Article 73 and 74 of

the Constitution of
India
By Anip Chakraborty
Teaching Assistant and PhD Research Scholar
Article 73 of the Constitution of
India
 Extent of executive power of the Union
 (1) Subject to the provisions of this Constitution, the executive power of the Union
shall extend—
 (a) to the matters with respect to which Parliament has power to make laws; and
 (b) to the exercise of such rights, authority and jurisdiction as are exercisable by
the Government of India by virtue of any treaty or agreement:
 Provided that the executive power referred to in sub-clause (a) shall not, save as
expressly provided in this Constitution or in any law made by Parliament, extend
in any State to matters with respect to which the Legislature of the State has also
power to make laws.
 (2) Until otherwise provided by Parliament, a State and any officer or authority of
a State may, notwithstanding anything in this article, continue to exercise in
matters with respect to which Parliament has power to make laws for that State
such executive power or functions as the State or officer or authority thereof
could exercise immediately before the commencement of this Constitution.
Article 74 of the Constitution of
India
 Article 74 of the Constitution of India establishes the Council of Ministers and
defines their role in advising the President. The article ensures the smooth
functioning of the executive branch of the government.
 Key points
 The Council of Ministers is led by the Prime Minister.
 The Council of Ministers advises the President.
 The President must act in accordance with the advice of the Council of
Ministers.
 The President can ask the Council of Ministers to reconsider their advice.
 The President must act in accordance with the advice given after
reconsideration.
 The question of whether the President was given advice by the Ministers cannot
be questioned in court.
S.R Bommai vs. Union of India
 Facts of the case
 S.R. Bommai, the Chief Minister of Karnataka from August 1988 to April 1989,
led a Janata Dal government that was dismissed when President’s Rule
(Article 356) was imposed in Karnataka on 21st April 1989. This practice of
dismissing state governments ruled by opposition parties to the one at the
center was common until then.
 Bommai’s government was dismissed on grounds of losing majority due to
politically motivated defections. Despite presenting a resolution passed by
the Janata Dal Legislature Party, Bommai was denied an opportunity to prove
his majority in the house by the Governor, leading him to first approach the
Karnataka High Court, which dismissed his writ petition.
 Subsequently, Bommai moved to the Supreme Court of India, where a nine-
judge constitutional bench gave a landmark judgment in March 1994,
restricting the arbitrary dismissal of state governments under Article 356.
This case highlighted the issue of misuse of Article 356 and its impact on
India’s constitutional framework.
Issues
 Whether the imposition of the President’s rule in
the state of Karnataka was constitutionally valid?
 Whether the powers of the President under Article
356(1) stand unfettered?
 Are any proclamations under Article 356 subject to
judicial review? If yes, to what extent and what
idea of scope will the powers of the court stand in
an action to review the President’s statements?
Arguments by the Petitioner
 The first and major contention of the petitioner was that Bommai was
not once given the chance to prove the majority. Bommai and his Law
ministers took their concerns to the Governor, who completely
discarded their contentions and on the same day, the emergency was
declared and the President’s rule was imposed in the state of
Karnataka.
 The petitioner‘s lawyer, Soli Sorabjee, claimed that the power granted
under Article 356(1) of the Constitution is not unrestricted and there
was the judicial requisite that the assembly must not be in a position
to function according to the constitutional provisions of the country.
 The second contention of the petitioners was that the President’s rule
was imposed with malafide intention. They believed that this move of
the President was based on a political motive for dissolving the
state’s legislative assembly and imposing the President’s rule. The
petitioners also contended that this act of the centre was also against
the tenets of democracy.
Arguments by the Petitioner
 Sorabjee also relied on the reports of the Sarkaria Commission
which stated that Article 356 of the Constitution should only
be used in order to correct the failures in the constitutional
mechanism of the states and shouldn’t be misused for political
gains as in the present case. Sorabjee was also of the view
that if an emergency was imposed by the President without
giving any warning or a chance to prove the majority, it would
be unethical and improper.
 It was also argued by him that it can be prima facie
ascertained by the facts of the case that the Governor acted
out of malice. This is because he had no valid reason to submit
the report contending that the government of Karnataka didn’t
enjoy the support of the majority and he also advised against
floor test.
Arguments by the Petitioner
 The next contention of the petitioners was that the
proclamation of emergency issued by the President was not
valid as they had no information about the materials
produced to the President on the basis of which the
proclamation was issued by the President. They contended
that the respondents failed to provide any other other
reason for declaring the emergency except for the report
submitted by the Governor.
 Thus, the petitioners contended that this act of the centre
was against Article 74(2). This Article provides that the
Central government must share the details related to the
imposition of emergency with the state which was not
abided by the centre in the present case.
Respondent's Arguments
 The central government, the defendants of this case,
were represented by the Attorney General. It was
contended by the defendants that the petitioners had
no authority to challenge the report which was
presented by the Governor to the President via a writ
petition in the High Court.
 The defendants also contended that the petitioners
cannot claim the defendants to provide for any other
documents which were considered by the President to
issue a proclamation made under Article 356 and that
the report made by the Governor is the only
document which can be presented to the petitioners
in the open forum.
