S.R. Bommai Case – (1994) 3 SCC 1 : AIR 1994 SC 1918
The SC in this case, unanimously held that the Presidential
Proclamation under Article 356 of the Constitution, dissolving a State
Legislative Assembly, is subject to judicial review.
The court said that it would have to be seen whether the
President had material such as would induce a reasonable man to come to the
conclusion in question.
The use of the power under Art. 356 will be improper if the
President gives no prior warning or opportunity to the State government to
correct itself. Such a warning can be dispensed with only in cases of extreme
urgency where failure on the part of the Union to take immediate
action, under Art. 356, will lead to disastrous consequences… Where in response
to the prior warning or notice..., the State government either applies the
corrective and thus complies with the direction, or satisfies the Union
Executive that the warning or direction was based on incorrect facts, it shall
not be proper for the President to hold that 'a situation has arisen..
The court further said –
Para 106: ….the federal principle, social pluralism and
pluralist democracy which form the basic structure of our Constitution demand
that the judicial review of the Proclamation issued under Art. 356(1 is not
only an imperative necessity but is a stringent duty…
In this case, the SC found secularism is part of basic
structure of the Constitution. The court said –
Para 304: Secularism is thus more than a passive
attitude of religious tolerance. It is a positive concept of equal treatment of
all religions. This attitude is described by some as one of neutrality towards
religion or as one of benevolent neutrality. This may be a concept evolved by
western liberal thought or it may be, as some say, an abiding faith with the
Indian people at all points of time. That is not material. What is material is
that it is a constitutional goal and a basic feature of the Constitution.. Any
step inconsistent with this constitutional policy is, in plain words,
unconstitutional.
D C Wadhwa Case – (1987) 1 SCC 378 : AIR 1987 SC 579
This case dealt with judicial review of legislative actions
of President vis a vis “malafides exercise of powers.
The court said –
Para 7: It is settled law that a constitutional
authority cannot do indirectly what it is not permitted to do directly. If
there is a constitutional provision inhibiting the constitutional authority
from doing an act, such provision cannot be allowed to be defeated by adoption
of any subterfuge. That would be clearly a fraud on the constitutional
provision. This is precisely what was pointed out by Mukarji, J. speaking for
the Court in K. G. Gajapati Narayan Deo, V/s. State of Orissa (1954) 1 SCR 1 :
"In other words, it is the substance of the Act that is
material and not merely the form or outward appearance, and if the subject
matter in substance is something which is beyond the powers of that legislature
to legislate upon, the form in which the law is clothed would not save it from
condemnation. The legislature cannot violate the constitutional prohibitions by
employing an indirect method."
State of Rajasthan versus Union of India –
(1977) 3 SCC 592 : AIR 1977 SC 1361
Will be added ….
A K Roy Case – AIR 1982 SC 710 : (1982) 1 SCC 271
Judicial Review of Constitutionality of Presidential
Ordinance under Article 123
The SC in this case held that President and Governors also
discharge legislative functions under their Ordinance making powers. The Court
observed that even legislative powers can also be abused and therefore
vulnerable to judicial review.
R K Garg
Case – (1981) 4 SCC 675
Judicial
review of Presidential ordinance making powers under Article 123
Kehar
Singh Case – (1989) 1 SCC 204
Judicial
review of acts and omissions of President of India.
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