RAMESHWAR PRASAD AND ORS.versusUNION OF INDIA AND ANR.

A                        RAMESHW AR PRASAD AND ORS.
                                      v.
                           UNION OF INDIA AND ANR.

                                 OCTOBER 7, 2005

B        [Y.K. SABHARWAL, K.G. BALAKRISHNAN, B.N. AGRAWAL,
                  ASHOK BHAN AND ARIJIT PASA YAT, JJ.]


            Constitution of India, 1950:

C        Articles 174(2)(b) and 356-Notification G.S.R. 162(£) dated 7.3.2005
  and Notification dated 23. 5.2005-Legislative Assembly of Bihar-Dissolution
   of-Held, The Proclamation dated 23rd May, 2005 dissolving the Legislative
  Assembly of the State of Bihar is unconstitutional-Despite unconstitutionality
   ofthe impugned Proclamation, but having regard to the facts and circumstances
D 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-Detailed reasons would
  follow.

E           CIVIL ORIGINAL JURISDICTION             Writ" Petition (C) No. 257 of
    2005.

            (Under Article 32 of the Constitution of India.)

                                           WITH
F
             W.P. {C) No. 255 of 2005, 258 of 2005 and 353 of 2005.

         Soli J. Sorabjee and Ranjit Kumar, Maninder Singh, Ms.Pratibha M.
    Singh, Preetesh Kapur, Abhinav Mukherji, Sunil Fernandes, A.K. Prasad,
    Saurabh Mishra, Ms.Jaspreet Kaur, Satyajeet Kumar, Ms. Shweta Singh and
G   Ray Vikram Nath for the Petitioner in W.P.(C) No. 257/2005.

         Syed Ali Ahmed, Syed Tanweer Ahmed, Girdhar Upadhyay, S.S.
    Bandyopadhyay, Syed Tanweer Akhtar and R.D. Upadhyay for the Petitioner
    in W.P.(C) No. 255/2005.

H                                          152
                       RAMESHWAR PRASAD v. UO.J.                          153

      Viplav Shanna, Petitioner-in-person in W.P.(C) No. 258/2005.               A
      P.S. Narasimha, Sridhar Potaraju, Ananga Bhattacharya, Avijeet Kumar
Lala and Asutosh Pandey, for Mis. P.S.N. & Co. for the Petitioner in W.P.(C)
No: 353/2005.

     Milon K.Banerjee, Attorney General, Goolam E.Vahanvati, Solicitor           B
General, Gopal Subramaniam, Additional Solicitor General, B.K. Prasad, R.M.
Shanna, Ms. Sushma Suri, Navin Prakash, Ms. Sandhya Goswami and Gaurav
Agrawal for the Respondent.

    S. Muralidhar, S.K. Mendiratta and Amit Sharma for Election
Commission of India.                                                             c
      P.P. Rao, B.B. Singh and Kumar Rajesh Singh for State of Bihar.

      B.P. Yadav, Wahid Hussain and Mushtaq Ahmad for the Respondent
in I.A. No. 8/2005 in W.P.(C) No. 257/2005.
                                                                                 D
      The following Order of the Court was delivered:

                                   ORDER

      The General Elections to the Legislative Assembly of Bihar were held
m the month of February 2005. The Election Commission of India, in               E
pursuance of Section 73 of the Representation of the People Act, 1951 in
tenns of Notification dated 4th March, 2005 notified the names of the elected
members.

      As no party or coalition of the parties was in a position to secure 122
seats so as to have majority in the Assembly, the Governor of Bihar made a       F
report dated 6th March, 2005 to the President of India, whereupon in terms
of Notification G.S.R.162(E) dated 7th March, 2005, issued in exercise of
powers under Article 356 of the Constitution of India, the State was brought
under President's Rule and the Assembly was kept in suspended animation.
By another Notification G.S.R.163(E) of the same date, 7th March, 2005, it       G
was notified that all powers which have been assumed by the President of
India, shall, subject to the superintendence direction and control of the
President, be exercisable also by the Governor of the State. The Home Minister
in a speech made on 21st March, 2005 when the Bihar Appropriation (Vote
on Account) Bill, 2005 was being discussed in the Rajya Sabha said that the
Government was not happy to impose President's Rule in Bihar and would           H
    154                        SUPREME COURT REPORTS [2005) SUPP. 4 S.C.R.

A   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
B   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.
c         The Governor of Bihar made two reports to the President of India, one
    dated 27th April, 2005 and the other dated 21st May, 2005. On consideration
    of these reports, Notification dated 23rd May, 2005 was, issued in exercise of
    the powers conferred by sub-clause (b) of Clause (2) of Article 174 of the
    Constitution, read with clause (a) of the Notification G.S.R.162(E) dated 7th
D   March, 2005 issued under Article 356 of the Constitution and the Legislative
    Assembly of the State of Bihar was dissolved with immediate effect.

          These writ petitions have been filed challenging constitutional validity
    of the aforesaid Proclamation dated 23rd May, 2005. Mr. Soli J. Sorabjee,
    Senior Advocate and Mr. P.S. Narasimha, Advocate and Mr. Viplav Sharma,
E   advocate appearing-in-person have made elaborate submissions in support of
    the challenge to the impugned action of dismissing the assembly.

         On the other hand, Mr. Milon K. Banerjee, Attorney-General for India,
    Mr. Goolam E. Vahanavati, Solicitor General and Mr. Gopal Subrarnaniam,
F   Additional Solicitor General appearing for Union of India and Mr. P.P. Rao,
    Senior Advocate appearing for the State of Bihar also made elaborate
    submissions supporting the impugned Proclamation dated 23rd May, 2005.

          Many intricate and important questions of law havfog far reaching
    impact have been addressed from both sides. After the conclusion of the
G   hearing of oral arguments, written submissions have also been filed by learned
    counsel.

         Fresh elections in State of Bihar have been notified. As per press note
    dated 3rd September, 2005 issued by Election Commission of India, the
    schedule for general elections to the Legislative Assembly of Bihar has been
H   announced. According to it, the polling is to take place in four phases
                       RAMESHWAR PRASAD v. UO.l.                              155
commencing from 18th October, 2005 and ending with the fourth phase                  A
voting on 19th November, 2005. As per the said press note, the date of
Notification for first and second phase of poll was 23rd September and 28th
September, 2005, date of poll being 18th October, 2005 and 26th October,
2005 respectively. Notifications for third and fourth phases of poll are to be
issued on 19th and 26th October, 2005 respectively.
                                                                                     B
      Keeping in view the questions involved, the pronouncement of judgment
with detailed reasons is likely to take some time and, therefore, at this stage,
we are pronouncing this brief order as the order of the court to be followed
by detailed reasons later.

       Accordingly, as per majority opinion, this court orders as under:             c
        I.   The Proclamation dated 23rd May, 2005 dissolving the Legislative
             Assembly of the State of Bihar is unconstitutional.
        2.   Despite unconstitutionality of the impugned Proclamation, but
             having regard to the facts and circumstances of the case, the           D
             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.

R.P.                          W.P. Disposed of. Detailed reasons to follows.         E