The case of Rameshwar Prasad vs. Union of India revolves around the political turmoil in Bihar following the state elections in February 2005, which resulted in a hung assembly. No ...
No Acts & Articles mentioned in this case
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CASE NO.:
Writ Petition (civil) 257 of 2005
PETITIONER:
Rameshwar Prasad & Ors.
RESPONDENT:
Union of India & Anr.
DATE OF JUDGMENT: 24/01/2006
BENCH:
Y.K. Sabharwal CJI & K.G. Balakrishnan & B.N. Agrawal & Ashok Bhan & Arijit Pasayat
JUDGMENT:
JUDGMENT
Delivered by
Y.K. Sabharwal, CJI
K.G. BALAKRISHNAN, J
ARIJIT PASAYAT J.
[With W.P. (C) No.255 of 2005, W.P. (C) No.258 of 2005 and
W.P.(C) No.353 of 2005
Y.K. Sabharwal, CJI.
The challenge in these petitions is to the
constitutional validity of Notification dated 23rd May,
2005 ordering dissolution of the Legislative Assembly of
the State of Bihar. It is a unique case. Earlier cases that
came up before this Court were those where the
dissolutions of Assemblies were ordered on the ground
that the parties in power had lost the confidence of the
House. The present case is of its own kind where before
even the first meeting of the Legislative Assembly, its
dissolution has been ordered on the ground that attempts
are being made to cobble a majority by illegal means and
lay claim to form the Government in the State and if
these attempts continue, it would amount to tampering
with constitutional provisions.
One of the questions of far reaching consequence
that arises is whether the dissolution of Assembly under
Article 356(1) of the Constitution of India can be ordered
to prevent the staking of claim by a political party on the
ground that the majority has been obtained by illegal
means. We would first note the circumstances which led
to the issue of impugned notification.
Factual Background
Election to the State of Bihar was notified by the
Election Commission on 17th December, 2004. Polling for
the said elections were held in three phases, i.e., 3rd
February, 2005, 5th February, 2005 and 13th February,
2005. Counting of votes took place on 27th February,
2005. Results of the said elections were declared by the
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Election Commission. On 4th March, 2005, Notification
was issued by the Election Commission in pursuance of
Section 73 of Representation of People Act, 1951 (for
short 'the RP Act, 1951') duly notifying the names of the
members elected for all the constituencies along with
party affiliation.
Bihar Legislative Assembly comprises of 243
members and to secure an absolute majority support of
122 Members of Legislative Assembly (in short 'MLAs'), is
required. National Democratic Alliance (for short 'NDA'), a
political coalition of parties comprising of the Bharatiya
Janata Party (for short 'BJP') and the Janata Dal (United)
(for short 'JD(U)') was the largest pre-poll combination
having the support of 92 MLAs. The party-wise strength
in the Assembly was as under:
"(1) NDA 92
(2) RJD 75
(3) LJP 29
(4) Congress (I) 10
(5) CPI (ML) 07
(6) Samajwadi Party 04
(7) NCP 03
(8) Bahujan Samaj Party02
(9) Independents 17
(10) Others 09"
Report dated 6th March, 2005 was sent by the
Governor to the President, recommending newly
constituted Assembly to be kept in suspended animation
for the present. It reads as under:
"Respected Rashtrapati Jee,
The present Bihar Legislative
Assembly has come to an end on 6th
March, 2005. The Election
Commission's notification with reference
to the recent elections in regard to
constitution of the new Assembly issued
vide No. 308/B.R.-L.A./2005 dated 4th
March 2005 and 464/Bihar-LA/2005,
dated the 4th March, 2005 is enclosed
(Annexure-I)
2. Based on the results that have
come up, the following is the party-wise
position:
1. R.J.D. : 75
2. J.D.(U) : 55
3. B.J.P. : 37
4. Cong(I) : 10
5. B.S.P. : 02
6. L.J.P. : 29
7. C.P.I. : 03
8. C.P.I.(M) : 01
9. C.P.I.(M.L.): 07
10. N.C.P. : 03
11. S.P. : 04
12. Independent: 17
---------------------------------------
243
________________________
The R.J.D. and its alliance position is as
follows:
1. R.J.D. : 75
2. Cong.(I) : 10
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3. C.P.I. : 03 (support letter
not recd.)
4. C.P.I.(M) : 01
5. N.C.P. : 03
_________________________
92
_________________________
The N.D.A. alliance position is as follows:
1. B.J.P. : 37
2. J.D.(U) : 55
92
_______________________
3. The present C.M., Bihar, Smt. Rabri
Devi met me on 28.2.2005 and submitted
her resignation along with her Council of
Ministers. I have accepted the same and
asked her to continue till an alternative
arrangement is made.
4. A delegation of members of LJP met
me in the afternoon of 28.2.2005 and
they submitted a letter (Annexure II)
signed by Shri Ram Vilas Paswan,
President of the Party, stating therein
that they will neither support the RJD
nor the BJP in the formation of
Government. The State President of
Congress Party, Shri Ram Jatan Sinha,
also met in the evening of 28.2.2005.
5. The State President of BJP, Shri
Gopal Narayan Singh along with
supporters met me on 1.3.2005. They
have submitted a letter (Annexure III)
stating that apart from combined alliance
strength of 92 (BJP & JD(U) they have
support of another 10 to 12
Independents. The request in the letter
is not to allow the RJD to form a
Government.
6. Shri Dadan Singh, State President
of Samajwadi Party, has sent a letter
(Annexure IV) indicating their decision
not to support the RJD or NDA in the
formation of the Govt. He also met me
on 2.3.2005.
7. Shri Ram Naresh Ram, Leader of
the CPI (ML-Lib.), Legislature Party along
with 4 others met me and submitted a
letter (AnnexureV) that they would not
support any group in the formation of
Government.
8. Shri Ram Vilas Paswan, National
President of LJP, along with 15 others
met me and submitted another letter
(Annexure VI). They have reiterated their
earlier stand.
9. The RJD met me on 5.3.2005 in the
forenoon and they staked claim to form a
Government indicating the support from
the following parties :
1. Cong(I) : 10
2. NCP : 03
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3. CPI(M) : 01
4. BSP : 02
(Copy enclosed as Ann.VII)
The RJD with the above will have only
91.
They have further claimed that some of
the Independent members may support
the RJD. However, it has not been
disclosed as to the number of
Independent MLAs from whom they
expect support nor their names.
Even if we assume the entire
Independents totalling 17 to extend
support to RJD alliance, which has a
combined strength of 91, the total would
be 108, which is still short of the
minimum requirement of 122 in a House
of 243.
10. The NDA delegation led by Shri
Sushil Kumar Modi, MP, met me in the
evening of 5.3.2005. They have not
submitted any further letter. However,
they stated that apart from their pre-
election alliance of 92, another 10
Independents will also support them and
they further stated that they would be
submitting letters separately. This has
not been received so far. Even assuming
that they have support of 10
Independents, their strength will be only
102, which is short of the minimum
requirement of 122.
11. Six Independent MLAs met me on
5.3.2005 and submitted a letter in which
they have claimed that they may be
called to form a Government and they
will be able to get support of others
(Annexure VIII). They have not
submitted any authorization letter
supporting their claim.
12. I have also consulted the Legal
experts and the case laws particularly
the case reported in AIR 1994 SC 1918
where the Supreme Court in para 365 of
the report summarised the conclusion.
The relevant part is para 2, i.e., the
recommendation of the Sarkaria
Commission do merit serious
consideration at the hands of all
concerned. Sarkaria Commission in its
report has said that Governor while going
through the process of selection should
select a leader who in his judgment is
most likely to command a majority in the
Assembly. The Book "Constitution of
India" written by Shri V.N. Shukla (10th
edition) while dealing with Article 75 and
Article 164 of the Constitution of India
has dealt with this subject wherein it has
quoted the manner of selection by the
Governor in the following words :
"In normal circumstances the
Governor need have no doubt as to
who is the proper person to be
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appointed; it is leader of majority
party in the Legislative Assembly,
but circumstances can arise when it
may be doubtful who that leader is
and the Governor may have to
exercise his personal judgment in
selecting the C.M. Under the
Constitutional scheme which
envisages that a person who enjoys
the confidence of the Legislature
should alone be appointed as C.M."
In Bommai's case referred to above
in para 153, S.C. has stated with regard
to the position where, I quote :
"After the General Elections held,
no political party or coalition of
parties or group is able to secure
absolute majority in the Legislative
Assembly and despite the
Governor's exploring the
alternatives, the situation has
arisen in which no political party is
able to form stable Government, it
would be case of completely
demonstrable inability of any
political party to form a stable
Government commanding the
confidence of the majority members
of the Legislature. It would be a
case of failure of constitutional
machinery."
13. I explored all possibilities and from
the facts stated above, I am fully satisfied
that no political party or coalition of
parties or groups is able to substantiate
a claim of majority in the Legislative
Assembly, and having explored the
alternatives with all the political parties
and groups and Independents MLAs, a
situation has emerged in which no
political party or groups appears to be
able to form a Government commanding
a majority in the House. Thus, it is a
case of complete inability of any political
party to form a stable Government
commanding the confidence of the
majority members. This is a case of
failure of constitutional machinery.
14. I, as Governor of Bihar, am not able
to form a popular Government in Bihar,
because of the situation created by the
election results mentioned above.
15. I, therefore, recommend that the
present newly constituted Assembly be
kept in suspended animation for the
present, and the President of India is
requested to take such appropriate
action/decision, as required."
Since no political party was in a position to form a
Government, a notification was issued on 7th March,
2005 under Article 356 of the Constitution imposing
President's rule over the State of Bihar and the Assembly
was kept in suspended animation. Another notification
of the same date was also issued, inter alia, stating that
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the powers exercisable by the President shall, subject to
the superintendence, direction and control of the
President be exercisable also by the Governor of Bihar.
The object of the proclamation imposing President's
rule was to give time and space to the political process to
explore the possibility of forming a majority Government
in the State through a process of political realignment as
is reflected in the speech of Home Minister Shri Shivraj V.
Patil in the Rajya Sabha on 21st March, 2005 when the
Bihar Appropriation (Vote on Account) Bill, 2005 was
discussed. The Home Minister said :
"\005. But, I would like to make one point
very clear. We are not very happy to
impose President's Rule on the State of
Bihar. Let there be no doubt in the
minds of any Members of the House; we
are not happy. After the elections we
would have been happy if Government
would have been formed by the elected
representatives. That was not possible
and that is why, President's Rule was
imposed. But we cannot take pleasure in
saying "Look we did this". We are not
happy about it. I would ensure that the
President's Rule is not continued for a
long time. The sooner it disappear, the
better it would be for Bihar, for
democracy and for the system we are
following in our country. But, who is to
take steps in this regard? It is the
elected representatives who have to take
steps in this respect. The Governor can
and, I would like to request in this House
that elected representatives should talk
to each other and create a situation in
which it becomes possible for them to
form a Government. Even if it is minority
Government with a slight margin, there
is no problem\005.."
The Home Minister gave a solemn assurance to the
nation that the imposition of President's rule was
temporary and transient and was intended to explore the
possibility of forming a popular Government.
According to the petitioners, process of realignment
of forces was set in motion and several political parties
and independent MLAs re-considered their position in
terms of their commitment to provide a majority
Government in deference to the popular wishes of the
people and announced support to the NDA led by Shri
Nitish Kumar. First such announcement was made by
the entire group of 17 independent MLAs on 8th April,
2005. The signed declaration was released by these
MLAs to the media. With the support of 17 independent
MLAs the support base of the NDA rose to 109 MLAs.
Later on, it rose to 115 MLAs with the declaration of
support by the Samajwadi Party (SP), the Bahujan Samaj
Party (BSP) and the Nationalist Congress Party (NCP).
Governor of Bihar sent a report on 27th April, 2005
to the President of India, inter alia, stating that the
newspaper reports and other reports gathered through
meeting with various party functionaries/leaders and
also intelligence reports received, indicated a trend to
gain over elected representatives of the people and
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various elements within the party and also outside the
party being approached through various allurements like
money, caste, posts etc., which was a disturbing feature.
According to the said report, the situation was fast
approaching a scenario wherein if the trend is not
arrested immediately the consequent political instability
will further give rise to horse trading being practiced by
various political parties/groups trying to allure elected
MLAs. That it would not be possible to contain the
situation without giving the people another opportunity to
give their mandate through a fresh poll. The report is
reproduced below in its entirety.
"Respected Rashtrapati Jee,
I invite a reference to my D.O.
No.33/GB dated the 6th March, 2005
through which a detailed analysis of the
results of the Assembly elections were
made and a recommendation was also
made to keep the newly constituted
Assembly (constituted vide Election
Commission's notification No.308/BR-
L.A./2005 dated the 4th March, 2005 and
464/Bihar-LA/2005, dated the 4th
March, 2005) in a suspended animation
and also to issue appropriate
direction/decision. In the light of the
same, the President was pleased to issue
a proclamation under Article 356 of the
Constitution of India vide notification
NO.G.S.R. 162(E), dated 7th March, 2005,
and the proclamation has been approved
and assented by the Parliament.
2. As none of the parties either
individually or with the then pre-election
combination or with post-election
alliance combination could stake a claim
to form a popular Government wherein
they could claim a support of a simple
majority of 122 in a House of 243, I had
no alternative but to send the above
mentioned report with the said
recommendation.
3. I am given to understand that
serious attempts are being made by JD-U
and BJP to cobble a majority and lay
claim to form the Government in the
State. Contacts in JD-U and BJP have
informed that 16-17 LJP MLAs have been
won over by various means and attempt
is being made to win over others. The
JD-U is also targetting Congress for
creating a split. It is felt in JD-U circle
that in case LJP does not split then it
can still form the Government with the
support of Independent, NCP, BSP and
SP MLAs and two-third of Congress
MLAs after it splits from the main
Congress party. The JD-U and BJP
MLAs are quite convinced that by the end
of this month or latest by the first week
of May JD-U will be in a position to form
the Government. The high pressure
moves of JD-U/BJP is also affecting the
RJD MLAs who have become restive.
According to a report there is a lot of
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pressure by the RJD MLAs on Lalu Pd.
Yadav to either form the Government in
Bihar on UPA pattern in the centre, with
the support of Congress, LJP and others
or he should at least ensure the
continuance of President's rule in the
State.
4. The National Commission to review
the working of the Constitution has also
noticed that the reasons for increasing
instability of elected Governments was
attributable to unprincipled and
opportunistic political realignment from
time to time. A reasonable degree of
stability of Government and a strong
Government is important. It has also
noticed that the changing alignment of
the members of political parties so openly
really makes a mockery of our
democracy.
Under the Constitutional Scheme a
political party goes before the electorate
with a particular programme and it sets
up candidates at the election on the
basis of such programmes. The 10th
Schedule of the Constitution was
introduced on the premise that political
propriety and morality demands that if
such persons after the elections changes
his affiliation, that should be
discouraged. This is on the basis that
the loyalty to a party is a norm, being
based on shared beliefs. A divided party
is looked on with suspicion by the
electorate.
5. Newspaper reports in the recent
time and other reports gathered through
meeting with various party
functionaries/leaders and also
intelligence reports received by me,
indicate a trend to gain over elected
representatives of the people and various
elements within the party and also
outside the party being approached
through various allurements like money,
caste, posts etc., which is a disturbing
feature. This would affect the
constitutional provisions and safeguards
built therein. Any such move may also
distort the verdict of the people as shown
by results of the recent elections. If
these attempts are allowed to continue
then it would be amounting to tampering
with constitutional provisions.
6. Keeping in view the above
mentioned circumstances the present
situation is fast approaching a scenario
wherein if the trend is not arrested
immediately, the consequent political
instability will further give rise to horse
trading being practiced by various
political parties/groups trying to allure
elected MLAs. Consequently it may not
be possible to contain the situation
without giving the people another
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opportunity to give their mandate
through a fresh poll.
7. I am submitting these facts before
the Hon'ble President for taking such
action as deemed appropriate."
According to the petitioners, Lok Janashakti Party
(LJP) had contested elections on the plank of opposing
the then Government led by Rashtriya Janata Dal (RJD),
which again is a constituent of United Progressive
Alliance (UPA) in the Centre. It had a strength of 29
MLAs in the new assembly. The leader of LJP Shri Ram
Vilas Paswan had taken the stand that he was opposed to
RJD as well as NDA led by the BJP. MLAs belonging to
LJP were in a rebellious mood. About 22 MLAs belonging
to the LJP assembled on or around 21st May, 2005 and
started working towards a major political realignment in
the stand of the said party. According to them, 22 LJP
members of the Legislative wing supported by members of
the original political party reached a consensus
subsequently to merge their party with the JD(U). That,
with this the repolarisation of political forces was
complete. According to them the proposed merger
between two political formations was in consonance with
the principles enumerated in para 4 of the Tenth
Schedule to the Constitution. It provides that on a
merger of the political party, all the members of the new
political party with which the merger has taken place if
and only if not less than two-third of the members of the
said party have agreed to the said merger. It is their
allegation that in order to thwart the formation of a
Government led by JD(U) the Governor of Bihar sent
another report from its Camp Office in Delhi on 21st May,
2005 to the President of India. It was reiterated in the
report that from the information gathered through reports
from media, meeting with various political functionaries,
as also intelligence reports, a trend was indicated to win
over elected representatives of the people. In his view a
situation had arisen in the State wherein it would be
desirable in the interest of State that assembly which has
been kept in suspended animation be dissolved so that
the people/electorate could be provided with one more
opportunity to seek the mandate of the people at an
appropriate time to be decided in due course. The report
dated 21st May, 2005 is reproduced in its entirety as
follows :
"Respected Rashtrapati Jee,
I invite a reference to my D.O.
letter No.52/GB dated 27th April, 2005
through which I had given a detailed
account of the attempts made by some
of the parties notably the JD-U and BJP
to cobble a majority and lay a claim to
form a Government in the State. I had
informed that around 16-17 MLAs
belonging to LJP were being wooed by
various means so that a split could be
effected in the LJP. Attention was also
drawn to the fact that the RJD MLAs
had also become restive in the light of
the above moves made by the JD-U.
As you are aware after the Assembly
Elections in February this year, none of
the political parties either individually or
with the then pre-election combination or
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with post-election alliance combination
could stake a claim to form a popular
Government since they could not claim a
support of a simple majority of 122 in a
House of 243 and hence the President
was pleased to issue a proclamation
under Article 356 of the Constitution
vide notification No. \026 GSR \026 162 (E)
dated 7th March, 2005 and the Assembly
was kept in suspended animation.
The reports received by me in the
recent past through the media and also
through meeting with various political
functionaries, as also intelligence
reports, indicate a trend to win over
elected representatives of the people.
Report has also been received of one of
the LJP MLA, who is General Secretary of
the party having resigned today and also
17-18 more perhaps are moving towards
the JD-U clearly indicating that various
allurements have been offered which is
very disturbing and alarming feature.
Any move by the break away faction to
align with any other party to cobble a
majority and stake claim to form a
Government would positively affect the
Constitutional provisions and safeguards
built therein and distort the verdict of the
people as shown by the results in the
recent Elections. If these attempts are
allowed it would be amounting to
tampering with Constitutional provisions.
Keeping the above mentioned
circumstances, I am of the considered
view that if the trend is not arrested
immediately, it may not be possible to
contain the situation. Hence in my view
a situation has arisen in the State
wherein it would be desirable in the
interest of the State that the Assembly
presently kept in suspended animation is
dissolved, so that the people/electorate
can be provided with one more
opportunity to seek the mandate of the
people at an appropriate time to be
decided in due course."
The report of the Governor was received by Union of
India on 22nd May, 2005 and on the same day, the Union
cabinet met at about 11.00 P.M. and decided to accept
the report of the Governor and sent the fax message to
the President of India, who had already left for Moscow,
recommending the dissolution of the Legislative Assembly
of Bihar. This message was received by the President of
India at his Camp office in Moscow at 0152 hrs. (IST).
President of India accorded his approval and sent the
same through the fax message which was received at
0350 hrs. (IST) on 23rd May, 2005. After due process the
notification was issued formally at 1430 hrs. (IST) on 23rd
May, 2005 dissolving the Bihar Assembly which has been
impugned in these writ petitions.
Challenging proclamation dated 23rd May, 2005
issued under Article 356 of the Constitution ordering
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dissolution of Bihar Legislative Assembly, petitioners
have also prayed for restoration of Election Commission
notification dated 4th May, 2005 issued under Section 73
of the RP Act of 1951.
According to the petitioners, the condition precedent
for dissolving the assembly is that there must be
satisfaction of the President that a situation has arisen in
which the Government of a State cannot be carried on in
accordance with the provisions of the Constitution. That
this satisfaction has to be based on cogent material.
Power of dissolution cannot be used to prevent the
staking of claim for the formation of a Government by a
political party with support of others. That the assembly
was placed under suspended animation with the
intention of providing time and space to political parties
to explore the possibility of providing a majority
Government in the State. No sooner the process of
realignment was complete ensuring that the NDA led by
Shri Nitish Kumar had the support of over 135 MLAs,
report was sent by the Governor. The midnight meeting
of the Cabinet was hurriedly called in order to prevent the
formation of a Government. It was incumbent upon the
Governor to make a meaningful and real effort for
securing the possibility of a majority Government in the
State. According to them the intention of the Governor
was to prevent the formation of a Government led by Shri
Nitish Kumar. That there was no material available or in
existence to indicate that any political defection was
being attempted through the use of money or muscle
power. In the absence of any such material the exercise
of power under Article 356 was a clear fraud on the
exercise of power.
That allegations in the Governor's report of horse
trading was factually incorrect and fictional. It was
incumbent upon the Governor to verify the facts
personally from the MLAs. That under the scheme of the
Constitution the decision with regard to mergers and
disqualifications on the ground of defection or horse
trading is vested in the Speaker. The Governor could not
have attempted to act on that basis and arrogated to
himself such an authority. Relying heavily on the Nine
Judge Bench judgment of this Court in S.R.Bommai &
Ors. v. Union of India & Ors. [(1994) 3 SCC 1], it was
contended that action of the Governor is mala fide in
law; irrational, without any cogent material to support
the conclusion arrived at and is based on mere ipse dixit
and, thus, was not sustainable in law. It was contended
that in exercise of judicial review this Court should quash
the impugned notification and as a consequence restore
the legislative assembly constituted by the Election
Commission notification dated 4th March, 2005.
Mr.Soli Sorabjee led the arguments in support of the
challenge to the validity of the impugned notification
contending that the dissolution of the Assembly when
examined in the light of law laid down in Bommai's case
(supra) is clearly unconstitutional and deserves to be set
aside and the status quo ante at least as on 7th March,
2005 may be directed.
Mr.Viplav Sharma, advocate, appearing in person in
writ petition No.258 of 2005 adopting the arguments of
Mr.Sorabjee further contended that before even elected
candidates making and subscribing oath or affirmation,
as contemplated by Article 188 of the Constitution, even
the Assembly could not be placed under suspended
animation and status quo as on the date of issue of
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notification under Section 73 of the RP Act of 1951
deserves to be directed.
Mr. Narasimha, appearing in Writ Petition (C)
No.353 for the petitioner, also adopted the arguments of
Mr.Sorabjee but at the same time further contended that
it is not legally permissible to order the dissolution of
Assembly before its meeting even once and the MLAs
being administered the oath as contemplated by the
Constitution. This was also the submission of Mr. Viplav
Sharma. Arguments on behalf of respondent \026 Union of
India were led by learned Attorney General, Mr. Milon
Banerjee, followed by learned Solicitor General and
Additional Solicitor General, Mr. Gulam Vahanavati and
Mr. Gopal Subramaniam respectively. Mr. P.P. Rao,
learned senior advocate argued for State of Bihar. We
place on record our appreciation for excellent and very
able assistance rendered by all the advocates.
After hearing arguments on the question of the
Governor not being answerable to any Court in view of
immunity granted by Article 361(1) of the Constitution,
we accepted the submission of the Government in terms
of our order dated 8th September, 2005 that notice may
not be issued to the Governor, giving brief reason in order
to be followed by detailed reasons later. The said order
reads as under :
"On the question whether the Governor
could be impleaded in his capacity as the
Governor and whether notice could be
issued to him on the writ petitions in the
context of averments made and the
prayers contained in the petitions and
other aspects highlighted in the order
dated 31st August, 2005, we have heard
Mr. Soli J. Sorabjee, learned senior
counsel appearing in Writ Petition (C)
No.257 of 2005, and Mr. Viplav Sharma,
petitioner-in-person in Writ Petition (C)
No.258 of 2005. We have also heard the
submissions made by Mr. Milon K.
Banerji, Attorney General for India, and
Mr. Gopal Subramaniam, learned
Additional Solicitor General.
The Constitution of India grants
immunity to the Governor as provided in
Article 361. Article 361(1), inter alia,
provides that the Governor shall not be
answerable to any court for the exercise
and performance of the powers and
duties of his office or for any act done or
purporting to be done by him in exercise
and performance of those powers and
duties. It is submitted by learned
Attorney General and Additional Solicitor
General that in view of Article 361(1),
this Court may not issue notice to the
Governor. While we accept the
submission but, at the same time, it is
also necessary to note that the immunity
granted to the Governor does not affect
the power of the Court to judicially
scrutinize the attack made to the
proclamation issued under Article 356(1)
of the Constitution of India on the
ground of mala fides or it being ultra
vires. It would be for the Government to
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satisfy the court and adequately meet
such ground of challenge. A mala fide
act is wholly outside the scope of the
power and has no existence in the eyes of
law. Even, the expression "purporting to
be done" in Article 361 does not cover
acts which are mala fide or ultra vires
and, thus, the Government supporting
the proclamation under Article 356(1)
shall have to meet the challenge. The
immunity granted under Article 361 does
not mean that in the absence of
Governor, the ground of mala fides or
proclamation being ultra vires would not
be examined by the Court. At this stage,
we have not examined the question
whether the exercise of power by the
Governor was mala fide or ultra vires or
not. That is a question still to be argued.
These are our brief reasons. We will
give detailed reason later."
Under the aforesaid factual background, the points
that fall for our determination are :
(1) Is it permissible to dissolve the Legislative
Assembly under Article 174(2)(b) of the
Constitution without its first meeting taking
place?
(2) Whether the proclamation dated 23rd May,
2005 dissolving the Assembly of Bihar is
illegal and unconstitutional?
(3) If the answer to the aforesaid question is in
affirmative, is it necessary to direct status quo
ante as on 7th March, 2005 or 4th March,
2005?
(4) What is the scope of Article 361 granting
immunity to the Governor?
After hearing elaborate arguments, by a brief order
dated 7th October, 2005, the notification dated 23rd May,
2005 was held to be unconstitutional but having regard
to the facts and circumstances of the case, relief directing
status quo ante to restore the Legislative Assembly as it
stood on 7th March, 2005, was declined. The Order dated
7th October reads as under :
"The General Elections to the Legislative
Assembly of Bihar were held in the
month of February 2005. The Election
Commission of India, in pursuance of
Section 73 of the Representation of the
People Act, 1951 in terms of Notification
dated 4th March, 2005 notified the names
of the elected members.
As no party or coalition of the
parties was in a position to secure 122
seats so as to have majority in the
Assembly, the Governor of Bihar made a
report dated 6th March, 2005 to the
President of India, whereupon in terms of
Notification G.S.R.162(E) dated 7th
March, 2005, issued in exercise of
powers under Article 356 of the
Constitution of India, the State was
brought under President's Rule and the
Assembly was kept in suspended
animation. By another Notification
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G.S.R.163(E) of the same date, 7th March,
2005, it was notified that all powers
which have been assumed by the
President of India, shall, subject to the
superintendence direction and control of
the President, be exercisable also by the
Governor of the State. The Home
Minister in a speech made on 21st March,
2005 when the Bihar Appropriation (Vote
on Account) Bill, 2005 was being
discussed in the Rajya Sabha said that
the Government was not happy to impose
President's Rule in Bihar and would have
been happy if Government would have
been formed by the elected
representatives after the election. That
was, however, not possible and,
therefore, President's Rule was imposed.
It was also said that the Government
would not like to see that President's
Rule is continued for a long time but it is
for elected representatives to take steps
in this respect; the Governor can ask
them and request them and he would
also request that the elected
representatives should talk to each other
and create a situation in which it
becomes possible for them to form a
Government. The Presidential
Proclamation dated 7th March, 2005 was
approved by the Lok Sabha at its sitting
held on 19th March, 2005 and Rajya
Sabha at its sitting held on 21st March,
2005.
The Governor of Bihar made two
reports to the President of India, one
dated 27th April, 2005 and the other
dated 21st May, 2005. On consideration
of these reports, Notification dated 23rd
May, 2005 was issued in exercise of the
powers conferred by sub-clause (b) of
Clause (2) of Article 174 of the
Constitution, read with clause (a) of the
Notification G.S.R.162(E) dated 7th
March, 2005 issued under Article 356 of
the Constitution and the Legislative
Assembly of the State of Bihar was
dissolved with immediate effect.
These writ petitions have been filed
challenging constitutional validity of the
aforesaid Proclamation dated 23rd May,
2005. Mr. Soli J. Sorabjee, Senior
Advocate and Mr. P.S. Narasimha,
Advocate and Mr. Viplav Sharma,
advocate appearing-in-person have made
elaborate submissions in support of the
challenge to the impugned action of
dismissing the assembly.
On the other hand, Mr. Milon K.
Banerjee, Attorney-General for India, Mr.
Goolam E. Vahanavati, Solicitor General
and Mr. Gopal Subramaniam, Additional
Solicitor General appearing for Union of
India and Mr. P.P. Rao, Senior Advocate
appearing for the State of Bihar also
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made elaborate submissions supporting
the impugned Proclamation dated 23rd
May, 2005.
Many intricate and important
questions of law having far reaching
impact have been addressed from both
sides. After the conclusion of the hearing
of oral arguments, written submissions
have also been filed by learned counsel.
Fresh elections in State of Bihar
have been notified. As per press note
dated 3rd September, 2005 issued by
Election Commission of India, the
schedule for general elections to the
Legislative Assembly of Bihar has been
announced. According to it, the polling
is to take place in four phases
commencing from 18th October, 2005
and ending with the fourth phase voting
on 19th November, 2005. As per the said
press note, the date of Notification for
first and second phase of poll was 23rd
September and 28th September, 2005,
date of poll being 18th October, 2005 and
26th October, 2005 respectively.
Notifications for third and fourth phases
of poll are to be issued on 19th and 26th
October, 2005 respectively.
Keeping in view the questions
involved, the pronouncement of
judgment with detailed reasons is likely
to take some time and, therefore, at this
stage, we are pronouncing this brief
order as the order of the court to be
followed by detailed reasons later.
Accordingly, as per majority opinion,
this court orders as under:
1. The Proclamation dated 23rd May,
2005 dissolving the Legislative
Assembly of the State of Bihar is
unconstitutional.
2. Despite unconstitutionality of the
impugned Proclamation, but having
regard to the facts and
circumstances of the case, the
present is not a case where in
exercise of discretionary jurisdiction
the status quo ante deserves to be
ordered to restore the Legislative
Assembly as it stood on the date of
Proclamation dated 7th March, 2005
whereunder it was kept under
suspended animation."
POINT NO.1 - Is it permissible to dissolve the
Legislative Assembly under Article 174(2)
(b) of the Constitution without its first
meeting taking place?
Article 174 of the Constitution deals with the power
of the Governor to summon the House, prorogue the
House and dissolve the Legislative Assembly. This Court
never had the occasion to consider the question of legality
of dissolution of a Legislative Assembly even before its
first meeting contemplated under Article 172 of the
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Constitution. It has been contended on behalf of the
petitioners by Mr. Narsimha and Mr. Viplav Sharma,
appearing-in-person, that a Legislative Assembly can be
dissolved under Article 174(2)(b) only after its first
meeting is held as postulated by Article 172 of the
Constitution. The argument is that there cannot be any
dissolution without even members taking oath and the
Legislative Assembly coming into existence. What does
not exist, cannot be dissolved, is the submission. In this
regard, the question to be considered also is whether the
date for first meeting of the Legislative Assembly can be
fixed without anyone being in a position to form the
Government.
Let us first examine the relevant constitutional and
statutory provisions.
Part VI of the Constitution dealing with the States
has six chapters but relevant for our purpose are Chapter
II and Chapter III. Chapter II comprising Article 153 to
Article 167 relates to the executive, Chapter III
comprising Article 168 to Article 212 relates to the State
Legislature.
The federal structure under our Constitution
contemplates that there shall be a Legislature for every
State which shall consist of a Governor and one or two
Houses, as provided in Article 168. Article 170
prescribes that the Legislative Assembly of each State
shall consist of members chosen by direct election from
territorial constituencies in the States. Article 170,
therefore, brings in the democratic process of election.
Article 164 puts into place an executive
Government. It enjoins upon the Governor to appoint the
Chief Minister and other ministers on the advice of the
Chief Minister. The Council of Ministers (Article 163)
exercises the executive power of the State as provided
under Article 154. Article 164(2) provides that the
Council of ministers shall be collectively responsible to
the Legislative Assembly of the State.
As provided in Article 172, every Legislative
Assembly of every State, unless sooner dissolved, shall
continue for five years from the date appointed for its first
meeting and no longer and the expiration of the said
period of five years shall operate as a dissolution of the
Assembly. Article 174(1) provides that the Governor
shall from time to time summon the House to meet at
such time and place as he thinks fit, but six months shall
not intervene between its last sitting in one session and
the date appointed for its first sitting in the next session.
Article 174(2) (b) provides that the Governor may from
time to time dissolve the Legislative Assembly.
Every member of the Legislative Assembly of the
State shall, before taking his seat, make and subscribe
before the Governor, an oath or affirmation, as provided
in Article 188 of the Constitution.
The contention urged is that the function of the
Governor in summoning the House and administering the
oath or affirmation to the members of the Legislative
Assembly are not the matters of privilege, prerogative or
discretion of the Governor but are his primary and
fundamental constitutional obligations on which the
principles of parliamentary democracy, federalism and
even 'separation of power' are dependent. Further
contention is that another constitutional obligation of the
Governor is to constitute the executive Government.
According to Mr. Narasimha, the Governor failed to
fulfill these constitutional obligations. Neither the
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executive Government nor the Legislative Assembly has
been constituted by the Governor. On the other hand,
the Governor has frustrated the very object of exercise of
his constitutional obligation by dissolving the Legislative
Assembly under Article 174(2)(b) without the Legislative
Assembly being even constituted. When the Legislative
Assembly is not even constituted, where is the question of
its dissolution, is the contention urged. The submission
is that under the scheme of Indian Constitution, it is
impermissible to dissolve a Legislative Assembly before its
first meeting and members making oath or affirmation as
required by Article 188. According to the petitioners,
under Indian Constitution, the Legislative Assembly is
duly constituted only upon the House being summoned
and from the date appointed for its first meeting. Article
172 which provides for duration of State Legislatures
reads as under:
"172. Duration of State Legislatures -
(1) Every Legislative Assembly of every
State, unless sooner dissolved shall
continue for (five years) from the date
appointed for its first meeting and no
longer and the expiration of the said
period of (five years) shall operate as a
dissolution of the Assembly:
Provided that the said period, may while a
proclamation of Emergency is in
operation, be extended by Parliament by
law for a period not exceeding one year at
a time and not extending in any case
beyond a period of six months after the
Proclamation has ceased to operate.
(2) The Legislative Council of a State shall
not be subject to dissolution, but as
nearly as possible one third of the
members thereof shall retire as soon as
may be on the expiration of every second
year in accordance with the provisions
made in that behalf by Parliament by law.
The aforesaid constitutional provision stipulates
that five years term of a Legislative Assembly shall be
reckoned from the date appointed for its first meeting and
on the expiry of five years commencing from the date of
the first meeting, the Assembly automatically stands
dissolved by afflux of time. The duration of the
Legislative Assembly beyond five years is impermissible in
view of the mandate of the aforesaid provision that the
Legislative Assembly shall continue for five years and 'no
longer'. Relying upon these provisions, it is contended
that the due constitution of the Legislative Assembly can
only be after its first meeting when the members
subscribe oath or affirmation under Article 188. The
statutory deemed constitution of the Assembly under
Section 73 of the R.P. Act, 1951, according to the
petitioners, has no relevance for determining due
constitution of Legislative Assembly for the purpose of
Constitution of India.
Reference on behalf of the petitioners has also been
made to law existing prior to the enforcement of the
Constitution of India contemplating the commencement
of the Council of State and Legislative Assembly from the
date of its first meeting. It was pointed out that Section
63(d) in the Government of India Act, 1915 which dealt
with Indian Legislature provided that every Council of
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State shall continue for five years and every Legislative
Assembly for three years from the date of its first
meeting. Likewise, Section 72(b) provided that every
Governor's Legislative Council shall continue for three
years from its first meeting. The Government of India
Act, 1919, repealing 1915 Act, provided in Section 8(1)
that every Governor's Legislative Council shall continue
for three years from its first meeting and in Section 21
provided that every Council of State shall continue for
five years and every Legislative Assembly for three years
from its first meeting. Likewise, the Government of India
Act, 1935 repealing 1919 Act, had provision identical to
Article 172 of the Constitution.
Section 73 of the R.P. Act 1951, in so far as relevant
for our purposes, is as under:
"73. Publication of results of general
elections to the House of the People
and the State Legislative Assemblies. \027
Where a general election is held for the
purpose of constituting a new House of
the People or a new State Legislative
Assembly, there shall be notified by [the
Election Commission] in the Official
Gazette, as soon as may be after [the
results of the elections in all the
constituencies] [other than these in which
the poll could not be taken for any reason
on the date originally fixed under clause
(d) of section 30 or for which the time for
completion of the election has been
extended under the provisions of section
153] have been declared by the returning
officer under the provisions of section 53
or, as the case may be section 66, the
names of the members elected for those
constituencies] and upon the issue of
such notification that House or Assembly
shall be deemed to be duly constituted."
In the present case, Notification under Section 73 of
the RP Act, 1951 was issued on 4th March, 2005. The
deemed constitution of the Legislative Assembly took
place under Section 73 on the issue of the said
notification. The question is whether this deemed
constitution of Legislative Assembly is only for the
purpose of the RP Act, 1951 and not for the
constitutional provisions so as to invoke power of
dissolution under Article 174(2)(b). The stand of the
Government is that in view of aforesaid legal fiction, the
constitution of the Legislative Assembly takes place for all
purposes and, thus, the Legislative Assembly is deemed
to have been 'duly constituted' on 4th March, 2005 and,
therefore, the Governor could exercise the power of
dissolution under Article 174(2)(b).
Section 73 of the RP Act, 1951 enjoins upon the
Election Commission to issue notification after
declaration of results of the elections in all the
constituencies. The superintendence, direction and
control of elections to Parliament and to the Legislature of
every State vests in Election Commission under Article
324 of the Constitution. Article 327 provides that
Parliament may make provision with respect to all
matters relating to, or in connection with, elections to the
Legislative Assembly of a State and all other matters
necessary for securing the 'due constitution' of the House
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of the Legislature. Article 329 bars the interference by
courts in electoral matters except by an election petition
presented to such authority and in such manner as may
be provided for by or under any law made by the
appropriate Legislature. Article 327 read with Section 73
of the RP Act, 1951 provide for as to when the House or
Assembly shall be 'duly constituted'. No provision,
constitutional or statutory, stipulates that the 'due
constitution' is only for the purposes of Articles 324, 327
and 329 and not for the purpose of enabling the Governor
to exercise power under Article 174(2)(b) of the
Constitution. In so far as the argument based on Article
172 is concerned, it seems clear that the due constitution
of the Legislative Assembly is different than its duration
which is five years \026 to be computed from the date
appointed for its first meeting and no longer. There is no
restriction under Article 174(2)(b) stipulating that the
power to dissolve the Legislative Assembly can be
exercised only after its first meeting. Clause (b) of proviso
to Section 73 of the RP Act, 1951 also does not limit the
deemed constitution of the Assembly for only specific
purpose of the said Act or Articles 324, 327 and 329 of
the Constitution. The said clause provides that the issue
of notification under Section 73 shall not be deemed to
affect the duration of the State Legislative Assembly, if
any, functioning immediately before the issue of the said
notification. In fact, clause (b) further fortifies the
conclusion that the duration of the Legislative Assembly
is different than the due constitution thereof. In the
present case, we are not concerned with the question of
duration of the Assembly but with the question whether
the Assembly had been duly constituted or not so as to
enable the Governor to exercise the power of dissolution
under Article 174(2)(b). The Constitution of India does
not postulate one 'due constitution' for the purposes of
elections under Part XV and another for the purposes of
the executive and the State Legislature under Chapter II
and III of Part VI. The aforenoted provisions existing
prior to the enforcement of Constitution of India are also
of no relevance for determining the effect of deemed
constitution of Assembly under Section 73 of the RP Act,
1951 to exercise power of dissolution under Article 274
(2)(b).
In K.K. Abu v. Union of India and Ors. [(AIR 1965
Kerala 229], a learned Single Judge of the High Court
rightly came to the conclusion that neither Article 172
nor Article 174 prescribe that dissolution of a State
Legislature can only be after commencement of its term
or after the date fixed for its first meeting. Once the
Assembly is constituted, it becomes capable of
dissolution. This decision has been referred to by one of
us (Arijit Pasayat, J.) in Special Reference No.1 of 2002
(popularly known as Gujarat Assembly Election
matter) [(2002) 8 SCC 237]. No provision of the
Constitution stipulates that the dissolution can only be
after the first meeting of the State Legislature.
The acceptance of the contention of the petitioners
can also lead to a breakdown of the Constitution. In a
given case, none may come forth to stake claim to form
the Government, for want of requisite strength to provide
a stable Government. If petitioners' contention is
accepted, in such an eventuality, the Governor will
neither be able to appoint Executive Government nor
would he be able to exercise power of dissolution under
Article 174(2)(b). The Constitution does not postulate a
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live Assembly without the Executive Government.
On behalf of the petitioners, reliance has, however,
been placed upon a decision of a Division Bench of
Allahabad High Court in the case of Udai Narain Sinha
v. State of U.P. and Ors. [AIR 1987 All.203].
Disagreeing with the Kerala High Court, it was held that
in the absence of the appointment of a date for the first
meeting of the Assembly in accordance with Article
172(1), its life did not commence for the purposes of that
article, even though it might have been constituted by
virtue of notification under Section 73 of the RP Act, 1951
so as to entitle the Governor to dissolve it by exercising
power under Article 174(2). It was held by the Division
Bench that Section 73 of the RP Act, 1951 only created a
fiction for limited purpose for paving the way for the
Governor to appoint a date for first meeting of either
House or the Assembly so as to enable them to function
after being summoned to meet under Article 174 of the
Constitution. We are unable to read any such limitation.
In our view, the Assembly, for all intends and purposes,
is deemed to be duly constituted on issue of notification
under Section 73 and the duration thereof is distinct
from its due constitution. The interpretation which may
lead to a situation of constitutional breakdown deserves
to be avoided, unless the provisions are so clear as not to
call for any other interpretation. This case does not fall
in the later category.
In Gujarat Assembly Election Matter, the issue
before the Constitution Bench was whether six months'
period contemplated by Article 174(1) applies to a
dissolved Legislative Assembly. While dealing with that
question and holding that the said provision applies only
to subsisting Legislative Assembly and not to a dissolved
Legislative Assembly, it was held that the constitution of
any Assembly can only be under Section 73 of the RP Act,
1951 and the requirement of Article 188 of Constitution
suggests that the Assembly comes into existence even
before its first sitting commences. (Emphasis supplied
by us).
In view of the above, the first point is answered
against the petitioners.
POINT NO.2: Whether the proclamation dated 23rd
May, 2005 dissolving the Assembly of Bihar
is illegal and unconstitutional?
This point is the heart of the matter. The answer to
the constitutional validity of the impugned notification
depends upon the scope and extent of judicial review in
such matters as determined by a Nine Judge Bench
decision in Bommai's case. Learned counsel appearing
for both sides have made elaborate submissions on the
question as to what is the ratio decidendi of Bommai's
case.
According to the petitioners, the notification
dissolving the Assembly is illegal as it is based on the
reports of the Governor which suffered from serious legal
and factual infirmities and are tainted with pervasive
mala fides which is evident from the record. It is
contended that the object of the reports of the Governor
was to prevent political party led by Mr. Nitish Kumar to
form the Government. The submission is that such being
the object, the consequent notification of dissolution
accepting the recommendation deserves to be annulled.
Under Article 356 of the Constitution, the
dissolution of an Assembly can be ordered on the
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satisfaction that a situation has arisen in which the
Government of the State cannot be carried on in
accordance with the Constitution. Such a satisfaction
can be reached by the President on receipt of report from
the Governor of a State or otherwise. It is permissible to
arrive at the satisfaction on receipt of the report from
Governor and on other material. Such a satisfaction can
also be reached only on the report of the Governor. It is
also permissible to reach such a conclusion even without
the report of the Governor in case the President has other
relevant material for reaching the satisfaction
contemplated by Article 356. The expression 'or
otherwise' is of wide amplitude.
In the present case, it is not in dispute that the
satisfaction that a situation has arisen in which the
Government of State cannot be carried on in accordance
with the provisions of the Constitution has been arrived
at only on the basis of the reports of the Governor. It is
not the case of the Union of India that it has relied upon
any material other than the reports of the Governor
which have been earlier reproduced in extenso.
The Governor in the report dated 6th March, 2005
has referred to Bommai's case as also to the
recommendations of Sarkaria Commission. Sarkaria
Commission Report in Chapter IV deals extensively with
the role of the Governors. Since in this case, the
dissolution of the Assembly is based solely on the reports
of the Governor and the issue also is as to the role played
by the Governor and submissions also having been made
on role which is expected from a high constitutional
functionary like Governor, it would be useful to first
examine that aspect.
Role of Governor
The role of the Governor has been a key issue in the
matters of Central-State relations. The Constitution of
India envisages three tiers of Government \026 the Union,
State and the Local Self-Government. From the functional
standpoint, it is stated that such a Constitution "is not a
static format, but a dynamic process" [Report of the
Sarkaria Commission on Centre-State Relations (1988)].
In the context of Union-State relations it has been noted
that "the very dynamism of the system with all its checks
and balances brings in its wake problems and conflicts in
the working of Union-State relations."
In the light of a volatile system prevailing today, it is
pertinent to recognize the crucial role played by the
Governors in the working of the democratic framework.
Addressing the Conference of Governors in June 2005,
the President of India Dr. A.P.J. Abdul Kalam stressed
the relevance of recommendations of the Sarkaria
Commission and observed that "While there are many
checks and balances provided by the Constitution, the
office of the Governor has been bestowed with the
independence to rise above the day-to-day politics and
override compulsions either emanating from the central
system or the state system." The Prime Minister Dr.
Manmohan Singh on the same occasion noted that "you
are the representatives of the center in states and hence,
you bring a national perspective to state level actions and
activities."
In Hargovind Pant v. Dr. Raghukul Tilak & Ors.
[(1979) 3 SCC 458], observing on the issue as to whether
a Governor could be considered as an "employee" of the
Government of India, this Court said "it is no doubt true
that the Governor is appointed by the President which
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means in effect and substance the Government of India,
but that is only a mode of appointment and it does not
make the Governor an employee or servant of the
Government of India."
Referring to Article 356 of the Constitution, the
Court reasoned that "one highly significant role which he
(Governor) has to play under the Constitution is of
making a report where he finds that a situation has
arisen in which the Government of the State cannot be
carried on in accordance with the provisions of the
Constitution" and further added that the Governor "is not
amenable to the directions of the Government of India,
nor is he accountable to them for the manner in which he
carries out his functions and duties. He is an
independent constitutional office which is not subject to
the control of the Government of India."
Fortifying the same, Justice V.R. Krishna Iyer has
observed that the mode of appointment can never
legitimize any form of interference in the working of the
Governor, else the concept of "judicial independence"
would not be tenable, as even the judges of the High
Courts and the Supreme Court are appointed by the
President. (V.R. Krisnha Iyer, A Constitutional Miscellany
(Second Edition, Lucknow:Eastern Book Co., 2003) at
p.44).
The then Vice-President of India, Shri G.S. Pathak,
had remarked in 1970 that "in the sphere which is bound
by the advice of the Council of Ministers, for obvious
reasons, the Governor must be independent of the
Centre" as there may be cases "where the advice of the
Centre may clash with advice of the State Council of
Ministers" and that "in such cases the Governor must
ignore the Centre's "advice" and act on the advice of his
Council of Ministers."
Relevant for the present controversy, very significant
observations were made in Bommai's case, when it was
said "He (Governor) is as much bound to exercise this
power in a situation contemplated by Article 356 as he is
bound not to use it where such a situation has not really
arisen" (para 272 \026 Jeevan Reddy, J. \026 Emphasis
supplied by us)
The role of the Governor has come in for
considerable criticism on the ground that some
Governors have failed to display the qualities of
impartiality expected of them. The Sarkaria Commission
Report has noted that "many have traced this mainly to
the fact that the Governor is appointed by, and holds
office during the pleasure of the President, i.e., in effect,
the Union Council of Ministers."
Rejecting the suggestion of an elected Governor, the
Constituent Assembly repeatedly stressed on
consultation with the Provincial/State Government prior
to the appointment of the Governor. Sir Alladi
Krishnaswamy Ayyar is quoted to have stated that "a
convention of consulting the provincial cabinet might
easily grow up" as was said to be the case in Canada
(White Paper on the Office of the Governor, Government of
Karnataka (22nd September, 1983) c.f. V.R. Krishna Iyer,
A Constitutional Miscellany (Second Edition, Lucknow:
Eastern Book Co., 2003) at p.45). Shri Jawaharlal Nehru
had also observed in the debate on the appointment of
Governor in the Constituent Assembly that a Governor
"must be acceptable to the Province, he must be
acceptable to the Government of the Province and yet he
must not be known to be a part of the party machine of
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that province." He was of the opinion that a nominated
Governor shall have "far fewer common links with the
Centre."
Querying as to what could be an objective and
representative body which will fit into our Constitutional
framework to facilitate the appointment of Governors on
meritorious basis, the Sarkaria Commission has observed
that "There is no gainsaying that a procedure must be
devised which can ensure objectivity in selection and
adherence to the criteria for selection and insulate the
system from political pressures. Also, the new procedure
must not only be fair but should be seen to be fair."
(Chapter IV "Role of the Governor", Report of the Sarkaria
Commission on Centre-State Relations (1988) at para
4.6.30). Recommending that the Vice-President of India
and the Speaker of the Lok Sabha should be consulted by
the Prime Minister in selecting a Governor, the Sarkaria
Commission has noted that "such consultation will
greatly enhance the credibility of the selection process."
The other related issue of debate was regarding the
extent of discretionary powers to be allowed to the
Governor. Following the decision to have a nominated
Governor, references in the various articles of the Draft
Constitution relating to the exercise of specified functions
by the Governor 'in his discretion' were deleted. (Chapter
IV "Role of the Governor", Report of the Sarkaria
Commission on Centre-State Relations (1988) at para
4.2.07). Article 163 of the Constitution (then Draft Article
143) generated considerable discussion, and Dr.
Ambedkar is stated to have "maintained that vesting the
Governor with certain discretionary powers was not
contrary to responsible Government." (Constituent
Assembly Debates (Volume VIII, Revised Edition) at
pp.00-502).
The expression "required" found in Article 163(1) is
stated to signify that the Governor can exercise his
discretionary powers only if there is a compelling
necessity to do so. It has been reasoned that the
expression "by or under the Constitution" means that the
necessity to exercise such powers may arise from any
express provision of the Constitution or by necessary
implication. The Sarkaria Commission Report further
adds that such necessity may arise even from rules and
orders made "under" the Constitution.
