning nearly 80 percent of the seats on offer. Bommai’s case seemed to have become “infructuous.”  Still, the SC kept it pending nonetheless.
Bommai, as it happened, was not the only litigant aggrieved by the actions of a Governor acting in cahoots with the ruling party at the Centre. Very soon, he was joined by litigants from the states of Nagaland and Meghalaya. In August 1988, Hokishe Sema of the Congress was facing a rebellion in his own party ranks in Nagaland. After 13 MLAs defected, his rival Vamuzo Phesao claimed to have the support of 35 legislators, a simple majority that could guarantee chief ministership.
Today, such a defection would not be legal. But back then, the Constitution’s Tenth Schedule—as it stood—allowed for mass defections by considering them as “splits” in the political party.  The 13 MLAs were considered to have “split” from the Congress Party leaving Sema without a majority and ostensibly opening a path for Vamuzo to take over.
Yet, the Governor did not invite Vamuzo to form the government or prove his majority. Rather, Sema recommended the dissolution of the Assembly while putting in his papers—and the Governor of Nagaland obliged. Vamuzo took the matter to Gauhati High Court, where he got a split verdict: in other words, no relief. 
A couple of years later, another case transferred to the Supreme Court from the Guwahati High Court in somewhat bizarre circumstances. Meghalaya’s ruling Meghalaya United Parliamentary Party, under B.B. Lyngdoh, was in a tussle for an assembly majority with the Congress in opposition. The speaker, P.R. Kyndiah Athree, oversaw a floor test where he cast the decisive vote in favour of the opposition. Except, he did this after disqualifying five independent MLAs who had recently been given ministerial berths by the Lyngdoh government.
The ruling party MLAs and the four “disqualified” MLAs held their own session of the Assembly and passed a no-confidence motion against the Speaker.  Governor Madhukar Dighe recommended the imposition of President’s Rule on the grounds that the CM had lost the confidence of the Assembly.
It was now 1993, and to the three litigants waiting to be heard by the Supreme Court, three more were added. These cases arose from the dismissal of three state governments in the wake of the Babri Masjid demolition. Having failed to prevent the disaster, the Congress-led Union government had moved swiftly to dismiss three BJP-led state governments—Madhya Pradesh, Himachal Pradesh and Rajasthan—for providing help and support to the rioters who’d eventually destroyed the mosque. In legalese, the governments were dismissed for having “aided and abetted” the catastrophe. 
The dismissed state governments approached their respective high courts. Even as the other cases were pending, the Madhya Pradesh High Court declared that the dismissal of the MP government was unconstitutional. The Union government, led by Narasimha Rao, immediately approached the Supreme Court in appeal. Given that the cases of Karnataka, Nagaland and Meghalaya were already pending, the Supreme Court decided to pick up the other pending cases from the high courts and hear them together. It was time to settle the matter, once and for all.
ow that it had to examine its own wisdom, the Supreme Court constituted a bench of nine judges to hear the case since its precedent-setting case, Rajasthan vs Union of India, had been decided by a seven-judge bench. In the Supreme Court’s 77-year history, there have only been 16 cases that have been heard by nine-judge benches. Further, this was one of those rare nine-judge benches that did not include the Chief Justice of India. 
The parties in the six different cases were represented by a galaxy of greats of the Indian legal fraternity. There were Attorney Generals from past (K. Parasaran), present (Milon Banerji) and future (Soli Sorabjee), and former and future law ministers (Ram Jethmalani, Arun Jaitley, Shanti Bhushan).  The challenge of the dismissed chief ministers was led by Sorabjee, appearing for Bommai, and Jethmalani, appearing for the governments of Himachal, Madhya Pradesh and Rajasthan.
Ram Jethmalani, in his expansive style, contended that the provision had never been validly used in the entire history of the Constitution.
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.
t came too late for most of the litigants, but there was a lot riding on the decision of the Supreme Court in Bommai. Not only had the Court affirmed federalism and secularism as basic features of the Constitution, it had also laid out how governments ought to act to preserve and further both ideals.
Bommai is one of those rare decisions whose effects are objectively measurable. The rule laid down is clear and precise. It can be usefully deployed to judge past actions of Governors. By the Bommai standard, it was patently unjustified for Sri Prakasa to swear in Rajagopalachari. The Janata and Congress governments of 1977 and 1980 would have similarly fallen afoul of the Bommai standard.
