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U.N.R.RAO

v.

SMT. INDIRA GANDW

March 17, 1971

[S. M. SIK.RI, C.J., G. K. MITTER, K. S. HEGDE, A. N. GROVER

AND P. JAGANMOHAN REDDY, JJ.]

Constitution of India, 1950, Arts. 74(1) and 75(3)-House ~t People

dissolved-If Prime Minister ceases to hold office.

The House of the People was dissolved by the President of lndia on

27th December 1970. On the question whether the respondent, whe was

the Prime Minister before the dissolution, ceased to bold office thereafter,

HELD : There

is nothing in the Constitution and in particular in Art.

75(3)

~·hich renders the respondent functioning as Prime Minister contrary

to the Constitution.

The Indian

Constitution establishes a Parliamentary system of Gov­

ernment with a Cabinet. and not a Presidential form. Article 75(3) brings

into existence responsible Government, that is, the Council

of Ministers

must enjoy the confidence

of the House of the

People. In the context, it

can only mean that Art.

75(3) applies when the House of the People does

not stand dissolved or prorogued, for. when it is dissolved, the Council

of Ministers cannot naturally enjoy the confidence of the Ho.use.

Rut such

dissolution

of the House does not require that the

Prime Minister and

other ministers must resign,

or cease to hold office or must be

dismiised

by the President, because, Art. 74(1) is mandatory and the President can·

not exercise his executive power withoQt the aid and advice of the Council

of Ministers, with the Prime Minister at the head. [51 B-C, D-H]

This view

is also in accordance with the conventions

follo~ved not

only

in the

United Kingdom but in the countries following a similar system

of responsible government.

[52 D]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 196 of

1971.

Appeal from the judgment and order dated January 21-and

February

5, 1971 of the Madras High Court in Writ Petition No.

63 of 1971.

The appellant appeared in person.

G N iren De, Attorney-General, R. H. Dhebar, Ram

Panjwal'i,

H

J. B. Dadachanji, 0. C. Mathur and Ravinder Narain, for the res­

pondent.

Niren De, Attorney General, Ram Panjwani, R. H. Dhebar

and S P. Nayar, for the Union of India.

ORDER

The appeal is dismissed. No order as to costs. We will give

our reasons later.

U. N. R .. RAO v. Sl(T. INDIRA GANDHI (Sikri, C. J.)

The Judgment of the Court was delivered by

Sikri, c. J.-This appeal by certificate is directed against the

judgment

of the High Court of Judicature at

Ma-Oras dismissing

Writ Petition No.

63 of 1971 filed by

U. N. R. Rao. appellant

before

us. In this petition the appellant had prayed that a writ

of

qua warranto be issued to the respondent,

Smt. Indira Gandhi,

and it be declared that the respondent has

no constitutional

autho.

rity to hold the office of and to function as Prime Minister of

India.

In brief, the appellant contends that under the Constitution

as soon

as the House of the People is dissolved under art. 85(2)

of the Constitution the Council of Ministers,

i.e., the Prime

Minister and other Ministers, cease

to hold. office. According to

him this follows plainly from the wording of art. 75(3), which

pro.

vidcs that "the Council of Ministers shall be collectively respon·

sible to the House of the People". How can the Council of

Ministers be responsible to the House of the People when it has

been dissolved under art. 85(2)

? According to him no void in

the carrying out of Government will be created because the

Presi­

dent can exercise the Executive Power of the Union either directly

or through officers subordinate in accordance with the Constitution

as provided in a1t. 53(1) of the Constitution.

In constitutional matters it· is advisable to decide only those

points which necessarily arise for determination on the facts of the

case.

It seems to us that a very narrow point arises on the facts

of

the present case. The House of the People was dissolved by

the President on 27-12-1970. The respondent was the Prime

Mir.ister before the dissolution. Is there anything in the Consti­

tution, and in particular in art. 75(3), which renders her carrying on

as Prime Minister contrary to the Constitution

? It was said that ·we must interpret Art. 75(3) according to its own terms regardless

of the conventions that prevail in the United Kingdom. If the

words

of an article are clear, notwithstanding any relevant

con­

vention, effect will no doubt be given to the words. But it must

be remembered that we are interpreting a Constitution imd not

an Act of Parliament, a Constitution which establishes a Parlia­

mentary system of Government with a Cabinet. In trying to

understand one may

well keep in mind the conventions

preva­

ler.t at the time the Constitution was framed.

Speaking for the Court (Mukherjea,

C. J.) observed in Ram

Jawaya Kapur v. State of Punjab('). "The limits within which the executive Government

can function under the Indian Constituton can

be

ascer­

tained without much difficulty by reference to the form

(I) [!9SSJ 2 S. C.R. 225, 236-37.