Observing that the Governor needs to discharge
"dual responsibility" \026 to the Union and the State \026 the
Sarkaria Commission has sought to evaluate the role of
the Governors in certain controversial circumstances,
such as, in appointing the Chief Minister, in ascertaining
the majority, in dismissal of the Chief Minister, in
dissolving the Legislative Assembly, in recommending
President's Rule and in reserving Bills for President's
consideration.
Finding that the position of the Governor is
indispensable for the successful working of the
Constitutional scheme of governance, the Sarkaria
Commission has noted that "most of the safeguards will
be such as cannot be reduced to a set of precise rules of
procedure or practice. This is so because of the very
nature of the office and the role of the Governor. The
safeguards have mostly to be in the nature of conventions
and practices, to be understood in their proper pers-
pective and faithfully adhered to, not only by the Union
and the State Governments but also by the political
parties." (Chapter IV "Role of the Governor", Report of the
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Sarkaria Commission on Centre-State Relations (1988) at
para 4.5.07). It was further added that "the fact that it
will be impossible to lay down a concrete set of standards
and norms for the functioning of a Governor will make it
difficult for a Parliamentary Committee or the Supreme
Court to inquire into a specific charge against a
Governor."
Instrument of Instructions:
The Constituent Assembly, pursuant to the Report
of the Provincial Constitution Committee, had decided to
insert an Instrument of Instructions to the Governors in
the form of a Schedule to the Constitution. Such an
instrument was found to be necessary, "because of the
mode of appointment and the injunction to act upon the
advice of Ministers were not contained in the Constitution
itself." (The framing of India India's Constitution \026 Select
Documents (Volume IV, B. Shiva Rao (ed.), New Delhi:
Universal Law Publishing Cp, 2004) at p. 86. The
complete test of the suggested Instructions is
reprroduced in pp.88-90). In the Government of India
Act, 1935, the Instrument of Instructions appeared as
instructions from the Sovereign.
The suggested list of instructions considered by the
Constituent Assembly included value based standards
that are expected of a Governor in discharging his duties
vis-`-vis \026appointment of the Chief Minister after
ascertaining a "stable majority"; appointments of Council
of Ministers who "will best be in a position collectively to
command the confidence of the Legislature"; to constitute
an Advisory Board comprising of duly elected members of
the Legislature, including the Leader of the Opposition,
"to aid the Governor in the matter of making
appointments under the Constitution" such as that of the
Auditor-in-Chief for the State, Chairman of the State
Public Services Commission; and mandating the
Governor to do "all that in him lies to maintain standards
of good administration, to promote all measures making
for moral, social and economic welfare and tending to fit
all classes of the population to take their due share in the
public life and government of the State, and to secure
amongst all classes and creeds co-operation, goodwill and
mutual respect for religious beliefs and sentiments."
The instructions were proposed as a Schedule to the
Constitution as the Assembly felt that "it is preferable not
to put them into the body of the Constitution, because
they are conventions rather than legal rules." However,
the same was not appended to the Constitution and
lamenting about it, Shri A.G. Noorani has stated that the
Instrument of Instructions could have codified
conventions between the President and the Governors if
allowed to exist. (A.G. Noorani, Constitutional Questions in
India \026 The President, Parliament and the States (New
Delhi: Oxford University Press, 2000) at p.11)
The P.V. Rajamannar Committee (1969), Inquiry
Committee constituted by the Government of Tamil Nadu
to report on the Centre-State relations, and the Study
Team of the Administrative Reforms Commission (1967)
headed by Shri M.C. Setalvad, have been quoted to have
opined that "a specific provision should be inserted in the
Constitution enabling the President to issue Instruments
of Instructions to the Governors. The Instruments of
Instructions should lay down guidelines indicating the
matters in respect of which the Governor should consult
the Central Government or in relation to which the
Central Government could issue directions to him."
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(White Paper on the Office of the Governor, Government of
Karnataka (22nd September, 1983) c.f. V.R. Krishna Iyer,
A Constitutional Miscellany (Second Edition, Lucknow:
Eastern Book Co., 2003) at p.47). Justice Krishna Iyer
has stated that a "Handbook" setting out the guidelines
for Governors must be prepared officially by the Law
Commission and approved by the Parliament to be kept
as a reference in the same status as that of an
Instrument of Instructions. However, the Sarkaria
Commission has observed that "considering the multi-
faceted role of the Governor and the nature of his
functions and duties, we are of the view that it would be
neither feasible nor desirable to formulate a
comprehensive set of guidelines for the exercise by him of
his discretionary powers. No two situations which may
require a Governor to use his discretion, are likely to be
identical."
Discretionary Powers of the Governor:
Expounding in detail on the exercise of discretionary
powers by the Governor, the Sarkaria Commission has
mainly recommended the following:
? Appointment of the Chief Minister \026 It is clear that
the leader of the party which has an absolute
majority in the Legislative Assembly should
invariably be called upon by the Governor to form a
Government. However, if there is a fractured
mandate, then the Commission recommends an
elaborate step-by-step approach and has further
emphasized that "the Governor, while going through
the process of selection as described, should select a
leader who, in his (Governor's) judgement, is most
likely to command a majority in the Assembly. The
Governor's subjective judgement will play an
important role." Upon being faced by several
contesting claims, the Commission suggests that the
most prudent measure on part of the Governor would
be to test the claims on the floor of the House.
? Dismissal of the Chief Minister \026 Recommending a
test of majority on the floor of the House to ascertain
whether an incumbent Chief Minister continues to
enjoy the majority, the Commission clearly dissuades
the Governor from dismissing the Ministry based only
on his "subjective satisfaction".
? Dissolution of the Assembly \026 Despite best efforts, if
ultimately a viable Ministry fails to emerge, a
Governor is faced with two alternatives \026 he may
either dissolve the Assembly or recommend
President's rule under Article 356, leaving it to the
Union Government to decide the question of
dissolution. The Commission expressed its firm view
that the proper course would be "to allow the people
of the State to settle matters themselves". The
Commission recommended that "the Governor should
first consider dissolving the Assembly and arranging
for a fresh election and before taking a decision, he
should consult the leaders of the political parties
concerned and the Chief Election Commissioner."
Para 4.11.04 of Sarkaria Commission Report
specifically deals with the situation where no single party
obtains absolute majority and provides the order of
preference the Governor should follow in selecting a Chief
Minister. The order of preference suggested is :
1. An alliance of parties that was formed prior to the
Elections.
2. The largest single party staking a claim to form the
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Government with the support of others, including
"independents".
3. A post-electoral coalition of parties, with all the
partners in the coalition joining the Government.
4. A post-electoral alliance of parties, with some of the
parties in the alliance forming a Government and the
remaining parties, including "independents"
supporting the Government from outside.
The Sarkaria Commission has noticed that in a
number of situations of political instability in States, the
Governors recommended President's Rule under Article
356 without exhausting all possible steps under the
Constitution to induct or maintain a stable Government.
The Governors concerned neither gave a fair chance to
contending parties to form a Ministry, nor allowed a fresh
appeal to the electorate after dissolving the Legislative
Assembly. Almost all these cases have been criticized on
the ground that the Governors, while making their
recommendations to the President behaved in a partisan
manner. The report further states that there has been no
uniformity of approach in such situations and that these
aspects have been dealt with in Chapter VI 'Emergency
Provisions'.
In Chapter VI, Sarkaria Commission dealt with the
emergency provisions noting the concern of framers of the
Constitution of need for such provision in a country of
our dimensions, diversities, disparities and
"multitudinous people, with possibly divided loyalties".
They took care to provide that, in a situation of such
emergency, the Union shall have overriding powers to
control and direct all aspects of administration and
legislation throughout the country. They realised that a
failure or breakdown of the constitutional machinery in a
State could not be ruled out as an impossibility and a
situation may arise in which the Government of the State
cannot be carried on in accordance with the provisions of
the Constitution.
The common thread in all the emergency provisions
is that the resort to such provision has to be in
exceptional circumstances when there be the real and
grave situation calling for the drastic action.
Sarkaria Commission as also this Court has noted
the persistent criticism in ever-mounting intensity, both
in regard to the frequency and the manner of the use of
the power under Article 356. The Sarkaria Commission
has noticed that gravemen of the criticism is that, more
often than not, these provisions have been misused, to
promote the political interests of the party in power at the
Centre. Some examples have been noted of situations in
which the power of Article 356 was invoked improperly if
not illegally. It is noted that the constitutional framers
did not intend that this power should be exercised for the
purpose of securing good Government. It also notices
that this power cannot be invoked, merely on the ground
that there are serious allegations of corruption against
the Ministry.
Whether it is a case of existing Government losing
the majority support or of installation of new Government
after fresh elections, the act of the Governor in
recommending dissolution of Assembly should be only
with sole object of preservation of the Constitution and
not promotion of political interest of one or the other
party.
In the present context of fractured verdicts in
elections, the aforesaid discussion assumes great
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importance and relevance. The criteria suggested in
Sarkaria Commission Report for appointment of a person
as a Governor is :
(i) He should be eminent in some walk of life;
(ii) He should be a person from outside the State;
(iii) He should be a detached figure and not too
intimately connected with the local politics of the
State; and
(iv) He should be a person who has not taken too great a
part in politics generally and particularly in the
recent past.
It has not been seriously disputed by learned
counsel appearing for the parties that, unfortunately, the
criteria has been observed in almost total breach by all
political parties. It is seen that one day a person is in
active politics in as much as he holds the office of the
Chief Minister or Minister or a party post and almost on
the following day or, in any case, soon thereafter, the
same person is appointed as the Governor in another
State with hardly any cooling period. Ordinarily, it is
difficult to expect detachment from party politics from
such a person while performing the constitutional
functions as Governor.
On this issue, we would like to say no more and
leave this aspect to the wisdom of the political parties and
their leaders to discuss and debate and arrive at, if
possible, a national policy with some common minimum
parameters applicable and acceptable to all major
political parties.
Defections
At this stage, we may consider another side issue,
namely, defections being a great evil.
Undoubtedly, defection is a great evil. It was
contended for the Government that the unprincipled
defections induced by allurements of office, monetary
consideration, pressure, etc. were destroying the
democratic fabric. With a view to control this evil, Tenth
Schedule was added by the Constitution (Fifty-Second
Amendment) Act, 1985. Since the desired goal to check
defection by the legislative measure could not be
achieved, law was further strengthened by the
Constitution (Ninety-first Amendment) Act, 2003. The
contention is that the Governor's action was directed to
check this evil, so that a Government based on such
defections is not formed.
Reliance has been placed on the decision in the case
of Kihoto Hollohan v. Zachillhu & Ors. [1992 Supp.
(2) SCC 651] to bring home the point that defections
undermine the cherished values of democracy and Tenth
Schedule was added to the Constitution to combat this
evil. It is also correct that to further strengthen the law
in this direction, as the existing provisions of the Tenth
Schedule were not able to achieve the desired goal of
checking defection, by 91st Amendment, defection was
made more difficult by deleting provision which did not
treat mass shifting of loyalty by 1/3 as defection and by
making the defection, altogether impermissible and only
permitting merger of the parties in the manner provided
in the Tenth Schedule as amended by 91st Amendment.
In Kihoto's case, the challenge was to validity of
the Tenth Schedule, as it stood then. Argument was that
this law was destructive of the basic structure of the
Constitution as it is violative of the fundamental principle
of Parliamentary democracy, a basic feature of the Indian
Constitutionalism and is destructive of the freedom of
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speech, right to dissent and freedom of conscience as the
provisions seek to penalize and disqualify elected
representatives for the exercise of these rights and
freedoms which are essential to the sustenance of the
system of parliamentary democracy. It was also urged
that unprincipled political defections may be an evil, but
it will be the beginning of much greater evils if the
remedies, graver than the decease itself, are adopted. It
was said that the Tenth Schedule seeks to throw away
the baby with the bath water.
Dealing with aforesaid submissions, the Court noted
that, in fact, the real question was whether under the
Indian Constitutional Scheme, is there any immunity
from constitutional correctives against a legislatively
perceived political evil of unprincipled defections induced
by the lure of office and monetary inducements. It was
noted that the points raised in the petition are, indeed,
far reaching and of no small importance-invoking the
'sense of relevance and constitutionally stated principles
of unfamiliar settings'. On the one hand there was the
real and imminent threat to the very fabric of Indian
democracy posed by certain level of political behaviour
conspicuous by their utter and total disregard of well
recognised political proprieties and morality. These
trends tend to degrade the tone of political life and, in
their wider propensities, are dangerous to and undermine
the very survival of the cherished values of democracy.
There is the legislative determination through
experimental constitutional processes to combat that evil.
On the other hand, there may be certain side-effects and
fall-out which might affect and hurt even honest
dissenters and conscientious objectors. While dealing
with the argument that the constitutional remedy was
violative of basic features of the Constitution, it was
observed that the argument ignores the essential organic
and evolutionary character of a Constitution and its
flexibility as a living entity to provide for the demands
and compulsions of the changing times and needs. The
people of this country were not beguiled into believing
that the menace of unethical and unprincipled changes of
political affiliations is something which the law is helpless
against and is to be endured as a necessary concomitant
of freedom of conscience. The unethical political
defections was described as a 'canker' eating into the
vitals of those values that make democracy a living and
worthwhile faith.
It was contended that the Governor was only trying
to prevent members from crossing the floor as the
concept of the freedom of its members to vote as they
please independently of the political party's declared
policies will not only embarrass its public image and
popularity but would also undermine public confidence in
it which, in the ultimate analysis, is its source of
sustenance - nay, indeed, its very survival. The
contention is based on Para 144 of the judgment in
Kihoto's case which reads thus :
"But a political party functions on
the strength of shared beliefs. Its
own political stability and social
utility depends on such shared
beliefs and concerted action of its
Members in furtherance of those
commonly held principles. Any
freedom of its Members to vote as
they please independently of the
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political party's declared policies will
not only embarrass its public image
and popularity but also undermine
public confidence in it which, in the
ultimate analysis, is its source of
sustenance -- nay, indeed, its very
survival. Intra-party debates are of
course a different thing. But a public
image of disparate stands by
Members of the same political party
is not looked upon, in political
tradition, as a desirable state of
things. Griffith and Ryle on
"Parliament, Functions, Practice &
Procedure" (1989 Edn. page 119)
say:
"Loyalty to party is the
norm, being based on
shared beliefs. A divided
party is looked on with
suspicion by the
electorate. It is natural for
members to accept the
opinion of their Leaders
and Spokesmen on the
wide variety of matters on
which those Members
have no specialist
knowledge. Generally
Members will accept
majority decisions in the
party even when they
disagree. It is
understandable therefore
that a Member who
rejects the party whip
even on a single occasion
will attract attention and
more criticism than
sympathy. To abstain
from voting when required
by party to vote is to
suggest a degree of
unreliability. To vote
against party is disloyalty.
To join with others in
abstention or voting with
the other side smacks of
conspiracy."
Clause (b) of sub-para (1) of
Paragraph 2 of the Tenth Schedule
gives effect to this principle and
sentiment by imposing a
disqualification on a Member who
votes or abstains from voting
contrary to "any directions" issued
by the political party. The provision,
however, recognises two exceptions :
one when the Member obtains from
the political party prior permission
to vote or abstain from voting and
the other when the Member has
voted without obtaining such
permission but his action has been
condoned by the political party. This
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provision itself accommodates the
possibility that there may be
occasions when a Member may vote
or abstain from voting contrary to
the direction of the party to which
he belongs. This, in itself again, may
provide a clue to the proper
understanding and construction of
the expression "Any Direction" in
clause (b) of Paragraph 2(1) whether
really all directions or whips from
the party entail the statutory
consequences or whether having
regard to the extra-ordinary nature
and sweep of the power and the very
serious consequences that flow
including the extreme penalty of
disqualification the expression
should be given a meaning confining
its operation to the contexts
indicated by the objects and
purposes of the Tenth Schedule. We
shall deal with this aspect
separately."
Our attention was also drawn to the objects and
reasons for the 91st Constitutional Amendment. It states
that demands were made from time to time in certain
quarters for strengthening and amending the Anti-
defection law as contained in the Tenth Schedule to the
Constitution of India, on the ground that these provisions
had not been able to achieve the desired goals of checking
defections. The Tenth Schedule was also criticized on the
ground that it allowed bulk defections while declaring
individual defections as illegal. The provision for
exemption from disqualification in case of splits as
provided in paragraph 3 of the Tenth Schedule to the
Constitution of India had, in particular, come under
severe criticism on account of its destabilising effect on
the Government.
Reliance has also been placed to the exposition of
Lord Diplock in a decision of House of Lords in the case
of Council of Civil Service Unions v. Minister for the
Civil Service [1984 (3) All.ER 935] on the aspect of
irrationality to the effect that "it applies to a decision may
be so outrageous or in defiance of logic or of accepted
moral standards that no sensible person who had applied
his 'mind to the question to be decided, could have
arrived at it". It is contended that the Governor has
many sources information wherefrom led him to conclude
that the process that was going on in the State of Bihar
was destroying the very fabric of democracy and,
therefore, such approach cannot be described as
outrageous or in defiance of logic, particularly, when
proof in such cases is difficult if not impossible as bribery
takes place in the cover of darkness and deals are made
in secrecy. It is, thus, contended that Governor's view is
permissible and legitimate view.
Almost similar contention has been rejected in
Bommai's case.
The other decision of House of Lords in Puhlhofer
v. Hillingdon, London Borough Council [(1986) 1
All.ER 467 at 474] relied upon by the respondents, has
been considered by Justice Sawant in Bommai's case.
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The reliance was to the proposition that where the
existence or non-existence of a fact is left to the judgment
and discretion of a public body and that fact involves a
broad spectrum ranging from the 'obvious' to the
'debatable' to the 'just conceivable', it is the duty of the
Court to leave the decision of that fact to the public body
to whom Parliament has entrusted the decision-making
power save in a case where it is obvious that the public
body, consciously or unconsciously, are acting perversely.
But in the present case, the inference sought to be drawn
by the Governor without any relevant material, cannot
fall in the category of 'debatable' or 'just conceivable', it
would fall in the category of 'obviously perverse'. On
facts, the inescapable inference is that the sole object of
the Governor was to prevent the claim being made to
form the Government and the case would fall under the
category of 'bad faith'.
The question in the present case is not about MLAs
voting in violation of provisions of Tenth Schedule as
amended by the Constitution (91st Amendment), as we
would presently show.
Certainly, there can be no quarrel with the
principles laid in Kihoto's case about evil effects of
defections but the same have no relevance for
determination of point in issue. The stage of preventing
members to vote against declared policies of the political
party to which they belonged had not reached. If MLAs
vote in a manner so as to run the risk of getting
disqualified, it is for them to face the legal consequences.
That stage had not reached. In fact, the reports of the
Governor intended to forestall any voting and staking of
claim to form the Government.
Undisputedly, a Governor is charged with the duty
to preserve, protect and defend the Constitution and the
laws, has a concomitant duty and obligation to preserve
democracy and not to permit the 'canker' of political
defections to tear into the vitals of the Indian democracy.
But on facts of the present case, we are unable to accept
that the Governor by reports dated 27th April and 21st
May, 2005 sought to achieve the aforesaid objective.
There was no material, let alone relevant, with the
Governor to assume that there were no legitimate
realignment of political parties and there was blatant
distortion of democracy by induced defections through
unfair, illegal, unethical and unconstitutional means.
The report dated 27th April, 2005 refers to (1)
serious attempt to cobble a majority; (2) winning over
MLAs by various means; (3) targeting parties for a split;
(4) high pressure moves; (5) offering various allurements
like castes, posts, money etc.; and (6) Horse-trading.
Almost similar report was sent by the Governors of
Karnataka and Nagaland leading to the dissolution of the
Assembly of Karnataka and Nagaland, invalidated in
Bommai's case. Further, the contention that the Central
Government did not act upon the report dated 27th April,
2005 is of no relevance and cannot be considered in
isolation since the question is about the manner in which
the Governor moved, very swiftly and with undue haste,
finding that one political party may be close to getting
majority and the situation had reached where claim may
be staked to form the Government which led to the report
dated 21st May, 2005. It is in this context that the
Governor says that instead of installing a Government
based on a majority achieved by a distortion of the
system, it would be preferable that the people/electorate
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could be provided with one more opportunity to seek the
mandate of the people. This approach makes it evident
that the object was to prevent a particular political party
from staking a claim and not the professed object of
anxiety not to permit the distortion of the political
system, as sought to be urged. Such a course is nothing
but wholly illegal and irregular and has to be described
as mala fide. The recommendation for dissolution of the
Assembly to prevent the staking of claim to form the
Government purportedly on the ground that the majority
was achieved by distortion of system by allurement,
corruption and bribery was based on such general
assumptions without any material which are quite easy
to be made if any political party not gaining absolute
majority is to be kept out of governance. No assumption
without any basis whatever could be drawn that the
reason for a group to support the claim to form the
Government by Nitish Kumar, was only the aforesaid
distortions. That stage had not reached. It was not
allowed to be reached. If such majority had been
presented and the Governor forms a legitimate opinion
that the party staking claim would not be able to provide
stable Government to the State, that may be a different
situation. Under no circumstances, the action of
Governor can be held to be bona fide when it is intended
to prevent a political party to stake claim for formation of
the Government. After elections, every genuine attempt
is to be made which helps in installation of a popular
Government, whichever be the political party.
Interpretation of a Constitution and Importance of
Political Parties
For principles relevant for interpretation of a
Constitution, our attention was drawn to what Justice
Aharon Barak, President of Supreme Court of Israel says
in Harvard Law Review, Vol.116 (2002-2003) dealing
particularly with the aspect of purposive interpretation of
Constitution. Learned Judge has noticed as under :
"The task of expounding a constitution is
crucially different from that of construing
a statute. A statute defines present
rights and obligations. It is easily
enacted and as easily repealed. A
constitution, by contrast, is drafted with
an eye to the future. Its function is to
provide a continuing framework for the
legitimate exercise of governmental power
and, when joined by a Bill or Charter of
rights, for the unremitting protection of
individual rights and liberties. Once
enacted, its provisions cannot easily be
repealed or amended. It must, therefore,
be capable of growth and development
over time to meet new social, political
and historical realities often unimagined
by its framers. The judiciary is the
guardian of the constitution and must, in
interpreting its provisions, bear these
considerations in mind."
It is further said that the political question doctrine,
in particular, remits entire areas of public life to
Congress and the President, on the grounds that the
Constitution assigns responsibility for these areas to the
other branches, or that their resolution will involve
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discretionary, polycentric decisions that lack discrete
criteria for adjudication and thus are better handled by
the more democratic branches.
In fact, the scope of judicial review as enunciated in
Bommai's case is in tune with the principles sought to
be relied upon.
In support of the proposition that in Parliament
Democracy there is importance of political parties and
that interpretation of the constitutional provisions should
advance the said basic structure based on political
parties, our attention was drawn to write up Designing
Federalism \026 A Theory of Self-Sustainable Federal
Institution and what is said about political parties in a
Federal State which is as under:
"Political parties created democracy and
\005 modern democracy is unthinkable
save in terms of parties.
Schattschneider 1942 : I
Here is a factor in the organisation of
federal Government which is of primary
importance but which cannot be ensured
or provided for in a constitution \026 a good
party system
Wheare 1953: 86
Whatever the general social conditions, if
any, that sustain the federal bargain,
there is one institutional condition that
controls the nature of the bargain in all
instances\005 with which I am familiar.
This is the structure of the party system,
which may be regarded as the main
variable intervening between the
background social conditions and the
specific nature of the federal bargain.
Riker 1964 : 136
In a country which was always to be in
need of the cohesive force of institutions,
the national parties, for all their faults,
were to become at an early hour primary
and necessary parts of the machinery of
Government, essential vehicles to convey
men's loyalties to the state.
Hofstadter 1969: 70-I
It is contended that the political parties are the
main means not only whereby provincial grievances are
aired but also whereby centralised and decentralised
trends are legitimised. This contention is made in
connection with the alleged stand of two-third MLAs of
LJP against the professed stand of that political party.
We are afraid that on facts of present case, the
aforesaid concept and relevance of political parties is not
quite relevant for our purpose to decide why and how the
members of political parties had allegedly decided to
adopt the course which they did, to allegedly support the
claim for formation of the Government.
Morality
We may also deal with the aspect of morality sought
to be urged. The question of morality is of course very
serious and important matter. It has been engaging the
attention of many constitutional experts, legal
luminaries, jurists and political leaders. The concept of
morality has also been changing from time to time also
having regard to the ground realities and the compulsion
of the situation including the aspect and relevance of
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coalition governance as opposed to a single party
Government. Even in the economic field, the concept of
morality has been a matter of policy and priorities of the
Government. The Government may give incentive, which
ideally may be considered unethical and immoral, but in
so far as Government is concerned, it may become
necessary to give incentive to unearth black money.
{R.K. Garg & Ors. v. Union of India & Ors. [1981(4)
SCC 675, paras 18 and 31]}. It may be difficult to leave
such aspects to be determined by high constitutional
functionaries, on case to case basis, depending upon the
facts of the case, and personal mould of the
constitutional functionaries. With all these
imponderables, the constitution does not contemplate the
dissolution of Assemblies based on the assumption of
such immoralities for formation of the satisfaction that
situation has arisen in which the Government cannot be
of the Constitution of India.
Article 356 and Bommai's case
Article 356(1) of the Constitution is as follows :
"356.\027(1) Provisions in case of failure
of constitutional machinery in State.--
(1) If the President, on receipt of report
from the Governor of the State or
otherwise, is satisfied that a situation
has arisen in which the Government of
the State cannot be carried on in
accordance with the provisions of this
Constitution, the President may by
Proclamation\027
(a) assume to himself all or any of the
functions of the Government of the
State and all or any of the powers
vested in or exercisable by the
Governor or any body or authority in
the State other than the Legislature
of the State;
(b) declare that the powers of the
Legislature of the State shall be
exercisable by or under the
authority of Parliament;
(c) make such incidental and
consequential provisions as appear
to the President to be necessary or
desirable for giving effect to the
objects of the Proclamation,
including provisions for suspending
in whole or in part the operation of
any provisions of this Constitution
relating to any body or authority in
the State:
Provided that nothing in this clause
shall authorise the President to assume
to himself any of the powers vested in or
exercisable by a High Court, or to
suspend in whole or in part the operation
of any provision of this Constitution
relating to High Courts."
Power under Article 356(1) is an emergency power
but it is not an absolute power. Emergency means a
situation which is not normal, a situation which calls for
urgent remedial action. Article 356 confers a power to be
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exercised by the President in exceptional circumstances
to discharge the obligation cast upon him by Article 355.
It is a measure to protect and preserve the Constitution.
The Governor takes the oath, prescribed by Article 159 to
preserve, protect and defend the Constitution and the
laws to the best of his ability. Power under Article 356 is
conditional, condition being formation of satisfaction of
the President as contemplated by Article 356(1). The
satisfaction of the President is the satisfaction of Council
of Ministers. As provided in Article 74(1), the President
acts on the aid and advice of Council of Ministers. The
plain reading of Article 74(2) stating that the question
whether any, and if so what, advice was tendered by
Ministers to the President shall not be inquired into in
any Court, may seem to convey that the Court is
debarred from inquiring into such advice but Bommai
has held that Article 74(2) is not a bar against scrutiny of
the material on the basis of which the President has
issued the proclamation under Article 356. Justice
Sawant, in Para 86 states that :
"What is further, although Article 74(2)
bars judicial review so far as the advice
given by the Ministers is concerned, it
does not bar scrutiny of the material on
the basis of which the advice is given.
The Courts are not interested in either
the advice given by the Ministers to the
President or the reasons for such advice.
The Courts are, however, justified in
probing as to whether there was any
material on the basis of which the advice
was given, and whether it was relevant
for such advice and the President could
have acted on it. Hence when the Courts
undertake an enquiry into the existence
of such material, the prohibition
contained in Article 74(2) does not negate
their right to know about the factual
existence of any such material."
It was further said that the Parliament would be
entitled to go into the material on basis of what the
Council of Ministers tendered the advice and, therefore,
secrecy in respect of material cannot remain inviolable.
It was said that :
"When the Proclamation is challenged by
making out a prima facie case with
regard to its invalidity, the burden would
be on the Union Government to satisfy
that there exists material which showed
that the Government could not be carried
on in accordance with the provisions of
the Constitution. Since such material
would be exclusively within the
knowledge of the Union Government, in
view of the provisions of Section 106 of
the Evidence Act, the burden of proving
the existence of such material would be
on the Union Government."
On the similar lines, is the opinion of Jeevan Reddy,
J. :
"Clause (2) of Art. 74, understood in its
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proper perspective, is thus confined to a
limited aspect. It protects and preserves
the secrecy of the deliberations between
the President and his Council of
Ministers. In fact, CI. (2) is a
reproduction of sub-sec. (4) of S. 10 of
the Government of India Act, 1935. (The
Government of India Act did not contain
a provision corresponding to An. 74(1) as
it stood before or after the Amendments
aforementioned). The scope of CI. (2)
should not be extended beyond its
legitimate fields. In any event, it cannot
be read or understood as conferring an
immunity upon the council of ministers
or the Minister/ Ministry concerned to
explain, defend and justify the orders
and acts of the President done in exercise
of his functions. The limited provision
contained in Art. 74(2) cannot override
the basic provisions in the Constitution
relating to judicial review. If and when
any action taken by the President in
exercise of his functions is questioned in
a Court of Law, it is for the Council of
Ministers to justify the same, since the
action or order of the President is
presumed Jo have been taken in
accordance with Art. 74(1). As to which
Minister or which official of which
Ministry comes forward to defend the
order/ action is for them to decide and
for the Court to be satisfied about it.
Where, of course, the act/order
questioned is one pertaining to the
executive power of the Government of
India, the position is much simpler. It
does not represent the act/order of the
President done/taken in exercise of his
functions and hence there is no occasion
for any aid or advice by the Ministers to
him. It is the act/order of Government of
India, though expressed in the name of
the President. It is for the concerned
Minister or Ministry, to whom the
function is allocated under the Rules of
Business to defend and justify such
action/ order.
In our respectful opinion, the above
obligation cannot be evaded by seeking
refuge under Art. 74(2). The argument
that the advice tendered to the President
comprises material as well and,
therefore, calling upon the Union of India
to disclose the material would amount to
compelling the disclosure of the advice is,
if we can say so respectfully, to indulge
in sophistry. The material placed before
the President by the Minister/Council of
Ministers does not thereby become part
of advice. Advice is what is based upon
the said material. Material is not advice.
The material may be placed before the
President to acquaint him -- and if need
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be to satisfy him -- that the advice being
tendered to him is the proper one. But it
cannot mean that such material, by dint
of being placed before the President in
support of the advice, becomes advice
itself. One can understand if the advice is
tendered in writing; in such a case that
writing is the advice and is covered by
the protection provided by Art. 74(2). But
it is difficult to appreciate how does the
supporting material, becomes part of
advice. The respondents cannot .say that
whatever the President sees -- or
whatever is placed before the President
becomes prohibited material and cannot
be seen or summoned by the Court. Art.
74(2) must be interpreted and
understood in the context of entire
constitutional system. Undue emphasis
and expansion of its parameters would
engulf valuable constitutional
guarantees. For these reasons, we find if
difficult to agree with the reasoning in
State of Rajasthan on this score, insofar
as it runs contrary to our holding."
The scope of judicial review has been expanded by
Bommai and dissent has been expressed from the view
taken in State of Rajasthan's case.
The above approach shows objectivity even in
subjectivity. The constitutionalism or constitutional
system of Government abhors absolutism \026 it is premised
on the Rule of Law in which subjective satisfaction is
substituted by objectivity provided by the provisions of
the Constitution itself. This line is clear also from Maru
Ram v. Union of India & Ors. [(1981) 1 SCC 107]. It
would also be clear on in depth examination of Bommai
that declared the dissolution of three Assemblies illegal
but before we further revert to that decision, a brief
historical background including the apprehension of its
abuse expressed by our founding fathers may be noted.
Articles 355 and 356 of the Constitution set the
tenor for the precedence of the Union over the States. It
has been explained that the rationale for introducing
Article 355 was to distinctly demarcate the functioning of
the State and Union governments and to prevent any
form of unprincipled invasions by the Union into the
affairs of the State. It was felt that through the
unambiguous language of Articles 355 and 356, the
Union shall be constitutionally obliged to interfere only
under certain limited circumstances as laid down in the
provisions.
Referring to what is now Article 355, Dr. Ambedkar
had reasoned that "in view of the fact that we are
endowing the Provinces with plenary powers and making
them sovereign within their own fields it is necessary to
provide that if any invasion of the provincial field is done,
it is in virtue of this obligation." (T.K. Thope, Dr.
Ambedkar and Article 356 of the Constitution \026
[(1993) 4 SCC (Jour) 1]. Pursuant to this reasoning, Dr.
Ambedkar further explained that before resorting to
Article 356 "the first thing the President will do would be
to issue warning to a province that has erred, that things
were not happening in the way in which they were
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intended to happen in the Constitution. If the warning
fails the second thing for him to do will be to order an
election allowing the people of the province to settle
matters by themselves. It is only when those two
remedies fail that he would resort to this Article." Dr.
Ambedkar admitted that these articles were "liable to be
abused" and that he cannot "altogether deny that there is
a possibility of these articles being employed for political
purposes." But he reasoned that such an "objection
applies to every part of the Constitution which gives
power to the Centre to override the Provinces" and added
that the "proper thing we ought to expect is that such
articles will never be called into operation and they would
remain a dead letter." (Constituent Assembly Debates
(Volume IX, Revised Edition) at pp.175-177).
Scope of Judicial Review under Article 356 \026 State of
Rajasthan v. Union of India :
In State of Rajasthan's case, there was a broad
consensus among five of the seven Judges that the Court
can interfere if it is satisfied that the power has been
exercised mala fide or on "wholly extraneous or irrelevant
grounds". Some learned Judges have stated the rule in
narrow terms and some others in a little less narrow
terms but not a single learned Judge held that the
proclamation is immune from judicial scrutiny. It must
be remembered that at that time clause (5) was there
barring judicial review of the proclamation and yet they
said that Court can interfere on the ground of mala fides.
Surely, the deletion of clause (5) has not restricted the
scope of judicial review but has widened it.
Justice Reddy in Bommai's case has noticed, in so
far as it was relevant, the ratio underlying each of the six
opinions delivered by Seven Judge Bench in the case of
State of Rajasthan (supra) as under :
"Beg, C. J. The opinion of Beg, C. J.
contains several strands of thought. They
may be stated briefly thus:
(i) The language of Article 356 and the
practice since 1950 shows that the
Central Government can enforce its will
against the State Governments with
respect to the question how the State
Governments should function and who
should hold reins of power.
(ii) By virtue of Article 365(5) and Article
74(2), it is impossible for the Court to
question the satisfaction of the President.
It has to decide the case on the basis of
only those facts as may have been
admitted by or placed by the President
before the Court.
(iii) The language of Article 356(1) is very
wide. It is desirable that conventions are
developed channelising the exercise of
this power. The Court can interfere only
when the power is used in a grossly
perverse and unreasonable manner so as
to constitute patent misuse of the
provisions or to an abuse of power. The
same idea is expressed at another place
saying that if "a constitutionally or legally
prohibited or extraneous or collateral
purpose is sought to be achieved" by the
proclamation, it would be liable to be
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struck down. The question whether the
majority party in the Legislative Assembly
of a State has become totally estranged
from the electorate is not a matter for the
Court to determine.
(iv) The assessment of the Central
Government that a fresh chance should
be given to the electorate in certain States
as well as the question when to dissolve
the Legislative Assemblies are not matters
alien to Article 356. It cannot be said that
the reasons assigned by the Central
Government for the steps taken by them
are not relevant to the purposes
underlying Article 356.
We may say at once that we are in
respectful disagreement with propositions
(i), (ii) and (iv) altogether. So far as
proposition (iii) is concerned, it is not far
off the mark and in substance accords
with our view, as we shall presently show.
Y. V. Chandrachud, J. On the scope of
judicial review, the learned Judge held
that where the reasons disclosed by the
Union of India are wholly extraneous, the
Court can interfere on the ground of mala
fides. Judicial scrutiny, said the learned
Judge, is available "for the limited
purpose of seeing whether the reasons
bear any rational nexus with the action
proposed". The Court cannot sit in
judgment over the satisfaction of the
President for determining whether any
other view of the situation is reasonably
possible, opined the learned Judge.
Turning to the facts of the case before
him, the learned Judge observed that the
grounds assigned by the Central
Government in its counter-affidavit cannot
be said to be irrelevant to Article 356. The
Court cannot go deeper into the matter
nor shall the Court enquire whether there
were any other reasons besides those
disclosed in the counter-affidavit.
P. N. Bhagwati and A. C. Gupta, JJ. The
learned Judges enunciated the following
propositions in their opinion:
The action under Article 356 has to be
taken on the subjective satisfaction of the
President. The satisfaction is not
objective. There are no judicially
discoverable and manageable standards
by which the Court can examine the
correctness of the satisfaction of the
President. The satisfaction to be arrived at
is largely political in nature, based on an
assessment of various and varied facts
and factors besides several imponderables
and fast changing situations. The Court is
not a fit body to enquire into or determine
the correctness of the said satisfaction or
assessment, as it may be called. However,
if the power is exercised mala fide or is
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based upon wholly extraneous or
irrelevant grounds, the Court would have
jurisdiction to examine it. Even clause (5)
is not a bar when the contention is that
there was no satisfaction at all.
The scope of judicial review of the action
under Article 356, -- the learned Judges
held -- is confined to a "narrow minimal
area: May be that in most cases, it would
be difficult, if not impossible, to challenge
the exercise of power under Article 356(1)
on the aforesaid limited ground, because
the facts and circumstances on which the
satisfaction is based, would not be
known. However, where it is possible, the
existence of satisfaction can always be
challenged on the ground that it is mala
fide or based on wholly extraneous and
irrelevant grounds."
We may say with great respect that we
find it difficult to agree with the above
formulations in toto. We agree only with
the statements regarding the permissible
grounds of interference by Court and the
effect of clause (5), as it then obtained.
We also agree broadly with the first
proposition, though not in the absolute
terms indicated therein.
Goswami and Untwalia, JJ. The separate
opinions of Goswami and Untwalia, JJ.
emphasise one single fact, namely, that
inasmuch as the facts stated in the
counter-affidavit filed by the Home
Minister cannot be said to be "mala fide,
extraneous or irrelevant", the action
impugned cannot be assailed in the
Court.
Fazal Ali, J. The learned Judge held that:
(i) the action under Article 356 is immune
from judicial scrutiny unless the action is
"guided by extraneous consideration" or
"personal considerations".
(ii) the inference drawn by the Central
Government following the 1977 elections
to the Lok Sabha cannot be said to be
unreasonable. It cannot be said that the
inference drawn had no nexus with Article
356."
Bommai's case
The Nine Judge Bench considered the validity of
dissolution of Legislative Assembly of States of
Karnataka, Meghalaya, Nagaland, Madhya Pradesh,
Himachal Pradesh and Rajasthan. Out of six States, the
majority held as unconstitutional the dissolution of
Assemblies of Karnataka, Nagaland and Meghalaya as
well. Six opinions have been expressed. There is
unanimity on some issues, likewise there is diversity
amongst several opinions on various issues.
Karnataka Facts
In the case of Karnataka, the facts were that the
Janta Party being the majority party in the State
Legislature had formed the Government under the
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leadership of Shri S.R. Bommai on August 30, 1988
following the resignation on August 1, 1988 of the earlier
Chief Minister Shri Hegde who headed the ministry from
March 1985 till his resignation. On 17th April, 1989 one
legislator presented a letter to the Governor withdrawing
his support to the Ministry. On the next day he
presented to the Governor 19 letters allegedly written by
17 Janta Dal legislators, one independent but associate
legislator and one legislator belonging to the BJP which
was supporting the ministry, withdrawing their support
to the ministry. On receipt of these letters, the Governor
is said to have called the Secretary of the Legislature
Department and got the authenticity of the signatures on
the said letters verified. On April 19, 1989, the Governor
sent a report to the President stating therein that there
were dissensions in the Janta Party which had led to the
resignation of Shri Hegde and even after the formation of
the new party viz. Janta Dal, there were dissensions and
defections. In support, the Governor referred to the 19
letters received by him. He further stated that in view of
the withdrawal of the support by the said legislators, the
Chief Minister Shri Bommai did not command a majority
in the Assembly and hence it was inappropriate under
the Constitution, to have the State administered by an
Executive consisting of Council of Ministers which did not
command the majority in the House. He also added that
no other political party was in a position to form the
Government. He, therefore, recommended to the
President that he should exercise power under Article
356(1). The Governor did not ascertain the view of Shri
Bommai either after the receipt of the 19 letters or before
making his report to the President. On the next day i.e.
April 20, 1989, 7 out of the 19 legislators who had
allegedly sent the letters to the Governor complained that
their signatures were obtained on the earlier letters by
misrepresentation and affirmed their support to the
Ministry. The State Cabinet met on the same day and
decided to convene the Session of the Assembly within a
week i.e. on April 27, 1989. The Chief Minister and his
Law Minister met the Governor on the same day and
informed him about the decision to summon the
Assembly Session. The Chief Minister offered to prove his
majority on the floor of the House, even by pre-poning
the Assembly Session, if needed. To the same effect, the
Governor however sent yet another report to the
President on the same day i.e. April 20, 1989, in
particular, referring to the letters of seven Members
pledging their support to the Ministry and withdrawing
their earlier letters. He however opined in the report that
the letters from the 7 legislators were obtained by the
Chief Minister by pressurising them and added that
horse-trading was going on and atmosphere was getting
vitiated. In the end, he reiterated his opinion that the
Chief Minister had lost the confidence of the majority in
the House and repeated his earlier request for action
under Article 356(1) of the Constitution. On that very
day, the President issued the Proclamation in dissolving
the House. The Proclamation was thereafter approved by
the Parliament as required by Article 356(3).
A writ petition filed in the High Court challenging
the validity of dissolution was dismissed by a three Judge
Bench inter alia holding that the facts stated in the
Governors report cannot be held to be irrelevant and that
the Governor's satisfaction that no other party was in a
position to form the Government had to be accepted since
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his personal bona fides were not questioned and his
satisfaction was based upon reasonable assessment of all
the relevant facts. The High Court relied upon the test
laid down in the State of Rajasthan case and held that
on the basis of materials disclosed, the satisfaction
arrived at by the President could not be faulted.
Nagaland Facts
In the case of Nagaland, the Presidential
Proclamation dated August 7, 1988 was issued under
Article 356(1) imposing President's rule. At the relevant
time in the Nagaland Assembly there were 60 legislators,
34 belonging to Congress (I), 18 to Naga National
Democratic Party and 1 to Naga Peoples' Party and seven
were independent legislators. On July 28, 1988, 13 out
of the 34 MLAs of the ruling Congress (I) party informed
the Speaker of the Assembly that they have formed a
separate party and requested him for allotment of
separate seats for them in the House. The Session was to
commence on August 28, 1988. By decision dated July
30, 1988 the Speaker held that there was a split in the
party within the meaning of the Tenth Schedule of the
Constitution. On July 31, 1988, Shri Vamuzo, one of the
13 defecting MLAs who had formed a separate party,
informed the Governor that he commanded the support of
35 out of the then 59 Members in the Assembly and was
in a position to form the Government. On August 3,
1988, the Chief Secretary of the State wrote to Shri
Vamuzo that according to his information, Shri Vamuzo
had wrongfully confined the MLAs who had formed the
new party. The allegations were denied by Shri Vamuzo
and he asked the Chief Secretary to verify the truth from
the Members themselves. On verification, the Members
told the Chief Secretary that none of them was confined
as alleged. On August 6, 1988 the Governor sent a report
to the President of India about the formation of a new
party by the 13 MLAs. He also stated that the said MLAs
were allured by money. He further stated that the said
MLAs were kept in forcible confinement by Mr. Vamuzo
and one other person, and that the story of split in the
ruling party was not true. He added that the Speaker
was hasty in according recognition to the new group of
the 13 members and commented that horse-trading was
going on in the State. He made a special reference to the
insurgency in Nagaland and also stated that some of the
Members of the Assembly were having contacts with the
insurgents. He expressed the apprehension that if the
affairs were allowed to continue as they were, it would
affect the stability of the State. In the meantime the
Chief Minister submitted his resignation to the Governor
and recommended the imposition of the President's rule.
The President thereafter issued the impugned
Proclamation and dismissed the Government and
dissolved the Assembly. Shri Vamuzo, the leader of the
new group challenged the validity of the Proclamation in
the Gauhati High Court. The Petition was heard by a
Division Bench. The Bench differed on the effective
operation of Article 74(2) and hence the matter was
referred to the third Judge. But before the third learned
Judge could hear the matter, the Union of India moved
this Court for grant of Special Leave which was granted
and the proceedings in the High Court were stayed.
Dealing with the implications of Article 74(2) of the
Constitution Justice Sawant speaking for himself and
Justice Kuldip Singh came to the conclusion that
although the advice given by the Council of Ministers is
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free from the gaze of the Court, the material on the basis
of which the advice is given cannot be kept away from it
and is open to judicial scrutiny. On the facts, Justice
Sawant expressed the view that the Governor should
have allowed Shri Vamuzo to test his strength on the
floor of the House notwithstanding the fact that the
Governor in his report has stated that during the
preceding 25 years, no less than 11 Governments had
been formed and according to his information, the
Congress (I) MLAs were allured by the monetary benefits
and that amounted to incredible lack of political morality
and complete disregard of the wishes of the electorate.
Meghalaya
Insofar as the Proclamation in respect of the
Meghalaya is concerned, that was also held to be invalid.
The ground on which dissolution was invalidated was the
constitutional functionary had failed to realize the
binding legal consequences of the orders of this Court
and the constitutional obligation to give effect to the said
order.
Facts of Madhya Pradesh, Rajasthan and Himachal
Pradesh
Insofar as the cases of States of Madhya Pradesh,
Rajasthan and Himachal Pradesh are concerned the
dismissal of the Governments was a consequence of
violent reactions in India and abroad as well as in the
neighbouring countries where some temples were
destroyed, as a result of demolition of Babri Masjid
structure on 6th December, 1992. The Union of India is
said to have tried to cope up the situation by taking
several steps including banning of some organizations
which had along with BJP given a call for Kar sevaks to
march towards Ayodhya on December 6, 1992. The
Proclamation in respect of these States was issued on
January 15, 1993. The Proclamations dissolving the
assemblies were issued on arriving at satisfaction as
contemplated by Article 356(1) on the basis of Governor's
report. It was held that the Governor's reports are based
on relevant materials and are made bona fide and after
due verification.
The Conclusion Nos. I, II, IV, VI, VII, IX and X in the
opinion of Justice Sawant are as under:
"I. The validity of the Proclamation issued
by the President under Article 356(1) is
judicially reviewable to the extent of
examining whether it was issued on the
basis of any material at all or whether the
material was relevant or whether the
Proclamation was issued in the mala fide
exercise of the power. When a prima facie
case is made out in the challenge to the
Proclamation, the burden is on the Union
Government to prove that the relevant
material did in fact exist. Such material
may be cither the report of the Governor
or other than the report.
II. Article 74(2) is not a bar against the
scrutiny of the material on the basis of
which the President had arrived at his
satisfaction.
IV. Since the provisions contained in cl.
(3) of Article 356 are intended to be a,
check on the powers of the President
under clause (1) thereof, it will not be
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permissible for the President to exercise
powers under sub-clauses (a), (b) and (c)
of the latter clause, to take irreversible
actions till at least both the Houses of
Parliament have approved of the
Proclamation. It is for this reason that the
President will not be justified in dissolving
the Legislative Assembly by using the
powers of the Governor under Article
174(2)(b) read with Article 356(1)(a) till at
least both the Houses of Parliament
approve of the Proclamation.
VI. In appropriate cases, the Court will
have power by an interim injunction, to
restrain the holding of fresh elections to
the Legislative Assembly pending the final
disposal of the challenge to the validity of
the Proclamation to avoid the fait
accompli and the remedy of judicial
review being rendered fruitless. However,
the Court will not interdict the issuance
of the Proclamation or the exercise of any
other power under the Proclamation.
VII. While restoring the status quo ante,
it will be open for the Court to mould the
relief suitably and declare as valid
actions taken by the President till that
date. It will also be open for the
Parliament and the Legislature of the
State to validate the said actions of the
President.
IX. The Proclamations dated April 21,
1989 and October 11, 1991 and the
action taken by the President in removing
the respective Ministries and the
Legislative Assemblies of the State of
Karnataka and the State of Meghalaya
challenged in Civil Appeal No. 3645 of
1989 and Transfer Case Nos. 5 and 7 of
1992 respectively are unconstitutional.
The Proclamation dated August 7, 1988
in respect of State of Nagaland is also
held unconstitutional. However, in view of
the fact that fresh elections have since
taken place and the new Legislative
Assemblies and Ministries have been
constituted in all the three States, no
relief is granted consequent upon the
above declarations. However, it is
declared that all actions which might
have been taken during the period the
Proclamation operated, are valid. The
Civil Appeal No. 3645 of 1989 and
Transfer case Nos. 5 and 7 of 1992 are
allowed accordingly with no order as to
costs. Civil Appeal Nos. 193-194 of 1989
are disposed of by allowing the writ
petitions filed in the Gauhati High Court
accordingly but without costs.
X. The Proclamations dated 15th
December, 1992 and the actions taken by
the President removing the Ministries and
dissolving the Legislative Assemblies in
the States of Madhya Pradesh, Rajasthan
and Himachal Pradesh pursuant to the
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said proclamations are not
unconstitutional. Civil Appeals Nos. 1692,
1692A-1692C, 4627-30 of 1993 are
accordingly allowed and Transfer case
Nos. 8 and 9 of 1993 are dismissed with
no order as to costs."
Justice Jeevan Reddy has expressed opinion for
himself and Justice Agrawal. The conclusions Nos. 2, 3,
7, 8 and 12 in paragraph 434 are relevant for our purpose
and the same read as under:
"(2) The power conferred by Art. 356 upon
the President is a conditioned power. It is
not an absolute power. The existence of
material -- which may comprise of or
include the report(s) of the Governor -- is
a pre-condition. The satisfaction must be
formed on relevant material. The
recommendations of the Sarkaria
Commission with respect to the exercise of
power under Art. 356 do merit serious
consideration at the hands of all
concerned.
(3) Though the power of dissolving of the
Legislative Assembly can be said to be
implicit in clause (1) of Art. 356, it must
be held, having regard to the overall
constitutional scheme that the President
shall exercise it only after the
proclamation is approved by both Houses
of Parliament under clause (3) and not
before. Until such approval, the President
can only suspend the Legislative Assembly
by suspending the provisions of
Constitution relating to the Legislative
Assembly under sub-clause (c) of clause
(1). The dissolution of Legislative
Assembly is not a matter of course. It
should be resorted to only where it is
found necessary for achieving the
purposes of the proclamation.
(7) The proclamation under Article 356(I)
is not immune from judicial review. The
Supreme Court or the High Court can
strike down the proclamation if it is found
to be mala fide or based on wholly
irrelevant or extraneous grounds. The
deletion of clause (5) (which was
introduced by 38th (Amendment) Act) by
the 44th (Amendment) Act, removes the
cloud on the reviewability of the action.
When called upon, the Union of India has
to produce the material on the basis of
which action was taken. It cannot refuse
to do so. if it seeks to defend the action.
The court will not go into the correctness
of the material or its adequacy. Its enquiry
is limited to see whether the material was
relevant to the action. Even if part of the
material is irrelevant, the court cannot
interfere so long as, there is some material
which is relevant to the action taken.
