Holding

The proclamation dated 23rd May 2005 dissolving the Bihar Legislative Assembly is unconstitutional as it was based on the Governor's report which was a mere ipse dixit and aimed at preventing a political party from staking claim to form the government, but relief of status quo ante was declined due to advanced election process.

Summary

The petitioners challenged the constitutional validity of the proclamation dated 23rd May 2005 dissolving the Bihar Legislative Assembly under Article 356 of the Constitution. The Governor had reported that attempts were being made to cobble a majority through illegal means like horse-trading and allurements, and recommended dissolution. The Supreme Court examined whether the Governor's report was based on relevant material and whether the dissolution was justified. The majority held that the Governor's report was based on mere ipse dixit with no material, and the real object was to prevent a political party from staking claim to form the government, making the proclamation unconstitutional. However, since elections had already been notified and were at an advanced stage, the Court declined to restore status quo ante. The Court also discussed the scope of Article 361 immunity of the Governor, holding that it does not bar judicial review of the action.

Issues considered

Is it permissible to dissolve the Legislative Assembly under Article 174(2)(b) without its first meeting taking place?
Whether the proclamation dated 23rd May 2005 dissolving the Assembly of Bihar is illegal and unconstitutional?
If the answer to the aforesaid question is in affirmative, is it necessary to direct status quo ante as on 7th March 2005 or 4th March 2005?
What is the scope of Article 361 granting immunity to the Governor?

Legislation cited

Constitution of Indias. Article 103, s. Article 159, s. Article 163, s. Article 164, s. Article 172, s. Article 174, s. Article 188, s. Article 192, s. Article 324, s. Article 327, s. Article 329, s. Article 355, s. Article 356, s. Article 361, s. Article 74, s. Tenth Schedule
Representation of People Act, 1951s. Section 73

Subjects

Article 356dissolution of assemblyGovernor's reportjudicial reviewmala fidehorse-tradingfloor testArticle 361 immunityemergency powerfederalism

Judgment

•

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

JANUARY 24, 2006

B [Y.K. SABHARWAL, CJ., K.G. BALAKRISHNAN, B.N. AGRAWAL,
ASHOK BHAN AND ARIJIT PASAYAT, JJ.)

Constitution of India, 1950; Articles 321226, 356, 74 and 163:
c Ifivoking ofpower under Article 356-/ssue ofproclamation-- Subjective
satisfaction of President-Conditions precedent-Scope ofjudicial review.

Articles 356 and 74-Satisfaction of President under -.Vature o.f-Duty
of Council of Ministers before recommending issuance uf proclamation- -On
D facts, held: Governor has misled Union Council of Ministers.

Article 356--Nature and Scope ofpower---Held, is un emergency power
but not an absolute power.

E
Articles 32, 226 and Preamble-Scope of interference. •.
Articles 356, 163 and 174(2)(b)-Dissolution of State Assembly-Floor
test-Necessity of
>
Articles 356, I 74(2)(b), 8j(2)(b) and Schedule X-Dissolution of newly
F elected Assembly-Grounds to be taken into consideration-Hung Assembly-
Realignment of parties/MlAs-Unethical means/horse lrading-
Recommendation of dissolution on that ground-Scope ofjudicial review in
such situations.

Articles 159, 163, 164, I 74(2)(b) and 356--/nsta/lation of new
G Government after election-Duty of Governor.
Articles 79, 168, 245 and 246-Parliament-Nature of acts o.f-When
legislative.

H 562
-f

RAMESHWAR PRASAD v.U.0.1. 563

-~
Articles 356, /74(2)(b). 85, 32 and 226-Unconstitutionality of A
proclamation under Article 356 dissolving Legislative Assembly of State-
power to mould relief

Articles 157 and 155-Governor-Criteria for appointment a/-
Suggestions given in Sarkaria Commission Report-Need for observance of
B
Articles 163, 153, 154 and 159-Governor-Nature and role of office
of-Discharge of powers and duties-Discretionary powers-Scope of

Article 361-Scope of immunity granted to Governors and President-
Discussed. c
Articles 327, 324, 329, 174, 168, 172, 83. 85 and 79-"Due constitution"
or coming into existence of a. legislative Assembly-When takes place.

Words and Phrases:
D
"Emergency "-Meaning of in the context of Part XVlll of the
Constitution.

"Merger"-Meaning of in the context of Para 4 Schedule X of the
Constitution.
E
"Required"-Meaning of in the context of discretionary powers of the
Governor under the Constitution.

~. In these Writ Petitions, the petitioners have challenged the validity
of the proclamation dated 23rd May, 2005 issued under Article 356 of the F
Constitution ordering dissolution of Bihar Legislative Assembly. They have
also prayed for restoration of the Election Commission Notification dated
4th March, 2005 issued under Section 73 of the Representation of People
Act, 1951 notifying the names of the elected members.

