What was the SR Bommai judgment, which the SC relied on in its Article 370 ruling?

The case

In Bommai, a nine-judge bench of the Supreme Court interpreted Article 356 of the Constitution to define the contours of proclamation of President’s rule. Article 356 contains provisions “in case of failure of constitutional machinery in States”, including that for the imposition of President’s rule.

While all nine judges unanimously upheld the provision, the Court ruled that the President’s decision would be subject to judicial review. Bommai is still the settled law on when and how President’s rule can be imposed, and was invoked in recent cases challenging President’s rule in Uttarakhand (2016) and Arunachal Pradesh (2016), both of which were overturned by the Supreme Court.

Former Karnataka CM Bommai. (Archive)

The background

In 1989, the Congress government at the Centre dismissed the Janata Dal-led Karnataka government by imposing President’s rule.

After allegedly receiving 19 letters from MLAs withdrawing their support to Chief Minister SR Bommai’s government, then Karnataka Governor P Venkatasubbaiah recommended to the President that he take over the state’s administration.

He cited two reasons. First, that Bommai did not command a majority and, hence, “it was inappropriate under the Constitution,” for him to continue. Second, that no other political party was in a position to form the government.

This move, however, was extremely controversial. The SC ruling would later note that “the Governor did not ascertain the view of Shri Bommai” before making his report to the President. In fact 7 out of the 19 legislators who allegedly withdrew support to Bommai’s government would soon make a U-turn, complaining that their signatures on the aforementioned letters were obtained by misrepresentation.

Thus, the dismissed chief minister moved the Karnataka High Court, which dismissed his challenge against the Centre. Then, on appeal to the apex court, a nine-judge bench was constituted.

The verdict

The SC unanimously held that the President’s proclamation can be subject to judicial review on grounds of illegality, malafide, extraneous considerations, abuse of power, or fraud. While the President’s subjective appraisal of the issue cannot be examined, the Court said that the material relied on for making the decision can be reviewed.

The verdict also made Parliamentary approval necessary for imposing President’s rule. Only after the proclamation is approved by both Houses of Parliament can the President exercise the power. Till then, the President can only suspend the state legislature. If the Parliament does not approve the proclamation within two months, then the government that was dismissed would automatically stand revived.

The ruling also drew a redline for centre-state relationships.

“The fact that under the scheme of our Constitution, greater power is conferred upon the Centre vis-à-vis the states does not mean that states are mere appendages of the Centre,” Justice Jeevan Reddy wrote in his opinion. “The Centre cannot tamper with their powers. More particularly, the courts should not adopt an approach, an interpretation, which has the effect of or tends to have the effect of whittling down the powers reserved to the states,” he wrote.

The Bommai ruling, one of the first by the SC to scrutinise the conduct of the Governor’s office, came at a time when President’s rule was frequently imposed to dismiss state governments run by opposition parties.

According to research by Alok Prasanna Kumar, Senior Resident Fellow at Vidhi Karnataka, the imposition of President’s rule drastically decreased after the Bommai verdict. 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.

The Kashmir reference

A key question in the Kashmir case was whether Article 370 could have been abrogated when the state was under President’s rule. The erstwhile state had been under President’s rule since 2018, and the question before the court was whether the President could give consent to the revocation of J&K’s special status.

Here, the Supreme Court relied on the Bommai ruling to hold that the actions of the President are constitutionally valid. The Court said that the Bommai ruling held that the actions taken by the President after issuing a Proclamation are subject to judicial review, but the judges had adopted varying standards to test the validity of the executive orders.

The Court cited two standards — one by Justice PB Sawant, and another by Justice Reddy. Justice Sawant had set the standard of whether the exercise of power was mala fide or palpably irrational, while Justice Reddy observed that the advisability and necessity of the action must be borne in mind by the President.