(8) If the court strikes down the
proclamation, it has the power to restore
the dismissed Government to office and
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revive and reactivate the Legislative
Assembly wherever it may have been
dissolved or kept under suspension. In
such a case, the court has the power to
declare that acts done, orders passed and
laws made during the period the
proclamation was in force shall remain
unaffected and be treated as valid. Such
declaration, however, shall not preclude
the Government/ Legislative Assembly or
other competent authority to review,
repeal or modify such act orders and laws.
(12) The proclamations dated January 15,
1993 in respect of Madhya Pradesh,
Rajasthan and Himachal Pradesh
concerned in Civil Appeals Nos. 1692,
I692A-I692C of 1993, 4627-4630 of 1990,
Transferred Case (C) No. 9 of 1993 and
Transferred Case No. 8 of 1993
respectively are not unconstitutional. The
Civil Appeals are allowed and the
judgment of the High Court of Madhya
Pradesh in M.P.(C) No. 237 of 1993 is set
aside. The Transferred Cases are
dismissed."
Justice Jeevan Reddy has also expressed agreement
with the conclusions I, II and IV to VII in the Judgment of
Justice Sawant delivered on behalf of himself and Justice
Kuldip Singh.
Justice Pandian has expressed agreement with the
opinion of Justice P.B. Sawant on his conclusions I, II
and IV to VIII but so far as the reasoning and other
conclusions are concerned, the learned Judge has agreed
with the Judgment of Justice Reddy.
For determining the scope of judicial review in terms
of law enunciated by Bommai, it is vital to keep in view
that majority opinion in that case declared as illegal the
dissolution of assemblies of Karnataka and Nagaland. At
an appropriate place later, we will note the reason that
led to this declaration.
Some observations made in the minority opinion of
Justice K. Ramaswamy are also very significant. Learned
Judge has said that the motivating factor for action under
Article 356(1) should never be for political gain to the
party in power at the Centre, rather it must be only when
it is satisfied that the constitutional machinery has failed.
It has been further observed that the frequent elections
would belie the people's belief and faith in parliamentary
form of Government, apart from enormous election
expenditure to the State and the candidates. The Court, if
upon the material placed before it, finds that satisfaction
reached by the President is unconstitutional, highly
irrational or without any nexus, then the Court would
consider the contents of the Proclamation or reasons
disclosed therein and in extreme cases the material
produced pursuant to discovery order nisi to find the
action is wholly irrelevant or bears no nexus between
purpose of the action and the satisfaction reached by the
President or does not bear any rationale to the proximate
purpose of the Proclamation. In that event, the Court
may declare that the satisfaction reached by the
President was either on wholly irrelevant grounds or
colourable exercise of power and consequently,
Proclamation issued under Article 356 would be declared
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unconstitutional.
It is apparent that Justice Ahmadi and Justice
Ramaswamy though in minority, yet learned Judges have
frowned upon the highly irrational action.
Now, let us see the opinion of Justice Sawant, who
spoke for himself and Justice Kuldip Singh and with
whom Justice Pandian, Justice Jeevan Reddy and
Justice Agrawal agreed, to reach the conclusion as to the
invalidity of Proclamation dissolving assemblies of
Karnataka and Nagaland.
Learned Judge has opined that the President's
satisfaction has to be based on objective material. That
material may be available in the report sent to the
President by the Governor or otherwise or both from the
report and other sources. Further opines Justice Sawant
that the objective material, so available must indicate
that the Government of State cannot be carried on in
accordance with the provisions of the Constitution. The
existence of the objective material showing that the
Government of the State cannot be carried on in
accordance with the provisions of the Constitution is a
condition precedent before the issue of the Proclamation.
Reference has been made to a decision of the
Supreme Court of Pakistan on the same subject,
although the language of the provisions of the relevant
Articles of Pakistan Constitution is not couched in the
same terms. In Muhammad Sharif v. Federation of
Pakistan, PLD 1988 (LAH) 725, the question was
whether the order of the President dissolving the National
Assembly on 29th May, 1988 was in accordance with the
powers conferred on him under Article 58(2)(b) of the
Pakistan Constitution. It was held in that case that it is
not quite right to contend that since it was the discretion
of the President, on the basis of his opinion, the
President could dissolve the National Assembly but he
has to have the reasons which are justifiable in the eyes
of the people and supportable by law in a court of justice.
He could not rely upon the reasons which have no nexus
to the action, are bald, vague, general or such as can
always be given and have been given with disastrous
effects (Emphasis supplied by us). It would be
instructive to note as to what was stated by the learned
Chief Justice and Justice R.S. Sidhwa, as reproduced in
the opinion of Justice Sawant:
"Whether it is 'subjective' or 'objective'
satisfaction of the President or it is his
'discretion' or 'opinion', this much is
quite clear that the President cannot
exercise his powers under the
Constitution on wish or whim. He has to
have facts, circumstances which can lead
a person of his status to form an
intelligent opinion requiring exercise of
discretion of such a grave nature that the
representative of the people who are
primarily entrusted with the duty of
running the affairs of the State are
removed with a stroke of the pen. His
action must appear to be called for and
justifiable under the Constitution if
challenged in a Court of Law. No doubt,
the Courts will be chary to interfere in
his 'discretion' or formation of the
'opinion' about the 'situation' but if there
be no basis or justification for the order
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under the Constitution, the Courts will
have to perform their duty cast on them
under the Constitution. While doing so,
they will not be entering in the political
arena for which appeal to electorate is
provided for."
Dealing with the second argument, the
learned Chief Justice held:
"If the argument be correct then the
provision 'Notwithstanding anything
contained in clause (2) of Article 48'
would be rendered redundant as if it was
no part of the Constitution. It is obvious
and patent that no letter or part of a
provision of the Constitution can be said
to be redundant or non-existent under
any principle of construction of
Constitutions. The argument may be
correct in exercise of other discretionary
powers but it cannot be employed with
reference to the dissolution of National
Assembly. Blanket coverage of validity
and unquestionability of discretion under
Article 48(2) was given up when it was
provided under Article 58(2) that
'Notwithstanding clause (2) of Article 48
\005 the discretion can be exercised in the
given circumstances. Specific provision
will govern the situation. This will also
avoid expressly stated; otherwise it is
presumed to be there in Courts of
record\005.Therefore, it is not quite right to
contend that since it was in his
'discretion', on the basis of his 'opinion'
the President could dissolve the National
Assembly. He has to have reasons which
are justifiable in the eyes of the people
and supportable by law in a Court of
Justice..... It is understandable that if
the President has any justifiable reason
to exercise his 'discretion' in his 'opinion'
but does not wish to disclose, he may say
so and may be believed or if called upon
to explain the reason he may take the
Court in confidence without disclosing
the reason in public, may be for reason of
security of State. After all patriotism is
not confined to the office holder for the
time being. He cannot simply say like
Caesar it is my will, opinion or discretion.
Nor give reasons which have no nexus to
the action, are bald, vague, general or
such as can always be given and have
been given with disastrous effects......".
Dealing with the same arguments, R.S.
Sidhwa, J. stated as follows :
".....I have no doubt that both the
Governments are not compelled to
disclose all the reasons they may have
when dissolving the Assemblies under
Arts. 58(2)(b) and 112(2) (b). If they do
not choose to disclose all the material,
but only some, it is their pigeon, for the
case will be decided on a judicial scrutiny
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of the limited material placed before the
Court and if it happens to be totally
irrelevant or extraneous, they must
suffer."
It is well settled that if the satisfaction is mala fide or
is based on wholly extraneous or irrelevant grounds, the
court would have the jurisdiction to examine it because
in that case there would be no satisfaction of the
President in regard to the matter on which he is required
to be satisfied. On consideration of these observations
made in the case of State of Rajasthan as also the other
decisions {Kehar Singh & Anr. v. Union of India &
Anr. [(1989) 1 SCC 204] and Maru Ram v. Union of
India [(1981) 1 SCC 107]}, Justice Sawant concluded
that the exercise of power to issue proclamation under
Article 356(1) is subject to judicial review at least to the
extent of examining whether the conditions precedent to
the issue of Proclamation have been satisfied or not. This
examination will necessarily involve the scrutiny as to
whether there existed material for the satisfaction of the
President that the situation had arisen in which the
Government of the State could not be carried on in
accordance with the provisions of the Constitution.
While considering the question of material, it was held
that it is not the personal whim, wish, view or opinion or
the ipse dixit of the President de hors the material but a
legitimate inference drawn from the material placed
before him which is relevant for the purpose. In other
words, the President has to be convinced of or has to
have sufficient proof of information with regard to or has
to be free from doubt or uncertainty about the state of
things indicating that the situation in question has
arisen. (Emphasis supplied by us). Although, therefore,
the sufficiency or otherwise of the material cannot be
questioned, the legitimacy of inference drawn from
material is certainly open to judicial review.
It has been further held that when the Proclamation
is challenged by making a prima facie case with regard to
its invalidity, the burden would be on the Union
Government to satisfy that there exists material which
showed that the Government could not be carried on in
accordance with the provisions of the Constitution. Since
such material would be exclusively within the knowledge
of the Union Government in view of the provisions of
Section 106 of the Evidence Act, the burden of proof
would be on the Union Government.
Thus having reached the aforesaid conclusions as to
the parameters of the judicial review that the satisfaction
cannot be based on the personal whim, wish, view,
opinion or ipse dixit de hors the legitimate inference
from the relevant material and that the legitimacy of the
inference drawn was open to judicial review, the report
on basis whereof Proclamation dissolving the Assembly of
Karnataka had been issued was subjected to a close
scrutiny, as is evident from paragraphs 118, 119 and 120
of the opinion of Justice Sawant which read as under:
"118. In view of the conclusions that we
have reached with regard to the
parameters of the judicial review, it is
clear that the High Court had committed
an error in ignoring the most relevant
fact that in view of the conflicting letters
of the seven legislators, it was improper
on the part of the Governor to have
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arrogated to himself the task of holding,
firstly, that the earlier nineteen letters
were genuine and were written by the
said legislators of their free will and
volition. He had not even cared to
interview the said legislators, but had
merely got the authenticity of the
signatures verified through the
Legislature Secretariat. Secondly, he also
took upon himself the task of deciding
that the seven out of the nineteen
legislators had written the subsequent
letters on account of the pressure from
the Chief Minister and not out of their
free will. Again he had not cared even to
interview the said legislators. Thirdly, it
is not known from where the Governor
got the information that there was horse-
trading going on between the legislators.
Even assuming that it was so, the correct
and the proper course for him to adopt
was to await the test on the floor of the
House which test the Chief Minister had
willingly undertaken to go through on
any day that the Governor chose. In fact,
the State Cabinet had itself taken an
initiative to convene the meeting of the
Assembly on April 27, 1989, i.e., only a
week ahead of the date on which the
Governor chose to send his report to the
President. Lastly, what is important to
note in connection with this episode is
that the Governor at no time asked the
Chief Minister even to produce the
legislators before him who were
supporting the Chief Minister, if the
Governor thought that the situation
posed such grave threat to the
governance of the State that he could not
await the result of the floor-test in the
House. We are of the view that this is a
case where all canons of propriety were
thrown to wind and the undue haste
made by the Governor in inviting the
President to issue the Proclamation
under Article 356(1) clearly smacked of
mala fides. The Proclamation issued by
the President on the basis of the said
report of the Governor and in the
circumstances so obtaining, therefore,
equally suffered from mala fides. A duly
constituted Ministry was dismissed on
the basis of material which was neither
tested nor allowed to be tested and was
no more than the ipse dixit of the
Governor. The action of the Governor was
more objectionable since as a high
constitutional functionary, he was
expected to conduct himself more firmly,
cautiously and circumspectly. Instead, it
appears that the Governor was in a hurry
to dismiss the Ministry and dissolve the
Assembly. The Proclamation having been
based on the said report and so-called
other information which is not disclosed
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was, therefore, liable to be struck down.
(Emphasis supplied by us)
119. In this connection, it is necessary
to stress that in all cases where the
support to the Ministry is claimed to
have been withdrawn by some
Legislators, the proper course for testing
the strength of the Ministry is holding the
test on the floor of the House. That alone
is the constitutionally ordained forum for
seeking openly and objectively the claims
and counter-claims in that behalf. The
assessment of the strength of the
Ministry is not a matter of private
opinion of any individual, be he the
Governor or the President. It is capable of
being demonstrated and ascertained
publicly in the House. Hence when such
demonstration is possible, it is not open
to bypass it and instead depend upon the
subjective satisfaction of the Governor or
the President. Such private assessment
is an anathema to the democratic
principle, apart from being open to
serious objections of personal mala fides.
It is possible that on some rare
occasions, the floor-test may be
impossible, although it is difficult to
envisage such situation. Even assuming
that there arises one, it should be
obligatory on the Governor in such
circumstances, to state in writing, the
reasons for not holding the floor-test. The
High Court was, therefore, wrong in
holding that the floor test was neither
compulsory nor obligatory or that it was
not a pre-requisite to sending the report
to the President recommending action
under Article 356(1). Since we have
already referred to the recommendations
of the Sarkaria Commission in this
connection, it is not necessary to repeat
them here.
(Emphasis supplied by us)
120. The High Court was further wrong
in taking the view that the facts stated in
the Governor's report were not irrelevant
when the Governor without ascertaining
either from the Chief Minister or from the
seven MLAs whether their retraction was
genuine or not, proceeded to give his
unverified opinion in the matter. What
was further forgotten by the High Court
was that assuming that the support was
withdrawn to the Ministry by the 19
MLAs, it was incumbent upon the
Governor to ascertain whether any other
Ministry could be formed. The question of
personal bona fides of the Governor is
irrelevant in such matters. What is to be
ascertained is whether the Governor had
proceeded legally and explored all
possibilities of ensuring a constitutional
Government in the State before reporting
that the constitutional machinery had
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broken down. Even if this meant
installing the Government belonging to a
minority party, the Governor was duty
bound to opt for it so long as the
Government could enjoy the confidence
of the House. That is also the
recommendation of the Five-member
Committee of the Governors appointed by
the President pursuant to the decision
taken at the Conference of Governors
held in New Delhi in November 1970, and
of the Sarkaria Commission quoted
above. It is also obvious that beyond the
report of the Governor, there was no
other material before the President before
he issued the Proclamation. Since the
"facts" stated by the Governor in his
report, as pointed out above contained
his own opinion based on unascertained
material, in the circumstances, they
could hardly be said to form an objective
material on which the President could
have acted. The Proclamation issued was,
therefore, invalid."
(Emphasis supplied by us)
The view of the High Court that the facts stated in
the Governor's report had to be accepted was not upheld
despite the fact that the Governor had got the
authenticity of the signatures of 19 MLAs on letters
verified from the Legislature Secretariat, on the ground
that he had not cared to interview the legislators and that
there were conflicting letters from the seven legislators.
The conclusion drawn by the Governor that those seven
legislators had written the subsequent letters on account
of the pressure from the Chief Minister and not out of
their own free will was frowned upon, particularly when
they had not been interviewed by the Governor. It was
further observed that it is not known from where the
Governor got the information about the horse-trading
going on between the legislators. Further conclusion
reached was that the Governor had thrown all cannons of
propriety to the winds and showed undue haste in
inviting the President to issue Proclamation under Article
356(1) which clearly smacked of mala fides. It was
noticed that the facts stated by the Governor in his report
were his own opinion based on unascertained material
and in the circumstances they could hardly be said to
form the objective material on which the President could
have acted.
When the facts of the present case are examined in
light of the scope of the judicial review as is clear from
the aforesaid which represents ratio decidendi of majority
opinion of Bommai's case, it becomes evident that the
challenge to the impugned Proclamation must succeed.
The case in hand is squarely covered against the
Government by the dicta laid down in Bommai's case.
There cannot be any presumption of allurement or horse-
trading only for the reason that some MLAs, expressed
the view which was opposed to the public posture of their
leader and decided to support the formation of the
Government by the leader of another political party. The
minority Governments are not unknown. It is also not
unknown that the Governor, in a given circumstance,
may not accept the claim to form the Government, if
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satisfied that the party or the group staking claim would
not be able to provide to the State a stable Government.
It is also not unknown that despite various differences of
perception, the party, group or MLAs may still not opt to
take a step which may lead to the fall of the Government
for various reasons including their being not prepared to
face the elections. These and many other imponderables
can result in MLAs belonging to even different political
parties to come together. It does not necessarily lead to
assumption of allurement and horse-trading.
As opposed to the cases of dissolution of Karnataka
and Nagaland, while considering the cases of dissolution
of assemblies of Madhya Pradesh, Rajasthan and
Himachal Pradesh, it was held in Bommai that the
reports of the Governors disclosed that the State
Governments had miserably failed to protect the citizens
and property of the State against internal disturbances, it
was found that the Governor's reports are based on
relevant material and are made bona fide and after due
verification. It is in the light of these findings that the
validity of the Proclamation was unanimously upheld in
respect of these three States.
Now, let us revert to the reasoning given in the
opinion of Justice B.P. Jeevan Reddy, speaking for
himself and Justice Agrawal.
As already noticed, Justice Reddy to the extent
stated in para 324 expressed his dissent with the
reasoning of State of Rajasthan case.
Before we examine paragraph 389, wherein Justice
Reddy has noticed, in brief, eight reasons given by the
Special Bench of the High Court in dismissing the writ
petition and the opinion of learned Judge as contained in
para 391, we feel that to fully appreciate Bommai's case
which reversed Full Bench decision of Karnataka High
Court, it would be quite useful to note what exactly was
stated by the High Court in Paragraphs 28 to 34 of its
judgment reported in S.R. Bommai & Ors. v. Union of
India & Ors. [AIR 1990 Karnataka 5]. The said
paragraphs read as under :
"28. Coming to the second facet of the
contention of Mr. Soli Sorabjee, we find
that the criticism levelled is that the
inference drawn by the Governor that
there is no other party which is in a
position to form the Government, is not
only vague but factually incorrect and
hence the President had no relevant
material to arrive at his satisfaction for
proclamation issued by him.
The aforesaid contention again is without
any merit for the reasons: (i) that the
Governor formed the said satisfaction
which can necessarily be the result of his
own impressions. Narration of events in
no way advances the case of satisfaction
because the very satisfaction of the
Governor is an integral part of the
material relevant fact. It may also be that
the Governor would have met several
MLAs and enquired of them. But what
transpired between them cannot be a
matter of record. In the context where
the Governor's personal bona fides are
not in question, his satisfaction
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expressed is to be assumed as part of the
relevant material facts in the sense that
the very satisfaction stated therein
comprehends within itself the idea of all
the other necessary factors, (ii) the report
of 19th April, 1989 has to be read with
the second report of 20th April, 1989
wherein "atmosphere getting vitiated"
and "horse-trading" were referred.
"Pressurisation of MLAs", "Horse-trading"
and "vitiating atmosphere" referred to in
the report necessarily indicate the
existence of facts for the satisfaction that
no other party was in a position to form
the Government in accordance with the
Constitution: The report could have been
more explicit and, not adopting such a
course by itself cannot nullify the
essence of the report. If the President
had any reason to doubt the veracity of
those statements it was for him to seek a
clarification or further report. However, if
the President chose to accept the
statement of the Governor as to the
satisfaction that none else was in a
position to form the Government it is
because the President found it to be a
sufficient arid acceptable statement as to
the existence of factual situation. This
statement in para 3 of the first report
may also be weighed and understood in
the background of the principle that in
case the existing Ministry was found to
have lost the majority in the House, it is
left to the discretion of the Governor to
call upon someone else to form the
Ministry, whom he thinks is in a position
to command majority in the House.
Further, absolutely no material has been
placed before us to show that any other
party or individual staked his or her
claim to form a stable Ministry; rather,
throughout, the petitioners' case has
been that the existing Ministry headed by
Sri S. R. Bommai continued to enjoy the
support of the majority in the House.
This premise was held to be not correct
for which material facts were given in
both the reports made by the Governor.
29. It may be emphasised that a person
holding majority does not require time to
prove that majority. Instead of telling the
Governor that he would prove majority
on the floor of the House, the Chief
Minister could have as well obtained the
signatures of 113 MLAs and placed
before the Governor to demonstrate his
strength. Moreover, the second report of
the Governor also conveys certain
material facts; some of the ML As who
withdrew their support to Sri S. R.
Bommai wrote again withdrawing the
earlier letters with oscillation and
ficklemindedness. Fluctuating loyalties
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leading to unhealthy practice are pointed
out in the report. The democratic culture
was being vulgarised. Vitiation of the
atmosphere was felt by the Governor. In
the context of the prevailing situation the
Governor was certainly entitled to report
to the President the aforesaid facts. We,
are therefore, of the firm view that the
two reports of the Governor conveyed to
the President the essential and relevant
facts from which the President could
assess the situation for an action under
Art. 356 of the Constitution.
30. Another major attack levelled against
the reports of the Governor by Mr. Soli
Sorabjee was that nowhere in the report's
it is stated that the State Government
cannot be carried on in accordance with
the Constitution. In other words, there is
no material on the record to show that
there has been Constitutional breakdown
of the machinery in the State. In support
of his argument the learned counsel drew
our attention to the statement in the
report which reads:
"It is not appropriate under the
circumstances to have the
State administered by an
Executive consisting of Council
of Ministers who do not
command the majority in the
House."
What was sought to be argued by the
learned counsel was to say that it is not
appropriate is quite different from saying
that there is a constitutional breakdown,
and as the Governor only feels that it is
not appropriate, there was no legal
justification for taking the impugned
action.
Again we find ourselves unable to agree
with Mr. Soli Sorabjee. The words "it is
not appropriate under the
circumstances" have to be understood in
the context of the report, especially the
next sentence, so as to convey the
meaning that the Executive which does
not command the support of the majority
in the House cannot administer the.
State in accordance with the
Constitution. 'Inapp-ropriateness' stated
here is referable to the meaning 'is not in
accordance with law'. Reference to any
dictionary would show that
'appropriateness' and 'compatibility' are
interchangeable and, therefore, when
something is said to be not appropriate it
conveys the meaning that it is not
compatible or not in accordance with
law. Hence the statement of the Governor
in this sentence clearly asserts his
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understanding of the true principle that
ah Executive having no majority support
in the Legislature, if carries on the
Government, will be administering the
State not in accordance with the
Constitution.
31. In view of the aforesaid discussion,
we find no escape from the conclusion
that the grounds stated and material
supplied in the reports of the Governor
are neither irrelevant nor vague, that the
reasons disclosed bear a reasonable
nexus with the exercise of the particular
power and hence the satisfaction of the
President must be treated as conclusive,
and that there is no scope at all for a
finding that the action of the President is
in flagrant violation of the very words of
Art. 356(1).
32. Mr. Soli Sorabjee also contended that
the factors like the alleged 'unethical
methods adopted during the formation of
Janata Dal' 'expansion of cabinet',
'horse-trading' and 'atmosphere getting
vitiated' are not only vague but have no
nexus at all with the question of failure
of Constitutional machinery. The learned
counsel also laid great stress by
contending that the Governor by acting
upon the letters given by 19 legislators
had circumvented the Anti Defection
legislation, the primary aim of which is to
discourage the toppling game by
legislators by changing their loyalties,
and by acting upon those letters the
legislators were permitted, in substance,
to play the game of toppling the ruling
Ministry without incurring the
consequences of Anti-Defection law
because, if these legislators had
withdrawn their support in the House
and voted against the Ministry, they
would have incurred disqualification
under Anti-Defection Law. Reliance upon
these letters is contrary to the underlying
purpose and the essence of Anti-
Defection legislation and therefore
illegitimate and prohibited. The learned
counsel buttressed his arguments by
contending that if the floor test had been
held the legislators who had written
letters might have changed their mind for
several valid reasons e.g. (i) change in the
style of functioning of leadership, (ii)
change in the leadership, (iii) realisation
for maintaining party unity, (iv)
unwillingness to incur disqualification
under Anti-Defection legislation and (v)
not giving a pretext for imposition of
President's Rule. In support of the
contention that the floor test has always
been recognised as the legitimate and
relevant method, Sri Soli Sorabjee relied
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on the judgment of the Orissa High Court
in Bijayananda v. President of India,
Sarkaria Commission Report page 173
para6.5.01, the judgment of Gauhati
High Court in Vamuzov. Union of India,
(1988) 2 Gauh LJ 468 at p. 483, Report
of the Committee of Governors dated 1-
10-1971, pages 208, 209, 210, 217-219,
221-219, 221- 223 and 234, and Address
by Speaker of Lok Sabha on the occasion
of Speakers' Conference on 16-7-1970
paras 13 and 14.
33. In our view, the aforesaid
contentions/ points urged by the learned
counsel do not in any way destroy the
effect of the two material grounds on the
basis of which the subjective satisfaction
was arrived at by the President. The
Governor honestly and truly has stated
all the facts. They are not vague at all
and are narrative in nature. What was
happening in the State, the Governor has
disclosed in the report. The Governor was
assessing whether the first petitioner was
commanding majority and he (Governor)
was entitled to take into consideration
the behaviour of the MLAs one way or the
other.
It is expected that a Government to be
effective should not only command a
majority in the House but should also be
backed by the majority members outside
the house so that the Government would
not be under a perennial pressure of
being dislodged whenever the House
meets again.
We have gone through the judgments of
the Orissa and Gauhati High Courts
mentioned above and find that the same
are distinguishable. In Bijayanand's case
the main fact was that the Leader of the
Opposition who had shown his majority
in the House was not tailed upon to form
the Ministry not because he had no
majority but because the Governor
expected that the majority might fall at
any moment and there may be no stable
Ministry, and on this aspect G. K. Misra,
C.J. observed that the Governor is not
concerned whether the Ministry could be
stable in future. If the Ministry which
would have been formed by the Leader of
the Opposition would have fallen
afterwards, the Governor would have
been justified to recommend for the
President's Rule if at that time no other
person was in a position to from an
alternative Ministry by having majority
support. But, in the instant case, the
position is entirely different as at the
initial stage itself the Governor has in
unequivocal terms stated in his report
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that he is also satisfied that there is no
other party which is in a position to form
the Government.
Coming to the case of Vamuzo, (1988(2)
Gauh LJ 468) the facts are :
"Hokishe Sema formed the
Government in 1987. Chishi
attempted to bring down and
destabilise the Government. To
achieve that end he offered
money and lured the separated
group of 13 to step out from
the ruling party. The Governor
called the episode 'incredible
lack of political morality and
complete disregard of the
wishes of the electorates on the
part of the breakway
congressmen'. That none of
them therefore had ever
expressed any grievances to
the Chief Minister at any time
in the past. The 13 persons are
kept under forcible
confinement by K. L. Chishi
and Vamuzo. The split of the
party is not true. It is obvious
that what may be called a
political group of the darkest
hue has been stated in his
absence contrary to the, noble
Naga character and democratic
traditions'. The recognition by
the Speaker was done in haste.
The entire incident manifests
political horse trading and
machinations. He added there
is proof that they are the group
of 13 persons have not
separated from the ruling party
voluntarily ....."
If we look at those facts, again we find
that there is absolutely no similarity of
the aforesaid facts to the two material
facts in the case on hand. In the said
case, as found on those facts, the
Governor was held to have exceeded his
jurisdiction and the facts stated therein
were found to be irrelevant to the
provisions of An. 356(1), by the Gauhati
High Court.
So far as Sarkada Commission Report,
the report of the Committee of Governors
and the Address of the Speaker of Lok
Sabha are concerned, the views
expressed therein are really
commendable and it is expected that
wherever any such drastic action, like
the exercise of power under Art. 356(1),
is taken, it should be ensured that the
subjective satisfaction of the President is
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not based on any irrelevant, irrational or
perverse ground. But, in the view we
have taken on the facts of this case, the
views expressed in those reports are of
no assistance to the petitioners.
Moreover these recommendations are to
alter the exist-ing laws, which implies
that till these recommendations are
moulded into constitutionally enforceable
norms the existing law would prevail.
34. Mr. Soli Sorabjee had made pointed
reference to the Tenth Schedule i.e. Anti
Defection Law, for bringing home his
point that the factum of the withdrawal
of the support by 19 legislators was
wholly irrelevant. This argument was
advanced to prove his point that in the
context of Anti Defection Legislation,
floor test was the most relevant,
legitimate and surest method to
determine whether the Council of
Ministers headed by Sri S.R. Bommai
commanded the majority in the House or
not. We are afraid, we are unable to
agree with this submission of the learned
counsel. The introduction of Tenth
Schedule in the Constitution has not in
any way affected the exercise of power
under Art. 356 nor has it amended Art.
356 in any manner. The amending body
which inserted the Tenth Schedule to the
Constitution had before it several
decisions (specially the Rajasthan Case
as to the scope of Art. 356. There is a
presumption that the law-making body
was aware of the existing interpretation
given by the Supreme Court on a
provision of law or of a Constitutional
provision. If the said Constitutional
provision (Art. 356) was untouched while
adding a new schedule to the
Constitution elsewhere without reference
to the existing provision (Art. 356), we
have to presume that the existing
interpretation of the said provision
continues to govern the situation. It is
not possible to hold that the
interpretation given to Art. 356 in
Rajasthan Case, if continued to govern it,
would destroy the efficacy of the Tenth
Schedule. Tenth Schedule to the
Constitution is applicable to the
transaction of business inside the House
of Legislature. The ami defection activity
outside the House is not penalised in any
manner by Tenth Schedule. Concept of
the failure of the Constitutional
machinery of the Government is not
confined to the loss of majority by a
ministry in the House; it may be due to
several reasons. Therefore, if meeting of
the Legislature, was contemplated as a
mandatory requirement preceding a
report of the Governor for an action
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under Art. 356 and floor test was
impliedly made the sole and exclusive
test to judge the stability of the Ministry
(after the Tenth Schedule was added to
the Constitution), the Tenth Schedule
would have been suitably worded, or Art.
356 would have been altered."
In para 389, Justice Reddy states that the High
Court has dismissed the writ petition giving following
reasoning :
"(1) The proclamation under Article 356(1)
is not immune from judicial scrutiny. The
court can examine Whether the
satisfaction has been formed on wholly
extraneous material or whether there is a
rational nexus between the material and
the satisfaction.
(2) In Article 356, the President means the
Union council of ministers. The
satisfaction referred to therein is
subjective satisfaction. This satisfaction
has no doubt to be formed on a
consideration of all the facts and
circumstances.
(3) The two reports of the Governor
conveyed to the President essential and
relevant facts which were relevant for the
purpose of Article 356. The facts stated in
the Governor's report cannot be stated to
be irrelevant. They are perfectly relevant.
(4) Where the Governor's "personal bona
fides" are not questioned, his satisfaction
that no other party is in a position to form
the government has to be accepted as
true and is based upon a reasonable
assessment of all the relevant facts.
(5) Recourse to floor test was neither
compulsory nor obligatory. It was not a
prerequisite to sending up a report
recommending action under Article
356(1),
(6) The introduction of Xth Schedule to
the Constitution has not affected in any
manner the content of the power under
Article 356.
(7) Since the proclamation has to be
issued on the satisfaction of the Union
council of ministers the Governor's report
cannot be faulted on the ground of legal
mala fides.
(8) Applying the test indicated in the State
of Rajasthan v. Union of India, the court
must hold, on the basis of material
disclosed, that the subjective satisfaction
arrived at by the President is conclusive
and cannot be faulted. The proclamation,
therefore, is unobjectionable."
Except for aforesaid reasons 1 and 2, other reasons
were not accepted by Justice Reddy. Learned Judge did
not accept the reasoning of the High Court that where
Governor's personal bona fides are not questioned, his
satisfaction that no party is in a position to form the
Government has to be accepted as true as it is based on
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reasonable assessment of all the relevant facts. The
Court also did not accept the reasoning that the
Governor's report cannot be faulted on the ground of
mala fides. Learned Judge has stated that the question
whether government has lost the confidence of the House
is not a matter to be determined by the Governor or for
that matter anywhere else except the floor of the House.
The House is the place where the democracy is in action.
It is not a question of subjective satisfaction of the
Governor. It would be useful to note what has been
observed in paragraph 391 which reads thus:
"391. We must also say that the
observation under point (7) is equally
misplaced. It is true that action under
Article 356 is taken on the basis of
satisfaction of the Union Council of
Ministers but on that score it cannot be
said that 'legal mala fides' of the
Governor is irrelevant. When the Article
speaks of the satisfaction being formed
on the basis of the Governor's report, the
legal mala fides, if any, of the Governor
cannot be said to be irrelevant. The
Governor's report may not be conclusive
but its relevance is undeniable. Action
under Article 356 can be based only and
exclusively upon such report. Governor is
a very high constitutional functionary.
He is supposed to act fairly and honestly
consistent with his oath. He is actually
reporting against his own Government. It
is for this reason that Article 356 places
such implicit faith on his report. If,
however, in a given case his report is
vitiated by legal mala fides, it is bound to
vitiate the President's action as well.
Regarding the other points made in the
judgment of the High Court, we must say
that the High Court went wrong in law in
approving and upholding the Governor's
report and the action of the President
under Article 356. The Governor's report
is vitiated by more than one assumption
totally unsustainable in law. The
Constitution does not create an
obligation that the political party forming
the ministry should necessarily have a
majority in the Legislature. Minority
Governments are not unknown. What is
necessary is that that Government
should enjoy the confidence of the
House. This aspect does not appear to
have been kept in mind by the Governor.
Secondly and more importantly whether
the council of ministers have lost the
confidence of the House is not a matter
to be determined by the Governor or for
that matter anywhere else except the
floor of the House. The principle of
democracy underlying our Constitution
necessarily means that any such
question should be decided on the floor
of the House. The House is the place
where the democracy is in action. It is
not for the Governor to determine the
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said question on his own or on his own
verification. This is not a matter within
his subjective satisfaction. It is an
objective fact capable of being
established on the floor of the House. It
is gratifying to note that Sri R.
Venkataraman, the former President of
India has affirmed this view in his Rajaji
Memorial Lecture (Hindustan Times
dated February 24, 1994).
The substantial reasons given by the High Court in
paragraphs 28 to 34 for dismissing the writ petition did
not find favour with this Court. Dealing with the report
of the Governor in respect of Karnataka, it was held that
in the circumstances it cannot be said that the
Governor's report contained or was based upon relevant
material. There could be no question of the Governor
making an assumption of his own.
Clearly, Bommai's case expanded the scope of
judicial review. True, observations by Justice Reddy were
made in the context of a situation where the incumbent
Chief Minister is alleged to have lost the majority support
or the confidence of the House and not in the context of a
situation arisen after a general election in respect
whereof no opinion was expressed, but, in our view the
principles of scope of judicial review in such matters
cannot be any different. By and large, same principles
will apply when making recommendation for dissolution
of a newly elected Assembly and again plunging the State
to elections.
Justice Reddy, for upholding the dissolution of the
State Legislatures of Madhya Pradesh, Rajasthan and
Himachal Pradesh also came to the conclusion that the
reports of the Governor disclosed that the State
Government had miserably failed to protect the citizens
and the property of the State against the internal
disturbances and on the basis of the said report, the
President formed the requisite satisfaction. Dealing with
the circumstances in the State of Madhya Pradesh, it was
held that 'Governor's reports are based upon relevant
material and are made bona fide and after due
verification'. (Emphasis supplied by us)
Thus, it is open to the Court, in exercise of judicial
review, to examine the question whether the Governor's
report is based upon relevant material or not; whether it
is made bona fide or not; and whether the facts have
been duly verified or not. The absence of these factors
resulted in the majority declaring the dissolution of State
Legislatures of Karnataka and Nagaland as invalid.
In view of the above, we are unable to accept the
contention urged by the ld. Attorney General for India,
Solicitor General of India and Additional Solicitor
General, appearing for the Government that the report of
the Governor itself is the material and that it is not
permissible within the scope of judicial review to go into
the material on which the report of the Governor may be
based and the question whether the same was duly
verified by the Governor or not. In the present case, we
have nothing except the reports of the Governor. In
absence of the relevant material much less due
verification, the report of the Governor has to be treated
as the personal ipse dixit of the Governor. The drastic
and extreme action under Article 356 cannot be justified
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on mere ipse dixit, suspicion, whims and fancies of the
Governor. This Court cannot remain a silent spectator
watching the subversion of the Constitution. It is to be
remembered that this Court is the sentinel on the qui
vive. In the facts and circumstances of this case, the
Governor may be main player, but Council of Ministers
should have verified facts stated in the report of the
Governor before hurriedly accepting it as a gospel truth
as to what Governor stated. Clearly, the Governor has
mislead the Council of Ministers which lead to aid and
advice being given by the Council of Ministers to the
President leading to the issue of the impugned
Proclamation.
Regarding the argument urged on behalf of the
Government of lack of judicially manageable standards
and, therefore, the court should leave such complex
questions to be determined by the President, Union
Council of Ministers and the Governor, as the situation
like the one in Bihar, is full of many imponderables,
nuances, implications and intricacies and there are too
many ifs and buts not susceptible of judicial scrutiny, the
untenability of the argument becomes evident when it is
examined in the light of decision in Bommai' case
upholding the challenge made to dissolution of the
Assemblies of Karnataka and Nagaland. Similar
argument defending the dissolution of these two
assemblies having not found favour before a Nine Judge
Bench, cannot be accepted by us. There too, argument
was that there were no judicially manageable standards
for judging Horse-trading, Pressure, Atmosphere being
vitiated, wrongful confinement, Allurement by money,
contacts with insurgents in Nagaland. The argument was
rejected.
The position was different when Court considered
validity of dissolution of Assemblies of Madhya Pradesh,
Rajasthan and Himachal Pradesh.
In paragraphs 432 and 433 of the opinion of Justice
Jeevan Reddy in Bommai's case, after noticing the
events that led to demolition of Babri Masjid on 6th
December, 1992, the assurances that had been given
prior to the said date, the extraordinary situation that
had arisen after demolition, the prevailing tense
communal situation, the learned Judge came to the
conclusion that on material placed before the Court
including the reports of the Governors, it was not
possible to say that the President had no relevant
material before him on the basis of which he could form
satisfaction that BJP Governments of Madhya Pradesh,
Rajasthan and Himachal Pradesh cannot disassociate
themselves from the action and its consequences and
that these Governments, controlled by one and the same
party, whose leading lights were actively campaigning for
the demolition of structure, cannot be disassociated from
the acts and deeds of the leaders of BJP. It was further
held that if the President was satisfied that the faith of
these BJP Governments in the concept of secularism was
suspected in view of the acts and conduct of the party
controlling these Governments and that in the volatile
situation that developed pursuant to the demolition, the
Government of these States cannot be carried on in
accordance with the provisions of the Constitution, the
Court is not able to say that there was no relevant
material upon which he could be so satisfied. Under
these circumstances, it was observed that the Court
cannot question the correctness of the material produced
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and that even if part of it is not relevant to the action.
The Court cannot interfere so long as there is some
relevant material to sustain the action. For appreciating
this line of reasoning, it has to be borne in mind that the
same learned Judge, while examining the validity of
dissolution of Karnataka and Nagaland Assemblies,
agreeing with the reasoning and conclusions given in the
opinion of Justice Sawant which held that the material
relied upon by the Governor was nothing but his ipse
dixit came to the conclusion that the said dissolution
were illegal. The majority opinion and the correct ratio
thereof can only be appreciated if it is kept in view that
the majority has declared invalid the dissolution of
Assemblies of Karnataka and Nagaland and held as valid
the dissolution of the Assemblies of Madhya Pradesh,
Rajasthan and Himachal Pradesh. Once this factor is
kept in full focus, it becomes absolutely clear that the
plea of perception of the same facts or the argument of
lack of any judicially manageable standards would have
no legs to stand.
In the present case, like in Bommai's case, there is
no material whatsoever except the ipse dixit of the
Governor. The action which results in preventing a
political party from staking claim to form a Government
after election, on such fanciful assumptions, if allowed to
stand, would be destructive of the democratic fabric. It is
one thing to come to the conclusion that the majority
staking claim to form the Government, would not be able
to provide stable Government to the State but it is
altogether different thing to say that they have garnered
majority by illegal means and, therefore, their claim to
form the Government cannot be accepted. In the latter
case, the matter may have to be left to the wisdom and
will of the people, either in the same House it being taken
up by the opposition or left to be determined by the
people in the elections to follow. Without highly cogent
material, it would be wholly irrational for constitutional
authority to deny the claim made by a majority to form
the Government only on the ground that the majority has
been obtained by offering allurements and bribe which
deals have taken place in the cover of darkness but his
undisclosed sources have confirmed such deals. The
extra-ordinary emergency power of recommending
dissolution of a Legislative Assembly is not a matter of
course to be resorted to for good governance or cleansing
of the politics for the stated reasons without any
authentic material. These are the matters better left to
the wisdom of others including opposition and electorate.
It was also contended that the present is not a case
of undue haste. The Governor was concerned to see the
trend and could legitimately come to the conclusion that
ultimately, people would decide whether there was an
'ideological realignment", then there verdict will prevail
and the such realigned group would win elections, to be
held as a consequence of dissolution. It is urged that
given a choice between going back to the electorate and
accepting a majority obtained improperly, only the former
is the real alternative. The proposition is too broad and
wide to merit acceptance. Acceptance of such a
proposition as a relevant consideration to invoke
exceptional power under Article 356 may open a floodgate
of dissolutions and has far reaching alarming and
dangerous consequences. It may also be a handle to
reject post-election alignments and realignments on the
ground of same being unethical, plunging the country or
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the State to another election. This aspect assumes great
significance in situation of fractured verdicts and in the
formation of coalition Governments. If, after polls two or
more parties come together, it may be difficult to deny
their claim of majority on the stated ground of such
illegality. These are the aspects better left to be
determined by the political parties which, of course, must
set healthy and ethical standards for themselves, but, in
any case, the ultimate judgment has to be left to the
electorate and the legislature comprising also of members
of opposition.
To illustrate the aforesaid point, we may give two
examples in a situation where none of the political party
was able to secure majority on its own :
1. After polls, two or more political parties come
together to form the majority and stake claim on that
basis for formation of the Government. There may
be reports in the media about bribe having been
offered to the elected members of one of the political
parties for its consenting to become part of majority.
If the contention of the respondents is to be
accepted, then the constitutional functionary can
decline the formation of the Government by such
majority or dissolve the House or recommend its
dissolution on the ground that such a group has to
be prevented to stake claim to form the Government
and, therefore, a situation has arisen in which the
Government of the State cannot be carried on in
accordance with the provisions of the Constitution.
2. A political party stakes claim to form the
Government with the support of independent elected
candidates so as to make the deficient number for
getting majority. According to the media reports,
under cover of darkness, large sums of bribe were
paid by the particular party to independent elected
candidates to get their support for formation of
Government. The acceptance of the contention of
the respondents would mean that without any
cogent material the constitutional functionary can
decline the formation of the Government or
recommend its dissolution even before such a claim
is made so as to prevent staking of claim to form the
Government.
We are afraid that resort to action under Article
356(1) under the aforesaid or similar eventualities would
be clearly impermissible. These are not the matters of
perception or of the inference being drawn and
assumptions being made on the basis whereof it could be
argued that there are no judicial manageable standards
and, therefore, the Court must keep its hands off from
examining these matters in its power of judicial review.
In fact, these matters, particularly without very cogent
material, are outside the purview of the constitutional
functionary for coming to the conclusion that a situation
has arisen in which the Government of the State cannot
be carried on in accordance with the provisions of the
Constitution.
The contention that the installation of the
Government is different than removal of an existing
Government as a consequence of dissolution as was the
factual situation before the Nine Judge Bench in
Bommai's case and, therefore, same parameters cannot
be applied in these different situations, has already been
dealt with hereinbefore. Further, it is to be remembered
that a political party prima facie having majority has to
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be permitted to continue with the Government or
permitted to form the Government, as the case may be.
In both categories, ultimately the majority shall have to
be proved on the floor of the House. The contention also
overlooks the basic issue. It being that a party even,
prima facie, having majority can be prevented to continue
to run the Government or claim to form the Government
declined on the purported assumption of the said
majority having been obtained by illegal means. There is
no question of such basic issues allegedly falling in the
category of "political thicket" being closed on the ground
that there are many imponderables for which there is no
judicially manageable standards and, thus, outside the
scope of judicial review.
The further contention that the expression 'situation
has arisen in which the Government of the State cannot
be carried on in accordance with the provisions of the
Constitution' in Article 356 shows that the power is both
preventive and/or curative and, therefore, a
constitutional functionary would be well within his rights
to deny formation of the Government to a group of parties
or elected candidates on the ground of purity of political
process is of no avail on the facts and circumstances of
this case, in view of what we have already stated. Even if
preventive, power cannot be abused.
Another contention urged is that the power under
Article 356 is legislative in character and, therefore, the
parameters relevant for examining the validity of a
legislative action alone are required to be considered and
in that light of the expressions such as 'mala fide' or
'irrational' or 'extraneous' have to be seen with a view to
ultimately find out whether the action is ultra vires or
not. The contention is that the concept of malafides as
generally understood in the context of executive action is
unavailable while deciding the validity of legislative
action. The submission is that that the malafides or
extraneous consideration cannot be attributed to a
legislative act which when challenged the scope of inquiry
is very limited.
For more than one reason, we are unable to accept
the contention of the proclamation of the nature in
question being a legislative act. Firstly, if the contention
was to be accepted, Bommai's case would not have held
the proclamation in case of Karnataka and Nagaland as
illegal and invalid. Secondly, the contention was
specifically rejected in the majority opinion of Justice
Jeevan Reddy in paragraph 377. The contention was
that the proclamation of the present nature assumes the
character of legislation and that it can be struck down
only on the ground on which a legislation can be struck
down. Rejecting the contention, it was held that every
act of Parliament does not amount to and does not result
in legislation and that the Parliament performs many
other functions. One of such functions is the approval of
the proclamation under clause (3) of Article 356. Such
approval can, by no stretch of imagination, be called
'legislation'. Its legal character is wholly different. It is a
constitutional function, a check upon the exercise of
power under clause (1) of Article 356. It is a safeguard
conceived in the interest of ensuring proper exercise of
power under clause (1). It is certainly not legislation nor
legislative in character.
Mr. Subramaniam, learned Additional Solicitor
General, however, contended that Bommai's case
proceeded on the assumption that the proclamation
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under Article 356(1) is not legislative but when that issue
is examined in depth with reference to earlier decisions in
the cases of In Re: The Delhi Laws Act, 1912, the
Ajmer-Merwara (Extension of Laws) Act, 1947 and
the Part C States (Laws) Act, 1950 [1951 SCR 747 at
page 970-971]; Jayantilal Amrit Lal Shodhan v. F.N.
Rana and Ors. [(1964) 5 SCR 294 at 205-206];
Rameshchandra Kachardas Porwal & Ors. State of
Maharashtra & Ors. [(1981) 2 SCC 722], A.K. Roy v.
Union of India & Ors. [(1982) 1 SCC 271], it would be
clear that the conclusion of Justice Reddy in para 377
requires re-look in the light of these decisions. We are
unable to accept the contention. The decision of Nine
Judge Bench is binding on us.
Though Bommai has widened the scope of judicial
review, but going even by principles laid in State of
Rajasthan's case, the existence of the satisfaction can
always be challenged on the ground that it is mala fide or
based on wholly extraneous and irrelevant grounds.
Apart from the fact that the narrow minimal area of
judicial review as advocated in State of Rajasthan's
case is no longer the law of the land in view of its
extension in Bommai's case but the present case even
when considered by applying limited judicial review,
cannot stand judicial scrutiny as the satisfaction herein
is based on wholly extraneous and irrelevant ground.
The main ground being to prevent a party to stake claim
to form the Government.
In State of Rajasthan's case, in para 185, Justice
Untwalia observed that this Court is not powerless to
interfere with such an order which is ultra vires, wholly
illegal or mala fide as in such a situation it will
tantamount in law to be no order at all. Further
observing that it is incompetent and hazardous for the
Court to draw conclusions by investigation of facts by
entering into the prohibited area but at the same time it
would be equally untenable to say that the Court would
be powerless to strike down the order, if on its face, or, by
going round the circumference of the prohibited area, the
Court finds the order as a mere pretence or colourable
exercise of the extraordinary powers given under certain
Articles of the Constitution and thus in a given case it
may be possible to conclude that it is a fraud on the
exercise of the power. In the present case, we have
reached the conclusion that the action of the Governor
was a mere pretence, the real object being to keep away a
political party from staking a claim to form the
Government.
Referring to the opinion of Justice Reddy, in
Bommai's case, it was contended for the respondents
that the approach adopted in Barium Chemicals Ltd.
and Anr. v. Company Law Board and Ors. [(1966)
Supl. SCR 311] and other cases where action under
challenge is taken by statutory or administrative
authorities, is not applicable when testing the validity of
the constitutional action like the present one. For proper
appreciation of the contention, it may be useful to
reproduce in full paragraphs 372 and 373 from which
certain observations were relied upon. The same read as
under:
"372. Having noticed various decisions
projecting different points of view, we may
now proceed to examine what should be
the scope and reach of judicial review
when a proclamation under Article 356(1)
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is questioned. While answering this
question, we should be, and we are, aware
that the power conferred by Article 356(1)
upon the President is of an exceptional
character designed to ensure that the
Government of the States is carried on in
accordance with the Constitution. We are
equally aware that any misuse or abuse of
this power is bound to play havoc with
our constitutional system. Having regard
to the form of Government we have
adopted, the power is really that of the
Union Council of Ministers with the Prime
Minister at its head. In a sense, it is not
really a power but an obligation cast upon
the President in the interest of
preservation of constitutional Government
in the States. It is not a power conceived
to preserve or promote the interests of the
political party in power at the centre for
the time being nor is it supposed to be a
weapon with which to strike your political
opponent. The very enormity of this power
--undoing the will of the people of a State
by dismissing the duly constituted
Government and dissolving the duly
elected Legislative Assembly -- must itself
act as a warning against its frequent use
or misuse, as the case may be. Every
misuse of this power has its consequences
which may not be evident immediately but
surface in a vicious form a few years later.
Sow a wind and you will reap the
whirlwind. Wisdom lies in moderation and
not in excess."
(Emphasis supplied by us)
Further, learned Judge states that :
"373. Whenever a proclamation under
Article 356 is questioned, the court will
no doubt start with the presumption that
it was validly issued but it will not and it
should not hesitate to interfere if the
invalidity or unconstitutionality of the
proclamation is clearly made out. Refusal
to interfere in such a case would amount
to abdication of the duty cast upon the
court -- Supreme Court and High Courts
-- by the Constitution. Now, what are the
grounds upon which the court can
interfere and strike down the
proclamation? While discussing the
decisions herein-above, we have
indicated the unacceptability of the
approach adopted by the Privy Council in
Bhagat Singh v. Emperor (AIR 1931 PC
111) and King Emperor v. Bengari Lal
Sarma (AIR 1945 PC 48). That was in the
years 1931 and 1944, long before the
concept of judicial review had acquired
its present efficacy. As stated by the
Pakistan Supreme Court, that view is
totally unsuited to a democratic polity.
Even the Privy Council has not stuck to
that view, as is evident from its decision
in the case from Malaysia Stephen
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Kalong Ningkan v. Government of
Malaysia (1970 AC 379). In this case, the
Privy Council proceeded on the
assumption that such a proclamation is
amenable to judicial review. On facts and
circumstances of this case, it found the
action justified. Now, coming to the
approach adopted by the Pakistan
Supreme Court, it must be said -- as
indicated hereinbefore --that it is
coloured by the nature of the power
conferred upon the President by Section
58(2)(b) of the Pakistani Constitution.
The power to dismiss the federal
Government and the National Assembly
is vested in the President and President
alone. He has to exercise that power in
his personal discretion and judgment.
