Bommai v Union

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Chapter 5 Conclusions and Suggestions Before theBommai[i]decision was delivered, the Constitution of India excluded the jurisdiction of the Supreme Court when the President declared emergency. However, things are now clear that the Court can now scrutinize whether the power provided by Article 356 has been misused or used arbitrarily or that there is no relevant as well as reasonable material to substantiate that the state will not be able work as per the provisions of the Constitution. It is to be noted that the Supreme Court of Pakistan had taken a similar view even before the Supreme Court of India and it is now crystal clear that the abuse of Article 356 will not be entertained.

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It was the hope that Article 356 would only be used in the rarest cases and that it should be resorted to only if it was felt required or the only way to avoid disaster, or after resorting to every means it was the only way left. The Court at this point will see whether the direction of the action was coherent and whether the operation of the Article was valid. It cannot be denied that Article 356 has never been validly and legitimately used, and an obvious example of this when there Presidential rule declared in kerala in 1959 and also in over a hundred cases. The daring way in which the AIDMK demanded the termination of the Dravida Munnetra Kazhagam ministry in Tamil Nadu clearly indicates that constitutional correctness is overshadowed by political dictates. TheBommai[ii]decision is a stern warning to the Centre and should remember that the Cabinet of the State is liable to the legislature of the state and as long as there is confidence that can be commanded, the Governor’s pleasure is just a constitutional understatement. In Shamser Singh’s case[iii], there is a clear explanation of the President as well as the Governor. They are bound by the advice of the Cabinet and if they are to use their powers beyond their capacity, it would directly attract the Courts intervention as this would mean a violation of the provisions of the Constitution. When there is the strong demand that the state level democracy be dismissed by parties whether regional or even in the state level, it should not be entertained as such demands do not affect the Constitution and its message. Such an example is the cry made against the Bengal Government. The Governor in our country is only a formal head of the State and therefore has only a ritual functions in that capacity. But it cannot be denied that some of the powers of the Governor are quite effective powers. The advice of his Cabinet binds the Governor but he cannot blindly obey the mandates of the Union Government.

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