Back
1993 Supreme(MP) 246
1993 JLJ 387
(FULL BENCH)
S.K., Jha , C.J. K.M. Agarwal and D.M. Dharmadhikari, JJ.
Sunderlal Patwa v. Union of India and others
M.P. No. 237 of 1993; Decided on 2.4.1993.
Nirmal Chandra Jain, ex- Advocate General with N.S. Kale and R.N. Singh for petitioners. Dipankar Gupta, Soliciter General with P.L. Dubey, Advocate General for respondents.
Headnote:Per S.K. Jha, C.J. ( D.M. Dharmadhikari, J., agreeing; K.M. Agarwal, J., Contra) :
(1) Constitution of India -- Arts. 352 and 356 -- internal disturbance in the State or any part of India - now is no ground for imposition of emergency. [Para 10
(2) Constitution of India -- Art 356 -- President‘s Proclamation under is open to judicial review on the ground of it being extraneous, irregular and irrelevant.
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 a 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that as the bar to judicial review imposed by the foregoing clause (5) in Article 356, of the Constitution was repealed by Forty Fourth Amendment Act, 1978, it can be held that the President‘s . 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. AIR 1982SC 710 followed. AIR 1977SC 1361 distinguished. AIR 1990 Kar.5 referred to. [Para 11
(3) Constitution of India -- Arts. 355 and 356 -. extent and limitation of the powers of the President under Art. 356 -- must be determined in the light of provisions under Art. 355.
A close reading of the provisions of Articles 355 and 356 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 that provision of the Constitution. The Article empowers the President to fulfil that duty within the framework 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". [Para 12
(4) Interpretation of Statutes -- constitutional provisions -- Constitution is a permanent document -- it should be interpreted with the aid of whole experience. 252 U S 412, 433- 34 (1920) relied on. [Para 15
(5) constitution of India -- Art. 356 -- extraordinary power under-- cannot be permitted to be used or abused to achieve political ends -- it should be applied as a last resort in case of break-down of constitutional machinery. [Para 16
(6) Constitution of India -- Art. 356 -- repealing ouster of judicial scrutiny clause -- scope of judicial scrutiny has been enlarged. AIR 1990 Kar. 5 (FB) relied on. [Para 17
(7) Constitution or India -- Arts. -- 356,355,365 and Sch. 7, List I, entry 2 A-- mere worsening of law and order situation -- not sufficient to exercise powers under Art. 356 -- Union should help the State in such situations in accordance with Art. 355.
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 by deploying the Army in the affected area or by extending help to the St.1te by sending its reserved force. Although Article 257 A, 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.
Incapacity or helplessness of a State to meet a threat to public order or peace is not a permissible ground unless 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 disturbance", which falls short of resulting into‘ ‘failure of the constitutional machinery" in the State so as to make it impossible to function, in 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 State. [Paras 25 & 26
Per full Bench:
(8) Constitution of India --Art. 356-- grant of approval to the President‘s rule by Parliament -- does not change any situation -- Parliament does not sit in judgment over the satisfaction of the President -- approval merely gives lease of life for six months. [Paras 34 & 11
Per K.M. Agarwal, J. :
(9) Constitution of India -- Art. 356 -- outbreak of unprecedented violence which the Government unable to curb -- may be a consideration to exercise powers under -- reasons given bearing reasonable nexus -- satisfaction of the President is conclusive and not open to judicial review.
An outbreak of unprecedented violence which the Government is unable to curb may be a consideration for exercise of powers under Article 356 of the Constitution.
The reasons given for issuing the impugned Proclamation bear a reasonable nexus with the exercise of power under Art. 356 of the Constitution and , therefore, the satisfaction of the President in the present case must be held to be conclusive. Accordingly it is not open to judicial scrutiny. AIR 1977 SC 1361 and AIR 1982SC 710 followed. AIR 1990 Kar.5 (FB) and AIR 1974 AP 106 relied on [Paras4 & 5
(10) Constitution of India -- Arts. 355 and 356 -- Art. 356 is independent of Art. 355 -- duty imposed on Union under Art. 355 -- is discharged on issuance of Proclamation under Art. 356.
Art. 356 is independent of Art. 355 of the Constitution and the exercise of power there under cannot be regulated by the duty cast on the Union under Art. 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 Art. 355, the action taken under Art. 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 Art. 356. AIR 1977 SC 1361 followed. [Para 6
(11) Interpretation of Statutes -- marginal note appended to a section --cannot be used for construing the section. "Principle of Statutory Interpretation" by G.P. Singh, J. relied on. [Para 9
(12) Interpretation of Statutes -- Parliamentary history and speeches etc.-- should not come in the way. AIR 1952 SC 366, AIR 1950 SC 27, AIR 1963 SC1241, AIR 1952 SC 369 and AIR 1958 SC 578 discussed. [Para 9
S.K. Jha, C.J. -- 1. 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 and another v. Union of India).
2. The petition raises a question of great constitutional importance, particularly concerning the Government of Madhya Pradesh. The petitioner has been the Chief Minister of 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.
3. 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 spordic incidents. Instances of serious disturbances and riots were also reported from Bombay in Maharasthra and Ahmadabad and Surat in the State of Gujrat. 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 the constitutional validity of the impugned proclamation and those are reproduced hereunder:
"Enclosed please find herewith wireless, message F AZ 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 arisen 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 1 in Jabalpur. Curfew 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 (6 police 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.
xxx xxx xxx
Army had been deployed in the curfew bound areas of Bhopal. Despite that and shoot and 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 indifferen