One man against the entire system, so to
speak --even though that man too is
elected by the representatives of the
people. That is not true of our
Constitution. Here the President acts on
the aid and advice of the Union Council
of Ministers and not in his personal
capacity. Moreover, there is the check of
approval by Parliament which contains
members from that State (against the
Government/Legislative Assembly of
which State, action is taken) as well. So
far as the approach adopted by this
Court in Barium Chemicals is concerned,
it is a decision concerning subjective
satisfaction of an authority created by a
statute. The principles evolved then
cannot ipso facto be extended to the
exercise of a constitutional power under
Article 356. Having regard to the fact that
this is a high constitutional power
exercised by the highest constitutional
functionary of the Nation, it may not be
appropriate to adopt the tests applicable
in the case of action taken by statutory
or administrative authorities -- nor at
any rate, in their entirety. We would
rather adopt the formulation evolved by
this court in State of Rajasthan as we
shall presently elaborate. We also
recognise, as did the House of Lords in
C.C.S.U. v. Minister for the Civil Service
(1985 AC 374) that there are certain
areas including those elaborated therein
where the court would leave the matter
almost entirely to the President/Union
Government. The court would desist from
entering those arenas, because of the
very nature of those functions. They are
not the matters which the court is
equipped to deal with. The court has
never interfered in those matters because
they do not admit of judicial review by
their very nature. Matters concerning
foreign policy, relations with other
countries, defence policy, power to enter
into treaties with foreign powers, issues
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relating to war and peace are some of the
matters where the court would decline to
entertain any petition for judicial review.
But the same cannot be said of the power
under Article 356. It is another matter
that in a given case the court may not
interfere. It is necessary to affirm that the
proclamation under Article 356(1) is not
immune from judicial review, though the
parameters thereof may vary from an
ordinary case of subjective satisfaction."
The aforesaid paragraphs cannot be read in
isolation and have to be seen while bearing in mind that
learned Judge invalidated dissolution of Assembly of
Karnataka and Nagaland. Be that as it may, in the
present case, the validity of the impugned notification is
not being judged on application of principles available for
judging the validity of administrative actions.
Further, para 376 of the opinion of Justice Jeevan
Reddy is very instructive and it may be reproduced as
under :
"We recognise that judicial process has
certain inherent limitations. It is suited
more for adjudication of disputes rather
than for administering the country. The
task of governance is the job of the
Executive. The Executive is supposed to
know how to administer the country,
while the function of the judiciary is
limited to ensure that the Government is
carried on in accordance with the
Constitution and the Laws. Judiciary
accords, as it should, due weight to the
opinion of the Executive in such matters
but that is not to say, it defers to the
opinion of Executive altogether. What
ultimately determines the scope of
judicial review is the facts and
circumstances of the given case. A case
may be a clear one -- like Meghalaya and
Karnataka cases -- where the court can
find unhesitatingly that the proclamation
is bad. There may also be cases -- like
those relating to Madhya Pradesh,
Rajasthan and Himachal Pradesh --
where the situation is so complex, full of
imponderables and a fast-evolving one
that the court finds it not a matter which
admits of judicial prognosis, that it is a
matter which should be left to the
judgment of and to be handled by the
Executive and may be in the ultimate
analysis by the people themselves. The
best way of demonstrating what we say is
by dealing with the concrete cases before
us.
(Emphasis supplied by us)
It is evident from the above that what ultimately
determines the scope of judicial review is the facts and
circumstances of the given case and it is for this reason
that the Proclamations in respect of Karnataka and
Nagaland were held to be bad and not those relating to
Madhya Pradesh, Rajasthan and Himachal Pradesh.
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We are not impressed with the argument based on a
possible disqualification under Tenth Schedule if the
MLAs belonging to LJP party had supported the claim of
Nitish Kumar to form the Government. At that stage, it
was a wholly extraneous to take into consideration that
some of the members would incur the disqualification if
they supported a particular party against the professed
stand of the political party to which they belong. The
intricate question as to whether the case would fall
within the permissible category of merger or not could
not be taken into consideration. Assuming it did not fall
in the permissible arena of merger and the MLAs would
earn the risk of disqualification, it is for the MLAs or the
appropriate functionary to decide and not for the
Governor to assume disqualification and thereby prevent
staking of claim by recommending dissolution. It is not
necessary for us to examine, for the present purpose,
para 4 of the Tenth Schedule dealing with merger and/or
deemed merger. In this view the question sought to be
raised that there cannot be merger of legislative party
without the first merger of the original party is not
necessary to be examined. The contention sought to be
raised was that even if two-third legislators of LJP
legislative party had agreed to merge, in law there cannot
be any merger without merger of original party and even
in that situation those two-third MLAs would have earned
disqualification. Presently, it is not necessary to decide
this question. It could not have been gone into by the
Governor for recommending dissolution.
The provision of the Tenth Schedule dealing with
defections, those of RP Act of 1951 dealing with corrupt
practice, electoral offences and disqualification and the
provisions of Prevention of Corruption Act, 1988 are legal
safeguards available for ensuring purity of public life in a
democracy. But, in so far as the present case is
concerned, these had no relevance at the stage when the
dissolution of the Assembly was recommended without
existence of any material whatsoever. There was no
material for the assumption that claim may be staked
based not on democratic principles and based on
manipulation by breaking political parties.
There cannot be any doubt that the oath prescribed
under Article 159 requires the Governor to faithfully
perform duties of his office and to the best of his ability
preserve, protect and defend the Constitution and the
laws. The Governor cannot, in the exercise of his
discretion or otherwise, do anything what is prohibited to
be done. The Constitution enjoins upon the Governor
that after the conclusion of elections, every possible
attempt is made for formation of a popular Government
representing the will of the people expressed through the
electoral process. If the Governor acts to the contrary by
creating a situation whereby a party is prevented even to
stake a claim and recommends dissolution to achieve
that object, the only inescapable inference to be drawn is
that the exercise of jurisdiction is wholly illegal and
unconstitutional. We have already referred to the
Governor report dated 21st May, 2005, inter alia, stating
that 17 \026 18 MLAs belonging to LJP party are moving
towards JDU which would mean JDU may be in a
position to stake claim to form the Government. The
further assumption that the move of the said members
was itself indicative of various allurements having been
offered to them and on that basis drawing an assumption
that the claim that may be staked to form a Government
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would affect the constitutional provisions and safeguards
built therein and distort the verdict of the people would
be arbitrary. This shows that the approach was to stall
JDU from staking a claim to form the Government. At
that stage, such a view cannot be said to be consistent
with the provisions of Tenth Schedule. In fact, the
provisions of the said Schedule at that stage had no
relevance. It is not a case of 'assumption', or 'perception'
as to the provisions of Constitution by the Governor. It is
a clear case where attempt was to somehow or the other
prevent the formation of a Government by a political
party - an area wholly prohibited in so far as the
functions, duties and obligations of the Governor are
concerned. It was thus a wholly unconstitutional act.
It is true as has been repeatedly opined in various
reports and by various constitutional experts that the
defections have been a bane of the Indian Democracy
but, at the same time, it is to be remembered that the
defections have to be dealt with in the manner
permissible in law.
If a political party with the support of other political
party or other MLA's stakes claim to form a Government
and satisfies the Governor about its majority to form a
stable Government, the Governor cannot refuse formation
of Government and override the majority claim because of
his subjective assessment that the majority was cobbled
by illegal and unethical means. No such power has been
vested with the Governor. Such a power would be
against the democratic principles of majority rule.
Governor is not an autocratic political Ombudsman. If
such a power is vested in the Governor and/or the
President, the consequences can be horrendous. The
ground of mal administration by a State Government
enjoying majority is not available for invoking power
under Article 356. The remedy for corruption or similar
ills and evils lies elsewhere and not in Article 356(1). In
the same vein, it has to be held that the power under
Tenth Schedule for defection lies with the Speaker of the
House and not with the Governor. The power exercised
by the Speaker under the Tenth Schedule is of judicial
nature. Dealing with the question whether power of
disqualification of members of the House vests
exclusively with the House to the exclusion of judiciary
which in Britain was based on certain British legislature
practices, as far as India is concerned, it was said in
Kihoto's case that :
"It is, therefore, inappropriate to claim
that the determinative jurisdiction of the
Speaker or the Chairman in the Tenth
Schedule is not a judicial power and is
within the non-justiciable legislative
area."
The Governor cannot assume to himself aforesaid
judicial power and based on that assumption come to the
conclusion that there would be violation of Tenth
Schedule and use it as a reason for recommending
dissolution of assembly.
The Governor, a high Constitutional functionary is
required to be kept out from the controversies like
disqualification of members of a Legislative Assembly
and, therefore, there are provisions like Article 192(2) in
the Constitution providing for Governor obtaining the
opinion of the Election Commission and acting according
to such opinion, in the constitutional scheme of things.
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Similar provision, in so far as, member of Parliament is
concerned being in Article 103(2) of the Constitution
{Brundaban Nayak v. Election Commission of India &
Anr. [(1965) 3 SCR 53]; and Election Commission of
India & Anr. v. Dr. Subramaniam Swamy & Anr.
[(1996) 4 SCC 104].
For all the aforesaid reasons, the Proclamation
dated 23rd May, 2005 is held to be unconstitutional.
POINT NO.3 : If the answer to the aforesaid
questions is in affirmative, is it
necessary to direct status quo ante as on
7th March, 2005 or 4th March, 2005?
As a consequence of the aforesaid view on point no.
2, we could have made an order of status quo ante as
prevailing before dissolution of Assembly. However,
having regard to the facts and the circumstances of the
case, in terms of order of this Court dated 7th October,
2005, such a relief was declined. Reasons are the larger
public interest, keeping in view the ground realities and
taking a pragmatic view. As a result of the impugned
Proclamation, the Election Commission of India had not
only made preparations for the four phase election to be
conducted in the State of Bihar but had also issued
Notification in regard to first two phases before
conclusion of arguments. Further, in regard to these two
phases, before 7th October, 2005, even the last date for
making nominations and scrutiny thereof was also over.
In respect of 1st phase of election, even the last date for
withdrawal of nominations also expired and polling was
fixed for 18th October, 2005. The election process had
been set in motion and was at an advanced stage.
Judicial notice could be taken of the fact that
considerable amount must have been spent; enormous
preparations made and ground works done in the process
of election and that too for election in a State like the one
under consideration. Having regard to these subsequent
developments coupled with numbers belonging to
different political parties, it was thought fit not to put the
State in another spell of uncertainty. Having regard to the
peculiar facts, despite unconstitutionality of the
Proclamation, the relief was moulded by not directing
status quo ante and consequently permitting the
completion of the ongoing election process with the fond
hope that the electorate may again not give fractured
verdict and may give a clear majority to one or other
political party \026 the Indian electorate possessing utmost
intelligence and having risen to the occasion on various
such occasions in the past.
POINT NO.4 : What is the scope of Article 361
granting immunity to the Governor?
By order dated 8th September, 2005, we held that
the Constitution of India grants immunity to the
Governor as provided in
Article 361. Article 361(1), inter alia, provides that
the Governor shall not be answerable to any Court for the
exercise and performance of the powers and duties of his
office or for any act done or purported to be done by him
in the exercise and performance of those powers and
duties. We accepted the submissions made on behalf of
the respondents that in view of this Article notice could
not be issued to the Governor, at the same time, further
noticing that the immunity granted does not affect the
power of this Court to judicial scrutinise attack made on
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the Proclamation issued under Article 356(1) of the
Constitution of India on the ground of malafides or it
being ultra vires and that it would be for the Government
to satisfy the Court and adequately meet such ground of
challenge. A mala fide act is wholly outside the scope of
the power and has no existence in the eyes of the law.
We, further held that the expression 'purported to be
done' in Article 361 does not cover acts which are mala
fide or ultra vires and thus, the Government supporting
the Proclamation under Article 356(1) shall have to meet
the challenge. The immunity granted under Article 361
does not mean that in the absence of Governor, the
grounds of mala fide or being ultra vires would not be
examined by the Court. This order was made at the
stage when we had not examined the question whether
the exercise of power by the Governor was mala fide or
ultra vires or not. This question was argued later.
In our order dated 8th September, 2005 while giving
the brief reasons we stated that detailed reasons will be
given later.
Article 361(1) which grants protection to the
President and the Governor reads as under :
"361.Protection of President and
Governors and Rajpramukhs.--(1) The
President, or the Governor or
Rajpramukh of a State, shall not be
answerable to any court for the exercise
and performance of the powers and
duties of his office or for any act done or
purporting to be done by him in the
exercise and performance of those
powers and duties :
Provided that the conduct of the
President may be brought under review
by any court, tribunal or body appointed
or designated by either House of
Parliament for the investigation of a
charge under article 61: Provided further
that nothing in this clause shall be
construed as restricting the right of any
person to bring appropriate proceedings
against the Government of India or the
Government of a State.
(2) No criminal proceedings whatsoever
shall be instituted or continued against
the President, or the Governor of a State,
in any court during his term of office.
(3) No process for the arrest or
imprisonment of the President, or the
Governor of a State, shall issue from any
court during his term of office.
(4) No civil proceedings in which relief is
claimed against the President, or the
Governor of a Slate, shall be instituted
during his term of office in any court in
respect of any act done or purporting to
be done by him in his personal capacity,
whether before or after he entered upon
his office as President, or as Governor of
such Stale, until the expiration of two
months next after notice in writing has
been delivered to the President or the
Governor, as the case may be, or left at
his office stating the nature of the
proceedings, the cause of action therefor,
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the name, description and place of
residence of the party by whom such
proceedings are to be instituted and the
relief which he claims."
A plain reading of the aforesaid Article shows that
there is a complete bar to the impleading and issue of
notice to the President or the Governor inasmuch as they
are not answerable to any Court for the exercise and
performance of their powers and duties. Most of the
actions are taken on aid and advice of Council of
Ministers. The personal immunity from answerability
provided in Article 361 does not bar the challenge that
may be made to their actions. Under law, such actions
including those actions where the challenge may be
based on the allegations of malafides are required to be
defended by Union of India or the State, as the case may
be. Even in cases where the personal malafides are
alleged and established, it would not be open to the
Governments to urge that the same cannot be
satisfactorily answered because of the immunity granted.
In such an eventuality, it is for the respondent defending
the action to satisfy the Court either on the basis of the
material on record or even filing the affidavit of the
person against whom such allegation of personal
malafides are made. Article 361 does not bar filing of an
affidavit if one wants to file on his own. The bar is only
against the power of the Court to issue notice or making
the President or the Governor answerable. In view of the
bar, the Court cannot issue direction to President or
Governor for even filing of affidavit to assist the Court.
Filing of an affidavit on one's own volition is one thing
than issue of direction by the Court to file an affidavit.
The personal immunity under Article 361(1) is complete
and, therefore, there is no question of the President or
the Governor being made answerable to the Court in
respect of even charges of malafides.
In Union Carbide Corporation, etc., etc. v. Union
of India, etc. etc. [(1991) 4 SCC 584], dealing with
Article 361(2) of the Constitution, Justice Venkatahalliah
referred to the famous case of Richard Nixon [(1982)
457 US 731] about theoretical basis for the need for
such immunity. It was said
"Article 361(2) of the Constitution confers
on the President and the Governors
immunity even in respect of their
personal acts and enjoins that no
criminal proceedings shall be instituted
against them during their term of office.
As to the theoretical basis for the need
for such immunity, the Supreme Court of
the United States in a case concerning
immunity from civil liability (Richard
Nixon v. Ernest Fitzgerald, 457 US 731 :
73 Law Ed 2d 349) said:
".....This Court necessarily also has
weighed concerns of public policy,
especially as illuminated by our
history and the structure of our
Government....."
".....In the case of the President the
inquiries into history and policy
though mandated independently by
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our case, tend to converge. Because
the Presidency did not exist through
most of the development of common
law, any historical analysis must
draw its evidence primarily from our
constitutional heritage and
structure. Historical inquiry thus
merges almost at its inception with
the kind of "public policy" analysis
appropriately undertaken by a
federal court. This inquiry involves
policies and principles that may be
considered implicit in the nature of
the President's office in a system
structured to achieve effective
Government under, a
constitutionally mandated
separation" of powers."
(L Ed p.367)
".....In view of the special nature of
the President's constitutional office
and functions, we think it
appropriate to recognise absolute
Presidential immunity from
damages liability for acts within the
"outer perimeter" of his official
responsibility.
Under the Constitution and
laws of the United States the
President has discretionary
responsibilities in a broad variety of
areas, many of them highly
sensitive. In many cases it would be
difficult to determine which of the
President's innumerable "functions"
encompassed a particular
action....."
A division Bench of the Bombay High Court in the
case of Shri Pratapsing Raojirao Rane & others v.
The Governor of Goa & others [AIR 1999 Bombay 53]
has correctly held that in respect of his official acts, the
Governor is not answerable to the Court even in respect
of charge of mala fide and that in such an eventuality the
Governor cannot be said to be under the duty to deal
with the allegations of mala fide. The Constitutional Law
of India, 4th Edn. by H.M.Seervai has been rightly relied
upon in the said judgment. The observations made by
full Bench of the Madras High Court in K.A.
Mathialagan & Ors. v. The Governor of Tamil Nadu
& Ors. [AIR 1973 Madras 198] that the Governor
would be under duty to deal with allegations of mala fide
in order to assist the Court has been rightly described in
Seervai's commentary being in direct conflict with the
complete personal immunity of the Governor.
The words 'purported to be done' are of wide
amplitude. In Biman Chandra v. Governor, West
Bengal [AIR 1952 Calcutta 799] it was held that Article
361 affords immunity in respect of its exercise and
performance of the power and duties of the office and any
act done or purported to be done by him in exercise and
performance of those powers and duties.
In G.D.Karkare v. T.L.Shevde [AIR 1952 Nagpur
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330] construing the expression 'purporting to be done' it
was held that any act, though not done in pursuance of
the Constitution, may nevertheless be accorded this
protection if the act professes or purports to be done in
pursuance of the Constitution. It was further explained
that though the Governor is not amenable to the process
of the Court but it cannot be said that the High Court
cannot examine his action and grant relief in the absence
of authority making the decision.
In State v. Kawas Manekshaw Nanavati [AIR
1960 Bombay 502] full Bench of the High Court held
that Article 361 only gives personal protection to the
Governor. It is not necessary that the Governor should
be a party to the proceeding. Validity of actions can be
considered and decided in the absence of the Governor.
In The State of West Bengal and Ors. v. Sallendra
Nath Bose [AIR 1964 Calcutta 184] it was held that a
citizen is not without redress even though he cannot
implead the Governor as a party but can be given relief.
The position in law, therefore, is that the Governor
enjoys complete immunity. Governor is not answerable
to any Court for the exercise and performance of the
powers and duties of his office or for any act done or
purporting to be done by him in the exercise and
performance of those powers and duties. The immunity
granted by Article 361(1) does not, however, take away
the power of the Court to examine the validity of the
action including on the ground of malafides.
In view of the above, while holding the impugned
Proclamation dated 23rd May, 2005 unconstitutional, we
have moulded the relief and declined to grant status quo
ante and consequentially permitted the completion of
ongoing election process.
All petitions are disposed of accordingly.
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K.G. BALAKRISHNAN, J.
I have had the advantage of reading in draft the
judgment prepared by Hon'ble the Chief Justice of
India, Shri Y. K. Sabharwal and I find myself unable to agree
with the decision on point No. 2 formulated in the judgment. On
all other points, I gratefully adopt the exposition of law and agree
with the decision proposed by the learned Chief Justice. Point
No. 2 is as follows :-
"(1)\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005
\005\005
(2) Whether the proclamation dated 23rd May, 2005
dissolving the Assembly of Bihar is illegal and
unconstitutional?"
Few factual details are necessary to decide the question. The
election to the Bihar State Legislature was held in the month of
February, 2005 and the results of the election were declared on
23rd March, 2005. The names of the members elected to the Bihar
State Legislature were notified by the Election Commission.
Certain political groups and political parties participated and the
National Democratic Alliance (for short 'NDA'), a coalition
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comprising Bhartatiya Janata Party (for short 'BJP') and Janata
Dal (United) (for short "JD(U)") secured the largest support of
MLAs. The party-wise strength in the Assembly was as follows :-
"(1) NDA 92
(2) RJD 75
(3) LJP 29
(4) Congress (I) 10
(5) CPI (ML) 07
(6) Samajwadi Party 04
(7) NCP 03
(8) Bahujan Samaj Party 02
(9) Independents 17
(10) Others 09"
In order to secure an absolute majority to form a
Government in the State of Bihar, support of 122 Members of
Legislative Assembly was required. NDA could secure only 92
seats and no other political parties or group came forward to
support NDA to form a Government. RJD was also in the same
dilemma. LJP, another political party which was under the
leadership of Shri Ram Vilas Paswan had secured 29 seats in the
State Legislature. This political party did not extend support
either to NDA or RJD. As none could form a Government,
Governor of the State of Bihar sent a Report on 6th March, 2005
to the President of India recommending President's Rule in the
State and for keeping the Assembly in suspended animation for
the time being. On 7th March, 2005 the President's Rule was
imposed in the State of Bihar and the Assembly was kept in
suspended animation. This order passed by the President of India
under Article 356 of the Constitution on 7th March, 2005 is not
challenged in most of the petitions before us. In one of the
petitions, the Notification issued on 7th March, 2005 under Article
356 of the Constitution is also challenged but the petitioner could
not substantiate his contentions and the very challenge itself is
highly belated.
While the Assembly was in suspended animation, the two
political groups, the NDA which had secured 92 seats and the
RJD which had secured 75 seats in the State Legislature made
attempts to form a Government in the State of Bihar. It appears
that the LJP, which had secured 29 seats in the State Legislature
was not prepared to extend support either to NDA or RJD. When
the (Vote on Account) Bill of 2005 for the State of Bihar was
presented before the Parliament, the Home Minister made a
statement to the effect that the President's Rule would not be
continued for a long time and they would have been happy if a
Government had been formed by the elected representatives and
that the elected representative should talk to each other and
create a situation in which it becomes possible for them to form a
Government. The discussion must have been continued between
the political parties.
On 27th April, 2005 the Governor of Bihar sent a Report to
the President of India wherein he stated that he had received
Intelligence Reports to the effect that some elected
representatives were said to have been approached by factions
within the party and outside the party with various allurements
like money, castes and posts etc. and the same was a disturbing
trend. He also cautioned that if the trend is not arrested
immediately, the political instability would further deepen and
the horse-trading would be indulged in by various political
parties and it would not be possible to contain the situation and
the people should be given a fresh opportunity to elect their
representatives.
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It seems that pursuant to letter dated 27th April, 2005 sent
by the Governor of Bihar to the President, no decision was taken
by the President for dissolution of the State Assembly. Again on
21st May, 2005 the Governor of Bihar sent a letter to the
President and this is the crucial document on the basis of which
the Bihar State Legislative Assembly was dissolved under Article
174 (2) (b) of the Constitution. The letter is as follows :-
" Respected Rashtrapati Jee,
I invite a reference to my D.O. letter No. 52/GB
dated 27th April, 2005 through which I had given a
detailed account of the attempts made by some of
the parties notably the JD-U and BJP to cobble a
majority and lay a claim to form a Government in
the State. I had informed that around 16-17 MLAs
belonging to LJP were being wooed by various means
so that a split could be effected in the LJP.
Attention was also drawn to the fact that the RJD
MLAs had also become restive in the light of the
above moves made by the JDU.
As you are aware after the Assembly Elections in
February this year, none of the political parties
either individually or with the then pre-election
combination or with post-election alliance
combination could stake a claim to form a popular
Government since they could not claim a support of
a simple majority of 122 in a House of 243 and
hence the President was pleased to issue a
proclamation under Article 356 of the Constitution
vide notification No. \026 GSR \026 162 (E) dated 7th
March, 2005 and the Assembly was kept in
suspended animation.
The reports received by me in the recent past
through the media and also through meeting with
various political functionaries, as also intelligence
reports, indicate a trend to win over elected
representatives of the people. Report has also been
received of one of the LJP MLA, who is General
Secretary of the party having registered today and
also 17-18 more perhaps are moving towards the
JD-U clearly indicating that various allurements
have been offered which is very disturbing and
alarming feature. Any move by the break away
faction to align with any other party to cobble a
majority and stake claim to form a Government
would positively affect the Constitutional provisions
and safeguards built therein and distort the verdict
of the people as shown by the results in the recent
Elections. If these attempts are allowed it would be
amounting to tampering with Constitutional
provisions.
Keeping the above mentioned circumstances, I
am of the considered view that if the trend is not
arrested immediately, it may not be possible to
contain the situation. Hence in my view a situation
has arisen in the State wherein it would be desirable
in the interest of the State that the Assembly
presently kept in suspended animation is dissolved,
so that the people/electorate can be provided with
one more opportunity to seek the mandate of the
people at an appropriate time to be decided in due
course."
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The gist of the letter written by the Governor is that political
parties either individually or with the then pre-election
combination or with post-election alliance combination could not
stake a claim to form a popular Government since none could
claim support of a simple majority of 122 in a House of 243
members and, therefore, the President issued a Proclamation
under Article 356. The Governor further stated that he had
received information through media and reports gathered through
meeting with various political functionaries that there had been a
trend to win over elected representatives of the people and 17-18
MLAs were moving towards JD(U) and various allurements had
been offered to them. Governor also indicated that any move by
the break-away faction to align with any other party, to cobble a
majority and stake a claim to form a Government would
positively affect the Constitutional provisions and safeguards
provided therein. The Governor was of the view that if the
Assembly is dissolved, the political parties would get another
opportunity to seek a fresh mandate of the people. From the
letter, it is clear that no political party or group or alliance had
approached the Governor claiming absolute majority in the State
Legislature nor did they try to form a Government with the help of
other political parties or independent MLAs.
The Report of the Governor was received by the Union of
India on 22nd May, 2005. The Union Cabinet which met at about
11.00 P.M., took a decision and sent a fax message to the
President of India recommending dissolution of the Legislative
Assembly of Bihar. On 23rd May, 2005 the Bihar Assembly was
dissolved and that order of dissolution is under challenge before
us.
We heard learned Attorney General, Mr. Milon K. Banerji;
learned Solicitor General, Mr. Ghoolam E. Vahanvati; learned
Additional Solicitor General, Mr. Gopal Subramaniam; Mr. Soli
Sorabjee, learned Senior Advocate; Mr. P.S. Narasimha, learned
counsel for the petitioner and Mr. Viplav Sharma, Advocate, who
appeared in person. Many other counsel who were supporting
the petitioner submitted their written arguments. Most of the
arguments centered around the decision rendered by this Hon'ble
Court in S.R. Bommai & Ors. Vs. Union of India & Ors.
[(1994) 3 SCC 1]. The decision in S.R. Bommai's case was
rendered by a Nine Judge Bench and several opinions were
expressed. Justice B.P. Jeevan Reddy gave a separate judgment
with which Justice S.C. Agrawal agreed. Justice A.M. Ahmadi,
Justice J.S. Verma, Justice K. Ramaswamy and Justice
Yogeshwar Dayal agreed with certain propositions given by
Justice B.P. Jeevan Reddy. Although there was a broad
concurrence with the views expressed by Justice Jeevan Reddy,
Justice Sawant & Kuldip Singh, JJ. struck a different note and
their approach, reasoning and conclusion are not similar.
In order to understand the scope and ambit of the decision
in S.R. Bommai's case it is necessary to see the earlier decision
in State of Rajasthan & Ors. Vs. Union of India & Ors.
reported in (1977) 3 SCC 592. The facts which had led to the
filing of that case was that in March, 1977 elections were held to
the Lok Sabha and the result of the elections was interpreted to
mean that the Congress party had lost people's mandate. The
Union Home Minister sent a letter to the Chief Ministers of
certain States asking them to advise their respective Governors
to dissolve the Assemblies and seek a fresh mandate from the
people. The letter together with the statement made by the
Union Law Minister was treated as a threat to dismiss those State
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Governments. They approached this Hon'ble Court by filing suits
and writ petitions. In that case, six opinions were delivered by
the Seven Judge Bench. Though all of them agreed that the writ
petitions and suits be dismissed, the reasoning were not uniform.
Some of the opinions in that judgment can be briefly stated as
follows :-
Bhagwati, J. on behalf of Gupta, J and himself, while
dealing with the "satisfaction of the President" prior to the
issuance of the Proclamation under Article 356 (1), stated as
follows :-
"So long as a question arises whether an authority
under the Constitution has acted within the limits of
its power or exceeded it, it can certainly be decided by
the Court. Indeed it would be its Constitutional
obligation to do so........ This Court is the ultimate
interpreter of the Constitution and to this Court is
assigned the delicate task of determining what is the
power conferred on each branch of Government,
whether it is limited, and if so, what are the limits and
whether any action of that branch transgresses such
limits. It is for this Court to uphold the Constitutional
values and to enforce the Constitutional limitations.
That is the essence of the Rule of Law....."
He went on to say :-
"..\005\005\005.. Here the only limit on the power of the
President under Art. 356, clause (1) is that the
President should be satisfied that a situation has
arisen where the Government of the State cannot be
carried on in accordance with the provisions of the
Constitution. The satisfaction of the President is a
subjective one and cannot be tested by reference to any
objective tests. It is deliberately and advisedly
subjective because the matter in respect to which he is
to be satisfied is of such a nature that its decision
must necessarily be left to the executive branch of
Government. There may be a wide range of situations
which may arise and their political implications and
consequences may have to be evaluated in order to
decide whether the situation is such that the
Government of the State cannot be carried on in
accordance with the provisions of the Constitution. It is
not a decision which can be based on what the
Supreme Court of United States has described as
'judicially discoverable and manageable standards'. It
would largely be a political judgment based on
assessment of diverse and varied factors, fast changing
situations, potential consequences, public reaction,
motivations and responses of different classes of people
and their anticipated future behaviour and a host of
other considerations\005"
He further stated :-
"\005.. It must of course be conceded that in most cases
it would be difficult, if not impossible, to challenge the
exercise of power under Art. 356, clause (1) even on
this limited ground, because the facts and
circumstances on which the satisfaction is based
would not be known, but where it is possible, the
existence of the satisfaction can always be challenged
on the ground that it is mala fide or based on wholly
extraneous and irrelevant grounds. \005..This is the
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narrow minimal area in which the exercise of power
under Article 356, Clause (1) is subject to judicial
review and apart from it, it cannot rest with the Court
to challenge the satisfaction of the President that the
situation contemplated in that clause exists".
(Emphasis supplied)
Beg, CJ was of the opinion that by virtue of Article 356 and
Article 74(2) of the Constitution, it is impossible for the court to
question the 'satisfaction' of the President. It is to be decided on
the basis of only those facts as may have been admitted or
placed before the court. Beg CJ was also of the opinion that
the language of Article 356 and the practice since 1950 shows
that the Central Government can enforce its will against the State
Government with respect to the question as to how the State
Government should function and should hold reigns of power.
But these views were not accepted by the majority. YV
Chandrachud, J, speaking on the scope of judicial review held
that if the reasons disclosed by the Union of India are wholly
extraneous, the court can interfere on the ground of mala fides.
"Judicial scrutiny", said the learned Judge, is available "for the
limited purpose of seeing whether the reasons bear any rational
nexus with the action proposed. The court cannot sit in
judgment over the 'satisfaction' of the President for determining,
if any other view is reasonably possible." As regards the facts
disclosed in the case, the learned Judge was of the view that the
facts disclosed by the Central Government in its counter affidavit
cannot be said to be irrelevant to Article 356. Goswami and
Untwalia, JJ. gave separate opinions and expressed the view
that the facts stated cannot be said to be extraneous or
irrelevant.
From the dicta laid down in State of Rajasthan's case, it
is clear that the power of judicial review could be exercised when
an order passed under Article 356 is challenged before the court
on the ground of mala fides or upon wholly extraneous or
irrelevant grounds and then only the court would have the
jurisdiction to examine it. The plea raised by the learned
Attorney General that a proclamation passed under Article 356 is
legislative in character and outside the ken of judicial scrutiny
was rejected by the majority of the Judges in State of
Rajasthan's case.
On a careful examination of the various opinions expressed
in S.R Bommai's case, it is clear that the majority broadly
accepted the dicta laid down in Rajasthan's case. It was also
held that the principles of judicial review that are to be applied
when an administrative action is challenged cannot be applied
when a challenge is made against a Presidential order passed
under Article 356.
P.B. Sawant, J. speaking for himself and Kuldip Singh, J.
took a different view and held that the same principles would
apply when a proclamation under Article 356 also is challenged.
Some of the observations made by the learned Judges would
make the position clear.
In S.R Bommai's case, a plea was raised that the principles
of judicial review as laid down in Barium Chemicals Ltd. &
Anr. v. The Company Law Board & Ors. (1966) Suppl. 3 SCR
311 are applicable and the subjective satisfaction of the President
as contemplated under Article 356 could be examined. In the
Barium Chemical's case, the Company Law Board under Section
237(b) of the Companies Act appointed four inspectors to
investigate the affairs of the appellant-company on the ground
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that the Board was of the opinion that there were circumstances
suggesting that the business of the appellant-company was being
conducted with intent to defraud its creditors, members or any
other persons and that the persons concerned in the
management of the affairs of the company had in connection
therewith, been guilty of fraud, misfeasance and other
misconduct towards the company and its members. The
company filed a writ petition challenging the said order. In reply
to the writ petition, the Chairman of the Company Law Board
filed an affidavit and contended that there was material on the
basis of which the order was issued and that he had himself
examined this material and formed the necessary opinion within
the meaning of the said Section 237(b) of the Companies Act.
The majority of the Judges held that the circumstances disclosed
in the affidavit must be regarded as the only material on the basis
of which the Board formed the opinion before ordering an
investigation under Section 237(b) and that the circumstances
could not reasonably suggest that the company was being
conducted to defraud the creditors, members or other persons
and, therefore, the impugned order was held ultra vires the
section. Hidayatullah, J. as he then was, stated that the power
under Section 237(b) is discretionary power and the first
requirement for its exercise is the honest formation of an opinion
that an investigation is necessary and the next requirement is
that there are circumstances suggesting the inferences set out
in the section. An action not based on circumstances suggesting
an inference of the enumerated kind will not be valid. Although
the formation of opinion is subjective, the existence of
circumstances relevant to the inference as the sine quo non for
action must be demonstrable. If their existence is questioned, it
has to be proved at least prima facie. It is not sufficient to assert
that the circumstances must be such as to lead to conclusions of
action definiteness.
These principles were also applied in some of the later
decisions where the administrative action was challenged before
the court. (See M.A. Rashid & Ors. Vs. State of Kerala (1975) 2
SCR 93].
There was also a plea that the principles of judicial review
enunciated by Lord Diplock in "Council of Civil Services Union
& Ors. Vs. Minister for Civil Services 1985 AC 374 GCHQ
would apply when Presidential Proclamation under Article 356 is
challenged. This plea also was not accepted by the majority of
the Judges in S.R. Bommai's case.
The broad view expressed by Sawant, J., to which Kuldip
Singh, J. also agreed, could be gathered from the observations on
page 102 in the S.R. Bommai's case which is to the following
effect:
"From these authorities, one of the conclusions which
may safely be drawn is that the exercise of power by
the President under Article 356(1) to issue
Proclamation is subject to the judicial review at least to
the extent of examining whether the conditions
precedent to the issuance of the Proclamation have
been satisfied or not. This examination will
necessarily involve the scrutiny as to whether there
existed material for the satisfaction of the President
that a situation had arisen in which the Government of
the State could not be carried on in accordance with
the provisions of the Constitution. \005\005\005\005\005\005\005
In other words, the President has to be convinced of,
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or has to have sufficient proof of information with
regard to or has to be free from doubt or uncertainty
about the state of things indicating that the situation
in question has arisen. Although, therefore, the
sufficiency or otherwise of the material cannot be
questioned, the legitimacy of inference drawn from
such material is certainly open to judicial review."
The above opinion expressed by Sawant J., to which Kuldip
Singh, J. also agreed was not fully accepted by other Judges. B.P.
Jeevan Reddy, J. speaking for himself and Agrawal, J., held that
the proclamation under Article 356 is liable to judicial review and
held that the principles of judicial review, which are applicable
when an administrative action is challenged, cannot be applied
stricto sensu.
At the end of the judgment, Jeevan Redddy, J. summarized
the conclusions and conclusions (6) and (7) speak of the scope
and ambit of judicial review. Clause (1), (2), (6) and (7) are
relevant for the purpose of the present case. These are as follows:
1) Article 356 of the Constitution confers a power upon
the President to be exercised only where he is satisfied
that a situation has arisen where the government of a
State cannot be carried on in accordance with the
provisions of the Constitution, Under our Constitution,
the power is really that of the Union Council of
Ministers with the Prime Minister at its head. The
satisfaction contemplated by the Article is subjective in
nature.
(2) The power conferred by Art. 356 upon the President
is a conditioned power. It is not an absolute power. The
existence of material -- which may comprise of or
include the report(s) of the Governor -- is a pre-
condition. The satisfaction must be formed on relevant
material. The recommendations of the Sarkaria
Commission with respect to the exercise of power
under Art. 356 do merit serious consideration at the
hands of all concerned.
[3] \005.
[4] \005.
[5] \005.
(6) Article 74(2) merely bars an enquiry into the
question whether any, and if so, what advice was
tendered by the ministers to the President. It does not
bar the court from calling upon the Union Council of
Ministers (Union of India) to disclose to the court the
material upon which the President had formed the
requisite satisfaction. The material on the basis of
which advice was tendered does not become part of the
advice. Even if the material is looked into by or shown
to the President, it does not partake the character of
advice. Article 74(2) and S. 123 of the Evidence Act
cover different fields. It may happen that while
defending the proclamation, the minister or the
concerned official may claim the privilege under S. 123.
If and when such privilege is claimed, it will be decided
on its own merits in accordance with the provisions of
S. 123.
(7) The proclamation under Article 356( I) is not
immune from judicial review. The Supreme Court or
the High Court can strike down the proclamation if it is
found to be mala fide or based on wholly irrelevant or
extraneous grounds. The deletion of clause (5) (which
was introduced by 38th (Amendment) Act) by the 44th
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(Amendment) Act, removes the cloud on the
reviewability of the action. When called upon, the
Union of India has to produce the material on the basis
of which action was taken. It cannot refuse to do so. if
it seeks to defend the action. The court will not go into
the correctness of the material or its adequacy. Its
enquiry is limited to see whether the material was
relevant to the action. Even if part of the material is
irrelevant, the court cannot interfere so long as there is
some material which is relevant to 'the action taken.
[Emphasis supplied]
Justice Ratnavel Pandian agreed with Jeevan Reddy J. on
his conclusions on all the above points. He disagreed with only
Clause (3) of the summary of conclusions. Clause (3) deals only
with the power of dissolving the legislative assembly which shall
be exercised by the President only after proclamation under
clause (1) of Article 356 is approved by both the Houses of
Parliament and until such approval the President can only
suspend the Legislative Assembly by suspending the provisions of
the Constitution relating to the Legislative Assembly.
J.S. Verma, Ahmadi and Ramaswami, JJ. took a different
note. Ahmadi, J. was of the opinion that the court cannot
interdict the use of the constitutional power conferred on the
President under Article 356 unless the same is shown to be
mala fide. Before exercise of the Court's jurisdiction, sufficient
caution must be administered and unless a strong and cogent
prima facie case is made out, the President, i.e. the executive
must not be called upon to answer the charge. Ramaswamy, J.
was also of the same opinion.
Verma, J. was of the view that the test for adjudging the
validity indicated in the The Barium Chemicals Ltd.'s case and
other cases of that category have no application for testing and
invalidating a proclamation issued under Article 356. He was of
the opinion that only cases which permit application of totally
objective standards for deciding whether the constitutional
machinery has failed are amenable to judicial review and the
remaining cases wherein there is any significant area of
subjective satisfaction dependent on some imponderables or
inferences are not justiciable because there are no judicially
manageable standards for resolving that controversy and those
cases are subject only to political scrutiny and correction for
whatever its value in the existing political scenario.
It is important to note that in S.R. Bommai's case, majority
of Judges held, that as regards the imposition of President's Rule
in Karnataka, Meghalaya and Nagaland, the Presidential
proclamations were unconstitutional. The facts which ultimately
led to the Presidential proclamation under Article 356(1) in two
States are significant to understand the law laid down in S.R.
Bommai's case.
In the case of Karnataka, the President dismissed the
government and dissolved the State Assembly. The Janta Party
was ruling the State and it had formed the Government under the
leadership of Shri S.R. Bommai. One member of the legislature
defected from the party and presented a letter to the Governor
withdrawing his support to the Ministry. On the next day, he
presented to the Governor 19 letters allegedly signed by 17 Janta
Dal legislators, one independent but associate legislator and one
legislator belonging to Bhartiya Janata Party which was
supporting the Minstry, withdrawing their support to the
Minstry. On receipt of these letters, the Governor is said to have
called the Secretary of the Legislative Department and got the
authenticity of the signatures on the said letters verified.
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Governor then sent a report to the President stating therein that
there were dissensions in the Janta Party which had led to the
resignation of Shri Hegde and he referred to the 19 letters
received by him and in view of withdrawal of support by the said
legislators , the Chief Minister Shri Bommai did not command a
majority in the Assembly and no other political party was in a
position to form the government and, therefore, recommended to
the President to exercise power under Article 356(1). The
Governor did not ascertain the view of the Chief Minister, Shri
Bommai, and on the next day, seven out of the nineteen
legislators who had allegedly written the said letters to the
Governor made a complaint that their signatures were obtained
by misrepresentation. The Governor also did not take any steps
directing the Chief Minister to seek a vote of confidence in the
legislature nor met any of the legislators who had allegedly
defected from the Janta Party. It was in this background that
the proclamation issued by the President on the basis of the said
report of the Governor and in the circumstances so obtaining,
equally suffered from mala fides. The duly constituted Ministry
was dismissed on the basis of the material which was no more
than the ipse dixit of the Governor.
In the case of Meghalaya, Meghalaya United Parliamentrary
Party (MUPP) which had a majority in the Legislative Assembly
formed the government in March, 1990 under the leadership of
Shri B.B. Lyngdoh. One Kyndiah Arthree was at the relevant
time the Speaker of the House. He was elected as the leader of
the opposition known as United Meghalaya Parliamentary Forum
(UMPF). On his election, Shri Arthree claimed support of
majority of the members in the Assembly and requested the
Governor to invite him to form the government. The Governor
asked the Chief Minister Shri Lyngdoh to prove his majority on
the floor of the House. A special sessions was convened on 7.8.91
and a Motion of Confidence in the Ministry was moved. Thirty
Legislators supported the Motion and 27 voted against it. Instead
of announcing the result of the voting on the Motion, the Speaker
declared that he had received a complaint against five
independent MLAs of the ruling coalition front alleging that they
were disqualified as legislators under the anti-defection law and
since they had become disentitled to vote, he was suspending
their right to vote. On this announcement, there was uproar in
the House and it had to be adjourned. On 11.8.1991, the
Speaker issued show cause notices to the alleged defectors. The
five MLAs replied stating that they had not joined any of the
parties and they had continued to be independent. The
Speaker passed an order disqualifying the five MLAs. Thereafter,
on Governor's advice, the Chief Minister Shri Lyngdoh summoned
the Session of the Assembly on 9.9.1991 for passing a vote of
confidence in the Ministry. The Speaker, however, refused to
send the notices of the Session to the five disqualified
independent MLAs whereupon they approached this court. This
court issued interim orders staying the operation of the Speaker's
order. Only four of them had applied to the court for an order of
stay. The Speaker issued a Press Statement in which he
declared that he did not accept any interference by any court.
The Governor, therefore, prorogued the Assembly indefinitely.
The Assembly was again convened and the four independent
MLAs who had obtained interim orders from the court moved a
contempt petition before this court against the Speaker. The
Speaker made a declaration in a press statement defying the
interim order of this Court. On 8.10.1991, this Court passed an
order directing that all authorities of the State should ensure the
compliance of the Court's interim order of 6.9.1991 and four of
the five independent MLAs received invitation to attend the
Session of the Assembly. After the Motion of Confidence in the
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Ministry was put to vote, the Speaker declared that 26 voted for
the Motion and 26 against it and excluded the votes of the four
independent MLAs. The 26 MLAs who had supported the
Ministry and four MLAs who had voted in favour of the Motion
elected a new Speaker and the new Speaker declared that the
Motion of Confidence in the Ministry had been carried since 30
MLAs had voted in favour of the Government. They thereafter
sent letters to the Governor that they had voted in favour of the
Ministry. However, the Governor wrote a letter to the Chief
Minister asking him to resign in view of what had transpired in
the Session on 8.10.1991. The Chief Minister moved this Court
against the letter of the Governor. Despite all these facts, the
President on 11.10.1991 issued a proclamation under Article
356(1) and in the proclamation it was stated that the President
was satisfied on the basis of the report from the Governor and
other information received by him that the situation had arisen
in which the Government of the State could not be carried on in
accordance with the provisions of the Constitution.
In the case of Nagaland also, similar situation had arisen.
The facts are not necessary to be stated in detail.
In all these three cases where the Presidential Proclamations
issued under Article 356 were quashed by this Court, were States
wherein the Government was functioning on the strength of the
majority, whereas in the instant case the decision of dissolution
of the Assembly was evidently passed on the report of the
Governor when the Assembly was in suspended animation and
there was no democratically elected Government in the State and,
therefore, there was no question of testing the majority of the
Government on the floor of the Assembly.
From the S.R. Bommai's decision, it can be discerned that
the majority was of the view that so far as the scope and ambit of
judicial review is very limited when a proclamation under Article
356 is questioned and similar parameters would apply in a case
where a Notification is passed under Article 174(2) {b) dissolving
the State Legislative Assembly. The plea raised by the Additional
Solicitor General, Shri Gopal Subramaniam that the Notification
dissolving Assembly is of a legislative character and could be
challenged only on the ground of absence of legislative
competence or ultra vires of the Constitution, cannot be
accepted. This plea was raised in Rajasthan's case as well as in
S.R. Bommai's case, but it was rightly rejected in both the cases.
However, the power exercised by the President is exceptional in
character and it cannot be treated on par with an administrative
action and grounds available for challenging the administrative
action cannot be applied. In view of Article 74(2) of the
Constitution, the court cannot go into the question as to what
manner of advice was tendered by the Council of Ministers to the
President. The power conferred on the President is not absolute;
it has got checks and balances. It is true that the power
exercised by the President is of serious significance and it
sometime amounts to undoing the will of the people of the State
by dismissing the duly constituted Government and dissolving
the duly constituted Legislative Assembly. Any misuse of such
power is to be curbed if it is exercised for mala fide purposes or
for wholly extraneous reasons based on irrelevant grounds. The
Court can certainly go into the materials placed by the Governor
which led to the decision of dissolving the State Assembly.
The Presidential proclamation dissolving the Bihar State
Legislative Assembly was issued pursuant to two reports sent in
by the Governor. It may be remembered that Article 356(1)
Proclamation imposing President's Rule was issued on 7th March,
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2005. Thereafter, on 22nd April, 2005, the Governor sent a report
wherein he stated that none of the political parties. either
individually or with the then pre-election combination or with
post-election alliance, could stake a claim to form a popular
Government wherein they could claim support of a simple
majority of 122 in a House of 243. The Governor had also
indicated that there are certain newspaper reports and other
reports gathered through meeting with different parties'
functionaries that some steps are being taken to win over the
elected representatives of the people through various allurements
like money, caste, post, etc. Thereafter, on 21.5.2005, the
Governor of Bihar sent another report and based on that, the
Bihar State Assembly was dissolved on 23rd May, 2005. In the
report dated 21st May, 2005, the Governor reiterated his earlier
report that no party had approached him to form a popular
Government since none could claim the support of a simple
majority of 122 in a House of 243. In that report, the Governor
had also stated that 17/18, or more perhaps, LJP MLAs are
moving towards the JD(U) and that various allurements have
been offered to them and it was an alarming feature and the
Governor was also of the opinion that it was positively affecting
the Constitutional provisions and safeguards built therein and
distorted the verdict of the people.
The contention urged by learned ASG, Shri Gopal
Subramaniam was that this is the material which was placed
before the President before a Proclamation was issued under
Article 174(2)(b) of the Constitution. It is important to note that
the writ petitioners have no case that JD(U) or any other
alliance had acquired majority and that they had approached the
Governor staking their claim for forming a Government. No
material is placed before us to show that the JD(U) or its alliance
with BJP had ever met the Governor praying that they had got the
right to form a Government. The plea of the petitioners' counsel
is that they were about to form a Government and in order to
scuttle that plan the Governor sent a report whereby the
Assembly was dissolved to defeat that plan is without any basis.
The Governor in his report stated that 17 or 18 members of the
LJP had joined the JD(U)-BJP alliance, but no materials have
been placed before us to show that they had, in fact, joined the
alliance to form a Government. One letter has been produced by
one of the petitioners and the same is not signed by all the MLAs
and as regards some of them, some others had put their
signatures. Therefore, it is incorrect to say that the Governor
had taken steps to see that the Assembly was dissolved hastily
to prevent the formation of a Government under the leadership of
the political party JD(U). If any responsible political party had
any case that they had obtained majority support or were about
to get a majority support or were in a position to form minority
Government with the support of some political parties and if their
plea was rejected by the Governor, the position would have been
totally different. No such situation had been reached in the
instant case. It is also very pertinent to note that the order for
dissolution of the State Assembly was passed after about three
months of the proclamation imposing the President's Rule was
issued under Article 356(1). When there was such a situation,
the only possible way was to seek a fresh election and if it was
done by the President, it cannot be said that it was a mala fide
exercise of power and the dissolution of the Assembly was wholly
on extraneous or irrelevant grounds. It is also equally important
that in Karnataka, Meghalaya and Nagaland cases, there was a
democratically-elected Government functioning and when there is
an allegation that it had lost its majority in the Assembly, the
primary duty was to seek a vote of confidence in the Assembly
and test the strength on the floor of the Assembly. Such a
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situation was not available in the present case. It was clear that
not a single political party or alliance was in a position to form
the Government and when the Assembly was dissolved after
waiting for a reasonable period, the same cannot be challenged on
the ground that the Governor in his report had stated that some
horse-trading is going on and some MLAs are being won over by
allurements. These are certainly facts to be taken into
consideration by the Governor. If by any foul means the
Government is formed, it cannot be said to be a democratically-
elected Government. If Governor has got a reasonable
apprehension and reliable information such unethical means
are being adopted by the political parties to get majority, they
are certainly matters to be brought to the notice of the President
and at least they are not irrelevant matters. Governor is not the
decision-making authority. His report would be scrutinized by
the Council of Ministers and a final decision is taken by the
President under Article 174 of the Constitution. Therefore, it
cannot be said that the decision to dissolve the Bihar State
Legislative Assembly, is mala fide exercise of power based on
totally irrelevant grounds.
Applying the parameters of judicial review of Presidential
action in this regard, I do not think that the petitioners in these
writ petitions have made out a case for setting aside the
Notification issued by the President on 23rd May, 2005. The Writ
Petitions are without any merit they are liable to be dismissed.
============================================================================================
====================================
ARIJIT PASAYAT J.
In the last few years the attack on actions of Governors
in the matter of installation/dissolution of ministries has
increased, which itself is a disturbing feature. A Governor has
been assigned the role of a Constitutional sentinel and a vital
link between the Union and the State. A Governor has also
been described as a useful player in the channel of
communication between the Union and the State in matters of
mutual interest and responsibility. His oath of office binds
him to preserve, protect and defend the Constitution of India,
1950 (in short 'the Constitution') and the law, and also to
devote himself to the service and the well being of the people of
the State concerned. When allegations are made that he is
partisan and/or is acting like an agent of a political party, un-
mind of his Constitutional duties, it naturally is a serious
matter.