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SUPRIME COURT REPOl!.18 (1971] SUPP. s.c.R.

of the executive which our Constitution has 11et up. Our

Constitution, though federal in its structure, is modelled

on the British Parliamentary system where the executive

is deemed to have the primary responsibility for the

for­

mulation of governmental policy and its transmission

into law though the condition precedent to the exercise

of this responsibility

is its retaining the confidence of the

legislative branch of the

State. The executive function

comprises both the determination of the policy as well as

carrying it into execution. This evidently includes the

initiation of legislation, the maintenance of order, the pro­

motion of social and economic welfare, the direction of

foreign policy, in fact the carrying on or supervision

of the general administration of the State.

In India, as in England, the executive has to act

subject

to the control of the legislature; but in what wav

is this control exercisable by the legislature ? Under

article

53(1) of our Constitution, the executive power of

the Union

is vested in the President 'but under article 75

there is to be a Council of Ministers with the Prime

Minister at the head

to aid and advise the President

in the exercise of his functions. The President has

thus been made

31 formal or constitutional head of

the executive and the real executive powers are vest-

ed

in the Ministers or the Cabinet. The same

pro­

visions obtain in regard to the Government of States;

the Governor or the Rajpramukh,

as the case may be,

occupies the position of the head of the executive in the State but it is virtually the Council of Ministers in each

State that carries on the executive Government. In the

Indian Constitution, therefore,

we have the same system

of parliamentary executive as in England and the Council

of Ministers

consistinJg, as it does, of the members of the

legislature

is, like the British Cabinet,

"a hyphen which

joins, a buckle which fastens the legislative part of the

State to the executive pMt". The Cabinet enjoying, as it

does, a majority

in the legislature concentrates in itself

the virtual control of both legislative and executive

func­

tions; and as the Ministers constituting the Cabinet are

presumably agreed on fundamentals and act

on the

prin­

ciple of collective responsibility, the most important

questions of policy are all formulated by them."

In A. Sanjeevi Naidu v. State of Madras (') ii

H was urged on behalf of the appellants in case that, "the Parlia­

ment has conferred power under Section 68(C) of the <Motor

(!)A. I. R. 1970 S. C. !102, l!06.

U. N. R. RAO v. SMT. INDIRA GANDHI (Sikri C.J.)

Vehicles Act, 1939) to a design!>ted authority. The power can

be exercised only by that authority and by no one else. The

authority concerned in the present case

is the

State Government.

The Government could not have delegated its statutory functions

to any one else. The Government ·means the Governor aided and

advised

by his Ministers. Therefore the required opinion should

have been formed

by the Minister to whom the business had been

allocated by 'the Rules'.

It

W36 further urged that if the func­

tions of the Government can be discharged

by any one else then 1he doctrine of ministerial responsibility, which is the very essence

of the cabinet form of Government disappears; such a situation

is

impermissible under our Constitution."

Speaking

on behalf of the Court, Hegde J., repelled the con­

tentions in the following words :

"We think that the above submissions advanced on

behalf of the appellants are without force and are based

on a misconception of the principles underlying our Con­

stitution. Under our Constitution, the Governor is essen­

tially a constitutional head, the administration of State

is run by the Council of Ministers. But in the very

nature

of things, it is impossible for the Council of Minis-

ters

to deal with eacli and every matter that comes before

the Government. In order to obviate that difficulty the

Constitution has authorized the Governor under

sub­

article 3 of Article 166 to make rules for the more con­

venient transaction of business of the Government of the

State and for the allocation amongst its Ministers, the

business of the Government. All matters excepting those

in which Governor

is required to act in his discretion

have to be allocated to one or the other of the

M"misters

on the advice of the Chief Minister. Apart from allocat­

ing business ampng the Ministers,

the Governor can also

make rules on the advice of his Council of Ministers for

more convenient transaction of business. He can, not

only allocate the various subjects amongst the Ministers

but may

go further and designate a particular official to

discharge any particular function. But this again he can

do only on the advice

of the Council of Ministers.

The Cabinet

is responsible to the legislature for

every action taken in any of the Ministries. That

is the

essence of joint responsibility."

Let

us now look at the relevant articles of the Con-

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stitution in the context of which we must interpret art. H

75(3) of the Constitution. Chapter I of Part V of the

"-1 SC India/71

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SUPR'EldE COURT REPOR1S (1971] .mPP. S.C.ll

Constitution deal~ with the Executive. Article 52 pro­

vides that there shall be a President of India and Art.

53(1) vests the executive power of the Union in the Presi­

dent a·nd provides that it shall be exercised by him either

directly or through officers subordinate to him in accord­

ance with this Constitution. The last five words are im­

portant inasmuch as they control the Presidei;it's action

under Article 53()). Any exercise of the executive

power not in accordance with the Constitution will be

liable to

be

set aside. There is no doubt that the Presi­

dent of India is a person who has to be elected in

accordance with the relevant provisions of the Constitu­

tion but even so he is bound by the provisions of ihe

Constitution. Article 60 prescribes the oath or affirma­

tion which the President has to take. It reads :

"I, A. B., do swear in the name of God/solemnlv

affirm that I will faithfullv execute the office of President

(or discharge the functions of the President) of India and

will to the best of my ability preserve, protect and defend

the Constitution and the law and that I

will devote

my­

self to the service and well-being of the people o! India".