The Bommai standard even vindicates some past Governors. One of these would be K.K. Viswanathan, who recommended President’s Rule in Gujarat in 1976 when the state government failed to pass the budget. Jethmalani may have gone overboard in suggesting the lack of a single valid use of Article 356, but his larger point—about the widespread and rampant abuse of the provision—was well-taken.
Even though India now has more states than it did before the judgement, the instances of President’s Rule have reduced. Between January 1950 and March 1994, President’s Rule was imposed 100 times or an average of 2.5 times a year. Between 1995 and 2021, it has been imposed only 29 times or a little more than once a year.
Now, it can be argued that this drop is a natural consequence of the era of coalition politics. For the better part of the 1990s and 2000s, no single party had a majority at the Union level. But, again, a look at the numbers after 2014—the return of single-party majority—suggests that Bommai’s legacy has been somewhat immune to party majorities.
Bommai is one of those rare decisions whose effects are objectively measurable. The rule laid down is clear and precise.
President’s Rule has been imposed only eight times since Narendra Modi became prime minister. Significantly, two out of the eight impositions (in Uttarakhand and Arunachal) were struck down by the Supreme Court. Additionally, the Supreme Court-mandated floor test has become the rule and not the exception. In Karnataka (2018) and Maharashtra (2019), the Governor’s bids to favour the BJP in hung assemblies were reversed by floor tests. 
One question remains: what prompted the Supreme Court’s change of heart in 1994? The trivial answer is that different judges arrive at different conclusions. But perhaps it is too simplistic to explain the relatively short period of 17 years between the suspension of the Rajasthan government and the vindication of S.R. Bommai. I have entertained one rudimentary theory—the five years of coalition rule at the national level emboldened the judiciary to take this path. There is also an argument to be made about pure and simple judicial disgust with the way democratic processes were being subverted.
I daresay there’s a book somewhere here—perhaps not one for a lawyer to write, but a political scientist or a historian.
o what came of Bommai pater? He didn’t become chief minister of Karnataka ever again, but he did go on to become a Union minister and two-time Rajya Sabha MP. His party, the Janata Dal, spent the 1990s and 2000s splintering and merging. Its only extant descendant today is the Janata Dal (Secular)—limited largely to southern Karnataka, and currently fast losing supporters and leaders to the BJP and Congress, the principal players in Karnataka politics. The state’s own political instability, however, continues to be a feature and not a bug. Congress’ Siddaramaiah remains the only chief minister to have completed a full five-year term since Devaraja Urs in the 1970s.
Irrespective of how his son fares as chief minister of Karnataka, the name Bommai is unlikely to sink into obscurity in Indian public life. While its legacy in the area of Union-state relations is more or less settled, it remains to be seen how the bar and bench will erode or defend its staunchly secular credentials in litigations that are increasingly looking like pitched battles for the soul of the republic.
Bommai is, after all, the very decision where Justices P.B. Sawant and Kuldip Singh famously observed:
“…religious tolerance and equal treatment of all religious groups and protection of their life and property and of the places of their worship are an essential part of secularism enshrined in our Constitution. We have accepted the said goal not only because it is our historical legacy and a need of our national unity and integrity but also as a creed of universal brotherhood and humanism. It is our cardinal faith..”
At both the Union and state levels, the BJP has pushed through a glut of legislation and executive orders that fundamentally target India’s Muslim minority. This includes the triple talaq law, the “love jihad” rules, beef bans, and the Citizenship Amendment Act. At work in all these instances is a form of demographic engineering couched in the language and black letter of the law.
Many of these laws have been and are going to be challenged in court. While the CAA actively discriminates based on religion, the others do so less explicitly. If the clear articulation of secularism found in Bommai is applied in body and spirit, the court would have to rule most of these laws as unconstitutional.
The Bommai judgement was a creature of its times. It was delivered at the beginning of two decades of coalition governments and the culmination of a nationwide communal campaign of unprecedented viciousness. Even as single party rule has returned at the Union level, Bommai’s dicta continues to be cited, followed and acted upon by courts to ensure democratic governments at the state level. The question now is whether it will be used to uphold secularism the way it once upheld federalism.
Alok Prasanna Kumar is an advocate based in Bengaluru. He’s a co-founder and senior resident fellow at the Vidhi Centre for Legal Policy. He writes a regular column for the Economic and Political Weekly (Law and Society) and Deccan Herald (Articles of Faith). He is a co-host of the Ganatantra podcast. When not doing any of the above, Alok uses his legal training to argue that Star Wars is fantasy and Harry Potter is science fiction.