The cases at hand relate to acts of the Governor of Bihar.
Challenge in these writ petitions is to the
constitutionality, legality and validity of a Notification GSR
333(E) dated 23.5.2005 of the Union of India in ordering
dissolution of the Bihar Legislative Assembly. Writ Petition (C)
No.257 of 2005 has been filed by four persons who were
elected to the dissolved Legislative Assembly. Petitioner No.1
Shri Rameshwar Prasad was elected as a candidate of the
Bhartiya Janta Party (in short 'BJP'). Petitioner No.2 Shri
Kishore Kumar was elected as an independent candidate.
Petitioner No.3 Shri Rampravesh Rai was elected as a
candidate of the Janta Dal United (in short 'JDU') while
petitioner NO.4 Dr. Anil Kumar was elected as a candidate of
the Lok Janshakti Party (in short 'LJP').
Writ Petition (C) No.353 of 2005 has been filed by Smt.
Purnima Yadav who was elected as an independent candidate.
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Writ Petition (C) No.258 of 2005 has been filed by Shri Viplav
Sharma, an Advocate, styled as a Public Interest litigation.
All these writ petitions have been filed under Article 32 of
the Constitution. In Viplav Sharma's Writ Petition in addition
to the challenges made by the writ petitioners in other two writ
petitions, prayer has been made for a direction to the Governor
of Bihar to administer oath to all the elected members of the
13th Legislative Assembly of the State of Bihar and make such
assembly functional, purportedly in terms of Articles 172 and
176 of the Constitution and appoint the Chief Minister and
Council of Ministers in terms of Article 164(1) of the
Constitution. Further, consequential prayers have been made
for a direction to the Election Commission of India (in short
the 'Election Commission') not to hold fresh elections for the
constitution of 14th State Legislative Assembly. It has also
been prayed to direct stay the effect and operation of the
purported report dated 22.5.2005 of the Governor of Bihar to
the Union Cabinet inter-alia recommending the dissolution of
the Assembly and the Presidential Proclamation dated
7.3.2005 placing the 13th State Legislative Assembly under
suspended animation and the Presidential Proclamation dated
23.5.2005. In essence, his stand was that since the State
Legislative Assembly was yet to be functional there was no
question of dissolving the same. Certain other prayers have
been made for laying down the guidelines and directions with
which we shall deal with in detail later on. It is to be noted
that by order dated 25.7.2005 it was noted that Mr. Viplav
Sharma had stated before the Bench hearing the matter that
he does not press the prayers (i), (ii), (vii) and (viii) in the writ
petition.
The challenges in essence, as culled out from the
submissions made by the petitioners are essentially as follows:
The dissolution of the Legislative Assembly by the
impugned Notification dated 23.5.2005 in exercise of the
powers conferred by sub-clause (b) of Clause (2) of Article 174
of the Constitution read with clause (a) of the Proclamation
number GSR 162(E) dated 7th March, 2005 issued under
Article 356 of the Constitution in relation to the State of Bihar
has been made on the basis of a tainted and clearly
unsustainable report of the Governor of Bihar. It is stated by
Mr. Sorabjee that the Governor's report which led to
imposition of President's Rule over the State of Bihar was not
based on an objective assessment of the ground realities. The
Home Minister in his speech made on 21.3.2005 when the
Bihar Appropriation (Vote on Account) Bill, 2005 was being
discussed in Rajya Sabha clearly indicated that it is not good
for democracy to let the President's rule continue for a long
time. It was unfortunate that no political party could get a
majority and more parties could not come together to form the
Government. The minority government also would not be
proper to be installed where the difference between the
requisite majority and the minority was not very small. The
House was assured that the Government was not interested in
continuation of President's Rule for a long time. It was
categorically stated that sooner it disappears the better it
would be for the State of Bihar, for democracy and for the
system that has been followed in this country. The Governor
was requested to explore the possibilities of formation of a
Government. This could be achieved by talking to the elected
representatives. Contrary to what was held out by the Home
Minister, on totally untenable premises and with the sole
objective of preventing Shri Nitish Kumar who was projected to
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be as the Chief Ministerial candidate by the National
Democratic Alliance (in short the 'NDA') with support of a
break away group of LJP and independents. In hot-haste, a
report was given, which was attended to with unbelievable
speed and the President's approval was obtained. The hot-
haste and speed with which action was taken clearly indicates
mala-fides. Though the Governor made reference to some
horse trading or allurements the same was clearly on the basis
of untested materials without details. Action of the Governor is
of the nature which was condemned by this Court in S.R.
Bommai and Ors. v. Union of India and Ors. (1994 (3) SCC 1).
It was submitted that similar views expressed by respective
Governors did not find acceptance in the cases of dissolution
of Assemblies in Karnataka and Meghalaya in the said case.
Though the Proclamations in respect of Madhya Pradesh,
Rajasthan and Himachal Pradesh were held to be not
unconstitutional, yet the parameters of the scope of judicial
review were highlighted. Even if it is accepted that the
Governor's opinion is to be given respect and honour in view of
the fact that he holds a high constitutional office, yet when the
view is tainted with mala-fides the same has to be struck
down. In the instant case according to learned counsel for
petitioners, the background facts clearly established that the
Governor was not acting bona fide and his objective was to
prevent installation of a majority Government. Even if it is
accepted for the sake of arguments that the majority was
cobbled by unfair means that is a matter with which the
Governor has no role to play. It is for the Speaker of the
Assembly, when there is a floor test to consider whether there
was any floor crossing. If any material existed to show that
any Legislature was lured by unfair means that is for the
electorate to take care of and the media to expose. That cannot
be a ground for the Governor to prevent somebody from
staking a claim when he has the support of majority number
of legislatures. It is submitted that similar views regarding
horse trading etc. were made in the report of the Governor so
far as the dissolution of the Karnataka Assembly is concerned
and this Court in S.R. Bommai's case (supra) found that the
same cannot be the foundation for directing dissolution.
For the last few years formation of government by a party
having majority has become rare. Therefore, the coalition
governments are in place in several States and in fact at the
Centre. There is nothing wrong in post poll adjustments and
when ideological similarity weighs with any political party to
support another political party though there was no pre-poll
alliance, there is nothing wrong in it. Majority of the
legislatures of the LJP party had decided to support JDU in its
efforts to form a Government. Clear decisions were taken in
that regard. Some Independent M.L.As had also extended their
support to Mr. Nitish Kumar. The Governor cannot refuse to
allow formation of a Government once the majority is
established. The only exception can be where the Governor is
of the view that a stable Government may not be formed by the
claimants. It is not the position in the case at hand. Mr. Nitish
Kumar had support of legislators, more than the requisite
number and in fact the number was far in excess of the
requisite number. The Governor's actions show that he was
acting in a partisan manner to help some particular political
parties.
The scope of judicial review was delineated by this Court
in State of Rajasthan and Ors. v. Union of India and Ors.
(1977 (3) SCC 592) and was further expanded in Bommai's
case (supra). Tested on the touchstone of the guidelines set
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out in Rajasthan's case (supra) and Bommai's case (supra) the
Governor's report is clearly unsustainable and consequential
Presidential Proclamation is unconstitutional. It is to be noted
that the Presidential Proclamation was based solely on the
Governor's report as has been accepted by the Union of India.
Mr. P.S. Narasimha and Mr. Viplav Sharma supported
the stand. Additionally, with reference to their additional
stands noted supra in the writ petitions, they submitted that
the President's Notification is not sustainable and is
unconstitutional.
In response, Mr. Milon K. Banerjee, learned Attorney
General, Mr. Goolam E. Vahanvati, learned Solicitor General,
Mr. Gopal Subramaniam, learned Additional Solicitor General,
Mr. P.P. Rao, learned senior counsel and Mr. B.B. Singh,
learned counsel submitted that there is no quarrel about the
scope of judicial review of this Court in matters relating to
Proclamation under Article 356(1) and consequentially Article
174(2) of the Constitution. But the factual scenario as
projected by the petitioners is really not so.
In the instant case, the Governor had not in reality
prevented anybody from staking a claim. It is nobody's case
that somebody had staked a claim. What the Governor had
indicated in his report dated 21.5.2005 (not dated 22.5.2005
as stated in the writ petitions by the writ petitioners) was that
effort was to get the majority by tainted means by allurements
like money, caste, posts and such unfair and other
objectionable means. When the foundation for the claim was
tainted the obvious inference is that it would not lead to a
stable government and the same is clearly visible. It has been
submitted that the parameters of judicial review are extremely
limited so far as the Governor's report is concerned and
consequential actions taken by the President. The Governor
cannot be a mute spectator when democratic process is
tampered with by unfair means. The effort is to grab power by
presenting a majority, the foundation of which is based on
factors which are clearly anti democratic in their conception.
Parliamentary democracy is a part of the basic structure of the
Constitution and when the majority itself is the outcome of
foul means it is clearly against the mandate given by the
electorate. It can never be said that the electorate wanted that
their legislatures after getting their mandate would become the
object of corrupt means. When the sole object is to grab power
at any cost even by apparent unfair and tainted means, the
Governor cannot allow such a government to be installed. By
doing so, the Governor would be acting contrary to very
essence of democracy. The purity of electorate process would
get polluted. The framers of the Constitution never intended
that democracy or governance would be manipulated.
Defections strike at the root of representative government.
They are unconstitutional, illegal, illegitimate, unethical and
improper. The Tenth Schedule cannot take care of all
situations and certainly not in the case of independents. It
would be too hollow to contend that the floor test would cure
all impurity in gathering support of the legislatures. Floor test
cannot always be a measure to restrain the corrupt means
adopted and in cobbling the majority. It is also too much to
expect that by exposure of the corrupt means so far as a
particular legislature is concerned, by the people or by the
media the situation would improve. Since there is no material
to show that any party staked a claim and on the contrary as
is evident from the initial report of the Governor dated
6.3.2005 that nobody was in a position to stake a claim and
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the fact that passage of about three months did not improve
the situation, the Governor was not expected to wait
indefinitely and in the process encourage defections or
adoption of other objectionable activities. It is submitted that
ratio in State of Rajasthan's case (supra) so far as the scope of
judicial review is concerned has not been expanded in
Bommai's case (supra), and the parameters remain the same.
With reference to Tenth Schedule more particularly sub-
paragraphs 2 and 4 it is submitted that dis-qualification had
been clearly incurred by the members of LJP break away
group. There was in fact no merger of the so-called break away
group with JDU. The documents filed by the petitioners amply
show that there was only a proposal and in fact not any
merger. Documents on the other hand show that the so called
resolution was also manipulated. One person had signed for
several persons and even the signatures differ. If really the
persons were present in the so called meeting, adopted the
resolution purported to have been taken, there was no reason
as to why concerned participants did not sign the resolution
and somebody else signed it in their favour. This clearly shows
that on the basis of manipulated documents it was attempted
to be projected as if Shri Nitish Kumar had a majority.
Interestingly, Shri Nitish Kumar has not filed any petition and
only four members have filed the petitions though claim was
that more than 122 had extended support. Though that by
itself may not be a ground to throw out the petitions, yet the
petitions certainly suffer from legal infirmity. As amply proved,
the petitioners have not approached this Court with clean
hands and therefore are not entitled to any relief. It is
submitted that the petitioners in WP (C) No.257 and 353 have
not questioned the correctness of the President's Notification
dated 7.3.2005, and interestingly in the so called Public
Interest Litigation, it has been challenged. After having given
up challenge to the major portion of the challenges it has not
been explained by the petitioner in person as to how and in
which way any of his rights has been affected. If the persons
affected have not questioned the correctness of the Notification
dated 7.3.2005 the petitioner in person should not be
permitted to raise that question. It is the basic requirement of
a Public Interest Litigation that persons who are affected are
unable to approach the Court. It is strange that learned
counsel for the legislators-writ petitioners have accepted the
Notification dated 7.3.2005 to be valid and in order. The plea
taken in the so called Public Interest Litigation is to the
contrary. The factual position in Bommai's case (supra) was
different. It related to cases where elected governments were in
office and the Governors directed dissolution. The position is
different here. Further it is submitted that the power exercised
by the Governor is legislative in character and it can only be
nullified on the ground of ultra-vires. The reports of the
National Commission To Review the Working Of The
Constitution and Sarkaria Commission have amply indicated
the role to be played by the Governors' and sanctity to be
attached to their report. Even when the parameters of judicial
review spelt out in the State of Rajasthan and Bommai's cases
(supra) are kept in view, the impugned report and
consequential President's Notification do not suffer from any
infirmity to warrant interference. It is further submitted that
the Election Commission had notified fresh elections and even
if for the sake of arguments if any defect is noticed in the
Governor's report or the consequential President's Notification,
that cannot be a ground to stall the election already notified.
People can give their mandate afresh and the plea that large
sums of money would be spent if the fresh elections are held is
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really no answer to preventing installation of a government
whose foundation is shaky. It is submitted that the report
does not even show a trend of any partisan approach vis-a-vis
any political party by the Governor who was acting
independently. In fact before the report dated 21.5.2005 on
which the final decision for the Presidential Proclamation was
taken a report dated 27.4.2005 was given which clearly
indicated that no party was in a position to form the
Government. The Governor has clearly indicated the source
from which he came to know about the efforts to form the
Government by illegal means. It is pointed out that the
decision relied upon by Mr. P.S. Narasimha and Mr. Viplav
Sharma i.e. Udai Narain Sinha v. State of U.P. and Ors. (AIR
1987 Allahabad 293) does not really reflect the correct position
in law and was rendered in the peculiar fact situation. On the
contrary, the decision of the Kerala High Court in K.K. Aboo v.
Union of India (AIR 1965 Kerala 229) lays the correct position.
Stand that because of Articles 172 or 174 of the Constitution
there is no scope of dissolving the Assembly before it was
summoned to hold the meeting is not acceptable on the face of
Section 73 of the Representation of People Act, 1951 (in short
the 'RP Act'). It is pointed out that the decision in K.K. Aboo's
case (supra) was approved to be laying down the correct law by
a Constitution Bench of this Court in Special Reference No.1
of 2002 (2002 (8) SCC 237).
The reports of the Governor dated 6.3.2005, 27.4.2005
and 21.5.2005 need to be reproduced. They read as under:
"D.O.No.33/GB Patna, the 6th March, 2005
Respected Rashtrapati Jee,
The present Bihar Legislative
Assembly has come to an end on 6th March,
2005. The Election Commission's notification
with reference to the recent elections in regard
to constitution of the new Assembly issued vide
No.308/B.R.L.A./2005 dated 4th March, 2005
and 464/Bihar-LA/2005, dated the 4th March,
2005 is enclosed (Annexure-I)
2. Based on the results that have come up,
the following is the party-wise position:
1. R.J.D. : 75
2. J.D.(U) : 55
3. B.J.P. : 37
4. Cong.(I) : 10
5. B.S.P. : 02
6. L.J.P. : 29
7. C.P.I. : 03
8. C.P.I.(M) : 01
9. C.P.I. (M.L.) : 07
10. N.C.P. : 03
11. S.P. : 04
12. Independent : 17
________________________
243
________________________
The R.J.D. and its alliance position is as follows:
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1. R.J.D. : 75
2. Cong (I) : 10
3. C.P.I. : 03(support letter
not received)
4. C.P.I.(M) : 01
5. N.C.P. : 03
________________________
92
________________________
The N.D.A. alliance position is as follows:
1. B.J.P. : 37
2. J.D.(U) : 55
________________________
92
________________________
3. The present Chief Minister, Bihar, Smt.
Rabri Devi met me on 28.2.2005 and
submitted her resignation alongwith her
Council of Ministers. I have accepted the same
and asked her to continue till an alternative
arrangement is made.
4. A delegation of members of L.J.P. met me
in the afternoon of 28.2.2005 and they
submitted a letter (Annexure II) signed by Shri
Ram Vilas Paswan, President of the Party,
stating therein that they will neither support
the R.J.D. nor the B.J.P. in the formation of
government. The State President of Congress
Party, Shri Ram Jatan Sinha, also met me in
the evening of 28.2.2005.
5. The State President of B.J.P., Shri Gopal
Narayan Singh alongwith supporters met me
on 1.3.2005. They have submitted a letter
(Annexure III) stating that apart from
combined alliance strength of 92 (BJP and
JD(U) they have support of another 10 to 12
Independents. The request in the letter is not
to allow the R.J.D. to form a Government.
6. Shri Dadan Singh, State President of
Samajwadi Party, has sent a letter (Annexure
IV) indicating their decision not to support the
R.J.D. or N.D.A. in the formation of the Govt.
He also met me on 2.3.2005.
7. Shri Ram Naresh Ram, Leader of the
C.P.I. (M.L.-Lib), Legislature Party alongwith 4
others met me and submitted a letter
(Annexure V) that they would not support any
group in the formation of Government.
8. Shri Ram Vilas Paswan, National
President of L.J.P. alongwith 15 others met me
and submitted another letter (Annexure VI).
They have re-iterated their earlier stand.
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9. The R.J.D. met me on 5.3.2005 in the
forenoon and they staked claim to form a
Government indicating the support from the
following parties:
1. Cong.(I) : 10
2. N.C.P. : 03
3. C.P.I. (M) : 01
4. B.S.P. : 02(copy enclosed
as Annex.VII)
The R.J.D. with the above will have only 91.
They have further claimed that some of
the Independent members may support the
R.J.D. However, it has not been disclosed as to
the number of Independent M.L.As. from
whom they expect support nor their names.
Even if we assume the entire
independents totalling 17 to extend support to
R.J.D. alliance, which has a combined
strength of 91, the total would be 108, which
is still short of the minimum requirement of
122 in a House of 243.
10. The N.D.A. delegation led by Shri Sushil
Kumar Modi, M.P., met me in the evening of
5.3.2005. They have not submitted any further
letter. However, they stated that apart from
their pre-election alliance of 92, another 10
Independents will also support them and they
further stated that they would be submitting
letters separately. This has not been received
so far. Even assuming that they have support
of 10 Independents, their strength will be only
102, which is short of the minimum
requirement of 122.
11. Six Independents M.L.As. met me on
5.3.2005 and submitted a letter in which they
have claimed that they may be called to form a
Government and they will be able to get
support of others (Annexure VIII). They have
not submitted any authorisization letter
supporting their claim.
12. I have also consulted the legal experts
and the case laws particularly the case
reported in AIR 1994 SC 1918 where the
Supreme Court in para 365 of the report
summarized the conclusion. The relevant part
is para 2, i.e. the recommendation of the
Sarkaria Commission do merit serious
consideration at the hands of all concerned.
Sarkaria Commission in its report has said
that Governor while going through the process
of selection should select a leader who in his
judgment is most likely to command a majority
in the Assembly. The Book "Constitution of
India" written by Shri V.N. Shukla (10th
Edition) while dealing with Articles 75 and
164 of the Constitution of India has dealt with
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this subject wherein it has quoted the manner
of selection by the Governor, in the following
words:
"In normal circumstances the
Governor need have no doubt as to
who is the proper person to be
appointed; it is leader of majority
party in the Legislative Assembly,
but circumstances can arise when it
may be doubtful who that leader is
and the Governor may have to
exercise his personal judgment in
selecting the C.M. Under the
Constitutional scheme which
envisages that a person who enjoys
the confidence of the Legislature
should alone be appointed as C.M.".
In Bommai case referred to above in para 153
S.C. has stated with regard to the position
where, I quote:
"Suppose after the General Elections
held, no political party or coalition of
parties or groups is able to secure
absolute majority in the Legislative
Assembly and despite the Governor's
exploring the alternatives, the situation
has arisen in which no political party is
able to form stable Government, it would
be case of completely demonstrable
inability of any political party to form a
stable Government commanding the
confidence of the majority members of the
Legislature. It would be a case of failure
of constitutional machinery".
13. I explored all possibilities and from the
facts stated above, I am fully satisfied that no
political party or coalition of parties or groups
is able to substantiate a claim of majority in
the Legislative Assembly, and having explored
the alternatives with all the political parties
and groups and Independents M.L.As., a
situation has emerged in which no political
party or groups appears to be able to form a
Government commanding a majority in the
House. Thus, it is a case of complete inability
of any political party to form a stable
Government commanding the confidence of the
majority members. This is a case of failure of
constitutional machinery.
14. I, as Governor of Bihar, am not able to
form a popular Government in Bihar, because
of the situation created by the election results
mentioned above.
15. I, therefore, recommend that the present
newly Constituent Assembly be kept in
suspended animation for the present and the
President of India is requested to take such
appropriate action/decision, as required.
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With regards,
Yours sincerely,
(Buta Singh)
Dr. A.P.J. Abdul Kalam,
President of India,
Rashtrapati Bhavan,
New Delhi.
D.O. No. 52/GB Patna, the 27th
April,2005
Respected Rashtrapati Jee,
I invite a reference to my D.O. No.33/GB
dated the 6th March, 2005 through which a
detailed analysis of the results of the Assembly
elections were made and a recommendation was
also made to keep the newly constituted
Assembly (Constituted vide Election
Commission's notification No.308/B.R.-
L.A./2005 dated the 4th March, 2005 and
464/Bihar-LA/2005, dated the 4th March, 2005)
in a suspended animation and also to issue
appropriate direction/decision. In the light of the
same, the President was pleased to issue a
proclamation under Article 356 of the
Constitution vide notification No.G.S.R. 162(E),
dated 7th March, 2005 and the proclamation has
been approved and assented by the Parliament.
2. As none of the parties either individually or
with the then pre-election combination or with
post-election alliance combination could stake a
claim to form a popular Government wherein
they could claim a support of a simple majority of
122 in a House of 243, I had no alternative but to
send the above mentioned report with the said
recommendation.
3. I am given to understand that serious
attempts are being made by JD-U and BJP to
cobble a majority and lay claim to form the
Government in the State. Contacts in JD-U and
BJP have informed that 16-17 LJP MLAs have
been won over by various means and attempt is
being made to win over others. The JD-U is also
targeting Congress for creating a split. It is felt in
JD-U circle that in case LJP does not split then it
can still form the Government with the support of
Independent, NCP, BSP and SP MLAs and two
third of Congress MLAs after it splits from the
main Congress party. The JD-U and BJP MLAs
are quite convinced that by the end of this month
or latest by the first week of May JD-U will be in
a position to form the Government. The high
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pressure moves of JD-U/BJP is also affecting the
RJD MLAs who have become restive. According to
a report there is a lot of pressure by the RJD
MLAs on Lalu Pd. Yadav to either form the
Government in Bihar on UPA pattern in the
Centre, with the support of Congress, LJP and
others or he should at least ensure the
continuance of President's rule in the State.
4. The National Commission To Review The
Working Of The Constitution has also noticed
that the reasons for increasing instability of
elected Governments was attributable to
unprincipled and opportunistic political
realignment from time to time. A reasonable
degree of stability of Government and a strong
Government is important. It has also been
noticed that the changing alignment of the
members of political parties so openly really
makes a mockery of our democracy.
Under the Constitutional Scheme a political
party goes before the electorate with a particular
programme and it sets up candidates at the
election on the basis of such programmes. The
10th Schedule of the Constitution was introduced
on the premise that political propriety and
morality demands that if such persons after the
elections changes his affiliation, that should be
discouraged. This is on the basis that the loyalty
to a party is a norm being based on shared
beliefs. A divided party is looked on with
suspicion by the electorate.
5. Newspaper reports in the recent time and
other reports gathered through meeting with
various party functionaries/leaders and also
intelligence reports received by me, indicate a
trend to gain over elected representatives of the
people and various elements within the party and
also outside the party being approached through
various allurements like money, caste, posts, etc.
which is a disturbing feature. This would affect
the constitutional provisions and safeguards built
therein. Any such move may also distort the
verdict of the people as shown by results of the
recent elections. If these attempts are allowed to
continue then it would be amounting to
tampering with constitutional provisions.
6. Keeping in view the above mentioned
circumstances the present situation is fast
approaching a scenario wherein if the trend is not
arrested immediately, the consequent political
instability will further give rise to horse trading
being practised by various political
parties/groups trying to allure elected MLAs.
Consequently it may not be possible to contain
the situation without giving the people another
opportunity to give their mandate through a fresh
poll.
7. I am submitting these facts before the
Hon'ble President for taking such action as
deemed appropriate.
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With regards,
Yours sincerely,
(Buta Singh)
Dr. A.P.J. Abdul Kalam,
President of India,
Rashtrapati Bhavan,
New Delhi."
D.O. No. 140/PS-GB/BN Patna, the 21st May, 2005
Respected Rashtrapati Jee,
I invite a reference to my D.O. letter No.
52/GB dated 27th April 2005 through which I
had given a detailed account of the attempts
made by some of the parties notably the JD-U
and BJP to cobble a majority and lay a claim to
form a Government in the State. I had informed
that around 16-17 MLAs belonging to LJP were
being wooed by various means so that a split
could be effected in the LJP. Attention was also
drawn to the fact that the RJD MLAs had also
become restive in the light of the above moves
made by the JD-U.
As you are aware after the Assembly
Elections in February this year, none of the
political parties either individually or with the
then pre-election combination or with post
election alliance combination could stake a claim
to form a popular Government since they could
not claim a support of a simple majority of 122 in
a House of 243 and hence the President was
pleased to issue a proclamation under Article 356
of the Constitution vide notification No. \026 GSR-
162 (E) dated 7th March 2005 and the Assembly
was kept in suspended animation.
The reports received by me in the recent
past through the media and also through meeting
with various political functionaries, as also
intelligence reports, indicate a trend to win over
elected representatives of the people. Report has
also been received of one of the LJP MLA, who is
General Secretary of the party having resigned
today and also 17-18 more perhaps are moving
towards the JD-U clearly indicating that various
allurements have been offered which is a very
disturbing and alarming feature. Any move by
the break away action to align with any other
party to cobble a majority and stake claim to
form a Government would positively affect the
Constitutional provisions and safeguards built
therein and distort the verdict of the people as
shown by the results in the recent Elections. If
these attempts are allowed it would be amounting
to tampering with Constitutional provisions.
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Keeping the above mentioned
circumstances, I am of the considered view that if
the trend is not arrested immediately, it may not
be possible to contain the situation. Hence in my
view a situation has arisen in the State wherein it
would be desirable in the interest of the State
that the Assembly presently kept in suspended
animation is dissolved, so that the
people/electorate can be provided with one more
opportunity to seek the mandate of the people at
an appropriate time to be decided in due course.
With regards,
Yours sincerely
Sd/-
(Buta Singh)
Dr. A.P.J. Abdul Kalam,
President of India,
Rashtrapati Bhavan,
New Delhi.
We shall first deal with the question as to the essence of
the judgment in Bommai's case (supra).
Lot of arguments have been advanced as to the true
essence of the conclusions arrived at in Bommai's case (supra)
and the view expressed as regards the scope of judicial review.
In A.K. Kaul and Anr. v. Union of India and Anr. (1995 (4) SCC
73), the position was summed up as follows:
"21. It would thus appear that in S. R. Bommai
though all the learned Judges have held that
the exercise of powers under Article 356(1) is
subject to judicial review but in the matter of
justiciability of the satisfaction of the
President, the view of the majority (Pandian,
Ahmadi, Verma Agrawal, Yogeshwar Dayal and
Jeevan Reedy, JJ.) is that the principles
evolved in Barium Chemicals for adjudging the
validity of an action based on the subjective
satisfaction of the authority created by statute
do not, in their entirety, apply to the exercise
of a constitutional power under Article 356. On
the basis of the judgment of Jeevan Reddy, J.,
which takes a narrower view than that taken
by Sawant, J., it can be said that the view of
the majority (Pandian, Kuldip Singh, Sawant,
Agrawal and Jeevan Reddy, JJ.) is that:
(i) the satisfaction of the President while
making a Proclamation under Article 356 (1) is
justiciable;
(ii) it would be open to challenge on the ground
of mala fides or being based wholly on
extraneous and or irrelevant grounds;
(iii) even if some of the materials on which the
action is taken is found to be irrelevant, the
court would still not interferes so long as there
is some relevant material sustaining the
action;
(iv) the truth or correctness of the material
cannot be questioned by the court nor will it go
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into the adequacy of the material and it will
also not substitute it opinion for that of the
President;
(v) the ground of mala fides takes in inter alia
situations where the Proclamation is found to
be a clear case a abuse of power or what is
sometimes called fraud on power;
(vi) the court will not lightly presume abuse or
misuse of power and will make allowance of
the fact that the president and the Union
Council of Ministers are the best judge of the
situation and that they are also in possession
of information and material and that the
Constitution has trusted their judgment in the
matter; and
(vii) this does not mean that the President and
the Council of Ministers are the final arbiters
in the matter or that their opinion is
conclusive."
If the State of Rajasthan's case (supra) and Bommai's
case (supra) are read together it is crystal clear that in
Bommai's case, the scope of judicial review as set out in the
State of Rajasthan's case (supra) was elaborated as is clear
from the summation in A.K. Kaul's case (supra).
Lord Greene said in 1948 in the famous Wednesbury
case (1948 (1) KB 223s) that when a statute gave discretion to
an administrator to take a decision, the scope of judicial
review would remain limited. He said that interference was
not permissible unless one or the other of the following
conditions was satisfied, namely the order was contrary to law,
or relevant factors were not considered, or irrelevant factors
were considered; or the decision was one which no reasonable
person could have taken. Lord Diplock in Council for Civil
Services Union v. Minister of Civil Service [(1983) 1 AC 768]
(called the CCSU case) summarized the principles of judicial
review of administrative action as based upon one or other of
the following viz., illegality, procedural irregularity and
irrationality. He, however, opined that "proportionality" was a
"future possibility".
In Om Kumar and Ors. v. Union of India (2001 (2) SCC
386), this Court observed, inter alia, as follows:
"The principle originated in Prussia in the
nineteenth century and has since been
adopted in Germany, France and other
European countries. The European Court of
Justice at Luxembourg and the European
Court of Human Rights at Strasbourg have
applied the principle while judging the validity
of administrative action. But even long before
that, the Indian Supreme Court has applied
the principle of "proportionality" to legislative
action since 1950, as stated in detail below.
By "proportionality", we mean the
question whether, while regulating exercise of
fundamental rights, the appropriate or least-
restrictive choice of measures has been made
by the legislature or the administrator so as to
achieve the object of the legislation or the
purpose of the administrative order, as the
case may be. Under the principle, the court
will see that the legislature and the
administrative authority "maintain a proper
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balance between the adverse effects which the
legislation or the administrative order may
have on the rights, liberties or interests of
persons keeping in mind the purpose which
they were intended to serve". The legislature
and the administrative authority are, however,
given an area of discretion or a range of
choices but as to whether the choice made
infringes the rights excessively or not is for the
court. That is what is meant by
proportionality.
xxx xxx xxx xxx xxx
The development of the principle of "strict
scrutiny" or "proportionality" in administrative
law in England is, however, recent.
Administrative action was traditionally being
tested on Wednesbury grounds. But in the
last few years, administrative action affecting
the freedom of expression or liberty has been
declared invalid in several cases applying the
principle of "strict scrutiny". In the case of
these freedoms, Wednesbury principles are no
longer applied. The courts in England could
not expressly apply proportionality in the
absence of the convention but tried to
safeguard the rights zealously by treating the
said rights as basic to the common law and the
courts then applied the strict scrutiny test. In
the Spycatcher case Attorney General v.
Guardian Newspapers Ltd. (No.2) (1990) 1 AC
109 (at pp. 283-284), Lord Goff stated that
there was no inconsistency between the
convention and the common law. In
Derbyshire County Council v. Times
Newspapers Ltd. (1993) AC 534, Lord Keith
treated freedom of expression as part of
common law. Recently, in R. v. Secy. Of State
for Home Deptt., ex p. Simms (1999) 3 All ER
400 (HL), the right of a prisoner to grant an
interview to a journalist was upheld treating
the right as part of the common law. Lord
Hobhouse held that the policy of the
administrator was disproportionate. The need
for a more intense and anxious judicial
scrutiny in administrative decisions which
engage fundamental human rights was re-
emphasised in in R. v. Lord Saville ex p (1999)
4 All ER 860 (CA), at pp.870,872) . In all these
cases, the English Courts applied the "strict
scrutiny" test rather than describe the test as
one of "proportionality". But, in any event, in
respect of these rights "Wednesbury" rule has
ceased to apply.
However, the principle of "strict scrutiny"
or "proportionality" and primary review came
to be explained in R. v. Secy. of State for the
Home Deptt. ex p Brind (1991) 1 AC 696. That
case related to directions given by the Home
Secretary under the Broadcasting Act, 1981
requiring BBC and IBA to refrain from
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broadcasting certain matters through persons
who represented organizations which were
proscribed under legislation concerning the
prevention of terrorism. The extent of
prohibition was linked with the direct
statement made by the members of the
organizations. It did not however, for example,
preclude the broadcasting by such persons
through the medium of a film, provided there
was a "voice-over" account, paraphrasing what
they said. The applicant's claim was based
directly on the European Convention of
Human Rights. Lord Bridge noticed that the
Convention rights were not still expressly
engrafted into English law but stated that
freedom of expression was basic to the
Common law and that, even in the absence of
the Convention, English Courts could go into
the question (see p. 748-49).
".....whether the Secretary of State, in the
exercise of his discretion, could
reasonably impose the restriction he has
imposed on the broadcasting
organisations"
and that the courts were
"not perfectly entitled to start from the
premise that any restriction of the right
to freedom of expression requires to be
justified and nothing less than an
important public interest will be sufficient
to justify it".
Lord Templeman also said in the above case
that the courts could go into the question
whether a reasonable minister could
reasonably have concluded that the
interference with this freedom was justifiable.
He said that "in terms of the Convention" any
such interference must be both necessary and
proportionate (ibid pp. 750-51).
In the famous passage, the seeds of the
principle of primary and secondary review by
courts were planted in the administrative law
by Lord Bridge in the Brind case (1991) 1 AC
696. Where Convention rights were in
question the courts could exercise a right of
primary review. However, the courts would
exercise a right of secondary review based only
on Wednesbury principles in cases not
affecting the rights under the Convention.
Adverting to cases where fundamental
freedoms were not invoked and where
administrative action was questioned, it was
said that the courts were then confined only to
a secondary review while the primary decision
would be with the administrator. Lord Bridge
explained the primary and secondary review as
follows:
"The primary judgment as to
whether the particular competing public
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interest justifying the particular
restriction imposed falls to be made by
the Secretary of State to whom
Parliament has entrusted the discretion.
But, we are entitled to exercise a
secondary judgment by asking whether a
reasonable Secretary of State, on the
material before him, could reasonably
make the primary judgment."
In Union of India and Anr. vs. G. Ganayutham (1997 [7]
SCC 463), in paragraph 31 this Court observed as follows:
"31. The current position of proportionality in
administrative law in England and India can
be summarized as follows:
(1) To judge the validity of any
administrative order or statutory
discretion, normally the Wednesbury test
is to be applied to find out if the decision
was illegal or suffered from procedural
improprieties or was one which no
sensible decision-maker could, on the
material before him and within the
framework of the law, have arrived at.
The court would consider whether
relevant matters had not been taken into
account or whether irrelevant matters
had been taken into account or whether
the action was not bona fide. The court
would also consider whether the decision
was absurd or perverse. The court would
not however go into the correctness of the
choice made by the administrator
amongst the various alternatives open to
him. Nor could the court substitute its
decision to that of the administrator.
This is the Wednesbury (1948 1 KB 223)
test.
(2) The court would not interfere
with the administrator's decision unless
it was illegal or suffered from procedural
impropriety or was irrational \026 in the
sense that it was in outrageous defiance
of logic or moral standards. The
possibility of other tests, including
proportionality being brought into
English administrative law in future is
not ruled out. These are the CCSU (1985
AC 374) principles.
(3)(a) As per Bugdaycay (1987 AC
514), Brind (1991 (1) AC 696) and Smith
(1996 (1) All ER 257) as long as the
Convention is not incorporated into
English law, the English courts merely
exercise a secondary judgment to find out
if the decision-maker could have, on the
material before him, arrived at the
primary judgment in the manner he has
done.
(3)(b) If the Convention is
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incorporated in England making available
the principle of proportionality, then the
English courts will render primary
judgment on the validity of the
administrative action and find out if the
restriction is disproportionate or
excessive or is not based upon a fair
balancing of the fundamental freedom
and the need for the restriction
thereupon.
(4)(a) The position in our country, in
administrative law, where no
fundamental freedoms as aforesaid are
involved, is that the courts/tribunals will
only play a secondary role while the
primary judgment as to reasonableness
will remain with the executive or
administrative authority. The secondary
judgment of the court is to be based on
Wednesbury and CCSU principles as
stated by Lord Greene and Lord Diplock
respectively to find if the executive or
administrative authority has reasonably
arrived at his decision as the primary
authority".
The common thread running through in all these
decisions is that the Court should not interfere with the
administrator's decision unless it was illogical or suffers from
procedural impropriety or was shocking to the conscience of
the Court, in the sense that it was in defiance of logic or
moral standards. In view of what has been stated in the
Wednesbury's case (supra) the Court would not go into the
correctness of the choice made by the administrator open to
him and the Court should not substitute its decision to that
of the administrator. The scope of judicial review is limited to
the deficiency in decision-making process and not the
decision.
According to Wade, Administrative Law (9th Edition) is the
law relating to the control of powers of the executive authorities.
To consider why such a law became necessary, we have to
consider its historical background.
Up to the 19th century the functions of the State in
England were confined to (i) defence of the country from foreign
invasion, and (ii) maintenance of law and order within the
country.
This vast expansion in the State functions resulted in large
number of legislations and also for wide delegation of State
functions by Parliament to executive authorities, so also was
there a need to create a body of legal principles to control and to
check misuse of these new powers conferred on the State
authorities in this new situation in the public interest. Thus,
emerged Administrative Law. Maitland pointed out in his
Constitutional History:
"Year by year the subordinate
Government of England is becoming more
and more important. We are becoming a
much governed nation, governed by all
manner of councils and boards and
officers, central and local, high and low,
exercising the powers which have been
committed to them by modern statutes."
But in the early 20th century following the tradition of
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Dicey's classic exposition in his: The Law of the Constitution,
there was a spate of attacks on parliamentary delegation
culminating in the book New Despotism by the then Chief
Justice of England, Lord Hewart published in 1929. In
response, the British Government in 1932 set up a committee
called the Committee on Ministerial Powers headed by Lord
Donoughmore, to examine these complaints and criticisms.
However, the Donoughmore Committee rejected the argument of
Lord Hewart and accepted the reality that a modern State
cannot function without delegation of vast powers to the
executive authorities, though there must be some control on
them.
In R. v. Lancashire CC, ex p Huddleston [1986 (2) All ER
941 (CA)], it was said about Administrative Law that it
"has created a new relationship between the
courts and those who derive their authority
from the public law, one of partnership based
on a common aim, namely, the maintenance of
the highest standards of public
administration".
In Liversidge v. Anderson (1941 (3) All
E.R. 338 (HL) the case related to the Defence
(General) Regulations, 1939 which provided:
"If the Secretary of State has reasonable
cause to believe any person to be of
hostile origin or association he may make
an order against that person directing
that he be detained."
The detenu Liversidge challenged the detention order
passed against him by the Secretary of State. The majority of
the House of Lords, except Lord Atkin, held that the Court
could not interfere because the Secretary of State had
mentioned in his order that he had reasonable cause to believe
that Liversidge was a person of hostile origin or association.
Liversidge was delivered during the Second World War when the
executive authority had unbridled powers to detain a person
without even disclosing to the Court on what basis the
Secretary had reached to his belief. However, subsequently, the
British courts accepted Lord Atkin's dissenting view that there
must be some relevant material on the basis of which the
satisfaction of the Secretary of State could be formed. Also, the
discretion must be exercised keeping in view the purpose for
which it was conferred and the object sought to be achieved,
and must be exercised within the four corners of the statute
(See: Clariant International Ltd. and Another v. Securities and
Exchange Board of India (2004(8) SCC 524)
Sometimes a power is coupled with a duty. Thus, a
limited judicial review against administrative action is always
available to the Courts. Even after elaboration in Bommai's case
(supra) the scope for judicial review in respect of Governors'
action cannot be put on the same pedestal as that of other
administrative orders. As observed in Para 376 of judgment in
Bommai's case (supra) the scope of judicial review would
depend upon facts of the given case. There may be cases which
do not admit of judicial prognosis. The principles which are
applicable when an administrative action is challenged cannot
be applied stricto sensu to challenges made in respect of
proclamation under Article 356. However, in view of what is
observed explicitly in Bommai's case (supra), the proclamation
under Article 356(1) is not legislative in character.
A person entrusted with discretion must, so to speak,
direct himself properly in law. He must call his attention to
matters which he is bound to consider. He must exclude from
his consideration matters which are irrelevant to what he has to
consider. If he does not obey those rules he may truly be said to
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be acting unreasonably. Similarly, there may be something so
absurd that no sensible person could ever dream that it lay
within the powers of the authority.
It is an unwritten rule of the law, constitutional and
administrative, that whenever a decision-making function is
entrusted to the subjective satisfaction of a statutory
functionary, there is an implicit obligation to apply his mind to
pertinent and proximate matters only, eschewing the irrelevant
and the remote. (See: Smt. Shalini Soni and Ors. v. Union of
India and others 1980 (4) SCC 544).
The Wednesbury principle is often misunderstood to mean
that any administrative decision which is regarded by the Court
to be unreasonable must be struck down. The correct
understanding of the Wednesbury principle is that a decision
will be said to be unreasonable in the Wednesbury sense if (i) it
is based on wholly irrelevant material or wholly irrelevant
consideration, (ii) it has ignored a very relevant material which
it should have taken into consideration, or (iii) it is so absurd
that no sensible person could ever have reached to it.
As observed by Lord Diplock in CCSU's case (supra) a
decision will be said to suffer from Wednesbury
unreasonableness if it is "so outrageous in its defiance of logic
or of accepted moral standards that no sensible person who had
applied his mind to the question to be decided could have
arrived at it".
A Constitution is a unique legal document. It enshrines a
special kind of norm and stands at the top of normative
pyramid. Difficult to amend, it is designed to direct human
behavior for years to come. It shapes the appearance of the
State and its aspirations throughout history. It determines the
State's fundamental political views. It lays the foundation for
its social values. It determines its commitments and
orientations. It reflects the events of the past. It lays the
foundation for the present. It determines how the future will
look. It is philosophy, politics, society, and law all in one.
Performance of all these tasks by a Constitution requires a
balance of its subjective and objective elements, because "it is
a constitution we are expounding." As Chief Justice Dickson of
the Supreme Court of Canada noted:
"The task of expounding a constitution is
crucially different from that of construing a
statute. A statute defines present rights and
obligations. It is easily enacted and as easily
repealed. A constitution, by contrast, is
drafted with an eye to the future. Its function
is to provide a continuing framework for the
legitimate exercise of governmental power and,
when joined by a Bill or Charter of rights, for
the unremitting protection of individual rights
and liberties. Once enacted, its provisions
cannot easily be repealed or amended. It
must, therefore, be capable of growth and
development over time to meet new social,
political and historical realities often
unimagined by it framers. The judiciary is the
guardian of the constitution and must, in
interpreting its provisions, bear these
considerations in mind."
The political question doctrine, in particular, remits
entire areas of public life to Congress and the President, on
the grounds that the Constitution assigns responsibility for
these areas to the other branches, or that their resolution will
involve discretionary, polycentric decisions that lack discrete
criteria for adjudication and thus are better handled by the
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more democratic branches. By foreclosing judicial review,
even regarding the minimal rationality of the political
branches' discretionary choices, the doctrine denies federal
judges a role in "giving proper meaning to our public value" in
important substantive fields. (Quoted from an Article in
Harvard Law Review).
Democratic Theory is based on a notion of human
dignity: as beings worthy of respect because of their very
nature, adults must enjoy a large degree of autonomy, a status
principally attainable in the modern world by being able to
share in the Governance of their community. Because direct
rule is not feasible for the mass of citizens, most people can
share in self government only by delegating authority to freely
chosen representatives. Thus Justice Hugo L. Black
expressed a critical tenet of democratic theory when he wrote:
"No right is more precious in a free country than that of having
a voice in the election of those who make the laws under
which we...must live."
For democratic theory, what makes governmental
decisions morally binding is process: the people's freely
choosing representatives, those representatives' debating and
enacting policy and later standing for re-election, and
administrators' enforcing that policy. Democratic theory,
therefore, tends to embrace both positivism and moral
relativism.
Whereas democratic theory turns to moral relativism,
constitutionalism turns to moral realism. It presumes that
"out there" lurk discoverable standards to judge whether
public policies infringe on human dignity. The legitimacy of a
policy depends not simply on the authenticity of decision
makers' credentials but also on substantive criteria. Even
with the enthusiastic urging of a massive majority whose
representatives have meticulously observed proper processes,
government may not trample on fundamental rights. For
constitutionalists, political morality cannot be weighed on a
scale in which "opinion is an omnipotence," only against the
moral criterion of sacred, individual rights. They agree with
Jafferson: "An elective despotism was not the government we
fought for......" (From Constitutions, Constitutionalism, and
Democracy by Walter F. Murphy).
Allegation of mala-fides without any supportable basis is
the last feeble attempt of a losing litigant, otherwise it will
create a smokescreen on the scope of judicial review. This is a
pivotal issue around which the fate of this case revolves. As
was noted in A.K. Kaul's case (supra) the satisfaction of the
President is justiciable. It would be open to challenge on the
ground of mala fides or being based wholly on extraneous or
irrelevant grounds. The sufficiency or the correctness of the
factual position indicated in the report is not open to judicial
review. The truth or correctness of the materials cannot be
questioned by the Court nor would it go into the adequacy of
the material and it would also not substitute its opinion for
that of the President. Interference is called for only when there
is clear case of abuse of power or what is some times called
fraud on power. The Court will not lightly presume abuse or
misuse of power and will make allowance for the fact that the
decision making authority is the best judge of the situation. If
the Governor would have formed his opinion for dissolution
with the sole objective of preventing somebody from staking a
claim it would clearly be extraneous and irrational. The
question whether such person would be in a position to form a
stable government is essentially the subjective opinion of the
Governor; of course to be based on objective materials. The
basic issue therefore is did the Governor act on extraneous
and irrelevant materials for coming to the conclusion that
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there was no possibility of stable government.
According to the petitioners, the question whether there
was any allurement or horse trading (an expression frequently
used in such cases) or allurement of any kind is not a matter
which can be considered by the Governor. The scope of
judicial review of Governor's decision does not and cannot
stand on the same footing as that of any other administrative
decision. In almost all legal inquiries intention as
distinguished from motive is the all important factor and in
common parlance a malicious act stands equated with an
intentional act without just cause or excuse. Whereas fairness
is synonymous with reasonableness bias stand included
within the attributes and broader purview of the word "malice"
which in common acceptation implies "spite" or "ill will". Mere
general statements will not be sufficient for the purpose of
indication of ill will. There must be cogent evidence available
on record to come to a conclusion as to whether in fact there
was bias or mala fide involved which resulted in the
miscarriage of justice. The tests of real likelihood and
reasonable suspicion are really inconsistent with each other.
(See S. Parthasarthi v. State of A.P. (1974 (3) SCC 459). The
word 'bias' is to denote a departure from the standing of even
handed justice. (See: Franklin vs. Minister of Town and
Country Planning (1947 2 All ER 289 (HL).
In State of Punjab v. V.K. Khanna and Ors. (2001 (2)
SCC 330), it was observed as follows:
"Incidentally, Lord Thankerton in Franklin v.
Minister of Town and Country Planning (1948
AC 87 : (1947) 2 All ER 289 (HL) opined that
the word "bias" is to denote a departure from
the standing of even-handed justice. Kumaon
Mandal Vikas Nigam Ltd. v. Girja Shankar
case ((2001) 1 SCC 182) further noted the
different note sounded by the English Courts
in the manner following : (SCC pp.199-201,
paras 30-34)
"30. Recently however, the English courts
have sounded a different note, though
may not be substantial but the automatic
disqualification theory rule stands to
some extent diluted. The affirmation of
this dilution however is dependent upon
the facts and circumstances of the matter
in issue. The House of Lords in the case
of R. v. Bow Street Metropolitan
Stipendiary Magistrate, ex p Pinochet
Ugarte (No. 2) ((2000) 1 AC 119) observed:
'... In civil litigation the matters in
issue will normally have an
economic impact; therefore a
Judge is automatically disqualified
if he stands to make a financial
gain as a consequence of his own
decision of the case. But if, as in
the present case, the matter at
issue does not relate to money or
economic advantage but is
concerned with the promotion of
the cause, the rationale
disqualifying a Judge applies just
as much if the Judge's decision
will lead to the promotion of a
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cause in which the Judge is
involved together with one of the
parties.'
31. Lord Brown-Wilkinson at p. 136 of the
report stated :
'It is important not to overstate what
is being decided. It was suggested in
argument that a decision setting
aside the order of 25-11-1998 would
lead to a position where Judges
would be unable to sit on cases
involving charities in whose work
they are involved. It is suggested
that, because of such involvement, a
Judge would be disqualified. That is
not correct. The facts of this present
case are exceptional. The critical
elements are (1) that A.I. was a
party to the appeal; (2) that A.I. was
joined in order to argue for a
particular result; (3) the Judge was
a director of a charity closely allied
to A.I. and sharing, in this respect,
A.I.'s objects. Only in cases where a
Judge is taking an active role as
trustee or director of a charity which
is closely allied to and acting with a
party to the litigation should a
Judge normally be concerned either
to recuse himself or disclose the
position to the parties. However,
there may well be other exceptional
cases in which the Judge would be
well advised to disclose a possible
interest.'
32. Lord Hutton also in Pinochet case
((2000) 1 AC 119) observed :
'There could be cases where the
interest of the Judge in the subject-
matter of the proceedings arising from
his strong commitment to some cause
or belief or his association with a
person or body involved in the
proceedings could shake public
confidence in the administration of
justice as much as a shareholding
(which might be small) in a public
company involved in the litigation.'
33. Incidentally in Locabail [Locabail (U.K.)
Ltd. v. Bayfield Properties Ltd. (2000 QB
451)] the Court of Appeal upon a detail
analysis of the oft-cited decision in R. v.
Gough (1993 AC 646) together with the
Dimes case (Dimes v. Grand Junction
Canal, (1853) 3 HL Cas 759 : 10 ER 301),
Pinochet case ((2000) 1 AC 119), Australian
High Court's decision in the case of J.R.L.,
ex p C.J.L., Re ((1986) 161 CLR 342) as also
the Federal Court in Ebner, Re ((1999) 161
ALR 557) and on the decision of the
Constitutional Court of South Africa in
President of the Republic of South Africa v.
South African Rugby Football Union ((1999)
4 SA 147) stated that it would be rather
dangerous and futile to attempt to define or
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list the factors which may or may not give
rise to a real danger of bias. The Court of
Appeal continued to the effect that
everything will depend upon facts which
may include the nature of the issue to be
decided. It further observed :
'By contrast, a real danger of bias
might well be thought to arise if there
were personal friendship or animosity
between the Judge and any member of
the public involved in the case; or if
the Judge were closely acquainted with
any member of the public involved in
the case, particularly if the credibility
of that individual could be significant
in the decision of the case; or if, in a
case where the credibility of any
individual were an issue to be decided
by the Judge, he had in a previous
case rejected the evidence of that
person in such outspoken terms as to
throw doubt on his ability to approach
such person's evidence with an open
mind on any later occasion; or if on
any question at issue in the
proceedings before him the Judge had
expressed views, particularly in the
course of the hearing, in such extreme
and unbalanced terms as to throw
doubt on his ability to try the issue
with an objective judicial mind (Vakuta
v. Kelly ((1989) 167 CLR 568)); or if, for
any other reason, there were real
ground for doubting the ability of the
Judge to ignore extraneous
considerations, prejudices and
predilections and bring an objective
judgment to bear on the issues before
him. The mere fact that a Judge,
earlier in the same case or in a
previous case, had commented
adversely on a party-witness, or found
the evidence of a party or witness to be
unreliable, would not without more
found a sustainable objection. In most
cases, we think, the answer, one way
or the other, will be obvious. But if in
any case there is real ground for
doubt, that doubt should be resolved
in favour of recusal. We repeat: every
application must be decided on the
facts and circumstances of the
individual case. The greater the
passage of time between the event
relied on as showing a danger of bias
and the case in which the objection is
raised, the weaker (other things being
equal) the objection will be.'