Articles 74 and 75 deals with the Council of Mini­

sters. They read thus :

"74. (I) There shall be a Council of Ministers with

the Prime Minister at the head to aid and advise

the

President in the exercise of his functions.

(2) The question whether any, and if so what, advice

was tendered by Ministers to the President shall not be

inquired into in any court.

75.

(I) The Prime Minister shall be appointed by

the President and the other Ministers shall be appointed

by the President on the advice of the Prime Minister.

(2) The Ministers shall hold office during the

plea­

sure of the President.

(3) The Council of Ministers shall be collectively

responsible to the House of the People.

(4) Before a Minister enters upon his office, the

Pre­

sident shall administer to him the oaths of office and of

secrecy according to the

forms set out for the purpose

in

the Third schedule.

(5) A Minister who for any period of six

consecu­

tive months is not a member of either House of Parlia­

ment shall at the expiration of that period cease to lie

a Minister.

U. N. R. RAO 1. SMT. INDIRA GANDHI (Sikri C. J.)

(7) The salaries and allowances of Ministers shall

be such as Parliament may from time to time by law

determine and, until Parliament to determines, shall

be

as specified in the Second

Schedule".

It will be noticed that article 74(1) is mandatory in form.

We are unable to agree with the appellant that in the context the

word "shall" should be read as "may". Article 52 is mandatory.

Jn other words 'there shall

be a President of India'. So is article

74 (!). The Constituent Assembly did not choose the Presidential

system of Government. If we were to give effect to this

conten­

tion of the appellant we would be changing the whole concept of

the Executive.

It would mean that the President need not have

a

Prime Minister and Ministers to aid and advise in the exercise

of his functions. As there would be no 'Councii of Ministers'

nobody

would be responsible to the House of the

People. With

the aid of advisers

he would be able to rule the countrv at least till he is impeached under Article 61.

It seems to us that we must read the word "shall" as mean­

ing "shall' and not "may". If Article 74(1) is read in this manner

the rest of the provisions dealing with the Executive must

be read

in harmony with. Indeed they fall into

place. Under Article

75(!) the President appoints the Prime Minister and appoints the

other Ministers

on the advice of the Prime Minister, and under art.

75(2) they hold office during the pleasure of the President. The

President

has not said that it is his

pleasure· that the respondent

shall not hold

office.

Now comes the crucial clause three of Article 75. The

appel­

lant urges that the House of People having been dissolved this

clause cannot

be complied with. According to him it follows

from the provisions. of this clause that it was. contemplated that

on the dissolution of the House of

People the Prime Minister and

the other ministers must resign or

be dismissed by the President

and the President must carry on the Government as best as he can

with the aid of the

Services. As we have shown above, Article

74(1) is mandatory and. therefore. the

President cannot nerciRe

the executive power without the aid and advice of the Council

of Ministers. We must then harmonise the provisions of Article

75(3) with Article 74(!) and Article 75(2). Article 75(3) brings

into existence what is usually called "Responsible Government".

Ip other words the Council of Ministers must enjoy the confidence

of the House of People. While the House of People is not dis­

solved under Article 85(2)(b), Article 75(3) has full operation. But

when °it is dissolved the Council of Ministers cannot naturally

enjoy the confidence of the House of People. Nobody has said

that the Council of Ministers

does not

enjoy the confidence of

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the House of Peaple when it is prorogued. In the context, there­

fore, this clause must be read as meaning that Article 75(3) only

applies when the House of People does not stand dissolved

or

prorogued. We are not

coll(:emed with the case where dissolu­

tion of the House of People takes place under Article 83(2) on the

expiration of the period of

five years prescribed therein, for

Par·

liament has provided for that contingency in S. 14 of the Repr<­

sentation of Peoples Act, 1951.

On our interpretation other articles of the Constitution ab<>

have full play; e.g. Article 77(3) which contemplates allocation of

business among Ministers, and Article

78 which prescribes

certafa

duties of Prime Minister.

We are grateful to the learned Attorney General and the

appellant for having supplied

to us compilations containing

extracts from various books

on Constitutional Law and extracts

from the debates in the Constituent Assembly.

We need 11ot

bur­

den this judgment with them. But on the whole we receive

assurance from the learned authors and

.the speeches that the view wr have taken is the right one, and is in accordance with con­

ventions followed not only in the United Kingdom but in other

countries following a similar

system of responsible Government.

In the result the appeal fails and is

dismisst:d, but there will

be no order as to costs in this Court.

V.P.S. Appeal dismissed.