Bommai verdict: A law for all time

As I watched Basavaraj Bommai taking oath as Karnataka Chief Minister, my memories went back to the day his father, S R Bommai, came to my house in Delhi, along with then Advocate General of Karnataka R N Narasimha Murthy, on April 27, 1989. Bommai, who was deposed as CM two days earlier as President’s rule was imposed on the state, wanted to discuss the case with me before proceeding further— as he usually did in matters involving law.

The immediate issue was challenging the dismissal of the government. The biggest impediment here was the judgement of the Supreme Court by a Bench of seven judges in State of Rajasthan v Union of India dealing with the imposition of the President’s rule on nine state governments following the defeat of the Congress in the Lok Sabha elections of 1977. The law declared was that the satisfaction of the President under Article 356(1) on imposition of President’s Rule was beyond the purview of courts. In addition, the law was that if the Governor reported that the administration of the state cannot be carried on in accordance with the constitution and that the government no longer enjoyed the support of the House, its correctness, legality or propriety cannot examined by any court.

With that, any challenge to President’s rule was virtually impossible. However, in between the Rajasthan case and our starting line, one important constitutional development had taken place: the 10th Schedule to the Constitution (anti-defection law) was added according to which any voting on the floor of the House against the party whip will be considered an act of defection; and taking clue from this, we added an important ground stating that the Governor of Karnataka did not resort to floor test even though the state government had indeed requested for calling of assembly session and proposed the date of April 27.

Bommai had even met the Governor in this regard but the latter did not listen and recommended imposition of President’s rule.

The ground taken in the Writ Petition filed before the High Court of Karnataka was that case of Rajasthan did not apply to the Bommai case after the introduction of 10th Schedule to the Constitution (the anti-defection law) because the new law attached adverse legal consequence to Members expressing their views contrary to the party Whip.

The matter came up before a three-judge bench of the Karnataka High Court. Bommai wanted Narasimha Murthy and I to argue for him but with Justice Shivashankar Bhat, a relative of mine, being on the bench, I opted out fearing the judge recusing himself. I requested my friend, eminent jurist Soli Sorabjee, to take up the case and he did.

The HC, in its ruling, found it impossible to distinguish the Rajasthan case, and Bommai’s petition was dismissed in 1990. On an appeal to the Supreme Court, the case was referred to a nine-judge bench (Rajasthan case was decided by seven judge bench). Meanwhile, after the 1992 Babri Masjid demolition, several BJP-ruled states had been dismissed, and those orders were challenged before the SC. The SC found it proper to take up those cases along with the Bommai case.

Time-consuming exercise

Constitution of a nine-judge bench in the SC is a time-consuming exercise because if nine of the 13 judges (the prevailing strength of the court) get engaged in one big case, the court will be virtually closed for others — so the tendency is to postpone meeting of larger benches. Noted lawyer Ram Jethlamani, appearing for those states, asked me to persuade Bommai to withdraw his appeal so that the new cases could be heard by a five-judge bench. He pleaded that since election had already been held in Karnataka, there was nothing that Bommai could get. Bommai firmly declined because he was fighting for a principle.

The matter finally came up for hearing before nine judges, one of the rare events in the SC (Kesavananda Bharati case had 11). The cases were argued by the most eminent of the Indian lawyers.

Sorabjee again argued for Bommai. The bench, in October 1994, in the landmark judgement, held that whether the government has lost majority or not cannot be decided on head count on the lawns of the Raj Bhavan but should be decided on the floor of the House. It also held that the report sent by the Governor is subject to judicial review. It said the court has the power to reinstate a government which has been wrongly dismissed (although in the Bommai case, two elections had intervened).

This became a binding declaration of law virtually for all time to come; it is based on sound legal principles. And it can be overruled only by a 10 or 11 judge bench, a very difficult proposition.

The historic verdict has seen to it that there is no misuse of the ‘President’s Rule’ by the Centre. This is a notable contribution for the protection of the federal structure of India— and that was by S R Bommai.

(The writer is a senior advocate of the Supreme Court, former Additional Solicitor-General of India and a Rajyotsava awardee)