34. The Court of Appeal judgment in
Locabail (200 QB 451) though apparently as
noticed above sounded a different note but
in fact, in more occasions than one in the
judgment itself, it has been clarified that
conceptually the issue of bias ought to be
decided on the facts and circumstances of
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the individual case - a slight shift
undoubtedly from the original thinking
pertaining to the concept of bias to the effect
that a mere apprehension of bias could
otherwise be sufficient."
In Bommai's case (supra) though all the learned Judges
held that exercise of power under Article 356(1) of the
Constitution is subject to judicial review but in the matter of
justiciability of the satisfaction of the President, the majority
view was to the effect that the principles evolved in Barium
Chemicals Ltd. and Anr. v. Company Law Board and Ors. (AIR
1967 SC 295) for adjudging the validity of an action based on
the subjective satisfaction of the authority created by the
Statute do not in their entirety apply to the exercise of
constitutional power under Article 356 of the Constitution.
Mala fide intent or biased attitude cannot to be put on a strait-
jacket formula but depend upon facts and circumstances of
each case and in that perspective judicial precedent would not
be of much assistance. It is important to note that in
Bommai's case (supra) this Court was concerned with cases of
dissolution of Assemblies when cabinets were in office. Though
at first flush, it appears that the factual background in
Karnataka's case (supra) dealt with in Bommai's case (supra)
has lot of similarity with the factual position in hand, yet on a
deeper analysis the position does not appear to be so. The
factual position was peculiar. In the instant case, the
Governor's report reveals that the source of his opinion was
intelligence reports, media reports and discussions with
functionaries of various parties. A plea was raised by the
petitioners that it has not been indicated as to functionaries of
which party the Governor had discussed with. That cannot be
a ground to hold the report to be vulnerable. As was noted in
Bommai's case (supra) the sufficiency or correctness of factual
aspects cannot be dealt with. Therefore, as noted above, the
only question which needs to be decided is whether the
conclusions of the Governor that if foul means are adopted to
cobble the majority it would be against the spirit of democracy.
Again the question would be if means are foul can the
Governor ignore it and can it be said that his view is
extraneous or irrational.
In the report dated 27.4.2005 to which reference has
been made in the report dated 21.5.2005 reference is made to
allurements like money, caste, posts etc. and this has been
termed as a disturbing feature. In both the reports, the
opinion of the Governor is that if these attempts are allowed to
continue, it would amount to tampering with constitutional
provisions. Stand of the petitioners is that even if it is accepted
to be correct, there is no constitutional provision empowering
the Governor to make the same basis for not allowing a claim
to be staked. This argument does not appear to be totally
sound.
In Kihoto Hollohan v. Zachillhu and Ors. (1992 Supp (2)
SCC 651) the menace of defection was noted with concern and
the validity of the Tenth Schedule was upheld. While
upholding the validity of the provision this Court in no
uncertain terms deprecated the change of loyalties to parties
and the craze for power. The Statement of Objects and
Reasons appended to the Constitution (52nd Amendment) Act,
1985 refer to the evil of political defection which has been the
matter of national concern. It was noted that if it is not
combated it is likely to undermine the very foundation of our
democracy and the principles which sustain it. It was noted as
follows:
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"26. In expounding the processes of the
fundamental law, the Constitution must be
treated as a logical whole. Westel Woodbury
Willoughby in The Constitutional Law of the
United States (2nd Edn. Vol.1 p.65) states:
"The Constitution is a logical
whole, each provision of which is an
integral part thereof, and it is,
therefore, logically proper, and indeed
imperative, to construe one part in
the light of the provisions of the other
parts."
27. A constitutional document outlines only
broad and general principles meant to endure
and be capable of flexible application to
changing circumstances \026 a distinction which
differentiates a statute from a Charter under
which all statutes are made. Cooley on
Constitutional Limitations (8th edn. Vol.1,
p.129) says:
"Upon the adoption of an
amendment to a Constitution, the
amendment becomes a part thereof;
as much so as it had been originally
incorporated in the Constitution; and
it is to be construed accordingly."
Again, in paragraph 41, the position was illuminatingly
stated by Mr. Justice M.N. Venkatachaliah (as His Lordship
then was). A right to elect, fundamental though it is to
democracy is anomalously enough neither a fundamental right
nor a common law right. It is pure and simple, a statutory
right. So it is the right to be elected. So is the right to dispute
an election. Outside of statute, there is no right to elect, no
right to be elected and no right to dispute an election.
Statutory creations they are and therefore subject to statutory
limitation. (See Jyoti Basu and Ors. v. Debi Ghosal and Ors.
(1982 (1) SCC 691).
Democracy as noted above is the basic feature of the
Constitution. In paragraphs 44 and 49 of Kihoto's case (supra)
it was noted as follows:
"44. But a political party functions on
the strength of shared beliefs. Its own political
stability and social utility depends on such
shared beliefs and concerted action of its
Members in furtherance of those commonly
held principles. Any freedom of its Members to
vote as they please independently of the
political party's declared policies will not only
embarrass its public image and popularity but
also undermine public confidence in it which,
in the ultimate analysis, is its source f
sustenance \026 nay, indeed, its very survival.
Intra party debates are of course a different
thing. But a public image of disparate stands
by Members of the same political party is not
looked upon, in political tradition, as a
desirable state of things. Griffith and Ryle on
Parliament Functions, Practice and Procedure
(1989 Edn., p.119) says;
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"Loyalty to party is the norm,
being based on shared beliefs. A
divided party is looked on with
suspicion by the electorate. It is
natural for Members to accept the
opinion of their Leaders and
Spokesmen on the wide variety of
matters on which those members
have no specialist knowledge.
Generally Members will accept
majority decisions in the party even
when they disagree. It is
understandable therefore that a
Member who rejects the party whip
even on a single occasion will attract
attention and more criticism than
sympathy. To abstain from voting
when required by party to vote is to
suggest a degree of unreliability. To
vote against party is disloyalty. To
join with others in abstention or
voting with the other side smacks of
conspiracy.
49. Indeed, in a sense an anti-defection law is
a statutory variant of its moral principle and
justification underlying the power of recall.
What might justify a provision for recall would
justify a provision for dis-qualification for
defection. Unprincipled defection is a political
and social evil. It is perceived as such by the
legislature. People, apparently, have grown
distrustful of the emotive political exultations
that such floor-crossing belong to the sacred
area of freedom of conscience, or of the right to
dissent or of intellectual freedom. The anti-
defection law seeks to recognize the practical
need to place the proprieties of political and
personal conduct \026 whose awkward erosion
and grotesque manifestations have been the
bane of the times \026above certain theoretical
assumptions which in reality have fallen into a
morass of personal and political degradation.
We should, we think, defer to this legislative
wisdom and perception. The choices in
constitutional adjudications quite clearly
indicate the need for such deference. "Let the
end be legitimate, let it be within the scope of
the Constitution and all means which are
appropriate, which are adopted to that end..."
are constitutional."
Therefore, the well recognised position in law is that
purity in the electorate process and the conduct of the elected
representative cannot be isolated from the constitutional
requirements. "Democracy" and "Free and Fair Election" are
inseparable twins. There is almost an inseverable umbilical
cord joining them. In a democracy the little man- voter has
overwhelming importance and cannot be hijacked from the
course of free and fair elections. His freedom to elect a
candidate of his choice is the foundation of a free and fair
election. But after getting elected, if the elected candidate
deviates from the course of fairness and purity and becomes a
"Purchasable commodity" he not only betrays the electorate,
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but also pollutes the pure stream of democracy.
Can the governor whose constitutional duty is to
safeguard the purity throw up his hands in abject
helplessness in such situations?
As noted by this Court in People's Union for Civil
Liberties (PUCL) and Anr. v. Union of India and Anr. (2003 (4)
SCC 399) a well informed voter is the foundation of democratic
structure. If that be so, can it be said that the Governor will
remain mute and silent spectator when the elected
representatives act in a manner contrary to the expectations of
the voters who had voted for them. In paragraph 94 of it was
noted as follows:
"94. The trite saying that 'democracy is
for the people, of the people and by the people'
has to be remembered for ever. In a democratic
republic, it is the will of the people that is
paramount and becomes the basis of the
authority of the Government. The will is
expressed in periodic elections based on
universal adult suffrage held by means of
secret ballot. It is through the ballot that the
voter expresses his choice or preference for a
candidate. "Voting is formal expression of will
or opinion by the person entitled to exercise
the right on the subject or issue", as observed
by this Court in Lily Thomas Vs. Speaker, Lok
Sabha [(1993) 4 SCC 234] quoting from Black's
Law Dictionary. The citizens of the country are
enabled to take part in the Government
through their chosen representatives. In a
Parliamentary democracy like ours, the
Government of the day is responsible to the
people through their elected representatives.
The elected representative acts or is supposed
to act as a live link between the people and the
Government. The peoples' representatives fill
the role of law-makers and custodians of
Government. People look to them for
ventilation and redressal of their grievances.
They are the focal point of the will and
authority of the people at large. The moment
they put in papers for contesting the election,
they are subjected to public gaze and public
scrutiny. The character, strength and
weakness of the candidate is widely debated.
Nothing is therefore more important for
sustenance of democratic polity than the voter
making an intelligent and rational choice of his
or her representative. For this, the voter
should be in a position to effectively formulate
his/her opinion and to ultimately express that
opinion through ballot by casting the vote. The
concomitant of the right to vote which is the
basic postulate of democracy is thus two fold:
first, formulation of opinion about the
candidates and second, the expression of
choice by casting the vote in favour of the
preferred candidate at the polling booth. The
first step is complementary to the other. Many
a voter will be handicapped in formulating the
opinion and making a proper choice of the
candidate unless the essential information
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regarding the candidate is available. The
voter/citizen should have at least the basic
information about the contesting candidate,
such as his involvement in serious criminal
offences. To scuttle the flow of information-
relevant and essential would affect the
electorate's ability to evaluate the candidate.
Not only that, the information relating to the
candidates will pave the way for public debate
on the merits and demerits of the candidates.
When once there is public disclosure of the
relevant details concerning the candidates, the
Press, as a media of mass communication and
voluntary organizations vigilant enough to
channel the public opinion on right lines will
be able to disseminate the information and
thereby enlighten and alert the public at large
regarding the adverse antecedents of a
candidate. It will go a long way in promoting
the freedom of speech and expression. That
goal would be accomplished in two ways. It will
help the voter who is interested in seeking and
receiving information about the candidate to
form an opinion according to his or her
conscience and best of judgment and secondly
it will facilitate the Press and voluntary
organizations in imparting information on a
matter of vital public concern. An informed
voter-whether he acquires information directly
by keeping track of disclosures or through the
Press and other channels of communication,
will be able to fulfil his responsibility in a more
satisfactory manner. An enlightened and
informed citizenry would undoubtedly enhance
democratic values. Thus, the availability of
proper and relevant information about the
candidate fosters and promotes the freedom of
speech and expression both from the point of
view of imparting and receiving the
information. In turn, it would lead to the
preservation of the integrity of electoral
process which is so essential for the growth of
democracy. Though I do not go to the extent of
remarking that the election will be a farce if
the candidates' antecedents are not known to
the voters, I would say that such information
will certainly be conducive to fairness in
election process and integrity in public life.
The disclosure of information would facilitate
and augment the freedom of expression both
from the point of view of the voter as well as
the media through which the information is
publicized and openly debated."
There is no place for hypocrisy in democracy. The
Governor's perception about his power may be erroneous, but
it is certainly not extraneous or irrational. It has been rightly
contended by learned counsel for the Union of India that apart
of Governor's role to ensure that the Government is stable, the
case may not be covered by the Tenth Schedule and it cannot
be said that by avoiding the Tenth Schedule by illegitimate or
tainted means a majority if gathered leaves the Governor
helpless, and a silent onlooker to the tampering of mandate by
dishonest means. It is not and cannot be said that by
preventing a claim to be staked the Governor does not act
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irrationally or on extraneous premises. Had the Governor
acted with the object of preventing anyone from staking a
claim his action would have been vulnerable. The conduct of
the Governor may be suspicious and may be so in the present
case, but if his opinion about the adoption of tainted means is
supportable by tested materials, certainly it cannot be
extraneous or irrational. It would all depend upon the facts of
each case. If the Governor in a particular case without tested
or unimpeachable material merely makes an observation that
tainted means are being adopted, the same would attract
judicial review. But in the instant case there is some material
on which the Governor has acted. This ultimately is a case of
subjective satisfaction based on objective materials. On the
factual background one thing is very clear i.e. no claim was
staked and on the contrary the materials on record show what
was being projected. It is also clear from a bare perusal of the
documents which the petitioners have themselves enclosed to
the writ petitions that authenticity of the documents is
suspect.
Judicial response to human rights cannot be blunted by
legal jugglery. (See: Bhupinder Sharma v. State of Himachal
Pradesh 2003(8) SCC 551). Justice has no favourite other than
the truth. Reasonableness, rationality, legality as well as
philosophically provide colour to the meaning of fundamental
rights. What is morally wrong cannot be politically right. The
petitioners themselves have founded their claims on
documents which do not have even shadow of genuineness so
far as claim of majority is concerned. If the Governor felt that
what was being done was morally wrong, it cannot be treated
as politically right. This is his perception. It may be erroneous.
It may not be specifically spelt out by the Constitution so far
as his powers are concerned. But it ultimately is a perception.
Though erroneous it cannot be termed as extraneous or
irrational. Therefore however suspicious conduct of the
Governor may be, and even if it is accepted that he had acted
in hot haste it cannot be a ground to term his action as
extraneous. A shadow of doubt about bona fides does not lead
to an inevitable conclusion about mala fides.
We may hasten to add that similar perceptions by
Governors may lead to chaotic conditions. There may be
human errors. Therefore, the concerned Governor has to act
carefully with care and caution and can draw his inference
from tested and unimpeachable material; otherwise not.
In B.R. Kapur v. State of Tamil Nadu and Anr. (AIR 2001
SC 3435) this Court considered the role of the Governor in
appointing the Chief Minister. It was held that the Governor
can exercise his discretion and can decline to make the
appointment when the person chosen by the majority party is
not qualified to be member of Legislature. It was observed that
in such a case the Constitution prevails over the will of the
people. It was further observed that accepting submissions as
were made in that case that the Governor exercising powers
under Article 164(1) read with (4) was obliged to appoint as
Chief Minister whosoever the majority party in the Legislature
nominated, regardless of whether or not the person nominated
was qualified to be a member of the legislature under Article
173 or was disqualified in that behalf under Article 191,and
the only manner in which a Chief Minister who was not
qualified or who was disqualified could be removed was by a
vote of no-confidence in the legislature or by the electorate at
the next elections and that the Governor was so obliged even
when the person recommended was, to the Governor's
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knowledge, a non-citizen, under age, a lunatic or an
undischarged insolvent, and the only way in which a non-
citizen, or under age or lunatic or insolvent Chief Minister
could be removed was by a vote of no-confidence in the
legislature or at the next election, is to invite disaster.
The situation cannot be different when the Chief Minister
nominated was to head a Ministry which had its foundation on
taint and the majority is cobbled by unethical means or
corrupt means. As was observed in B.R. Kapur's case (supra)
in such an event the constitutional purity has to be
maintained and the Constitution has to prevail over the will of
the people.
With these conclusions the writ applications could have
been disposed of. But, taking note of some of the disturbing
features highlighted by learned counsel about the suspicious
and apparently indefensible roles of some Governors, it is
necessary to deal with some of the relevant aspects.
It is relevant to take note of what the Sarkaria Committee
had said about the role of Governors:
1. INTRODUCTION
4.1.01 The role of the Governor has
emerged as one of the key issues in Union
State relations. The Indian political scene was
dominated by a single party for a number of
years after Independence. Problems which
arose in the working of Union-State relations
were mostly matters for adjustment in the
intra-party forum and the Governor had very
little occasion for using his discretionary
powers. The institution of Governor remained
largely latent. Events in Kerala in 1959 when
President's rule was imposed, brought into
some prominence the role of the Governor, but
thereafter it did not attract much attention for
some years. A major change occurred after the
Fourth General Elections in 1967. In a
number of States, the party in power was
different from that in the Union. The
subsequent decades saw the fragmentation of
political parties and emergence of new regional
parties frequent, sometimes unpredictable
realignments of political parties and groups
took place for the purpose of forming
governments. These developments gave rise to
chronic instability in several State
Governments. As a consequence, the
Governors were called upon to exercise their
discretionary powers more frequently. The
manner in which they exercised these
functions has had a direct impact on Union-
State relations. Points of friction between the
Union and the States began to multiply.
4.1.02 The role of the Governor has come
in for attack on the ground that some
Governors have failed to display the qualities
of impartiality and sagacity expected of them.
It has been alleged that the Governors have
not acted with necessary objectivity either in
the manner of exercise of their discretion or in
their role as a vital link between the Union and
the States. Many have traced this mainly to
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the fact that the Governor is appointed by, and
holds office during the pleasure of, the
President, (in effect, the Union Council of
Ministers). The part played by some Governors,
particularly in recommending President's rule
and in reserving States Bills for the
consideration of the President, has evoked
strong resentment. Frequent removals and
transfers of Governors before the end of their
tenure has lowered the prestige of this office.
Criticism has also been levelled that the Union
Government utilizes the Governor's for its own
political ends. Many Governors, looking
forward to further office under the Union or
active role in politics after their tenure, came
to regard themselves as agents of the Union.
(Underlined for emphasis)
2. Historical background:
4.2.01 The Government of India Act, 1858
transferred the responsibility for
administration of India from the East India
Company to the British Crown. The Governor
then became an agent of the Crown,
functioning under the general supervision of
the Governor-General. The Montagu-
Chelmsford Reforms (1919) ushered in
responsible Government, albeit in a
rudimentary form. However, the Governor
continued to be the pivot of the Provincial
administration.
4.2.02 The Government of India Act, 1935
introduced provincial autonomy. The Governor
was now required to act on the advice of
Ministers responsible to the Legislature. Even
so, it placed certain special responsibilities on
the Governor, such as prevention of grave
menace to the peace or tranquility of the
Province, safeguarding the legitimate interests
of minorities and so on. The Governor could
also act in his discretion in specified matters.
He functioned under the general
superintendence and control of the Governor
General, whenever he acted in his individual
judgment or discretion.
4.2.03 In 1937 when the Government of
India Act, 1935 came into force, the Congress
party commanded a majority in six provincial
legislatures. They foresaw certain difficulties in
functioning under the new system which
expected Ministers to accept, without demur,
the censure implied, if the Governor exercised
his individual judgment for the discharge of
his special responsibilities. The Congress
Party agreed to assume office in these
Provinces only after it received an assurance
from the Viceroy that the Governors would not
provoke a conflict with the elected
Government.
4.2.04 Independence inevitably brought
about a change in the role of the Governor.
Until the Constitution came into force, the
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provisions of the Government of India Act,
1935 as adapted by the India (Provisional
Constitution) Order, 1947 were applicable.
This Order omitted the expressions 'in his
discretion', 'acting in his discretion' and
'exercising his individual judgment', wherever
they occurred in the Act. Whereas, earlier,
certain functions were to be exercised by the
Governor either in his discretion or in his
individual judgment, the Adaptation Order
made it incumbent on the Governor to exercise
these as well as all other functions only on the
advice of his Council of Ministers.
4.2.05 The framers of the Constitution
accepted, in principle, the Parliamentary or
Cabinet system of Government of the British
model both for the Union and the States. While
the pattern of the two levels of government
with demarcated powers remained broadly
similar to the pre-independence arrangements,
their roles and inter-relationships were given a
major reorientation.
4.2.06 The Constituent Assembly discussed
at length the various provisions relating to the
Governor. Two important issues were
considered. The first issue was whether there
should be an elected Governor. It was
recognized that the co-existence of an elected
Governor and a Chief Minister responsible to
the Legislature might lead to friction and
consequent weakness in administration. The
concept of an elected Governor was therefore
given up in favour of a nominated Governor.
Explaining in the Constituent Assembly why a
Governor should be nominated by the
President and not elected Jawaharlal Nehru
observed that "an elected Governor would to
some extent encourage that separatist
provincial tendency more than otherwise.
There will be far fewer common links with the
Centre."
4.2.07 The second issue related to the
extent of discretionary powers to be allowed to
the Governor. Following the decision to have a
nominated Governor, references in the various
Articles of the Draft Constitution relating to
the exercise of specified functioned by the
Governor 'in his discretion' were deleted. The
only explicit provisions retained were those
relating to Tribal Areas in Assam where the
administration was made a Central
responsibility. The Governor as agent of the
Central Government during the transitional
period could act independently of his Council
of Ministers. Nonetheless, no change was made
in Draft Article 143, which referred to the
discretionary powers of the Governor. This
provision in Draft Article 143 (now Article 163)
generated considerable discussion. Replying to
it, Dr. Ambedkar maintained that vesting the
Governor with certain discretionary powers
was not contrary to responsible Government.
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Xx xx xx xx
4.3.09 The Constitution contains certain
provisions expressly providing for the Governor
to Act:-
(A) in his discretion; or
(B) in his individual judgment; or
(C) independently of the State
Council of Ministers; vis.
(a)(i) Governors of all the
States-Reservation for the
consideration of the President of
any Bill which, in the opinion of
the Governor would, if it became
law, so derogate from the powers
of the High Court as to endanger
the position which that Court is
by the Constitution designed to
fill (Second Proviso to Article
200).
(ii) The Governors of Arunachal
Pradesh, Assam, Meghalaya,
Mizoram, Nagaland, Sikkim and
Tripura have been entrusted with
some specific functions to be
exercised by them in their
discretion (vide Articles 371A,
371F and 371H and paragraph 9
of the Sixth Schedule). These
have been dealt with in detail in
Section 14 of this Chapter
(b) The Governors of Arunachal Pradesh
and Nagaland have been entrusted with a
special responsibility with respect to law
and order in their respective States. In the
discharge of this responsibility, they are
required to exercise their "individual
judgment" after consulting their Council of
Ministers. This aspect also has been
discussed in Section 14 of this Chapter.
(c) Governors as Administrator of Union
Territory\027Any Governor, on being
appointed by the President as the
administrator of an adjoining Union
Territory, has to exercise his functions as
administrator, independently of the State
Council of Ministers ( Article 239(2). In
fact, as administrator of the Union
Territory, the Governor is in the position of
an agent of the President.
Xx xx xx
4.4.01 The three important facets of the
Governor's role arising out of the
Constitutional provisions, are:-
(a) as the constitutional head of the
State operating normally under a system of
Parliamentary democracy;
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(b) as a vital link between the Union
Government and the State Government;
and
(C) As an agent of the Union
Government in a few specific areas during
normal times (e.g. Article 239(2) and in a
number of areas during abnormal
situations (e.g. article 356(1))
4.4.02 There is little controversy about )
above. But the manner in which he has
performed the dull role, as envisaged in (a) and
(b) above, has attracted much criticism. The
burden of the complaints against the
behaviour of Governors, in general, is that they
are unable to shed their political inclinations,
predilections and prejudices while dealing with
different political parties within the State. As a
result, sometimes the decisions they take in
their discretion appear as partisan and
intended to promote the interests of the ruling
party in the Union Government, particularly if
the Governor was earlier in active politics or
intends to enter politics at the end of his term.
Such a behaviour, it is said, tends to impair
the system of Parliamentary democracy,
detracts from the autonomy of the States, and
generates strain in Union State relations.
In the Report of the "National Commission To Review The
Working Of The Constitution" the role of the Governor has
been dealt with in the following words:
"The powers of the President in the matter of
selection and appointment of Governors should not
be diluted. However, the Governor of a State should
be appointed by the President only after
consultation with the Chief Minister of that State.
Normally the five year term should be adhered to
and removal or transfer should be by following a
similar procedure as for appointment i.e. after
consultation with the Chief Minister of the
concerned State.
(Para 8.14.2)
In the matter of selection of a Governor, the
following matters mentioned in para 4.16.01 of
Volume I of the Sarkaria Commission Report should
be kept in mind:-
(i) He should be eminent in some walk of
life.
(ii) He should be a person outside the State.
(iii)He should be a detached figure and not too
intimately connected with the local politics of the
State; and
(iv) He should be a person who has not taken
too great a part in politics generally, and
particularly in the recent past.
In selecting a Governor in accordance with the
above criteria, persons, belonging to the minority
groups continue to be given a chance as hitherto.
(para 8.14.3)
There should be a time-limit-say a period of six
months within which the Governor should take a
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decision whether to grant assent or to reserve a Bill
for consideration of the President. If the Bill is
reserved for consideration of the President, there
should be a time-limit, say of three months, within
which the President should take a decision whether
to accord his assent or to direct the Governor to
return it to the State Legislature or to seek the
opinion of the Supreme Court regarding the
constitutionality of the Act under Article 143.
(Para 8.14.4.)
8.14.6 Suitable amendment should be made in
the Constitution so that the assent given by the
President should avail for all purposes of relevant
articles of the Constitution. However, it is
desirable that when a Bill is sent for the President's
assent, it would be appropriate to draw the
attention of the President to all the articles of the
Constitution, which refer to the need for the assent
of the President to avoid any doubts in court
proceedings.
8.14.7 A suitable article should be inserted in
the Constitution to the effect that an assent given
by the President to an Act shall not be permitted to
be argued as to whether it was given for one
purpose or another. When the President gives his
assent to the Bill, it shall be deemed to have been
given for all purposes of the Constitution.
8.14.8 The following proviso may be added to
Article 111 of the Constitution:
"Provided that when the President
declares that he assents to the Bill, the
assent shall be deemed to be a general
assent for all purposes of the
Constitution."
Suitable amendment may also be made in Article 200.
Article 356 should not be deleted. But it must
be used sparingly and only as a remedy of the last
resort and after exhausting action under other
articles like 256, 257 and 355.
(Paras 8.18 and 8.19.2)
8.16-Use-Misuse of Article 356
"Since the coming into force of the Constitution on
26th January, 1950, Article 356 and analogous
provisions have been invoked 111 times. According
to a Lok Sabha Secretariat study, on 13 occasions
the analogous provision namely Section 51 of the
Government of Union Territories Act, 1963 was
applied to Union Territories of which only
Pondicherry had a legislative assembly until the
occasion when it was last applied. In the remaining
98 instances the Article was applied 10 times
technically due to the mechanics of the Constitution
in circumstances like re-organisation of the States,
delay in completion of the process of elections, for
revision of proclamation and there being no party
with clear majority at the end of an election. In the
remaining 88 instances a close scrutiny of records
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would show that in as many as 54 cases there were
apparent circumstances to warrant invocation of
Article 356. These were instances of large scale
defections leading to reduction of the ruling party
into minority, withdrawal of support of coalition
partners, voluntary resignation by the government
in view of widespread agitations, large scale
militancy, judicial disqualification of some members
of the ruling party causing loss of majority in the
House and there being no alternate party capable of
forming a Government. About 13 cases of possible
misuse are such in which defections and
dissensions could have been alleged to be result of
political manoeuvre or cases in which floor tests
could have finally proved loss of support but were
not resorted to. In 18 cases common perception is
that of clear misuse. These involved the dismissal of
9 State Governments in April 1977 and an equal
number in February 1980. This analysis shows that
number of cases of imposition of President's Rule
out of 111, which could be considered as a mis-use
for dealing with political problems or considerations
irrelevant for the purposes in that Article such as
mal-administration in the State are a little over 20.
Clearly in many cases including those arising out of
States Re-organisation it would appear that the
President's Rule was inevitable. However, in view of
the fact that Article 356 represents a giant
instrument of constitutional control of one tier of
the constitutional structure over the other raises
strong misapprehensions.
8.17- Sarkaria Commission- Chapter 6 of the
Sarkaria Commission Report deals with emergency
provisions, namely, Articles 352 to 360. The
Sarkaria Commission has made 12
recommendations; 11 of which are related to
Article 356 while 1 is related to Article 355 of the
Constitution. Sarkaria Commission also made
specific recommendations for amendment of the
Constitution with a view to protecting the States
from what could be perceived as a politically driven
interference in self-governance of States. The
underlined theme of the recommendations is to
promote a constitutional structure and culture
that promotes co-operative and sustained growth
of federal institutions set down by the
Constitution.
8.19. Need for conventions-
Xx xx xx xx
8.19.5- In case of political breakdown, the
Commission recommends that before issuing a
proclamation under Article 356 the concerned State
should be given an opportunity to explain its
position and redress the situation, unless the
situation is such, that following the above course
would not be in the interest of security of State, or
defence of the country, or for other reasons
necessitating urgent action.
8.20. Situation of Political breakdown
Xx xx xx xx
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8.20.3 The Commission recommends that the
question whether the Ministry in a State has lost
the confidence of the Legislative Assembly or not,
should be decided only on the floor of the Assembly
and nowhere else. If necessary, the Union
Government should take the required steps, to
enable the Legislative Assembly to meet and freely
transact its business. The Governor should not be
allowed to dismiss the Ministry, so long as it enjoys
the confidence of the House. It is only where a Chief
Minister refuses to resign, after his Ministry is
defeated on a motion of no-confidence, that the
Governor can dismiss the State Government. In a
situation of political breakdown, the Governor
should explore all possibilities of having a
Government enjoying majority support in the
Assembly. If it is not possible for such a
Government to be installed and if fresh elections
can be held without avoidable delay, he should ask
the outgoing Ministry, (if there is one), to continue
as a caretaker government, provided the Ministry
was defeated solely on a issue, unconnected with
any allegations of maladministration or corruption
and is agreeable to continue. The Governor should
then dissolve the Legislative Assembly, leaving the
resolution of the constitutional crisis to the
electorate.
8.20.4 The problem of political breakdown would
stand largely resolved if the recommendations made
in para 4.20.7 in Chapter 4 in regard to the election
of the leader of the House (Chief Minister) and the
removal of the Government only by a constructive
vote of no-confidence are accepted and
implemented.
8.20.5. Normally President's Rule in a State should
be proclaimed on the basis of Governor's Report
under article 356(1). The Governor's report should
be a "speaking document", containing a precise and
clear statement of all material facts and grounds, on
the basis of which the President may satisfy himself,
as to the existence or otherwise of the situation
contemplated in Article 356.
8.21. Constitutional Amendments
8.21.1- Article 356 has been amended 10 times
principally by way of amendment of clause 356(4)
and by substitution/omission of proviso to Article
356(5). These were basically procedural changes.
Article 356, as amended by Constitution (44th
Amendment) provides that a resolution with respect
to the continuance in force of a proclamation for
any period beyond one year from the date of issue of
such proclamation shall not be passed by either
House of Parliament unless two conditions are
satisfied, viz:-
(i) that a proclamation of Emergency is in
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operation in the whole of India or as the case may
be, in the whole or any part of the State; and
(ii) that the Election Commission certifies
that the continuance in force of the proclamation
during the extended period is necessary on
account of difficulties in holding general elections
to the Legislative Assembly of the State
concerned.
8.21.2 The fulfillment of these two conditions
together are a requirement precedent to the
continuation of the proclamation. It could give rise
to occasions for amendment of the Constitution
from time to time merely for the purpose of this
clause as happened in case of Punjab.
Circumstances may arise where even without the
proclamation of Emergency under Article 352, it
may be difficult to hold general elections to the
State Assembly. In such a situation continuation of
President's Rule may become necessary. It may,
therefore, be more practicable to delink the two
conditions allowing for operation of each condition
in its own specific circumstances for continuation of
the President's Rule. This would allow for flexibility
and save the Constitution from the need to amend it
from time to time.
8.21.3. The Commission recommends that in
clause (5) of Article 356 of the Constitution, in sub-
clause (a) the word "and" occurring at the end
should be substituted by "or" so that even without
the State being under a proclamation of Emergency,
President's rule may be continued if elections
cannot be held.
8.21.4 Whenever a proclamation under Article
356 has been issued and approved by the
Parliament it may become necessary to review the
continuance in force of the proclamation and to
restore the democratic processes earlier than the
expiry of the stipulated period. The Commission are
of the view that this could be secured by
incorporating safeguards corresponding, in
principal, to clauses (7) and (8) of Article 352. The
Commission, therefore, recommends that clauses
(6) and (7) under Article 356 may be added on the
following lines: "(6) Notwithstanding anything
contained in the foregoing clauses, the President
shall revoke a proclamation issued under clause (1)
or a proclamation varying such proclamation if the
House of the People passes a resolution
disapproving, or, as the case may be, disapproving
the continuance in force of, such proclamation. (7)
Where a notice in writing signed by not less than
one-tenth of the total number of members of the
House of the People has been given, of their
intention to move a resolution for disapproving, or,
as the case may be, for disapproving the
continuance in force of, a proclamation issued
under clause (1) or a proclamation varying such
proclamation:
(a) to the Speaker, if the House is in
session; or
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(b) to the President, if the House is not in
session, a special sitting of the House shall be held
within fourteen days from the date on which such
notice is received by the Speaker, or, as the case
may be, by the President, for the purpose of
considering such resolution."
8.22- Dissolution of Assembly
8.22.1- When it is decided to issue a
proclamation under Article 356(1), a matter for
consideration that arises is whether the Legislative
Assembly should also be dissolved or not. Article
356 does not explicitly provide for dissolution of the
Assembly. One opinion is that if till expiry of two
months from the Presidential Proclamation and on
the approval received from both Houses of
Parliament the Legislative Assembly is not
dissolved, it would give rise to operational
disharmony. Since the executive power of the Union
or State is co-extensive with their legislative powers
respectively, bicameral operations of the legislative
and executive powers, both of the State Legislature
and Parliament in List II of VII Schedule, is an
anathema to the democratic principle and the
constitutional scheme. However, the majority
opinion in the Bommai judgment holds that the
rationale of clause (3) that every proclamation
issued under Article 356 shall be laid before both
Houses of Parliament and shall cease to operate at
the expiry of two months unless before the
expiration of that period it has been approved by
resolutions passed by both Houses of Parliament, is
to provide a salutary check on the executive power
entrenching parliamentary supremacy over the
executive.
8.22.2 The Commission having considered these
two opinions in the background of repeated
criticism of arbitrary use of Article 356 by the
executive, is of the view that the check provided
under clause 3 of Article 356 would be ineffective
by an irreversible decision before Parliament has
had an opportunity to consider it. The power of
dissolution has been inferred by reading sub-clause
(a) of clause I of Article 356 along with Article 174
which empowers the Governor to dissolve Legislative
Assembly. Having regard to the overall
constitutional scheme it would be necessary to
secure the exercise of consideration of the
proclamation by the Parliament before the Assembly
is dissolved.
8.22.3 The Commission, therefore, recommends
that Article 356 should be amended to ensure that
the State Legislative Assembly should not be
dissolved either by the Governor or the President
before the Proclamation issued under Article 356(1)
has been laid before Parliament and it as had an
opportunity to consider it.
It would also be appropriate to take note of very
enlightening discussions in the Constituent Assembly which
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throw beacon light on the role of Governors, parameters of
powers exercisable under Articles 174 and 356 of the
Constitution.
Constituent Assembly met on Ist June, 1949
Article 143
(Amendment Nos. 2155 and 2156 were not moved)
H. V. Kamath (C.P. & Berar: General): Mr. President, Sir,
I move:
"That in clause (1) of Article 143, the words
'except in so far as he is by or under this
Constitution required to exercise his functions
or any of them in his discretion' be deleted."
If this amendment were accepted by the House, this
clause of Article 143 would read thus :-
"There shall be a Council of Ministers with the
Chief Minister at the head to aid and advise
the President in the exercise of his functions."
Sir, it appears from a reading of this clause that the
Government of India Act of 1935 has been copied more or
less blindly without mature consideration. There is no
strong or valid reason for giving the Governor more
authority either in his discretion or otherwise vis-a-vis
his ministers, than has been given to the President in
relation to his ministers. If we turn to Article 61 (1), we
find it reads as follows :-
"There shall be a Council of Ministers with the
Chief Minister at the head to aid and advise
the Governor in the exercise of his functions."
When you, Sir, raised a very important issue, the other
day, Dr. Ambedkar clarified this clause by saying that the
President is bound to accept the advice of his ministers
in the exercise of all of his functions. But here Article
143 vests certain discretionary powers in the Governor,
and to me it seems that even as it was, it was bad
enough, but now after having amended Article 131
regarding election of the Governor and accepted
nominated Governors, it would be wrong in principle and
contrary to the tenets and principles of constitutional
Government, which you are going to build up in this
country. It would be wrong I say, to invest a Governor
with these additional powers, namely, discretionary
powers. I feel that no departure from the principles of
constitutional Government should be favoured except for
reasons of emergency and these discretionary powers
must be done away with. I hope this amendment of mine
will commend itself to the House. I move, Sir.
Prof. K. T. Shah (Bihar: General) : Mr. President, I beg to
move:
"That in clause (1) of Article 143, after the
word 'head a comma be placed and the words
'who shall be responsible to the Governor and
shall' be inserted and the word to' be deleted."
So, that the amended Article would read.
"(1) There shall be a Council of Ministers with
the Chief Minister at the head who shall be
responsible to the Governor and shall aid and
advise the Governor in the exercise of his
functions ......etc."
Sir, this is a logical consequence of the general principle
of this Draft Constitution, namely, that the Government
is to be upon the collective responsibility of the entire
Cabinet to the legislature. At the same time, in the
Cabinet the Prime Minister or the Chief Minister or by
whatever title he is described would be the Principal
Adviser and I would like to fix the responsibility definitely
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by the Constitution on the Chief Minister, the individual
Ministers not being in the same position. Whatever may
be the procedure or convention within the Cabinet itself,
however the decisions of the Cabinet may be taken, so far
as the Governor is concerned, I take it that the
responsibility would be of the Chief Minister who will
advise also about the appointment of his colleagues or
their removal if it should be necessary. It is but in the
fitness of things that he should be made directly
responsible for any advice tendered to the Constitutional
head of the State, namely, the Governor. As it is, in my
opinion, a clear corollary from the principles we have so
far accepted, I hope there would be no objection to this
amendment.
(Amendments Nos. 2159 to 2163 were not moved.)
Mr. President: There is no other amendment. The Article
and the amendments are open to discussion.
Shri T. T. Krishnamachari : Mr. President, I am afraid I
will have to oppose the amendment moved by my
honourable Friend Mr. Kamath, only for the reason that
he has not understood the scope of the clearly and his
amendment arises out of a misapprehension.
Sir, it is no doubt true, that certain words from this
Article may be removed, namely, those which refer to the
exercise by the Governor of his functions where he has to
use his discretion irrespective of the advice tendered by
his Ministers. Actually, I think this is more by way of a
safeguard, because there are specific provisions in this
Draft Constitution which occur subsequently where the
Governor is empowered to act in his discretion
irrespective of the advice tendered by his Council of
Ministers. There are two ways of formulating the idea
underlying it. One is to make a mention of this exception
in this Article 143 and enumerating the specific power of
the Governor where he can exercise his discretion in the
s that occur subsequently, or to leave out any mention of
this power here and only state is in the appropriate . The
former method has been followed. Here the general
proposition is stated that the Governor has normally to
act on the advice of his Ministers except in so far as the
exercise of his discretions covered by those in the
Constitution in which he is specifically empowered to act
in his discretion. So long as there are Articles occurring
subsequently in the Constitution where he is asked to act
in his discretion, which completely cover all cases of
departure from the normal practice to which I see my
honourable Friend Mr. Kamath has no objection, I may
refer to Article 188, I see no harm in the provision in this
Article being as it is. It happens that this House decides
that in all the subsequent Articles, the discretionary
power should not be there, as it may conceivably do, this
particular provision will be of no use and will fall into
desuetude. The point that my honourable Friend is trying
to make, while he concedes that the discretionary power
of the Governor can be given under Article 188, seems to
be pointless. If it is to be given in Article 188, there is no
harm in the mention of it remaining here. No harm can
arise by specific mention of this exception of Article 143.
Therefore, the serious objection that Mr. Kamath finds for
mention of this exception is pointless. I therefore think
that the Article had better be passed without any
amendment. If it is necessary for the House either to limit
the discretionary power of the Governor or completely do
away with it, it could be done in the Articles that occur
subsequently where specific mention is made without
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which this power that is mentioned here cannot at all be
exercised. That is the point I would like to draw the
attention of the House to and I think the Article had
better be passed as it is.
Dr. P. S. Deshmukh (C. P. & Berar: General): Mr.
President, Mr. T. T. Krishnamachari has clarified the
position with regard to this exception which has been
added to clause (1) of Article 143. If the Governor is, in
fact, going to have a discretionary power, then it is
necessary that this clause which Mr. Kamath seeks to
omit must remain.
Sir, Besides this, I do not know if the Drafting Committee
has deliberately omitted or they are going to provide it at
a later stage, and I would like to ask Dr. Ambedkar
whether it is not necessary to provide for the Governor to
preside at the meetings of the Council of Ministers. I do
not find any provision here to this effect. Since this
Article 143 is a mere reproduction of section 50 of the
Government of India Act, 1935, where this provision does
exist that the Governor in his discretion may preside at
the meetings of the Council of Minister, I think this
power is very necessary. Otherwise, the Ministers may
exclude the Governor from any meetings whatever and
this power unless specifically provided for, would not be
available to the Governor. I would like to draw the
attention of the members of the Drafting Committee to
this and to see if it is possible either to accept an
amendment to Article 143 by leaving it over or by making
this provision in some other part. I think this power of
the Governor to preside over the meetings of the Cabinet
is an essential one and ought to be provided for.
Shri Brajeshwar Prasad: Mr. President, Sir, the Article
provides--
"That there shall be a Council of Minister with
the Chief Minister at the head to aid and
advise the Governor in the exercise of his
functions".
Sir, I am not a constitutional lawyer but I feel that by the
Provisions of this Article the Governor is not bound to act
according to the advice tendered to him by his Council of
Ministers. It only means that the Ministers have the right
to tender advice to Governor. The Governor is quite free
to accept or to reject the advice so tendered. In another
sphere of administration the Governor can act in the
exercise of his functions in his discretion. In this sphere
the Ministry has not got the power to tender any advice.
Of course it is left open to the Governor to seed the
advice of the Ministers even in this sphere.
I feel that we have not taken into account the present
facts of the situation. We have tried to copy and imitate
the constitutions of the different countries of the world.
The necessity of the hour requires that the Governor
should be vested not only with the power to act in his
discretion but also with the power to act in his individual
judgment. I feel that the Governor should be vested with
the power of special responsibilities which the Governor
under the British regime were vested in this country. I
feel that there is a dearth of leadership in the provinces.
Competent men are not available and there are all kinds
of things going on in the various provinces. Unless the
Governor is vested with large powers it will be difficult to
effect any improvement in the Provincial administration.
Such a procedure may be undemocratic but such a
procedure will be perfectly right in the interest of the
country. I feel there is no creative energy left in the
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middle class intelligentsia of this country. They seem to
have become bereft of initiative and enterprise. The
masses who ought to be the rulers of this land are down-
trodden and exploited in all ways. Under these
circumstances there is no way left open but for the
Government of India to take the Provincial
administrations in its own hands. I feel that we are on
the threshold of a revolution in this country. There will
be revolution, bloodshed and anarchy in this country. I
feel that at this juncture it is necessary that all powers
should remain centralised in the hands of the
Government of India. In certain provinces the machinery
of law and order seems to have completely broken down.
Dacoities, arson, loot, murder and inflationary conditions
are rampant. I am opposed to this Article, because I am
convinced that federalism cannot succeed in a country
which is passing through a transitory period. The
national economy of America is fully developed. It can
afford to have a federal form of Government. In a country
where there is no room for expansion and for economic
development, there is no necessity for a centralised
economy. In India when our agriculture, industry,
minerals etc. are in an incipient stage of development, it
is necessary that power must be vested in the hands of
the Government of India. Federalism was in vogue in the
19th century when the means of communications were
undeveloped. The technical knowledge and resources at
the disposal of Governments in ancient times were of a
very meager character. Today the situation has
completely changed. Means of communications have
developed rapidly. Technical knowledge and the
necessary personnel at the disposal of the Government of
India are of such a wide character that it can undertake
to perform all the functions which a modern Government
is expected to perform. There is another reason why I am
opposed to this Article. In this country there is no scope
for federalism. All governments have become more or less
unitary in character. If we are to escape political
debacles, economic strangulation and military defeats on
all fronts, then our leaders and statesmen must learn to
think in unorthodox terms: otherwise there is no future
for this country.
Pandit Hirday Kunzru: (United Provinces: General): Mr.
President, I should like to ask Dr. Ambedkar whether it is
necessary to retain after the words "that the Governor
will be aided and advised by his Ministers", the words
"except in regard to certain matter in respect of which he
is to exercise his discretion". Supposing these words,
which are reminiscent of the old Government of India Act
and the old order, are omitted, what harm will be done?
The functions of the Ministers legally will be only to aid
and advice the Governor. The Article in which these
words occur does not lay down that the Governor shall be
guided by the advice of his Ministers but it is expected
that in accordance with the Constitutional practice
prevailing in all countries where responsible Government
exists the Governor will in all matters accept the advice of
his Ministers. This does not however mean that where
the Statute clearly lays down that action in regard to
specified matters may be taken by him on his own
authority this Article 143 will stand in his way.
My Friend Mr. T. T. Krishnamachari said that as Article
188 of the Constitution empowered the Governor to
disregard the advice of his Ministers and to take the
administration of the province into his own hands, it was
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necessary that these words should be retained, i.e. the,
discretionary power of the Governor should be retained. If
however, he assured us, Article 188 was deleted later, the
wording of Article 143 could be reconsidered. I fully
understand this position and appreciate it, but I should
like the words that have been objected to by my Friend
Mr. Kamath to be deleted. I do not personally think that
any harm will be done if they are not retained and we can
then consider not merely Article 188 but also Article 175
on their merits; but in spite of the assurance of Mr.
Krishnamachari the retention of the words objected to
does psychologically create the impression that the
House is being asked by the Drafting Committee to
commit itself in a way to a principle that it might be
found undesirable to accept later on. I shall say nothing
with regard to the merits of Article 188. I have already
briefly expressed my own views regarding it and shall
have an opportunity of discussing it fully later when that
Article is considered by the House. But why should we, to
being with, use a phraseology that it an unpleasant
reminder of the old order and that makes us feel that
though it may be possible later to reverse any decision
that the House may come to now, it may for all practical
purposes be regarded as an accomplished fact? I think
Sir, for these reasons that it will be better to accept the
amendment of my honourable Friend Mr. Kamath, and
then to discuss Articles 157 and 188 on their merits.
I should like to say one word more before I close. If
Article 143 is passed in its present form, it may give rise
to misapprehensions of the kind that my honourable
Friend Dr, Deshmukh seemed to be labouring under
when he asked that a provision should be inserted
entitling the Governor to preside over the meetings of the
Council of Ministers. The Draft Constitution does not
provide for this and I think wisely does not provide for
this. It would be contrary to the traditions of responsible
government as they have been established in Great
British and the British Dominions, that the Governor or
the Governor-General should, as a matter of right,
preside over the meetings of his cabinet. All that the
Draft Constitution does is to lay on the Chief Ministers
the duty of informing the Governor of the decisions come
to by the Council of Ministers in regard to administrative
matter and the legislative programme of the government.
In spite of this, we see that the Article 143, as it is
worded, has created a misunderstanding in the mind of a
member like Dr. Deshmukh who takes pains to follow
every of the Constitution with care. This is an additional
reason why the discretionary power of the Governor
should not be referred to in Article 143. The speech of my
friend Mr. Krishnamachari does not hold out the hope
that the suggestion that I have made has any chance of
being accepted. Nevertheless, I feel it my duty to say that
the course proposed by Mr. Kamath is better than what
the Drafting Sub-Committee seem to approve.
Prof. Shibban Lal Saksena (United Provinces: General):
Mr. President, Sir, I heard very carefully the speech of my
honourable Friend, Mr. krishnamachari, and his
arguments for the retention of the words which Mr.
Kamath wants to omit. If the Governor were an elected
Governor, I could have understood that he should have
these discretionary powers. But now we are having
nominated Governors who will function during the
pleasure of the President, and I do not think such
persons should be given powers which are contemplated
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in Article 188.
Then, if Article 188 is yet to be discussed--and it may
well be rejected--then it is not proper to give these powers
in this Article beforehand. If Article 188 is passed, then
we may reconsider this Article and add this clause if it is
necessary. We must not anticipate that we shall pass
Article 188, after all that has been said in the House
about the powers of the Governor.
These words are a reminder of the humiliating past. I am
afraid that if these words are retained, some Governor
may try to imitate the Governors of the past and quote
them as precedents, that this is how the Governor on
such an occasion acted in his discretion. I think in our
Constitution as we are now framing it, these powers of
the Governors are out of place; and no less a person than
the honourable Pandit Govind Ballabh Pant had given
notice of the amendment which Mr. Kamath has moved. I
think the wisdom of Pandit Pant should be sufficient,
guarantee that this amendment be accepted. It is just
possible that Article 188 may not be passed by this
House. If there is an emergency, the Premier of the
province himself will come forward to request the
Governor that an emergency should be declared, and the
aid of the Centre should be obtained to meet the
emergency. Why should the Governor declare an
emergency over the head of the Premier of the Province?
We should see that the Premier and the Governor of a
Province are not at logger heads on such an occasion. A
situation should not be allowed to arise when the Premier
says that he must carry on the Government, and yet the
Governor declares an emergency over his head and in
spite of his protestations. This will make the Premier
absolutely impotent. I think a mischievous Governor may
even try to create such a situation if he so decides, or if
the President wants him to do so in a province when a
party opposite to that in power at the Centre is in power.
I think Article 188, even if it is to be retained should be
so modified that the emergency should be declared by the
Governor on the advice of the Premier of the province. I
suggest to Dr. Ambedkar that these words should not
find a place in this Article, and as a consequential
amendment, sub-section (ii) of this Article should also be
deleted.
Shri Mahavir Tyagi (United Provinces: General): Sir, I beg
to differ from my honourable radical Friends Mr. Kamath
and Prof. Shibban Lal Saksena, and I think the more
powers are given to the provinces, the stiffer must be the
guardianship and control of the Centre in the exercise of
those powers. That is my view. We have now given up the
Centre, and we are going to have nominated Governors.
Those Governors are not to be there for nothing. After all,
we have to see that the policy of the Centre is carried out.
We have to keep the States linked together and the
Governor is the Agent or rather he is the agency which
will press for and guard the Central policy. In fact, our
previous conception has now been changed altogether.
The whole body politic of a country is affected and
influenced by the policy of the Centre. Take for instance
subjects like Defence involving questions of peace or war,
of relationship with foreign countries; of our commercial
relations, exports and imports. All these are subjects
which affect the whole body politic, and the provinces
cannot remain unaffected, they cannot be left free of the
policy of the Centre. The policy which is evoked in the
Centre should be followed by all the States, and if the
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Governors were to be in the hands of the provincial
Ministers then there will be various policies in various
provinces and the policy of each province shall be as
unstable as the ministry. For there would be ministers of
various types having different party labels and different
programmes to follow. Their policies must differ from one
another; it will therefore be all the more necessary that
there must be coordination of programmes and policies
between the States and the Central Government. The
Governor being the agency of the Centre is the only
guarantee to integrate the various Provinces or States.