Respondent's Arguments
 The respondent further pleaded that the court has
no authority to enquire whether the decision taken
by the President to issue a proclamation under
Article 365 is made on the advice of the council of
ministers as this is considered to be against Article
74 of the Constitution.
 It was also contended that the report was made by
the Governor by looking into and considering all the
facts and circumstances which were prevalent in the
state and then submitted it to the President. Hence,
the report was valid.
Respondent's Arguments
 The Attorney General contended that the
proclamation of emergency which is issued by the
President is purely a political decision and cannot
be managed as per judicial standards. The
defendants also argued that the proclamation was
issued by following the conditions mentioned
in Article 74(1) of the Constitution and was issued
only after consulting with the state cabinet. It was
also argued by the defendants that the advice
given by the cabinet to the President cannot be
inquired by the court. Also, Article 74(2) provides
that it is not mandatory to publish the reasons
based on which the proclamation was issued.
Judgement
 After considering the contentions of the petitioners
as well as the defendants, the court delivered the
following judgement:
 The court held that even though Article 356 confers
special powers on the President, such powers
should be utilised by the President with great
caution. The court also relied upon the statement
made by Dr. B.R. Ambedkar. He believed that this
Article should be used only in extraordinary
circumstances. The Sarkaria Commission also
recommended the same.
 It said that the proclamation issued by the President
must be thoroughly analysed by both houses of the
Parliament as per Article 356(3).
Judgement
 In case the President issues the proclamation without the approval of both
houses then the proclamation would lapse within a period of two months
and the state assembly comes into force again.
 The court also held that the proclamation under Article 356 was also
subjected to judicial review by the Supreme Court of India. The High Court
or the Supreme Court shall have the right to entertain a writ petition
challenging the proclamation if it is satisfied that the writ petition raises
the arguable question concerning the legality of the proclamation. If the
situation demands, the court may also stop the President from dissolving
the Legislative Assembly.
 The President‘s power to dismiss a state government was not undivided or
absolute.
 Though Article 356 does not expressly address the dissolution of the
legislature, such powers can be implied from the said Article. The President
under Article 356(1)(a) can confer the powers of the Governor as well as
the state government upon himself.
Judgement
 This power should be utilised sparingly and cautiously. The
Sarkaria Commission’s ideas for invoking Article 356 were
likewise approved by the court. The Commission advocated
notifying the state before activating Article 356(1) under
certain instances. It stated that all other options should be first
considered to solve the problem and Article 365 should only be
used if there is no other option available which can be
implemented to solve the problem at hand. If the High Court or
the Supreme Court is satisfied that the proclamation of
emergency has been issued in an unfair manner, then, it may
consider hearing the writ petition challenging the validity of the
proclamation.
 The court may also postpone the dissolution of the Legislative
Assembly if the circumstances demand. Also, If the court feels
that the proclamation is unlawful, even if both Houses of
Parliament accept it, the court may quash the proclamation and
reestablish the Legislative Assembly in the state.
Judgement regarding Floor Test
 One of the issues that the judges had to deal with in this case was to determine a
practical solution to determine whether the Legislative Assembly of the state enjoyed
the support of the majority of the house. This is because, in the instant case, the
President dissolved the government of Karnataka only on the basis of the report
submitted by the Governor and did not try to investigate whether the governments
actually did not enjoy the majority of the house. The Supreme Court, therefore, held
that the floor test should be conducted to determine the majority and only after such a
test, if it is proved that the government does not enjoy the support of the majority of
the house, the government can be dissolved. The judges also discussed the reason for
such a test. They contended that the report proposed by the Governor was based on
his personal judgement and was not devoid of any sort of personal bias. Hence, they
held that a floor test can be considered a viable method to determine the majority of
the government. However, the judges also held that the floor test cannot be always
abided by. They contended that it can be exempted in certain exceptional situations
like situations of widespread violence which renders it impossible to conduct such a
test. The judges then observed the facts of the instant case and observed that the
floor test was not conducted even in the absence of such exceptional circumstances
and thus overturned the dissolution of the governments.
Judgement regarding dissolution of
Assembly before Parliamentary approval.
 No dissolution of assembly before Parliamentary approval
 One of the main issues discussed by the judges in this case was the dissolution of the
state assembly. Article 174(1)(b) of the Constitution states that the Governor can
dissolve the Legislative Assembly of a particular state before the expiration of the term
of 5 years. However, this dissolution can be done when the Assembly loses the majority
and there is no stable government to carry out the administration of the state. In this
case, the court held that the state government should be dissolved only after the
proclamation of emergency under Article 356 of the Constitution is issued by the
President. The court also dealt with the scope of Article 74(2) of the Constitution. It was
held by the judges that this article protects the secrecy of deliberation between the
President and the Council of Ministers. It was further held by the Supreme Court that
the court is not concerned about the discussions that took place between the President
and the Council of Ministers. Rather, it is only concerned about the validity of the order.
Also, an order or advice given by the Council of Ministers cannot be challenged in the
court on the ground that the Act done by the President is not in accordance with the
advice rendered by the Council of Ministers.