TMI Blog2006 (1) TMI 604X X X X Extracts X X X X X X X X Extracts X X X X ..... embly 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 Februa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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'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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ok 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.. 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 announcem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnor 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, Not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 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. Where a gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppropriate 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 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, fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 late ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ependent 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 Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andards that are expected of a Governor in discharging his duties vis-`-vis appointment 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 rat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Despite best efforts, if ultimately a viable Ministry fails to emerge, a Governor is faced with two alternatives 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 St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rst 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 ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 -- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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-tradin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterpretation 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 consideratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndition 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 whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 [(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 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, it would be liable to be 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute 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 seve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 preponing 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 sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 conclusi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arnataka 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 Proclama ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eciding 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icta 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 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 Prad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehends 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 los ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght 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 understanding of the true principle that ah Executive having no majority support in the Legislat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt 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 Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imilarity 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 said question on his own or on his own verification. This is not a matter within his subjective sati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntention 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 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 Governo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 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 inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 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 constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral, however, contended that Bommai's case proceeded on the assumption that the proclamation 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 exces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubjective 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 designate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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. 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 Genera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 response ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han'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 cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 nece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 (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 ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnataka, 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. Governor then sent a report to the President stating therein that there were dissensions in the Janta Party which had led to the resign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39; 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons 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 ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oor 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und 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 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 _______ The R.J.D. and its alliance position is as follows: 1. R.J.D. : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ength 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith 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 fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, 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, A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retion, 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 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Commit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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. Shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 distinguis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 circumstanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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: 26. In expounding the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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; 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 politi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 paper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ened 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 stabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cepted 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. Freq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;, '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 G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his 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 TerritoryAny 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; (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rganisation 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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 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 diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 advi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncy 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 countri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer, saying notwithstanding Article 143, 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 ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 232 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 exerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inces: 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 helples ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercising 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticles 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ately 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve 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 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 whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ponsibility 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. xxx xxx xxx xxx Pandit Thakur Das Bhargava : I think the constitutional machinery cannot be regarded ordinarily to have failed unless the dissolution powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... namachari: 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. 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 allo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aralyse 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 tendencies and this will be reflected in the general elections to the House of the People at the Centre. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 contained in this Constitution we pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment 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. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all 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 approvi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 significan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dministrative 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ood 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oclamation 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll 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. 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; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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, 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 cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey 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 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- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se an unlawful domestic regulation would have remained in force, perpetuating discrimination 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, ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iret, 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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