The Central Government also expresses itself through the
provincial States; along with their own administration,
they have also to function on behalf of the Central
Government. A Governor shall act as the agency of the
Centre and will see that the Central policy is sincerely
carried out. Therefore the Governor's discretionary
powers should not be interfered with. Democratic trends
are like a wild beast. Say what you will, democracy goes
by the whims and fancies of parties and the masses.
There must be some such machinery which will keep this
wild beast under control. I do not deprecate democracy.
Democracy must have its way. But do not let it
degenerate into chaos. Moreover the State governments
may not be quite consistent in their own policies.
Governments may change after months or years; with
them will change their policies. The Governors may
change too, but the policy and instructions given by the
Centre to the Governors will remain practically
unchanged. The more the powers given to the States the
more vigilant must be the control. The Governor must
remain as the guardian of the Central policy on the one
side, and the Constitution on the other. His powers
therefore should not be interfered with.
Shri B. M. Gupta (Bombay: General): Sir, I think the
explanation given by my honourable Friend Mr. T. T.
Krishnamachari Should be accepted by the House and
the words concerning discretion of the Governor should
be allowed to stand till we dispose of Article 175 and
Article 188.
With regard to the suggestion made by the honourable
Dr. Deshmukh about the power being given to the
Governor to preside over the meetings of the cabinet I
have to oppose it. He enquired whether the Drafting
Committee intended to make that provision later on. I do
not know the intentions of the Drafting Committee for the
future but as far as the Draft before us is concerned I
think the Drafting Committee has definitely rejected it.
I would invite the attention of the honourable House to
Article 147 under which the Governor shall be entitled
only to information. If we allow him to preside over the
meetings of the Cabinet we would be departing from the
position we want to give him, namely that of a
constitutional head. If he presides over the meeting of the
Cabinet be shall have an effective voice in shaping the
decisions of the Cabinet in the entire field of
administration, even in fields which are not reserved for
his discretionary power. If certain powers have to be
given to him, our endeavour should be to restrict them as
far as possible, so that the Governor's position as a
constitutional head may be maintained. Therefore, Sir, I
oppose the proposal of Dr. Deshmukh.
Shri Alladi Krishnaswami Ayyar (Madras: General): Sir,
there is really no difference between those who oppose
and those who approve the amendment. In the first
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place, the general principle is laid down in Article 143
namely, the principle of ministerial responsibility, that
the Governor in the various spheres of executive activity
should act on the advice of his ministers. Then the Article
goes on to provide "except in so far as he is by or under
this Constitution required to exercise his functions or
any of them in his discretion." So long as there are
Articles in the Constitution which enable the Governor to
act in his discretion and in certain circumstances, it may
be, to over-ride the cabinet or to refer to the President,
this Article as it is framed is perfectly in order. If later on
the House comes to the conclusion that those Articles
which enable the Governor to act in his discretion in
specific cases should be deleted, it will be open to revise
this Article. But so long as there are later Articles which
permit the Governor to act in his discretion and not on
ministerial responsibility, the Article as drafted is
perfectly in order.
The only other question is whether first to make a
provision in Article 143 that the Governor shall act on
ministerial responsibility and then to go on providing
"Notwithstanding anything contained in Article
143........he can do this" or "Notwithstanding anything
contained in Article 143 he can act in his discretion." I
should think it is a much better method of drafting to
provide in Article 143 itself that the Governor shall
always act on ministerial responsibility excepting in
particular or specific cases where he is empowered to act
in his discretion. If of course the House comes to the
conclusion that in no case shall the Governor act in his
discretion, that he shall in every case act only on
ministerial responsibility, then there will be a
consequential change in this Article. That is, after those
Articles are considered and passed it will be quite open to
the House to delete the latter part of Article 143 as being
consequential on the decision come to by the House on
the later Articles. But, as it is, this is perfectly, in order
and I do not think any change is warranted in the
language of Article 143. It will be cumbrous to say at the
opening of each "Notwithstanding anything contained in
Article 143 the Governor can act on his own
responsibility".
Shri H. V. Kamath: Sir, on a point of clarification, Sir, I
know why it is that though emergency powers have been
conferred on the President by the Constitution no less
than on Governors, perhaps more so, discretionary power
as such have not been vested in the President but only in
Governors?
Pandit Thakur Das Bhargava (East Punjab: General): Sir,
I beg to oppose the amendment of Mr. Kamath. Under
Article 143 the Governor shall be aided in the exercise of
his functions by a Council of Ministers. It is clear so far. I
gave notice of an amendment which appears on the order
paper as Article 142-A which I have not moved. In the
amendment I have suggested that the Governor will be
bound to accept the advice of his ministers on all matters
except those which are under this Constitution required
to be exercised by him in his discretion. My submission
in that it is wrong to say that the Governor shall be a
dummy or an automaton. As a matter of fact according to
me the Governor shall exercise very wide powers and very
significant powers too. If we look at Article 144 it says:
"The Governor's ministers shall be appointed
by him and shall hold office during his
pleasure."
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So he has the power to appoint his ministers. But when
the ministers are not in existence who shall advise him in
the discharge of his functions? When he dismisses his
ministry then also he will exercise his functions under
his own discretion.
Then again, when the Governor calls upon the leader of a
party for the choice of ministers, after a previous ministry
has been dissolved, in that case there will be no ministry
in existence; and who will be there to advise him?
Therefore he will be exercising his functions in his
discretion. It is wrong to assume that the Governor will
not be charged with any functions which he will exercise
in his discretion. Articles 175 and 188 are the other
Articles which give him certain functions which he has to
exercise in his discretion.
Under Article 144 (4) there is a mention of the
Instrument of Instructions which is given in the Fourth
Schedule. The last paragraph of it runs thus:
"The Governor shall do all that in him lies to
maintain standards of good administration, to
promote all measures making for moral, social
and economic welfare and tending to fit all
classes of the population to take their due
share in the public life and government of the
state, and to secure amongst all classes and
creeds co-operation, goodwill and mutual
respect for religions beliefs and sentiments."
My submission is that according to me the Governor
shall be a guide, philosopher and friend of the Ministry
as well as the people in general, so that he will exercise
certain functions some of which will be in the nature of
unwritten conventions and some will be such as will be
expressly conferred by this Constitutions. He will be a
man above party and he will look at the Minister and
government from a detached standpoint. He will be able
to influence the ministers and members of the legislature
in such a manner that the administration will run
smoothly. In fact to say that a person like him is merely a
dummy, an automaton or a dignitary without powers is
perfectly wrong. It is quite right that so far as our
conception of a constitutional governor goes he will have
to accept the advice of his ministers in many matters but
there are many other matters in which the advice will
neither be available nor will he be bound to accept that
advice.
(underlined for emphasis)
Under Article 147 the Governor has power for calling for
information and part (c) says: This will be the duty of the
Chief Minister.
"If the Governor so requires, to submit for the
consideration of the Council of Ministers any
matter on which a decision has been taken by
a Minister but which has not been considered
by the Council."
This is specifically a matter which is of great importance.
The Governor is competent to ask the Chief Minister to
place any matter before the Council of Ministers which
one minister might have decided. When he calls for
information he will be acting in the exercise of his
discretion. He may call for any kind of information. With
this power he will be able to control and restrain the
ministry from doing irresponsible acts. In my opinion
taking the Governor as he is conceived to be under the
Constitution he will exercise very important functions
and therefore it is very necessary to retain the words
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relating to his discretion in Article 143.
Shri H. V. Pataskar (Bombay: General): Sir, Article 143 is
perfectly clear. With regard to the amendment of my
honourable Friend Mr. Kamath various points were
raised, whether the Governor is to be merely a figure-
head, whether he is to be a constitutional head only or
whether he is to have discretionary powers. To my mind
the question should be looked at from and entirely
different point of view. Article 143 merely relates to the
functions of the ministers. It does not primarily relate to
the power and functions of a Governor. It only says:
"There shall be a Council of Ministers with the
Chief Minister at the head to aid and advise
the Governor in the exercise of his functions."
Granting that we stop there, is it likely that any
complications will arise or that it will interfere with the
discretionary powers which are proposed to be given to
the Governor? In my view Article 188 is probably
necessary and I do not mean to suggest for a moment
that the Governor's powers to act in an emergency which
powers are given under Article 188, should not be there.
My point is this, whether if this Provision, viz., "except in
so far as he is by or under this Constitution required to
exercise his functions or any of them in his discretion", is
not there, is it going to affect the powers that are going to
be given to him to act in his discretion under Article 188?
I have carefully listened to my honourable Friend and
respected constitutional lawyer. Mr. Alladi Krishnaswami
Ayyer, but I was not able to follow why a provision like
this is necessary. He said that instead later on, while
considering Article 188, we might have to say
"Notwithstanding anything contained in Article 143." In
the first place to my mind it is not necessary. In the next
place, even granting that it becomes necessary at a later
stage to make provision on Article 188 by saying
"notwithstanding anything contained in Article 143", it
looks so obnoxious to keep these words here and they are
likely to enable certain people to create a sort of
unnecessary and unwarranted prejudice against certain
people. Article 143 primarily relates to the functions of
the ministers. Why is it necessary at this stage to remind
the ministers of the powers of the Governor and his
functions, by telling them that they shall not give any aid
or advice in so far as he, the Governor is required to act
in his discretion? This is an Article which is intended to
define the powers and functions of the Chief Minister. At
that point to suggest this, looks like lacking in courtesy
and politeness. Therefore I think the question should be
considered in that way. The question is not whether we
are going to give discretionary power to the Governors or
not. The question is not whether he is to be merely a
figure-head or otherwise. These are question to be
debated at their proper time and place. When we are
considering Article 143 which defines the function of the
Chief minister it looks so awkward and unnecessary to
say in the same "except in so far as he is by or under
this Constitution required to exercise his functions or
any of them in his discretion." Though I entirely agree
that Article 188 is absolutely necessary I suggest that in
this Article 143 these words are entirely unnecessary and
should not be there. Looked at from a practical point of
view this provision is misplaced and it is not courteous,
nor polite, nor justified nor relevant. I therefore suggest
that nothing would be lost by deleting these words. I do
not know whether my suggestion would be acceptable
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but I think it is worth being considered from a higher
point of view.
Shri Krishna Chandra Sharma (United Provinces:
General): Sir, the position is that under Article 41 the
executive powers of the Union are vested in the President
and these may be exercised by him in accordance with
the Constitution and the law. Now, the President of the
Union is responsible for the maintenance of law and
order and for good Government. The Cabinet of the State
is responsible to the people through the majority in the
Legislature. Now, what is the link between the President
and the State? The link is the Governor. Therefore
through the Governor alone the President can discharge
his functions for the good Government of the country. In
abnormal circumstances it is the Governor who can have
recourse to the emergency powers under Article 188.
Therefore the power to act in his discretion under Article
143 ipso facto follows and Article 188 is necessary and
cannot be done away with. Therefore certain emergency
powers such as under Article 188 are necessary for the
Governor to discharge his function of maintaining law
and order and to carry on the orderly government of the
State.
I wish to say word more with regard to Professor Shah's
amendment that the Minister shall be responsible to the
Governor. The Minister has a majority in the legislature
and as such, through the majority, he is responsible to
the people. If he is responsible to the Governor, as
distinguished from his responsibility to the Legislature
and through the legislature to the people of the State,
then he can be overthrown by the majority in the
legislature and he cannot maintain his position. He
cannot hold the office. Therefore it is an impossible
proposition that a Minister could ever be responsible to
the Governor as distinguished from his responsibility to
the people through the majority in the legislature. He
should therefore be responsible to the Legislature and the
people and not to the President. That is the only way in
which under the scheme in the Draft Constitution the
government of the country can he carried on.
(underlined for emphasis)
Shri Rohini Kumar Chaudhari: (Assam: General): I rise to
speak more in quest of clarification and enlightenment
than out of any ambition to make a valuable contribution
to this debate.
Sir, one point which largely influenced this House in
accepting the Article which provided for having
nominated Governors was that the Honourable Dr.
Ambedkar was pleased to assure us that the Governor
would be merely a symbol. I ask the honourable Dr.
Ambedkar now, whether any person who has the right to
act in his discretion can be said to be a mere symbol. I
am told that this provision for nominated governorship
was made on the model of the British Constitution. I
would like to ask Dr. Ambedkar if His Majesty the king of
English acts in his discretions in any matter. I am told--I
may perhaps be wrong--that His Majesty has no
discretion even in the matter of the selection of his bride.
That is always done for him by the Prime Minister of
England.
Sir, I know to my cost and to the cost of my Province
what 'acting by the Governor in the exercise of his
discretion' means. It was in the year 1942 that a
Governor acting in his discretion selected his Ministry
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from a minority party and that minority was ultimately
converted into a majority. I know also, and the House will
remember too, that the exercise of his discretion by the
Governor of the Province of Sindh led to the dismissal of
one of the popular Ministers-- Mr. Allah Bux. Sir, if in
spite of this experience of ours we are asked to clothe the
Governors with the powers to act in the exercise of their
discretion, I am afraid we are still living in the past which
we all wanted to forget.
We have always thought that it is better to be governed
by the will of the people than to be governed by the will of
a single person who nominates the Governor who could
act in his discretion. If this Governor is given the power
to act in his discretion there is no power on earth to
prevent him from doing so. He can be a veritable king
Stork. Furthermore, as the Article says, whenever the
Governor thinks that he is acting in his discretion
nowhere can he be questioned. There may be a dispute
between the Ministers and the Governor about the
competence of the former to advise the Governor; the
Governor's voice would prevail and the voice of the
Ministers would count for nothing. Should we in this age
countenance such a state of affairs? Should we take
more then a minute to dismiss the idea of having a
Governor acting in the exercise of his discretion? It may
be said that this matter may be considered hereafter. But
I feel that when once we agree to this provision, it would
not take long for us to realise that we have made a
mistake. Why should that be so? Is there any room for
doubt in this matter? Is there any room for thinking that
anyone in this country, not to speak of the members of
the legislature, will ever countenance the idea of giving
the power to the Governor nominated by a single person
to act in the exercise of his discretion? I would submit,
Sir, if my premise is correct, we should not waste a single
moment in discarding the provisions which empower the
Governor to act in his discretion.
(underlined for emphasis)
I also find in the last clause of this Article that the
question as to what advice was given by a Minister
should not be enquired into in any court. I only want to
make myself clear on this point. There are two functions
to be discharged by a Governor. In one case he has to act
on the advice of the Minister and in the other case he has
to act in the exercise of his discretion. Will the Ministry
be competent to advise the Governor in matters where he
can exercise his discretion? If I remember a right, in
1937 when there was a controversy over this matter
whether Ministers would be competent to advise the
Governor in matters where the Governor could use his
discretion, it was understood that Ministers would be
competent to advise the Governor in the exercise of his
discretion also and if the Governor did not accept their
advice, the Ministers were at liberty to say what advice
they gave. I do not know that is the intention at present.
There may be cases where the Ministers are competent to
give advice to the Governor but the Governor does not
accept their advice and does something which is
unpopular. A Governor who is nominated by the Centre
can afford to be unpopular in the province where he is
acting as Governor. He may be nervous about public
opinion if he serves in his own province but he may not
care about the public opinion in a province where he is
only acting. Suppose a Governor, instead of acting on the
advice of his Minister, acts in a different way. If the
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Minister are criticised for anything the Governor does on
his own, and the Ministers want to prosecute a party for
such criticism, would not the Ministers have the right to
say that they advised the Governor to act in a certain way
but that the Governor acted in a different way? Why
should we not allow the Ministers the liberty to prosecute
a paper, a scurrilous paper, a misinformed paper, which
indulged in such criticism of the Ministers? Why should
not the Ministers be allowed to say before a court what
advice they gave to the Governor? I would say, Sir--and I
may be excused for saying so-- that the best that can be
said in favour of this Article is that it is a close imitation
of a similar provision in the Government of India Act,
1935, which many Members of this House said, when is
was published, that they would not touch even with a
pair of tongs.
(underlined for emphasis)
The Honourable Dr. B. R. Ambedkar : Mr. President, Sir,
I did not think that it would have been necessary for me
to speak and take part in this debate after what my
Friend, Mr. T. T. Krishnamachari, had said on this
amendment of Mr. Kamath, but as my Friend, Pandit
Kunzru, pointedly asked me the question and demanded
a reply, I thought that out of courtesy I should say a few
words. Sir, the main and the crucial question is, should
the Governor have discretionary powers? It is that
question which is the main and the principal question.
After we come to some decision on this question, the
other question whether the words used in the last part of
clause (1) of Article 143 should be retained in that Article
or should be transferred somewhere else could be
usefully considered. The first thing, therefore, that I
propose to do so is to devote myself of this question
which, as I said, is the crucial question. It has been said
in the course of the debate that the retention of
discretionary power in the Governor is contrary to
responsible government in the provinces. It has also been
said that the retention of discretionary power in the
Governor smells of the Government of India Act, 1935,
which in the main was undemocratic. Now, speaking for
myself, I have no doubt in my mind that the retention on
the vesting the Governor with certain discretionary
powers is in no sense contrary to or in no sense a
negation of responsible government. I do not wish to rake
up the point because on this point I can very well satisfy
the House by reference to the provisions in the
Constitution of Canada and the Constitution of Australia.
I do not think anybody in this House would dispute that
the Canadian system of government is not a fully
responsible system of government, nor will anybody in
this House challenge that the Australian Government is
not a responsible form of government. Having said that, I
would like to read section 55 of the Canadian
Constitution.
"Section 55.--Where a Bill passed by the House
of Parliament is presented to the Governor-
General for the Queen's assent, he shall,
according to his discretion, and subject to the
provisions of this Act, either assent thereto in
the Queen's name, or withhold the Queen's
assent or reserve the Bill for the signification of
the Queen's pleasure."
(underlined for emphasis)
Pandit Hirday Nath Kunzru: May I ask Dr.
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Ambedkar when the British North America Act
was passed?
The Honourable Dr. B. R. Ambedkar : That does not
matter at all. The date of the Act does not matter.
Shri H. V. Kamath: Nearly a century ago.
The Honourable Dr. B.R. Ambedkar : This is my reply.
The Canadians and the Australians have not found it
necessary to delete this provision even at this stage. They
are quite satisfied that the retention of this provision in
section 55 of the Canadian Act is fully compatible with
responsible government. If they had left that this
provision was not compatible with responsible
government, they have even today, as Dominions, the
fullest right to abrogate this provision. They have not
done so. Therefore in reply to Pandit Kunzru I can very
well say that the Canadians and the Australians do not
think such a provision is an infringement of responsible
government.
Shri Lokanath Misra (Orissa : General): On a point of
order, Sir, are we going to have the status of Canada or
Australia? Or are, we going to have a Republic
Constitution?
The Honourable Dr. B. R. Ambedkar : I could not follow
what he said. If, as I hope, the House is satisfied that the
existence of a provision vesting a certain amount of
discretion in the Governor is not incompatible or
inconsistent with responsible government, there can be
no dispute that the retention of this clause is desirable
and, in my judgment, necessary. The only question that
arises is....
Pandit Hirday Nath Kunzru : Well, Dr. Ambedkar has
missed the point of the criticism altogether. The criticism
is not that in Article 175 some powers might not be
given to the Governor, the criticism is against vesting the
Governor with certain discretionary powers of a general
nature in the Article under discussion.
The Honourable Dr. B. R. Ambedkar: I think he has
misread the Article. I am sorry I do not have the Draft
Constitution with me. "Except in so far as he is by or
under this Constitution," those are the words. If the
words were "except whenever he thinks that he should
exercise this power of discretion against the wishes or
against the advice of the ministers", then I think the
criticism made by my honourable Friend Pandit Kunzru
would have been valid. The clause is a very limited
clause; it says: "except in so far as he is by or under this
Constitution". Therefore, Article 143 will have to be read
in conjunction with such other Articles which specifically
reserve the power to the Governor. It is not a general
clause giving the Governor power to disregard the advice
of his ministers in any matter in which he finds he ought
to disregard. There, I think, lies the fallacy of the
argument of my honourable Friend, Pandit Kunzru.
Therefore, as I said, having stated that there is nothing
incompatible with the retention of the discretionary
power in the Governor in specified cases with the system
of responsible Government, the only question that arises
is, how should we provide for the mention of this
discretionary power? It seems to me that there are three
ways by which this could be done. One way is to omit the
words from Article 143 as my honourable Friend, Pandit
Kunzru, and others desire and to add to such Articles as
175, or 188 or such other provisions which the House
may hereafter introduce, vesting the Governor with the
discretionary power, saying notwithstanding Article 143,
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the Governor shall have this or that power. The other way
would be to say in Article 143, "that except as provided in
Articles so and so specifically mentioned-Article 175,
188, 200 or whatever they are". But the point I am trying
to submit to the House is that the House cannot escape
from mentioning in some manner that the Governor shall
have discretion.
Now the matter which seems to find some kind of favour
with my honourable Friend, Pandit Kunzru and those
who have spoken in the same way is that the words
should be omitted from here and should be transferred
somewhere else or that the specific Articles should be
mentioned in Article 143. It seems to me that this is a
mere method of drafting. There is no question of
substance and no question of principle. I personally
myself would be quite willing to amend the last portion of
clause (1) of Article 143 if I knew at this stage what are
the provisions that this Constituent Assembly proposes
to make with regard to the vesting of the Governor with
discretionary power. My difficulty is that we have not as
yet come either to Articles 175 or 188 nor have we
exhausted all the possibilities of other provisions being
made, vesting the Governor with discretionary power. If I
knew that, I would very readily agree to amend Article
143 and to mention the specific, but that cannot be done
now. Therefore, my submission is that no wrong could be
done if the words as they stand in Article 143 remains as
they are. They are certainly not inconsistent.
Shri H. V. Kamath: Is there no material difference
between Article 61(1) relating to the President vis-a-vis
his ministers and this ?
The Honourable Dr. B. R. Ambedkar : Of course there is
because we do not want to vest the President with any
discretionary power. Because the provincial Governments
are required to work in subordination to the Central
Government, and therefore, in order to see that they do
act in subordination to the Central Government the
Governor will reserve certain things in order to give the
President the opportunity to see that the rules under
which the provincial Governments are supposed to act
according to the Constitution or in subordination to the
Central Government are observed.
Shri H. V. Kamath: Will it not be better to specify certain
Articles in the Constitution with regard to discretionary
power, instead of conferring general discretionary powers
like this?
The Honourable Dr. B. R. Ambedkar : I said so, that I
would very readily do it. I am prepared to introduce
specific Articles, if I knew what are the Articles which the
House is going to incorporate in the Constitution
regarding vesting of the discretionary powers in the
Governor.
Shri H. V. Kamath: Why not hold it over?
The Honourable Dr. B. R. Ambedkar : We can revise. This
House is perfectly competent to revise Article 143. If after
going through the whole of it, the House feels that the
better way would be to mention the Articles specifically, it
can do so. It is purely a logomachy.
Shri H. V. Kamath: Why go backwards and forwards?
Mr. President: The question is:
"That in clause (1) of Article 143, the words 'except in so
far as he is by or under this Constitution required to
exercise his functions or any of them in his discretion be
deleted."
The amendment was negatived.
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Mr. President: The question is:
"That in clause (1) of Article 143, after the
word 'head' a comma be placed and the words
'who shall be responsible to the Governor and
shall' be inserted and the word 'to' be deleted."
The amendment was negatived.
Mr. President: The question is:
"That Article 143 stand part of the
Constitution."
The motion was adopted.
Article 143 was added to the Constitution.
Constituent Assembly met on 2nd June, 1949
ARTICLE 153
Mr. President: Article 153 is for the consideration of the
House.
With regard to the very first amendment, No. 2321, as we had
a similar amendment with regard to Article 69 which was
discussed at great length the other day, does Professor Shah
wish to move it?
Prof. K. T. Shah: If I am in order I would like to move it. But if
you rule it out, it cannot be moved.
Mr. President: It is not a question of ruling it out. If it is
moved, there will be a repetition of the argument once put
forward.
Prof. K. T. Shah: I agree that this is a similar amendment, but
not identical.
Mr. President: I have not said it is identical.
Prof. K. T. Shah: All right. I do not move it, Sir.
Mr. President: Amendment Nos. 2322, 2323, 2324, 2325 and
2326 are not moved, as they are verbal amendments.
Prof. K. T. Shah: As my amendment No. 2327 is part of the
amendment not moved, I do not move it.
Mr. President: Then amendments Nos. 2328, 2329 and 2330
also go. Amendment No. 2331 is not moved.
Mr. Mohd. Tahir (Bihar: Muslim): Mr. President, I move:
"That at the end of sub-clause (c) of clause (2) of Article 153,
the words 'if the Governor is satisfied that the administration
is failing and the ministry has become unstable' be inserted."
In this clause certain powers have been given to the Governor
to summon, prorogue or dissolve the Legislative Assembly.
Now I want that some reasons may be enumerated which
necessitate the dissolution of a House. I find that to clause (3)
of Article 153 there is an amendment of Dr. Ambedkar in
which he wants to omit the clause which runs thus: "(3) the
functions of the Governor under sub-clause (a) and (c) of
clause (2) of this Article shall be exercised by him in his
discretion." I, on the other hand, want that some reasons
should be given for the dissolution. Nowhere in the
Constitution are we enumerating the conditions and
circumstances under which the House can be dissolved. If we
do not put any condition, there might be difficulties.
Supposing in some province there is a party in power with
whose views the some reasons to dissolve the Assembly and
make arrangements for fresh elections. If such things happen
there will be no justification for a dissolution of the House.
Simply because a Governor does not subscribe to the views of
the majority party the Assembly should not be dissolved. To
avoid such difficulties I think it is necessary that some
conditions and circumstances should be enumerated in the
Constitution under which alone the Governor can dissolve the
House. There should be no other reason for dissolution of the
House except mal-administration or instability of the Ministry
and its unfitness to work. Therefore this matter should be
considered and we should provide for certain conditions and
circumstances under which the Governor can dissolve the
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House.
(underlined for emphasis)
Mr. President: The next amendment, No. 2333, is not moved.
Dr. Ambedkar may move amendment No. 2334.
The Honourable Dr.B.R. Ambedkar: Sir, I move:
"That clause (3) of Article 153 be omitted."
This clause is apparently inconsistent with the scheme for a
Constitutional Governor.
Mr. President: Amendment No. 2335 is the same as the
amendment just moved. Amendment No. 2336 is not moved.
Shri H.V. Kamath: Mr. President, Sir, may I have your leave to
touch upon the meaning or interpretation of the amendment
that has just been moved by my learned Friend, Dr.
Ambedkar? If this amendment is accepted by the House it
would do away with the discretionary powers given to the
Governor. There is, however, sub-clause (b). Am I to
understand that so far as proroguing of the House is
concerned, the Governor acts in consultation with the Chief
Minister or the Cabinet and therefore no reference to it is
necessary in clause (3)?
Mr. President: He wants clause (3) to be deleted.
Shri H.V. Kamath: In clause (3) there is references to sub-
clauses (a) and (c). I put (a) and (b) on a par with each other.
The Governor can summon the Houses or either House to
meet at such time and place as he thinks fit. Then I do not
know why the act of prorogation should be on a different level.
Mr. President: That is exactly what is not being done now. All
the three are being put on a par.
Shri H. V. Kamath: Then I would like to refer to another
aspect of this deletion. That is the point which you were good
enough to raise in this House the other day, that is to say,
that the President of the Union shall have a Council of
Ministers to aid and advise him in the exercise of his
functions.
The corresponding Article here is 143:
"There shall be a Council of Minister with the Chief Minister at
the head to aid and advise the Governor in the exercise of his
functions......"
Sir, as you pointed out in connection with an Article relating
to the President vis-a-vis his Council of Ministers, is there any
provision in the Constitution which binds the Governor to
accept or to follow always the advice tendered to him by his
Council of Ministers? Power is being conferred upon him
under this Article to dissolve the Legislative Assembly. This is
a fairly serious matter in all democracies. There have been
instances in various democracies, even in our own provinces
sometimes, when a Cabinet seeking to gain time against a
motion of censure being brought against them, have sought
the Governor's aid, in getting the Assembly prorogued. This of
course is not so serious as dissolution of the Legislative
Assembly. Here the Article blindly says, "subject to the
provisions of this Article." As regards clause (1) of the Article, I
am glad that our Parliament and our other Legislatures would
meet more often and for longer periods. I hope that will be
considered and will be given effect to at the appropriate time.
Clause (2) of this Article is important because it deals with the
dissolution of the Assembly by the Governor of a State and in
view of the fact that there is no specific provision-of course it
may be understood and reading between the lines Dr.
Ambedkar might say that the substance of it is there, but we
have not yet decided even to do away with the discretionary
powers of the Governor to accept the advice tendered to him
by his Council of Ministers, there is a lacuna in the
Constitution. Notwithstanding this, we are conferring upon
him the power to dissolve the Legislative Assembly, without
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even mentioning that he should consult or be guided by the
advice of his Ministers in this regard. I am constrained to say
that this power which we are conferring upon the Governor
will be out of tune with the new set-up that we are going to
create in the country unless we bind the Governor to accept
the advice tendered to him by his Minister. I hope that this
Article will be held over and the Drafting Committee will bring
forward another motion later on revising or altering this Article
in a suitable manner.
Shri Gopal Narain (United Provinces: General): Mr. President,
Sir, before speaking on this, I wish to lodge a complaint and
seek redress from you. I am one of those who have attended all
the meetings of this Assembly and sit from beginning to the
end, but my patience has been exhausted now. I find that
there are a few honourable Members of this House who have
monopolised all the debates, who must speak on every Article,
on every amendment and every amendment to amendment. I
know, Sir, that you have your own limitations and you cannot
stop them under the rules, though I see from your face that
also feel sometimes bored, but you cannot stop them. I
suggest to you, Sir, that some time-limit may be imposed upon
some Members. They should not be allowed to speak for more
than two or three minutes. So far as this Article is concerned,
it has already taken fifteen minutes, though there is nothing
new in it, and it only provides discretionary powers to the
Governor. Still a Member comes and oppose it. I seek redress
from you, but if you cannot do this, then you must allow us at
least to sleep in our seats or do something else than sit in this
House. Sir, I support this Article.
Mr. President: I am afraid I am helpless in this matter. I leave
it to the good sense of the Members.
Shri Brajeshwar Prasad: (Rose to speak).
Mr. President: Do you wish to speak after this? (Laughter).
The Honourable Dr. B.R. Ambedkar: I do not think I need
reply. This matter has been debated quite often.
Mr. President: Then I will put the amendments to vote.
The question is:
"That at the end of sub-clause (c) of clause (2) of Article 153,
the words `if the Governor is satisfied that the administration
is failing and the ministry has become unstable' be inserted."
The amendment was negatived.
Mr. President: The question is:
"That clause (3) of Article 153 be omitted."
The amendment was adopted.
Mr. President: The question is:
"That Article 153, as amended, stand part of the Constitution."
The motion was adopted.
Article 153, as amended, was added to the Constitution
Constituent Assembly met on 3rd August, 1949
Article 278. Provisions in case of Failure of Constitutional
machinery in States.
xxx xxx xxx xxx
Pandit Hirday Nath Kunzru (United Provinces: General): Mr.
President, I am really very glad that the framers of the
Constitution have at last accepted the view that Article 188
should not find a place in our Constitution. That Article was
inconsistent with the establishment of responsible
Government in the provinces and the new position of the
Governor. It is satisfactory that this has at last been
recognised and that the Governor is not going to be invested
with the power that Article 188 proposed to confer on him. It
is, however, now proposed to achieve the purpose of Article
188 and the old Article 278 by a revision of Article 278. We
have today to direct our attention not merely to Articles 278
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and 278-A, but also to Article 277-A. This Article lays down
that it will be the duty of the Union to ensure that the
government of every State is carried on in accordance with the
provisions of this Constitution. It does not merely authorise
the Central Government to protect the State against external
aggression or internal Commotion; it goes much further and
casts on it the duty of seeing that the Government of a
province is carried on in accordance with the provision of this
Constitution. What exactly do these words mean? This should
be clearly explained since the power to ensure that the
provincial constitutions are being worked in a proper way
makes a considerable addition to the powers that the Central
Government will enjoy to protect a State against external
aggression or internal disturbance. I think, Sir, that it will be
desirable in this connection to consider Articles 275 and 276,
for their provisions have vital bearing on the s that have been
placed before us. Article 275 says that, when the President is
satisfied that a grave emergency exists threatening the
security of India or of any part of India, then he may make a
declaration to that effect. Such a declaration will cease to
operate at the end of two months, unless before the expiry of
this period, it has been approved by resolutions passed by
both Houses of Parliament. If it is so approved, then, the
declaration of emergency may remain in force indefinitely, that
is, so long as the Executive desires it to remain in force, or so
long as Parliament allows it to remain in force. So long as the
Proclamation operates, under Article 276, the Central
Government will be empowered to issue directions to the
government of any province as regards the manner in which
its executive authority should be exercised and the Central
Parliament will be empowered to make laws with regard to any
matter even though it may not be included in the Union List. It
will thus have the power of passing laws on subjects included
in the State List. Further, the Central Legislature will be able
to confer powers and impose duties on the officers and
authorities of the Government of India in regard to any matter
in respect of which it is competent to pass legislation. Now the
effect of these two Articles is to enable the Central Government
to intervene when owing to external or internal causes the
peace and tranquility of India or any part of it is threatened.
Further, if misgovernment in a province creates so much
dissatisfaction as to endanger the public peace, the
Government of India will have sufficient power, under these
Articles to deal with the situation. What more is needed then
in order to enable the Central Government to see that the
government of a province is carried on in a proper manner. It
is obvious that the framers of the Constitution arc thinking
not of the peace and tranquility of the country, of the
maintenance of law and order but of good government in
provinces. They will intervene not merely to protect provinces
against external aggression and internal disturbances but also
to ensure good government within their limits. In other words,
the Central Government will have the power to intervene to
protect the electors against themselves. If there is
mismanagement or inefficiency or corruption in a province, I
take it that under Articles 277, 278 and 278-A taken together
the Central Government will have the power. I do not use the
word 'President' because he will be guided by the advice of his
Ministers to take the government of that province into its own
hands. My honourable Friend, Mr. Santhanam gave some
instances in order to show how a breakdown might occur in a
province even when there was no external aggression, no war
and no internal disturbance. He gave one very unfortunate
illustration to explain his point. He asked us to suppose that a
number of factions existed in a province which prevented the
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government of that province from being carried on in
accordance with the provisions of this Act i.e., I suppose
efficiently. He placed before us his view that in such a case a
dissolution of the provincial legislature should take place so
that it might be found out whether the electors were capable of
applying a proper remedy to the situation. If, however, in the
new legislature the old factions-I suppose by factions he meant
parties-re-appeared, then the Central Government in his
opinion would be justified in taking over the administration of
the province. Sir, if there is a multiplicity of parties in any
province we may not welcome it, but is that fact by itself
sufficient to warrant the Central Government's Interference in
provincial administration? There are many parties in some
countries making ministries unstable. Yet the Governments of
those countries are carried on without any danger to their
security or existence. It may be a matter of regret if too many
parties exist in a province and they are not able to work
together or arrive at an agreement on important matters in the
interests of their province; but however regrettable this may
be, it will not justify in my opinion, the Central Government in
intervening and making itself jointly with Parliament
responsible for the government of the province concerned. As I
have already said, if mismanagement in a province takes place
to such an extent as to create a grave situation in India or in
any part of it, then the Central Government will have the right
to intervene under Articles 275 and 276. Is it right to go
further than this? We hear serious complaints against the
governments of many provinces at present, but it has not been
suggested so far that it will be in the ultimate interests of the
country and the provinces concerned that the Central
Government should set aside the provincial governments and
practically administer the provinces concerned, as if they were
Centrally administered areas. It may be said, Sir, that the
provincial governments at present have the right to intervene
when a municipality or District Board is guilty of gross and
persistent mal-administration, but a municipality or a District
Board is too small to be compared for a moment in any respect
with a province. The very size of a province and the number of
electors in it place it on a footing of its own. If responsible
government is to be maintained, then the electors must be
made to feel that the power to apply the proper remedy when
misgovernment occurs rests with them. They should know
that it depends upon them to choose new representatives who
will be more capable of acting in accordance with their best
interests. If the Central Government and Parliament are given
the power that Articles 277, 278 and 278-A read together
propose to confer on them, there is a serious danger that
whenever there is dissatisfaction in a province with its
government, appeals will be made to the Central Government
to come to its rescue. The provincial electors will be able to
throw their responsibility on the shoulders of the Central
Government. Is it right that such a tendency should be
encouraged? Responsible Government is the most difficult
form of government. It requires patience, and it requires the
courage to take risks. If we have neither the patience nor the
courage that is needed, our Constitution will virtually be still-
born. I think, therefore, Sir, that the Articles that we are
discussing are not needed. Articles 275 and 276 give the
Central Executive and Parliament all the power that can
reasonably be conferred on them in order to enable them to
see that law and order do not break down in the country, or
that misgovernment in any part of India is not carried to such
lengths as to jeopardise the maintenance of law and order. It is
not necessary to go any further. The excessive caution that the
framers of the Constitution seem to be desirous of exercising
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will, in my opinion, be inconsistent with the spirit of the
Constitution, and be detrimental, gravel detrimental, to the
growth of a sense of responsibility among the provincial
electors.
Before concluding, Sir, I should like to draw the attention of
the House to the Government of India Act, 1935 as adopted by
the India (Provisional Constitution) Order, 1947. Section 93
which formed an important part of this Act as originally
passed, has been omitted from the Act as adopted in 1947,
and I suppose it was omitted because it was thought to be
inconsistent with the new order of things. My honourable
Friend Mr. Santhanam said that in the Government of India
Act, 1935, the Governor who was allowed to act in his
discretion would not have been responsible to any authority.
That, I think, is a mistake I may point out that the Governor,
in respect of all powers that he could exercise in his discretion,
was subject to the authority of the Governor-General and
through him and the Secretary of State for India, to the British
Parliament. The only difference now is that our executive,
instead of being responsible to an electorate 5,000 miles away,
will be responsible to the Indian electors. This is an important
fact that must be clearly recognised, but I do not think that
the lapse of two years since the adapted Government of India
Act, 1935, came into force, warrants the acceptance of the
Articles now before us. The purpose of section 93 was political.
Its object was to see that the Constitution was not used in
such away as to compel the British Government to part with
more power than it was prepared to give to the people of India.
No such antagonism between the people and the Government
of India can exist in future. Whatever differences there may be,
will arise in regard to administrative or financial or economic
questions. Suppose a province in respect of economic
problems, takes a more radical line than the Government of
India would approve. I think this will be no reason for the
interference of the Government of India.
Shri T. T. Krishnamachari (Madras: General): What happens if
the provincial government deliberately refuses to obey the
provisions of the Constitution and impedes the Central
Government taking action under Article 275 and 276?
Pandit Hirday Nath Kunzru: No province can do it. It cannot
because it would be totally illegal. But if such a situation
arises the Central Government will have sufficient power
under Articles 275 and 276 to intervene at once. It will have
adequate power to take any action that it likes. It can ask its
own officers to take certain duties on themselves and if those
officers are impeded in the discharge, of their duties, or, if
force is used against them-to take an extreme case-the Central
Government will be able to meet such a challenge effectively,
without our accepting the Articles now before us. I should like
the House to consider the point raised by my honourable
Friend Mr. Krishnamachari very carefully. I have thought over
such a situation in my own mind, over and over again, and
every time I have come to the conclusion that Articles 275 and
276 will enable the Government of India to meet effectively
such a manifestation oil recalcitrance, such a rebellious
attitude as that supposed by Mr. Krishnamachari. In such a
grave situation, the Government of India will have the power to
take effective action under Articles 275 and 276. What need is
there then for the Articles that have been placed before us?
Sir, one of the speakers said that we should not be legalistic.
Nobody has discussed the Articles moved by Dr. Ambedkar in
a legalistic spirit. I certainly have not discussed it in a narrow,
legal way. I am considering the question from a broad political
point of view from the point of view of the best interests of the
country and the realization by provincial electors of the
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important fact that they and they alone are responsible for the
government of their province. They must understand that it
rests with them to decide how it should be carried on.
Sir, even if the framers of the Constitution are not satisfied
with the arguments that I have put forward and want that the
Central Government should have more power than that given
to it by Articles 275 and 276, I should ask them to pause and
consider whether there was not a better way of approaching
this question for the time being. In view of the discussions that
have taken place in this House and outside, it seems to me
that there is a respectable body of opinion in favour of not
making the Constitution rigid, that is, there are many people
who desire that for some time to come amendments to the
Constitution should be allowed to be made in the same way as
those of ordinary laws are. I think that the Prime Minister in a
speech that he made here some months ago expressed the
same view. If this idea is accepted by the House, if say for five
years the Constitution can be amended in the same way as an
ordinary law, then we shall have sufficient time to see how the
Provinces develop and how their government is carried on. If
experience shows that the position is so unfortunate as to
require that the Central Government should make itself
responsible not merely for the safety of every Province but also
for its good government, then you can come forward with every
justification for an amendment of the Constitution. But I do
not see that there is any reason why the House should agree
to the Articles placed before us today by Dr. Ambedkar.
Sir, I oppose these Articles.
Shri L. Krishnaswami Bharathi (Madras: General): Sir, I felt
impelled by a sense of duty to place a certain point of view
before the House, or else I would not have come before the
mike. I feel the need for a brief speech. I accord my
wholehearted support to the new Articles moved by Dr.
Ambedkar, but I am not at all convinced of the wisdom of the
Drafting Committee in deleting Article 188. It is this point of
view which I want to emphasise.
Sir, that Article has a history behind it. There was a full-dress
debate on it for two days when eminent Premiers participated
in it. We must understand what Article 188 is for. It is not for
normal conditions. It is in a state of grave emergency that a
Governor was, under this Article, invested with some powers. I
may remind the House of the debate where it was Mr.
Munshi's amendment which ultimately formed part of Article
188. In moving the amendment Dr. Ambedkar said that no
useful purpose would be served by allowing the Governor to
suspend the Constitution and that the President must come
into the picture even earlier. Article 188 provides for such a
possibility. It merely says that when the Governor is satisfied
that there is such a grave menace to peace and tranquility he
can suspend the Constitution. It is totally wrong to imagine
that he was given the power to suspend the Constitution for a
duration of two weeks. Clause (3) provides that it is his duty to
forthwith communicate his Proclamation to the President and
the President will become seized of the matter under Article
188. That is an important point which seems lost sight of. The
Governor has to immediately communicate his Proclamation.
The Article was necessitated because it was convincingly put
forward by certain Premiers. There may be a possibility that it
is not at all possible to contact the President. Do you rule out
the possibility of a state of inability to contact the Central
Government? Time is of the essence of the matter. By the time
you contact and get the permission, many things would have
happened and the delay would have defeated the very purpose
before us. The, honourable Mr. Kher said that it is not
necessary to keep this Article because we have all sorts of
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communications available. In Bombay I know of instances
where we have not been able to contact the Governor for not
less than twenty-four hours What is the provision under
Article 278? The Governor of Madras says there is a danger to
peace and tranquility. Assuming for a moment that the
communications are all right, the President cannot act. He has
to convene the Cabinet; the members of the Cabinet may not
be readily available; and by the time he convenes the Cabinet
and gets their consent the purpose of the Article would be
defeated. Therefore, it was only with a view to see in such a
contingency where the Governor finds, that delay will defeat
the very objective, that Article 188 was provided for. I see no
reason why the Drafting Committee in their wisdom ruled out
such a possibility. It is no doubt true that the Article was
framed two years ago, but since those two years many things
have happened that show that there is urgent need for the
man on the spot to decide and act quickly so that a
catastrophe may be prevented. Today there is an open
defiance of authority everywhere and that defiance is well-
organised. Before the act, they cut off the telephone wires, as
they did in the Calcutta Exchange. That is what is happening
in many parts of the country. Therefore, when there is a coup
d'etat it is just possible they will cut off communications and
difficulties may arise. It is only to provide for this possibility
that the Governor is given these powers. I do not think there
will be any fool of a Governor who will, if there is time, fail to
inform the President. I would like to have an explanation as to
why this fool-proof arrangement has been changed and why
we have become suspicious that the Governor will act in a
wrong manner. According to the provision, he has to forthwith
communicate to the President and the President may say,
"Well, I am not convinced; cancel it." You must take into
consideration that the Governor will be responsible, acting
wisely and in order to save the country from disaster. The
President comes into the picture directly, because the
Governor has to communicate the matter forthwith according
to clause (3) of Article 188. As Mr. President said, it is sheer
commonsense that the man on the spot should be given the
powers to deal with the situation, so that it may not
deteriorate. I am not at all convinced of the wisdom of the
change. The provision as now proposed is not as fool-proof as
it ought to be.
(underlined for emphasis)
Besides, I would like to have an explanation as to why the
Drafting Committee goes out of the way to delete the provision
which was considered and accepted by the House previously.
In my view it is improper, because the House had decided it. If
we appoint a Drafting Committee, we direct them to draft on
the basis of the decisions taken by us. Is this the way in which
they should draft? Their duty was to scrutinise the decisions
already arrived at and then draft on that basis. Therefore, I
would like to have an explanation ----a convincing
explanation---as to what happened within these two years
which has made the members of the Drafting Committee
delete this wholesome, healthy and useful provision.
Mr. Naziruddin Ahmad: Mr. President, Sir, I think that the
amendments moved by Dr. Ambedkar constitute startling and
revolutionary changes in the Constitution. I submit a radical
departure has been made from our own decisions. We took
important decisions in this House as to the principles of the
Constitution and we adopted certain definite principles and
Resolutions and the Draft Constitution was prepared in
accordance with them. Now, everything has to be given up. Not
only the Draft Constitution has been given up, but the official
amendments which were submitted by Members of the House
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within the prescribed period which are printed in the official
blue book have also been given up. During the last recess
some additional amendments to those amendments were
printed and circulated. Those have also been given up. I beg to
point out that all the amendments and amendments to
amendments which have been moved today are to be found for
the first time only on the amendment lists for this week which
have been circulated only within a day or two from today. So
serious and radical changes should not have been introduced
at the last minute when there is not sufficient time for slow
people like us to see what is happening and whether these
changes really fit in with our original decisions and with other
parts of the Constitution as a whole. I submit that the Drafting
Committee has been drifting from our original decisions, from
the Draft Constitution and from our original amendments. It
would perhaps be more fitting to call the Drafting Committee
"the Drifting Committee". I submit that the deletion of Article
188 is a very important and serious departure from principles
which the House solemnly accepted before. Some honourable
Members who usually take the business of the House
seriously have attempted to support these changes on the
ground that some emergency powers are highly necessary. I
agree with them that emergency powers are necessary and I
also agree that serious forces of disorder are working in a
systematic manner in the country and drastic powers are
necessary. But what I fail to appreciate is the attempt to take
away the normal power of the Governor or the Ruler of a State
to intervene and pass emergency orders. It is that which is the
most serious change. In fact, originally the Governor was to be
elected on adult suffrage of the province, but now we have
made a serious departure that the Governor is now to be
appointed by the President. This is the first blow to Provincial
Autonomy. Again, we have deprived the Upper Houses in the
States of real powers; not merely have we taken away all
effective powers from Upper Houses in the Provinces, but also
made it impossible for them to function properly and
effectively. We are now going to take away the right of the
Ministers of a State and the Members of the Legislatures and
especially the people at large from solving their own problems.
As soon as we deprive the Governor or a Ruler of his right to
interfere in grave emergencies, at once we deprive the elected
representatives and the Ministers from having any say in the
matter. As soon as the right to initiate emergency measures is
vested exclusively in the President, from that moment you
absolve the Ministers and Members of the local legislatures
entirely from any responsibility. The effect of this would mean
that their moral strength and moral responsibility will be
seriously undermined. It is the aspect of the problem to which
I wish to draw the attention of the House.
(underlined for emphasis)
This aspect of the matter, I submit, has not received sufficient
or adequate consideration in this House. If there is trouble in
a State, the initial responsibility for quelling it must rest with
the Ministers. If they fail, then the right to initiate emergency
measures must lie initially with the Governor or the Ruler. If
you do not allow this, the result would be that the local
legislature and the Ministers would have responsibility of
maintaining law and order without any powers. That would
easily and inevitably develop a kind of irresponsibility. Any
outside interference with the right of a State to give and
ensure their own good Government will not only receive no
sympathy from the Ministers and the members, but the action
of the President will be jeered at, tabooed and boycotted by the
people of the State, the Members of the Legislature and the
Ministers themselves.
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xxx xxx xxx xxx
Pandit Thakur Das Bhargava : I think the constitutional
machinery cannot be regarded ordinarily to have failed unless
the dissolution powers are exercised by the Governor under
section 153.
Xxx xxx xxx xxx
I think we are drifting, perhaps unconsciously, towards a
dictatorship. Democracy will flourish only in a democratic
atmosphere and under democratic conditions. Let people
commit mistakes and learn by experience. Experience is a
great tutor. The arguments to the contrary which we have
heard today were the old discarded arguments of the British
bureaucracy. The British said that they must have overriding
powers, that we cannot manage our affairs and that they only
knew how to manage our affairs. They said also that if we
mismanaged things they will supersede the constitution and
do what they thought fit. What has been our reply to this? It
was that "Unless you make us responsible for our acts, we can
never learn the business of government. If we mismanage the
great constitutional machinery, we must be made responsible
for our acts. We must be given the opportunity to remedy the
defects". This argument of ours is being forgotten. The old
British argument that they must intervene in petty Provincial
matters is again being revived and adopted by the very
opponents of that argument. In fact, very respected Members
of this House are adopting almost unconsciously the old
argument of the British Government. I submit that even the
hated British did not go so far as we do. I submit our reply to
that will be the same as our respected leaders gave to the
British Government. I submit, therefore, that too much
interference by the Centre will create unpleasant reactions in
the States. If you abolish provincial autonomy altogether that
would be logical. But to make them responsible while making
them powerless would be not a proper thing to do.
(underlined for emphasis)
Then I come to the proviso to clause (1) of Article 278. It
safeguards against the rights of the High Court in dealing with
matters within their special jurisdiction. A Proclamation of
emergency will not deprive the High Court of its jurisdiction.
That is the effect of this proviso. But it conveniently forgets the
existence of the Supreme Court. While it takes care to
guarantee the rights of the High Courts against the
Proclamation, the rights of the Supreme Court are not
guaranteed. I only express the hope that the absence of any
mention of the Supreme Court in the proviso will not affect the
powers of that Court.
Shri T. T. Krisnamachari: It is not necessary because the
Central Government is subject to the jurisdiction of the
Supreme Court under all conditions.
(Underlined for emphasis)
Mr. Naziruddin Ahmad: As the honourable Member himself
has on a previous occasion said, this Constitution would be
the lawyers' heaven. Speaking from experience, I think that
this proviso will lead to much legal battle, and lawyers alone
will be benefited by this. I wish that the interpretation put
forward by Mr. T. T. Krishnamachari is right, but it is not
apparent to me. When we come to clause (2) of Article 278, in
this clause it is stated that any such proclamation may be
revoked or varied by a subsequent proclamation.
(underlined for emphasis)
Constituent Assembly met on 4th August 1949
The Constituent Assembly of India met in the Constitution
Hall, New Delhi, at Nine of the Clock, Mr. President (The
Honourable Dr. Rajendra Prasad) in the Chair.
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Articles 188, 277-A and 278-continued.
xxx xxx xxx xxx
Then coming to proposed Article 278-A sub-clause (a) and (b)
of clause (1) are new. Clause (a) is new and (b) is
consequential. The new point which has been introduced is
also revolutionary. Instead of allowing the Provincial
Legislatures to have their say on the emergency legislation and
thereby giving the Provincial Assemblies an opportunity to
assess the guilt or innocence of the Ministers or other person
or to give a verdict, the responsibility is thrown on the
Parliament. 'That would again, as I submitted yesterday, go to
make the Central Government and the Parliament unpopular
in the State concerned. It may happen that Provincial
Ministers and others are guilty of mismanagement and
misgovernment; but if we do not allow the Provincial
Assemblies to sit in judgment over them, the result would be
that guilty or innocent persons, lawbreakers and law-abiding
persons, good or bad people in the State should all be
combined. The result would be that those for whose misdeeds
the Emergency Powers would be necessary, would be made so
many heroes; they would be lionised, and the object of
teaching them a lesson would be frustrated. The Centre would
be unpopular on the ground that it is poking its nose
unnecessarily and mischievously into their domestic affairs.
Then, Sir, in sub-clause (c) of clause (1) of this Article 278-A,
the President is expected to authorize and sanction the Budget
as the head of the Parliament. This would be an encroachment
on the domestic budget of the Provinces and the States. That
would be regarded with a great deal of dis-favour. It would
have been better to allow the Governor or the Ruler to function
and allow their own budget to be managed in their own way.
Subventions may be granted but that expenditure should not
be directly managed by the President.
Coming to clause (d) there is an exception in favour of
Ordinances under Article 102 to the effect that "the President
may issue Ordinances except when the Houses of Parliament
are in session". The sub-clause is misplaced in the present
Article. There is an appropriate place where Ordinances are
dealt with. Sub-clause (d) should find a place among the group
of Articles dealing with Ordinances and not here. This is again
the result of hasty drafting.
These are some of the difficulties that have been created.
It is not here necessary to deal with them in detail. The most
important consequence of this encroachment on the States
sphere would be that we would be helping the communist
techniques. Their technique is that by creating trouble in a
Province or a State, they would partially paralyse the
administration and thereby force the Emergency Powers.
Then, they will try to make those drastic powers unpopular.
What is more, they will make the guilty Ministers and guilty
officers heroes. The legislature of the State would, as I have
submitted, be deprived of the right of discussion. If the
President takes upon himself the responsibility of emergency
powers, then his action, I suppose, cannot be discussed in the
States legislatures. The only way of ventilating Provincial and
States grievances is to allow the Provinces and the States to
find out the guilty persons and hold them up to ridicule and
contempt and that would be entirely lost. This would have the
effect of bringing all sorts of people good and bad, law-
breaking and law-abiding persons into one congregation. The
Centre will be unpopular and the guilty States would be
regarded as so many martyrs and the Centre would be flouted
and would be forced to use more and more Emergency Powers
and would be caught in a vicious circle. Then, the States will
gradually get dissatisfied and they will show centrifugal
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tendencies and this will be reflected in the general elections to
the House of the People at the Centre. The result would be
that very soon these very drastic powers calculated to
strengthen the hands of the Centre will be rather a source of
weakness in no distant time.
(underlined for emphasis)
xxx xxx xxx
There is an implication in Article 278 which is something
like saying, that you must overcome evil by good and meet
lawlessness with law. The President has no powers to meet
undemocratic forces in the country except in a cratic manner.
It is like saying that the forces of evil must be overcome by the
forces of non-violence and good. Practical statesmen and law-
makers will not accept this proposition easily.
Xxx xxx xxx
Mr. President: Dr. Ambedkar.
The Honourable Dr. B. R. Ambedkar (Bombay : General) : Sir,
although these Articles have given rise to a debate which has
lasted for nearly five hours, I do not think that there is
anything which has emerged from this debate which requires
me to modify my attitude towards the principles that are
embodied in these Articles. I will therefore not detain the
House much longer with a detailed reply of any kind.
I would first of all like to touch for a minute on the
amendment suggested by my Friend Mr. Kamath in Article
277-A. His amendment was that the word "and" should be
substituted by the word "or". I do not think that that is
necessary, because the word "and" in the context in which it is
placed is both conjunctive as well as disjunctive, which can be
read in both ways, "and" or "or", as the occasion may require.
I, therefore, do not think that it is necessary for me to accept
that amendment, although I appreciate his intention in
making the amendment.
The second amendment to which I should like to refer is that
moved by my Friend Prof. Saksena, in which he has proposed
that one of the things which the President may do under the
Proclamation is to dissolve the legislature. I think that is his
amendment in substance. I entirely agree that that is one of
the things which should be provided for because the people of
the province ought to be given an opportunity to set matters
right-by reference to the legislature. But I find that that is
already covered by sub-clause (a) of clause (1) of Article 278,
because sub-clause (a) proposes that the President may
assume to himself the powers exercisable by the Governor or
the ruler. One of the powers which is vested and which is
exercisable by the Governor is to dissolve the House.
Consequently, when the President issues a Proclamation and
assumes these powers under sub-clause (a), that power of
dissolving the legislature and holding a now election will be
automatically transferred to the President which powers no
doubt the President will exercise on the advice of his
Ministers. Consequently my submission is that the proposition
enunciated by my Friend Prof. Saksena is already covered by
sub-clause (a), it is implicit in it and there is therefore no
necessity for making any express provision of that character.
Now I come to the remarks made by my Friend Pandit Kunzru.
The first point, if I remember correctly, which was raised by
him was that the power to take over the administration when
the constitutional machinery fails is a new thing, which is not
to be found in any constitution. I beg to differ from him and I
would like to draw his attention to the Article contained in
the American Constitution, where the duty of the United
States is definitely expressed to be to maintain the Republican
form of the Constitution. When we say that the Constitution
must be maintained in accordance with the provisions
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contained in this Constitution we practically mean what the
American Constitution means, namely that the form of the
constitution prescribed in this Constitution must be
maintained. Therefore, so far as that point is concerned we do
not think that the Drafting Committee has made any
departure from an established principle.
The other point of criticism was that Articles 278 and 278-A
were unnecessary in view of the fact that there are already in
the Constitution Articles 275 and 276. With all respect I must
submit that he (Pandit Kunzru) has altogether misunderstood
the purposes and intentions which underlie Article 275 and
the present Article 278. His argument was that after all what
you want is the right to legislate on provincial subjects. That
right you get by the terms of Article 276, because under that
the Centre gets the power, once the Proclamation is issued, to
legislate on all subjects mentioned in List II. I think that is a
very limited understanding of the provisions contained either
in Articles 275 and 276 or in Articles 278 and 278-A.
I should like first of all to draw the attention of the House to
the fact that the occasions on which the two sets of Articles
will come into operation are quite different. Article 275 limits
the intervention of the Centre to a state of affairs when there is
war or aggression, internal or external. Article 278 refers to
the failure of the machinery by reasons other than war or
aggression. Consequently the operative clauses, as I said, are
quite different. For instance, when a proclamation of war has
been issued under Article 275, you get no authority to
suspend the provincial constitution. The provincial
constitution would continue in operation. The legislature will
continue to function and possess the powers which the
constitution gives it; the executive will retain its executive
power and continue to administer the province in accordance
with the law of the province. All that happens under Article
276 is that the Centre also gets concurrent power of legislation
and concurrent power of administration. That is what happens
under Article 276. But when Article 278 comes into operation,
the situation would be totally different. There will be no
legislature in the province, because the legislature would have
been suspended. There will be practically no executive
authority in the province unless any is left by the
proclamation by the President or by Parliament or by the
Governor. The two situations are quite different. I think it is
essential that we ought to keep the demarcation which we
have made by component words of Articles 275 and 278. I
think mixing the two things up would cause a great deal of
confusion.
Xxx xxx xxx xxx
The Honourable Dr. B.R. Ambedkar: Only when the
government is not carried on in consonance with the
provisions laid down for the constitutional government of the
provinces, whether there is good government or not in the
province is for the Centre to determine. I am quite clear on the
point.
Xxx xxx xxx xxx
The Honorable Dr. B.R. Ambedkar: It would take me very long
now to go into a detailed examination of the whole thing and,
referring to each say, this is the print which is established in it
and say, if any government or any legislature of a province
does not act in accordance with it, that would act as a failure
of machinery. The expression "failure of machinery" I find has
been used in the Government of India Act, 1935. Everybody
must be quite familiar therefore with its de facto and de jure
meaning. I do not think any further explanation is necessary.
Xxx xxx xxx xxx
The Honourable Dr. B. R. Ambedkar: In regard to the general
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debate which has taken place in which it has been suggested
that these Articles are liable to be abused, I may say that I do
not altogether deny that there is a possibility of these Articles
being abused or employed for political purposes. But that
objection applies to every part of the Constitution which gives
power to the Centre to override the Provinces. In fact I share
the sentiments expressed by my honourable Friend Mr. Gupte
yesterday that the proper thing we ought to expect is that
such Articles will never be called into operation and that they
would remain a dead letter. If at all they are brought into
operation, I hope the President, who is endowed with these
powers, will take proper precautions before actually
suspending the administration of the provinces. I hope the
first thing he will do would be to issue a mere warning to a
province that has erred, that things were not happening, in
the way in which they were intended to happen in the
Constitution. If that warning fails, the second thing for him to
do will be to order an election allowing the people of the
province to settle matters by themselves. It is only when these
two remedies fail that he would resort to this Article. It is only
in those circumstances he would resort to this Article. I do not
think we could then say that these Articles were imported in
vain or that the President had acted wantonly.
Shri H. V. Kamath : Is Dr. Ambedkar in a position to assure
the House that Article 143 will now be suitably amended?
The Honourable Dr. B. R. Ambedkar : I have said so and I say
now that when the Drafting Committee meets after the Second
Reading, it will look into the provisions as a whole and Article
143 will be suitably amended if necessary.
Mr. President: I will now put the amendment to vote one after
another.
The question is :
"That Article 188 be deleted."
The motion was adopted.
Article 188 was deleted from the Constitution.
Mr. President: Then I will take up Article 277-A.
The question is :
"That in amendment No. 121 of List I (Second
Week) of Amendments to Amendments, in the
proposed new Article 277-A, for the word
'Union' the words 'Union Government' be
substituted."
The amendment was negatived.
Mr. President: Now I will put amendment No. 221.
The question is :
"That in amendment No. 121 of List I (Second
Week) of Amendments to Amendments in the
proposed new Article 277-A for the word 'and'
where it occurs for the first time, the word 'or'
be substituted."
The amendment was negatived.
Mr. President: The question is:
"That in Amendment No. 121 of List I (Second
Week) of Amendments to Amendments, for the
words 'internal disturbance' the words
'internal insurrection or chaos' be
substituted."
The amendment was negatived.
Mr. President : The question is :
"That after Article 277 the following new
Article be inserted:-
'277-A. It shall be the duty of the Union to
protect every State against external aggression
and internal disturbance and to ensure that
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the government of every State is carried on in
accordance with the provisions of this
Constitution."
The motion was adopted,
Mr. President: The question is.:
"That Article 277-A stand part of the
Constitution."
The motion was adopted.
Article 277-A was added to the Constitution.
Mr. President: The question is:
"That in amendment No. 160 of List II.
(Second Week), of Amendments to
Amendments in clause (1) of the proposed
Article 278, for the word 'Ruler' the words the
Rajpramukh' be substituted."
The amendment was negatived.
Mr. President: The question is:
"That in amendment No. 160 of List II (Second
Week) of Amendments to Amendments, in
clause (1) of the proposed Article 278, the
words 'or otherwise' be deleted."
The amendment was negatived.
Mr. President : The question is:
"That in amendment No. 160 of List II (Second
Week): of Amendments to Amendments, in
clause (1) of the proposed Article 278, after
the words 'is satisfied that' the words 'a grave
emergency has arisen which threatens the
peace and tranquillity of the State and that' be
added."
The amendment was negatived.
Mr. President: The question is:
"That in amendment No. 160 of List II (Second
Week) of Amendments to Amendments for the
first proviso to clause (4) of the proposed
Article 278, the following be substituted-
'Provided that the President may if he so
thinks fit order at any time, during this period
a dissolution of the State legislature followed
by a fresh general election, and the
Proclamation shall cease to have effect from
the day on which the newly elected legislature
meets in session'."
The amendment was negatived.
Mr. President: The question is:
"That for Article 278, the following articles be
substituted
278(1). Provisions in case of failure of
constitutional machinery in States. - If the
President, on receipt of a report from the
Governor or Ruler of a State or otherwise, is
satisfied that the government of the State
cannot be carried on in accordance with the
provisions of the Constitution, the President
may by Proclamation-
(a) assume to himself all or any of the
functions of the Government of the State
and all or any, of the powers vested in or
exercisable by I the Governor or Ruler, as
the case may be, or any body or authority
in the State other than the Legislature of
the State;
(b) declare that the powers of the
Legislature of the State shall be
exercisable by or under the authority of
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Parliament;
(c)make such incidental and
consequential provisions as appear to the
President to be necessary or desirable for
giving effect to the objects of the
Proclamation, including provisions for
suspending in whole or in part the
operation of any provisions of this
Constitution relating to any body or
authority in the State :
Provided that nothing in this clause shall
authorise the President to assume to himself
any of the powers vested in or exercisable by a
High Court or to suspend in whole or in part
the operation of any provisions of this
Constitution relating to High Courts.
(2)Any such Proclamation may be revoked or
varied by a subsequent Proclamation.
(3)Every Proclamation under this Article shall
be laid before each House of Parliament and
shall, except where it is a Proclamation
revoking a previous Proclamation, cease to
operate at the expiration of two months unless
before the expiration of that period it has been
approved by resolutions of both Houses of
Parliament :
Provided that if any such Proclamation is
issued at a time when the House of the People
is dissolved or if the dissolution of the House
of the People takes place during the period of
two months referred to in this clause and the
Proclamation has not been approved by a
resolution passed by the House of the People
before the expiration of that period, the
Proclamation shall cease to operate at the
expiration of thirty days from the date on
which the House of the People first sits after its
reconstitution unless before the expiration of
that period resolutions approving the
Proclamation have been passed by both
Houses of Parliament.
(4)A Proclamation so approved shall, unless
revoked, cease to operate on the expiration of
six months form the date of the passing of the
second of the resolutions approving the
Proclamation under clause (3) of this Article :
Provided that if and so often as a
resolution approving the continuance in force
of such a proclamation is passed: by both
Houses of Parliament, the Proclamation shall,
unless revoked, continue in force for a further
period of six months from the date on which
under this clause it would otherwise have
ceased to operate, but no such Proclamation
shall in any case remain in force for more than
three years:
Provided further that if the dissolution of
the House of the People takes place during
any, such period of six months and a
resolution approving the continuance in force
of such Proclamation has not been passed by
the House of the People during the said period,
the Proclamation shall cease to operate at the
expiration of thirty days from the date on
which the House of the People first sits after its
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reconstitution unless before the expiration of
that period resolutions approving the
Proclamation have been passed by both
Houses of Parliament.
278-A. Exercise of legislative powers under
proclamation issued under Article 278. (1).
Where by a Proclamation issued under clause
(1) of Article 278 of this Constitution it has
been declared that the powers of the
Legislature of the State shall be exercisable by
or under the authority of Parliament, it shall
be competent-
(a) for Parliament to delegate the power to
make laws for, the State to the President or
any other authority specified by him in, that
behalf-
(b) for Parliament or for the President or other
authority to whom the power to make laws is
delegated under sub-clause (a) of this clause to
make laws conferring powers and imposing
duties or authorising the conferring of powers
and the imposition of duties upon the
Government of India or officers and authorities
of the Government of India.
(c) for the President to authorise when the
House of the People is not in session
expenditure from the Consolidated Fund of the
State pending the sanction of such
expenditure by Parliament;
(d)for the President to promulgate Ordinances
under Article 102 of this Constitution except
when both Houses of Parliament are in
session.
(2)Any law made by or under the authority of
Parliament which Parliament or the President
or other authority referred to in sub-clause (a)
of clause (1) of this Article would not, but for
the issue of a Proclamation under Article 278
of this Constitution, have been competent to
make shall to the extent of the incompetency
cease to have effect on the expiration of a
period of one year after the Proclamation has
ceased to operate except as respects things
done or omitted to be done before the
expiration of the said period unless the
provisions which shall so cease to have effect
are sooner repealed or re-enacted with or
without modification by an Act of the
Legislature of the State."
The amendment was adopted.
Mr. President: The question is:
"That the proposed Article 278 stand part of
the Constitution."
The motion was adopted.
Article 278 was added to the Constitution.
Mr. President: The question is:
"That proposed Article 278-A stand part of the
Constitution."
The motion was adopted.
Article 278-A was added to the Constitution.
In the Adoption of the Constitution the speech of Dr. B.R.
Ambedkar on 25.11.1949 contained the following significant
observations:
"As much defence as could be offered to the
Constitution has been offered by my friends
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Sir Alladi Krishnaswami Ayyar and Mr. T.T.
Krishnamachari. I shall not therefore enter
into the merits of the Constitution. Because I
feel, however good a Constitution may be, it is
sure to turn out bad because those who are
called to work it, happen to be a bad lot.
However bad a Constitution may be, it may
turn out to be good if those who are called to
work it, happen to be a good lot. The working
of a Constitution does not depend wholly upon
the nature of the Constitution. The
Constitution can provide only the organs of
State such as the legislature, the executive and
the judiciary. The factors on which the working
of those organs of State depends are the people
and the political parties they will set up as
their instrument to carry out their wishes and
their politics. Who can say how the people of
India and their parties will behave? Will they
uphold constitutional methods of achieving
their purposes or will they prefer revolutionary
methods of achieving them? If they adopt the
revolutionary methods, however good the
Constitution may be, it requires no prophet to
say that it will fail. It is, therefore, futile to
pass any judgment upon the Constitution
without reference to the part which the people
and their parties are likely to play................
Jefferson, the great American statesman who
played so great a part in the making of the
American Constitution, has expressed some
very weighty views which makers of
Constitutions can never afford to ignore. In
one place, he has said:
"We may consider each generation as a
distinct nation, with a right, by the will of
the majority, to bind themselves, but
none to bind the succeeding generation,
more than the inhabitants of another
country."
In another place, he has said:
"The idea that institutions established for
the use of the nation cannot be touched
or modified, even to make them answer
their end, because of rights gratuitously
supposed in those employed to manage
them in the trust for the public, may
perhaps be a salutary provision against
the abuses of a monarch, but is mot
absurd against the nation itself. Yet our
lawyers and priests generally inculcate
this doctrine, and suppose that preceding
generations held the earth more freely
than we do; had a right to impose laws on
us, unalterable by ourselves, and that we,
in the like manner, can make laws and
impose burdens on future generations,
which they will have no right to alter; in
fine, that the earth belongs to the dead
and not the living."
I admit that what Jefferson has said is not
merely true, but is absolutely true. There can
be no question about it. Had the Constituent
Assembly departed from this principle laid
down by Jefferson it would certainly be liable
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to blame even to condemnation. But I ask, has
it? Quite the contrary. One has only to
examine the provisions relating to the
amendment of the Constitution. The Assembly
has not only refrained from putting a seal of
finality and infallibility upon this Constitution
by denying to the people the right to amend
the Constitution as in Canada or by making
the amendment of the Constitution subject to
the fulfillment of extraordinary terms and
conditions as in America or Australia, but has
provided a most facile procedure for amending
the Constitution. I challenge any of the critics
of the Constitution to prove that any
Constituent Assembly anywhere in the world
has, in the circumstances in which this
country finds itself, provided such a facile
procedure for the amendment of the
Constitution. If those who are dissatisfied with
the Constitution have only to obtain a two-
thirds majority and if they cannot obtain even
a two-thirds majority in the Parliament elected
on adult franchise in their favour, their
dissatisfaction with the Constitution cannot be
deemed to be shared by the general public.
There is only one point of constitutional
import to which I propose to make a reference.
A serious complaint is made on the ground
that there is too much of centralization and
that the States have been reduced to
municipalities. It is clear that this view is not
only an exaggeration, but is also founded on a
mis-understanding of what exactly the
Constitution contrives to do. As to the relation
between the Centre and the State, it is
necessary to bear in mind the fundamental
principle on which it rests. The basic principle
of federalism is that the legislative and
executive authority is partitioned between the
Centre and the States not by any law to be
made by the Centre but by the Constitution
itself. That is what the Constitution does. The
States under our Constitution are in no way
dependent upon the Centre for their legislative
or executive authority. The Centre and the
States are co-equal in this matter. It is difficult
to see how such a Constitution can be called
centralism. It may be that the Constitution
assigns to the Centre a larger field for the
operation of its legislative and executive
authority than is to be found in any other
federal Constitution. It may be that the
residuary powers are given to the Centre and
not to the States. But these features do not
form the essence of federalism. The chief mark
of federalism, as I said, lies in the partition of
the legislative and executive authority between
the Centre and the units by the Constitution.
This is the principle embodied in our
Constitution. There can be no mistake about
it. It is, therefore, wrong to say that the States
have been placed under the Centre. The Centre
cannot by its own will alter the boundary of
that partition. Nor can the judiciary. For as
has been well said:
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"Courts may modify, they cannot
replace. They can revise earlier
interpretations as new arguments, new
points of view are presented, they can
shift the dividing line in marginal cases,
but there are barriers they cannot pass,
definite assignments of power they
cannot reallocate. They can give a
broadening construction of existing
powers, but they cannot assign to one
authority powers explicitly granted to
another."
The first charge of centralization defeating
federalism must therefore fall.
As noted above, the Governor occupies a very important
and significant post in the democratic set up. When his
credibility is at stake on the basis of allegations that he was
not performing his constitutional obligations or functions in
the correct way, it is a sad reflection on the person chosen to
be the executive Head of a particular State. A person
appointed as a Governor should add glory to the post and not
be a symbolic figure oblivious of the duties and functions
which he has is expected to carry out. It is interesting to note
that allegations of favouratism and mala fides are hurled by
other parties at Governors who belonged or belong to the
ruling party at the Centre, and if the Governor at any point of
time was a functionary of the ruling party. The position does
not change when another party comes to rule at the Centre. It
appears to be a matter of convenience for different political
parties to allege mala fides. This unfortunate situation could
have been and can be avoided by acting on the
recommendations of the Sarkaria Commission and the
Committee of the National Commission To Review The Working
Of The Constitution in the matter of appointment of
Governors. This does not appear to be convenient for the
parties because they want to take advantage of the situation at
a particular time and cry foul when the situation does not
seem favourable to them. This is a sad reflection on the morals
of the political parties who do not loose the opportunity of
politicizing the post of the Governor. Sooner remedial
measures are taken would be better for the democracy.
It is not deficiency in the Constitution which is
responsible for the situation. It is clearly attributable to the
people who elect the Governors on considerations other than
merit. It is a disturbing feature, and if media reports are to be
believed, Raj Bhawans are increasingly turning into extensions
of party offices and the Governors are behaving like party
functionaries of a particular party. This is not healthy for the
democracy.
The key actor in the Centre-State relations is the
Governor who is a bridge between the Union and the State.
The founding fathers deliberately avoided election to the office
of the Governor, as is in vogue in the U.S.A. to insulate the
office from the linguistic chauvinism. The President has been
empowered to appoint him as executive head of the State
under Article 155 in Part VI, Chapter II. The executive power of
the State is vested in him by Article 154 and exercised by him
with the aid and advice of the Council of Ministers, the Chief
Minister as its head. Under Article 159 the Governor shall
discharge his functions in accordance with the oath to protect
and defend the Constitution and the law. The office of the
Governor, therefore, is intended to ensure protection and
sustenance of the constitutional process of the working of the
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Constitution by the elected executive and given him an
umpire's role. When a Gandhian economist Member of the
Constituent Assembly wrote a letter to Gandhiji of his plea for
abolition of the office of the Governor, Gandhiji wrote to him
for its retention, thus; the Governor had been given a very
useful and necessary place in the scheme of the team. He
would be an arbiter when there was a constitutional dead lock
in the State and he would be able to play an impartial role.
There would be administrative mechanism through which the
constitutional crisis would be resolved in the State. The
Governor thus should play an important role. In his dual
undivided capacity as a head of the State he should
impartially assist the President. As a constitutional head of the
State Government in times of constitutional crisis he should
bring about sobriety. The link is apparent when we find that
Article 356 would be put into operation normally based on
Governor's report. He should truthfully and with high degree
of constitutional responsibility, in terms of oath, inform the
President that a situation has arisen in which the
constitutional machinery in the State has failed and the
Government of State cannot be carried on in accordance with
the provisions of the Constitution, with necessary detailed
factual foundation.
It is incumbent on each occupant of every high office to
be constantly aware of the power in the High Office he holds
that is meant to be exercised in public interest and only for
public good, and that it is not meant to be used for any
personal benefit or merely to elevate the personal status of the
current holder of that office.
In Sarkaria Commission's report it was lamented that
some Governors were not displaying the qualities of
impartiality and sagacity expected of them. The situation does
not seem to have improved since then.
Reference to Report of the Committee of Governors (1971)
would also be relevant. Some relevant extracts read as follows:
"According to British constitutional conventions,
though the power to grant to a Prime Minister a
dissolution of Parliament is one of the personal
prerogatives of the Sovereign, it is now recognized
that the Sovereign will normally accept the advice of
the Prime Minister since to refuse would be
tantamount to dismissal and involve the Sovereign in
the political controversy which inevitably follows the
resignation of a Ministry. A Prime Minister is entitled
to choose his own time within the statutory five year
limit for testing whether his majority in the House of
Commons still reflects the will of the electorate. Only
if a break up of the main political parties takes place
can the personal discretion of the Sovereign become
the paramount consideration. There are, however,
circumstances when a Sovereign may be free to seek
informal advice against that of the Prime Minister.
Professor Wade, in Constitutional Law (Wade and
Phillips, Eighth Edn. 1970), states these
circumstances thus:
"If the Sovereign can be satisfied that (1)
an existing Parliament is still vital and
capable of doing its job, (2) a general
election would be detrimental to the
national economy, more particularly if it
followed closely on the last election, and (3)
he could rely on finding another Prime
Minister who was willing to carry on his
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Government for a reasonable period with a
working majority, the Sovereign could
constitutionally refuse to grant a
dissolution to the Prime Minister in office".
Prof. Wade further observes:
"It will be seldom that all these conditions
can be satisfied. Particularly dangerous to
a constitutional Sovereign is the situation
which would arise if having refused a
dissolution to the outgoing Prime Minister
he was faced by an early request from his
successor for a general election. Refusal
might be justified if there was general
agreement inside and outside the House of
Commons that a general election should
be delayed and clearly it would be
improper for a Prime Minister to rely on
defeat on a snap vote to justify an
election".
The observations of Hood Phillips in his latest book,
Reform of the Constitution (1970), are relevant:
"There is no precedent in this country of
a Prime Minister, whose party has a
majority in the Commons, asking for a
dissolution in order to strengthen his
weakening hold over his own party. If he
did ask for a dissolution the better
opinion is that the Queen would be
entitled, perhaps would have a duty, to
refuse. In the normal case when the
Sovereign grants a dissolution this is on
assumption that the Prime Minister is
acting as leader on behalf of his party.
Otherwise the electorate could not be
expected to decide the question of
leadership. So if the Sovereign could find
another Prime Minister who was able to
carry on the government for a reasonable
period, she would be justified in refusing
a dissolution. Something like this
happened in South Africa in 1939 when
the question was whether South Africa
should enter the war: the Governor-
General refused a dissolution to Hertzog,
who resigned and was replaced by Smuts
who succeeded in forming a Government.
Xxx xxx xxx
We may first examine the precise import of
Article 356 which sanctions President's rule in a
State in the event of a break-down of the
constitutional machinery. Four our present purpose,
it is enough to read the language of clause (1) of the
Article:
Article 356(1):
356. Provisions in case of failure of
constitutional machinery in State.--(1) If
the President, on receipt of report from the
Governor of the State or otherwise, is
satisfied that a situation has arisen in
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which the government of the State cannot
be carried on in accordance with the
provisions of this Constitution, the
President may by Proclamation\027
(a) assume to himself all or any of the
functions of the Government of the State
and all or any of the powers vested in or
exercisable by the Governor or any body
or authority in the State other than the
Legislature of the State;
(b) declare that the powers of the
Legislature of the State shall be exercisable
by or under the authority of Parliament;
(c) make such incidental and
consequential provisions as appear to the
President to be necessary or desirable for
giving effect to the objects of the
Proclamation, including provisions for
suspending in whole or in part the
operation of any provisions of this
Constitution relating to any body or
authority in the State:
Provided that nothing in this clause shall
authorise the President to assume to
himself any of the powers vested in or
exercisable by a High Court, or to suspend
in whole or in part the operation of any
provision of this Constitution relating to
High Courts.
'The salient features of this provision', in the
words of Shri Alladi Krishnaswami Ayyar (speaking in
the Constituent Assembly), "are that immediately the
proclamation is made, the executive functions (of the
State) are assumed by the President. What exactly
does this mean? As members need not be repeatedly
reminded on this point, 'the President' means the
Central Cabinet responsible to the whole Parliament
in which are represented representatives from the
various units which form the component parts of the
Federal Government. Therefore, the State machinery
having failed, the Central Government assumes the
responsibility instead of the State Cabinet. Then, so
far as the executive government is concerned, it will
be responsible to the Union Parliament for the proper
working of the Government in the State. If
responsible government in a State functioned
properly, the Centre would not and could not
interfere.
While the Proclamation is in operation,
Parliament becomes the Legislature for the State, and
the Council of Ministers at the Centre is answerable
to Parliament in all matters concerning the
administration of the State. Any law made pursuant
to the powers delegated by Parliament by virtue of the
Proclamation is required to be laid before Parliament
and is liable to modification by Parliament. Thus, a
state under President's rule under Article 356
virtually comes under the executive responsibility
and control of the Union Government. Responsible
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government in the State, during the period of the
Proclamation, is replaced by responsible government
at the Centre in respect of matters normally in the
State's sphere.
In discussing Article 356, attention is inevitably
drawn to Section 93 of the Government of India Act,
1935. This section had attained a certain notoriety in
view of the enormous power that it vested in the
Governor and the possibility of its misuse, the
Governor being the agent of the British Government.
Many of the leading members of the Constituent
Assembly had occupied important positions as
Ministers in the Provinces following the inauguration
of Provincial autonomy and had thus first-hand
experience of the working of this particular section
and the possible effect of having in the Constitution a
provision like Section 93. There was, therefore,
considerable discussion, both in the Constituent
Assembly and in the Committees, on the advisability,
or necessity, of incorporating the provision in the
Constitution. Pandit H.N. Kunzru, who had serious
apprehensions regarding this provision, suggested
the limiting of the Governor's functions to merely
making a report to the President, it being left to the
President to take such action as he considered
appropriate on the report. Pandit Govind Ballabh
Pant agreed with Pandit Kunzru in principle. The
former referred in particular to the administrative
difficulties that would be created by giving powers to
the Governor to act on his own initiative over the
head of his Ministers.
The whole question was examined at a meeting
of the Drafting Committee with Premiers of Provinces
on July 23, 1949. Pandit Pant again expressed the
view that the Governor should not come into the
picture as an authority exercising powers in his
discretion. Armed with such powers, he would be an
autocrat and that might lead to friction between him
and his Ministers.
Shri Alladi Krishnaswami Ayyar tried to allay
apprehensions in the minds of the members of the
Constituent Assembly about the similarity between
Section 93 of the Government of India Act and the
provision made in Article 356 of the Constitution. He
said in the Constituent Assembly:
"There is no correspondence whatever
between the old section 93 (of the
Government of India Act, 1935) and this
except in regard to the language in some
parts. Under Section 93, the ultimate
responsibility for the working of Section 93
was the Parliament of great Britain which
was certainly representative of the people
of India, whereas under the present article
the responsibility is that of the Parliament
of India which is elected on the basis of
universal franchise, and I have no doubt
that not merely the conscience of the
representatives of the State concerned but
also the conscience of the representatives
of the other units will be quickened and
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they will see to it that the provision is
properly worked. Under those
circumstances, except on the sentimental
objection that it is just a repetition of the
old Section 93, there is no necessity for
taking exception to the main principle
underlying this article".
In winding up the debate on the emergency
provisions, Dr. Abmedkar observed:
"In regard to the general debate which has
taken place in which it has been suggested
that these articles are liable to be abused, I
may say that I do not altogether deny that
there is a possibility of these articles being
abused or employed for political purposes.
But that objection applies to every part of
the Constitution which gives power to the
Centre to override the Provinces. In fact I
share the sentiments expressed by my
honourable friend Mr. Gupte yesterday
that the proper thing we ought to expect is
that such articles will never be called into
operation and that they would remain a
dead letter. If at all they are brought into
operation, I hope the President, who is
endowed with these powers, will take
proper precautions before actually
suspending the administration of the
provinces".
Dr. Ambedkar's hope that this provision would
be used sparingly, it must be admitted, has not been
fulfilled. During the twenty-one years of the
functioning of the Constitution, President's rule has
been imposed twenty-four times- the imposition of
President's rule in Kerala on November 1, 1956, was
a continuation of President's rule in Travancore-
Cochin imposed earlier on March 23, 1956- the State
of Kerala having been under President's rule five
times and for the longest period. Out of seventeen
States (not taking into account PEPSU which later
merged into Punjab, and excluding Himachal
Pradesh which became a State only recently), eleven
have had spells of President's rule. The kind of
political instability in some of the states that we have
witnessed and the politics of defection which has so
much tarnished the political life of this country were
not perhaps envisaged in any measure at the time
the Constituent Assembly considered the draft
Constitution. No Governor would, it can be safely
asserted, want the State to be brought under
President's rule except in circumstances which leave
him with no alternative.
The article, as finally adopted, limits the
functions of the Governor to making a report to the
President that a situation has arisen in which there
has been failure of the constitutional machinery. The
decision whether a Proclamation may be issued
under Article 356 rests with the President, that is to
say, the Union Government. Significantly, the
President can exercise the power "on receipt of a
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report from the Governor or otherwise" if he is
satisfied that the situation requires the issue of such
a Proclamation.
Some of the circumstances in which President's
rule may have to be imposed have already been
discussed. What is important to remember is that
recourse to Article 356 should be the last resort for a
Governor to seek. A frequent criticism of the
Governor in this connection is that he sometimes
acts at the behest of the Union Government. This
criticism emanates largely from a lack of appreciation
of the situations which confront the Governors.
Imposition of President's rule normally results in the
President vesting the Governor with executive
functions which belong to his Council of Ministers
This is a responsibility which no Governor would
lightly accept. Under President's rule he functions in
relation to the administration of the State under the
superintendence, direction and control of the
President and concurrently with him by virtue of an
order of the President.
As Head of the State, the Governor has a duty to
see that the administration of the State does not
break down due to political instability. He has
equally to take care that responsible Government in
the State is not lightly disturbed or superseded. In
ensuring these, it is not the Governor alone but also
the political parties which must play a proper role.
Political parties come to power with a mandate from
the electorate and they owe primary responsibility to
the Legislature. The norms of parliamentary
government are best maintained by them.
Before leaving this issue, we would like to state
that it is not in the event of political instability alone
that a Governor may report to the President under
Article 356. Reference has been made elsewhere in
this report to occasions where a Governor may have
to report to the President about any serious internal
disturbances in the State, or more especially of the
existence or possibility of a danger of external
aggression. In such situations also it may become
necessary for the Governor to report to the President
for action pursuant to Article 356.
It is difficult to lay down any precise guidelines
in regard to the imposition of President's rule. The
Governor has to act on each occasion according to
his best judgment, the guiding principle being, as
already stated, that the constitutional machinery in
the State should, as far as possible, be maintained.
CONVENTIONS:
Conventions of the Constitution, according to
Dicey's classic definition, consist of "customs,
practices, maxims, or precepts which are not
enforced or recognized by the Courts", but "make up
a body not of laws, but of constitutional or political
ethics". The broad basis of the operation of
conventions has been set out in Prof. Wade's
Introduction of Dicey's Law of the Constitution (1962
edn.). The dominant motives which secure obedience
to conventions are stated to be:
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"(1) the desire to carry on the traditions of
constitutional government;
(2) the wish to keep the intricate
machinery of the ship of State in working
order;
(3) the anxiety to retain the confidence of
the public, and with it office and power".
These influences secure that the conventions of
Cabinet Government, which are based on binding
precedent and convenient usage, are observed by
successive generations of Ministers. The exact
content of a convention may change or even be
reversed, but each departure from the previous
practice is defended by those responsible as not
violating the older precedents. Objections are only
silenced when time has proved that the departure
from precedent has created a new convention, or has
shown itself to be a bad precedent and, therefore,
constituted in itself a breach of convention.
This exposition of the nature of conventions will
show that, if they have to be observed and followed,
the primary responsibility therefor will rest on those
charged with the responsibility of government. In a
parliamentary system, this responsibility
unquestionably belongs to the elected representatives
of the people who function in the Legislatures. They
are mostly members of political parties who seek the
suffrage of the electorate on the basis of promises
made and programmes announced. The political
parties, therefore, are concerned in the evolution of
healthy conventions so that they "retain the
confidence of the public, and, with it, office and
power".
"I feel that it (the Constitution) is workable,
it is flexible and it is strong enough to hold
the country together both in peace time
and in war time. Indeed if I may say so, if
things go wrong under the new
Constitution, the reason will not be that
we had a bad Constitution. What we will
have to say is, that Man was vile."
These words were uttered by Dr. Ambedkar in
the Constituent Assembly in moving consideration of
the draft Constitution. It has become the fashion,
when situations arise which may not be the liking of
a particular political party, to blame the Constitution.
The Governors also inevitably get their share of the
blame either because, it is alleged they take a
distorted view of the Constitution, or, as is also
alleged, because the Constitution permits them to
resort to "unconstitutional" acts. The essential
structure of our Constitution relating to the
functioning of the different branches of government is
sound and capable of meeting all requirements. The
conventions, or the guide-lines, that we are called
upon to consider should be viewed in this
background.
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Conventions evolve from experience and from
trial and error. The working of our Constitution
during the past twenty-one years has exposed not so
much any weaknesses in our political life. Some of
the weaknesses will be evident from the discussions
in the earlier part of this Report. The Governors,
under our Constitution, do not govern; government is
the primary concern of the Council of Ministers
which is responsible to the Legislature and the
people. Therefore, for a purposeful evolution of
conventions, the willing co-operation of the political
parties and their readiness to adhere to such
conventions are of paramount importance. In recent
years, it has been a regrettable feature of political life
in some of the States, with the growing number of
splinter parties, some of them formed on the basis of
individual or group alignments and not of well-
defined programmes or policies, that governments are
formed with a leader- a Chief Minister - who comes
to that office not as of a right, with the previous
acquiescence of followers and the deference of his
colleagues, but as being the most "acceptable"
candidate for the time. Much of his time and efforts
are, therefore, inevitably spent in finding expedients
to keep himself in power and the Cabinet alive".
In Special Reference NO.1 of 2002 case (supra) in
paragraphs 55 and 56 it was observed as follows:
"55. It was then urged on behalf of the Union
that under Article 174 what is dissolved is an
Assembly while what is prorogued is a House.
Even when an Assembly is dissolved, the
House continues to be in existence. The
Speaker continues under Article 94 in the case
of the House of the People or under Article 179
in the case of the State Legislative Assembly
till the new House of the People or the
Assembly is constituted. On that premise, it
was further urged that the fresh elections for
constituting a new Legislative Assembly have
to be held within six months from the last
session of the dissolved Assembly.
56. At first glance, the argument appeared to
be very attractive, but after going deeper into
the matter we do not find any substance for
the reasons stated hereinafter"
Article 172 provides for duration of the State
Legislatures. The Superintendence, direction and control of
the elections to Parliament and to the Legislatures of every
State vest in the Election Commission under Article 324.
Article 327 provides that Parliament may make provision with
respect to all matters relating to, or in connection with,
elections to the Legislative Assembly of a State and all other
matters necessary for securing the due constitution of the
House of the Legislature. Conjoint reading of Article 327 of the
Constitution and Section 73 of the R.P. Act makes the position
clear that the Legislative Assembly had been constituted. No
provision of the Constitution stipulates that the dissolution
can only be after the first meeting of the Legislature. Once by
operation of Section 73 of the R.P. Act the House or Assembly
is deemed to be constituted, there is no bar on its dissolution.
Coming to the plea that there was no Legislative
Assembly in existence as contended by Mr. Viplav Sharma,
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appearing in person the same clearly overlooks Section 73 of
the R.P. Act. There is no provision providing differently in the
Constitution. There is no challenge to the validity of the
Section 73 of the R.P. Act, which is in no way repugnant by
any provision to the Constitution. That being so, by operation
of Section 73 of the R.P. Act the Assembly was duly
constituted. The stand that the Governor was obliged to
convene the Session for administering oath to the members
and for formation of a Cabinet thereafter has no relevance and
is also not backed by any constitutional mandate. There was
no compulsion on the Governor to convene a session or to
install a Cabinet unless the pre-requisites in that regard were
fulfilled. The reports of the Governor clearly indicated that it
was not possible to convene a session for choosing a Chief
Minister or for formation of a Cabinet.
Even if hypothetically it is held that the dissolution
notifications are unsustainable, yet restoration of status quo
ante is not in the present case the proper relief. As noted
supra, no stake was claimed by any person before the
Governor. The documents relied upon to show that a majority
existed lack authenticity and some of them even have the
stamp of manipulation. The elections as scheduled had
reached on an advanced stage. Undisputedly, the Election
Commission had made elaborate arrangements. It would be
inequitable to put the clock back and direct restoration of
stats quo ante.
In Public Law 2005, some interesting write-ups are there
which have relevance. They read as follows:
"Judicial review-Power of the court to limit the
temporal effect of the annulment of an administrative
decision, postpone the date at which it will produce
effects and qualify the extent of the nullity.
Under French welfare law, agreements relating to
unemployment allowances are private agreements
signed by unions and employers' associations- but
they enter into force only if approved by the Minister
for Social Affairs. They then become compulsory for
all. Several associations defending the rights of the
unemployed brought an action against ministerial
decisions approving such agreements. Standing was
granted. The decisions were quashed on procedural
grounds, i.e. the composition of the committee which
had to be consulted and the way the consultation took
place. The issues at stake related to the date at which
this annulment would enter into force and to its
effects. The matter was an extremely sensitive one,
socially and politically; the scope and amount of
unemployment allowances. To say nothing would have
led to the application of the principle according to
which nullity is retroactive. An annulled decision is
supposed never to have existed. It is therefore
impossible to maintain its effects for a certain time.
Such are the strict requirements of the principle of
legality. On the other hand, the court cannot disregard
the practical consequences of its decision, not only for
the parties, but for a larger public, especially in such
an area. These consequences may affect not only the
functioning of a public service but also the rights of
individuals. They may create a legal void, and social
havoc.
Hence the idea of allowing the court, when it annuls
an administrative decision, to include in its judgment
specific orders as to whether and when the
annulment will produce effects and, if so, which
persons might be in a special position. Such a
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discretion has been used for a long time by both
European courts. The European Court of Human
Right' judgment in Marckx v. Belgium (1979-80) 2
E.H.R.R. 330, is an apt illustration. As for the ECJ, it
construed broadly the second paragraph of Art. 231
EC (formerly Art.174) according to which: "In the case
of a regulation, however, the Court of Justice shall, if it
considers this necessary, state which of the effects of
the regulation which it has declared void shall be
considered as definitive". This derogation to the ex
tunc effect has been applied in cases relating not only
to regulations, but also to preliminary rulings
concerning interpretation (Case C-43/75 Defrenne v.
Sabena (1976 E.C.R. 455; Case C-61/79 Denkjavit
Italiana (1980 E.C.R. 1205; Case C-4/79 Societe
Cooperative Providence agricole de la Champagne
(1980 ECR 2823; Case C-109/79 Maiseies de Beauce
(1980 E.C.R. 2882; Case-145/79 Societe Roquette
Freres (1980 E.C.R. 2917), directives (Case C-295/90
European Parliament v. Council (1992 E.C.R. I-4193)
and decisions (Case C-22/96) European Parliament v
Council (1998 E.C.R. I-3231). The ECJ held that the
use of such a power was justified in order to take into
account "imperious considerations of legal certainty
relating to all interests at stake, public and private". In
doing so, however, the Court's decisions could harm
the rights of the very petitioners who wanted the Court
to arrive at the decision it took. Hence the dissenting
decisions of several national higher courts, such as the
Italian Constitutional Court (April 21, 1989, Fragd)
and the Conseil d'Etat (June 28, 1985, Office national
interprofessionnel des cereales o Societe Maiseries de
Beauce, concl. Genevois, RTDE, 1986, 145; July 26,
1985; Office national interprofessionnel des cereales,
p.233, concl. Genevois AJDA, 1985; June 13, 1986,
Office national interprofessionnel des cereales, concl.
Bonichot, RTDE 1986, 533). This is why the ECJ took
some precautions to protect the rights of persons who
had previously brought an action or an equivalent
claim. Some ECJ judgments led to the inclusion of
special clauses into the EC Treaty, as shown by the
Maastricht Treaty Protocol 2 (the "Barber Declaration")
following the ECJ's judgment in Case C-262/88
Barber v. Guardian Royal Exchange Assurance Group
(1991 (1) Q.B. 344). This Protocol limits the effects
ratione temporis (before May 17, 1990) of Article 141
EC. The ECJ has been explicit on the considerations it
takes into account to use such powers. They relate, on
the whole, to legal certainty lato sensu, i.e. to the
concrete effects of its decision on existing legal
situations, and the desirability of avoiding the creation
of a legal void. Many European constitutional courts
have a similar power.
The Conseil d'Etat had never affirmed that it had
such a faculty. It was not, however, entirely unaware
of the issue; in Vassilikiotis, June 26, 2001, p. 303 it
annulled a ministerial decision in so far as it did not
state how the permit necessary for guides in museums
and historical monuments would be granted to
persons with diplomas of other EU Member States.
The judgment added precise and compulsory
prescriptions telling the Administration exactly what it
should do, even before revising the regulation.
Otherwise an unlawful domestic regulation would have
remained in force, perpetuating discrimination
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contrary to EC law. It thus held that the
Administration was under an obligation to enact, after
a reasonable delay, the rules applying to the persons
mentioned above. Meanwhile the decision forbade the
Administration to prevent EU nationals from guiding
visits on the ground that they did not possess French
diplomas. It belonged to the competent authorities to
take, on a case-by-case basis, the appropriate
decisions and to appreciate the value of the foreign
diplomas (see also July 27, 2001, Titran, P.411)
In Association AC, a case that lent itself to such a
move, the Conseil d'Etat decided to innovate and to
give administrative courts new powers. The new
principles affirmed may be summed up as follows:
1. The principle is that an annulled administrative
decision is supposed never to have existed.
2. However, such a retroactive effect may have
manifestly excessive consequences in view of (a) the
previous effects of the annulled decision and of the
situations thus created and (b) the general interest
which could make it desirable to maintain its effects
temporarily.
3. If so, administrative courts are empowered to
take specific decisions as to the limitation of the
effects, in time, of the annulment.
4. They may do so after having examined all
grounds relating to the legality of the decision and
after asking the parties their opinion on such a
limitation.
5. They must take into account (a) the
consequences of the retroactivity of the annulment for
the public and private interests at stake and (b) the
effects of such a limitation on the principle of legality
and on the right to an effective remedy.
6. Such a limitation should be exceptional.
7. The rights of the persons who brought an
action, before the court's judgment, against the
annulled decision must be preserved.
8. The court may decide that all or part of the
effects of the decision prior to its annulment will be
regarded as definitive, or that the annulment will come
into force at a later time as determined by the
judgment.
In the present case the Conseil d'Etat annulled
a number of ministerial decisions. It also annulled
other ones, but only from July 1 onwards, thus giving
seven weeks to the Minister. The rights of persons who
had earlier brought an action were explicitly preserved.
The effects of a third group of annulled decisions were
declared to be definitive, with the same reservation.
Several comments are in order on this
important judgment. The influence of the ECJ's case
law and of its use of the ex nunc/ex tunc effect is
evident. The judgment is also an apt illustration of a
renewal of the conception of the role of administrative
courts. It no longer stops when judgment is given.
More and more attention is given to its effects, its
practical consequences for all, the way it must be
implemented by the Administration and its
repercussions on the rights of individuals. Hence the
attention given to the ways and means to conciliate the
two basic principles of legality and of legal certainty
(securite juridique). The latter is more and more seen
as a pressing social need, to borrow the vocabulary of
the European Court of Human Rights. A strong
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illustration is the recent case law of the Cour de
cassation restricting the scope not only of lois de
validation but also of retroactive "interpretative
statutes", on the basis of Articles 6(1) and 13 ECHIR:
see Cass.plen. Janaury 24, 2003, Mme X o Association
Promotion des handicape's dans le Loiret, and Cass.
Civ. April 7, 2004, in Bulletin d'information de la Cour
de cassation, March 15, 2004, with the report of Mme
Favre. The discretion of the courts is a two-fold one; on
whether to use such a faculty and on how to use it.
One last-prospective-remark: might the next step be
the limitation, by the courts, of the effects in time of a
change in the case law?"
To Sum up:
So far as scope of Article 361 granting immunity to the
Governor is concerned, I am in respectful agreement with the
view expressed by Hon'ble the Chief Justice of India.
(1) Proclamation under Article 356 is open to judicial review,
but to a very limited extent. Only when the power is exercised
mala fide or is based on wholly extraneous or irrelevant
grounds, the power of judicial review can be exercised.
Principles of judicial review which are applicable when an
administrative action is challenged, cannot be applied stricto
sensu.
(2) The impugned Notifications do not suffer from any
constitutional invalidity. Had the Governor tried to stall
staking of claim regarding majority that would have fallen foul
of the Constitution and the notifications of dissolution would
have been invalid. But, the Governor recommended
dissolution on the ground that the majority projected had its
foundation on unethical and corrupt means which had been
and were being adopted to cobble a majority, and such action
is not constitutional. It may be a wrong perception of the
Governor. But it is his duty to prevent installation of a Cabinet
where the majority has been cobbled in the aforesaid manner.
It may in a given case be an erroneous approach, it may be a
wrong perception, but it is certainly not irrational or irrelevant
or extraneous.
(3) A Public Interest Litigation cannot be entertained where
the stand taken was contrary to the stand taken by those who
are affected by any action. In such a case the Public Interest
Litigation is not to be entertained. That is the case here.
(4) Hypothetically even if it is said that the dissolution
notifications were unconstitutional, the natural consequence
is not restoration of status quo ante. The Court declaring the
dissolution notifications to be invalid can assess the ground
realities and the relevant factors and can mould the reliefs as
the circumstances warrant. In the present case restoration of
the status quo ante would not have been the proper relief even
if the notifications were declared invalid.
(5) The Assembly is constituted in terms of Section 73 of the
R.P. Act on the conditions indicated therein being fulfilled and
there is no provision in the Constitution which is in any
manner contrary or repugnant to the said provision. On the
contrary, Article 327 of the Constitution is the source of power
for enactment of Section 73.
(6) In terms of Article 361 Governor enjoys complete
immunity. Governor is not answerable to any Court for
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exercise and performance of powers and duties of his office or
for any act done or purporting to be done by him in the
exercise of those powers and duties. However, such immunity
does not take away power of the Court to examine validity of
the action including on the ground of mala fides.
(7) It has become imperative and necessary that right
persons are chosen as Governors if the sanctity of the post as
the Head of the Executive of a State is to be maintained.
The writ applications are accordingly dismissed but
without any order as to costs.
Legal Notes
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