It was contended on behalf of the petitioners that the allegations in G
the Governor's report of horse trading was factually incorrect and
fictional. It was incumbent upon the Governor to verify the facts personally
from the MLAs; that under the scheme of the Constitution the decision
with regard to mergers and disqualifications on the ground of defection
or horse trading is vested in the Speaker; and that the Governor could H
564 SUPREME COlJRT REPORTS (2006 j I S.C.R.

A 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 and Ors. v. Union of India and Ors .. 1199413 SCC I, it was
contended that action of the Governor is ma/a 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
B 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.

c It was further contended that before even elected candidates making
and subscribing oath or affirmation, as contemplated by Article 188 of
the Constitution, even the Assembly could not be placed under su~pended
animation and status quo as on the date of issue of notification under
Section 73 of the RP Act of 1951 deserves to be directed.

D After hearing arguments on the question of the Governor not being
answerable to any Court in view of immunity granted by Article 361(1)
of the Constitution, this Court accepted the submission of the Government
that notice may not be issued to the Governor, and for giving brief reason
in the order to be followed by detailed reasons later.
E
The points that fell for determination by this Court are :

(1) Is it permissible to dissolve the Legislative Assembly under Article
174(2)(b) of the Constitution without its first meeting taking place?

F (2) Whether the proclamation dated 23rd May, 2005 dissolving the
Assembly of Bihar is illegal and unconstitutional?

(3) If the answer to the aforesaid question is in affirmative, is it
necessary to direct status quo ante as on 7th March, 2005 or 4th March,
2005?
G
(4) What is the scope of Article 361 granting immunity to the
Governor?

After hearing elaborate arguments, by a brief order dated 7th
H October, 2005, the notification dated 23rd May, 2005 was held to be
-J
RAMESHWAR PRASAD v.U.0.1. 565

unconstitutional but having regard to the facts and circumstances of the A
case, relief directing status quo ante to restore the Legislative Assembly
as it stood on 7th March, 2005, was declined.

Disposing of the Writ Petitions, giving detailed reasons in support
of its order dated 7th October, 2005, the Court
B
HELD:

Per Majority (Y.K. Sabharwal, CJ! for himself and B.N. Agrawal and
Ashok Bhan, JJ.):

1.1. Section 73 of the RP Act, 1951 enjoins upon the Election
c
Commission to issue notification after declaration of results of the elections
in all the constituencies. The superintendence, direction and control of
elections to Parliament and to the Legislature of every State vests in
Election Commission under Article 324 of the Constitution. Article 327
provides that Parliament may make provision with respect to all matters D
relating to, or in connection with, elections to the Legislative Assembly of
a State and all other matters necessary for securing the 'due constitution'
of the House of the Legislature. Article 329 bars the interference by courts
in electoral matters except by an election petition presented to such
authority and in such manner as may be provided for by or under any E
law made by the appropriate Legislature. Article 327 read with Section
73 of the RP Act, 1951 provide for as to when the House or Assembly shall
be 'duly constituted'. No provision, constitutional or statutory, stipulates
that the 'due constitution' is only for the purposes of Articles 324, 327
and 329 and not for the purpose of enabling the Governor to exercise
power under Article 174(2)(b) of the Constitution. In so far as the F
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 np longer. There is no restriction under Article 174(2)(b) stipulating
that the power to dissolve the Legislative Assembly can be exercised only G
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
H
566 SliPREMF COURT REPORTS [2006 I I S.C.R.

A Legislative Assembly, if any, functioning immediately before the issue of
the said notification. In fact, clause (b) further fortifies the conclusion that
the duration of the Legislative Assembly is different than the due
constitution thereof. In the present case, this Court is not concerned with
the question of duration of the Assembly but with the question whether
the Assembly had been duly constituted or not so as to enable the Governor
B to exercise the pCJwer of dissolution under Article l 74(2)(b). The
Constitution of India does not postulate one 'due constitution' for the
purposes of elections under Part XV and another for the purposes of the
executive and the State Legislature under Chapters II and III of Part VI.
The aforenoted provisions existing prior to the enforcement of Constitution
C of India are also of no relevance for determining the effect of deemed
constitution of Assembly under Section 73 of the RP Act, 1951 to exercise
power of dissolution under Article 274 (2)(b). [609-C-H; 610-A, Bl

1.2. The Assembly, for all intends and purposes, is deemed to be duly
constituted on issue of notification under Section 73 and the duration
D 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.
1611-A-BI

1.3. The constitution of any Assembly can only be under Section 73
E of the RP Act, 1951 and the requirement of Article 188 of the Constitution
suggests that the Assembly comes into existence even before its first sitting
commences. [611-C-DI

Special Reference No. I of 2002 (Gujarat Assembly Election matter)
p (2002) 8 sec 237, relied on.

K.K. Abu v. Union of India and Ors., AIR (1965) Kerala 229, approved.

Udai Narain Sinha v. State of U.P. and Ors .. AIR [19871 All. 203,
disapproved.
G 2. I. The proclamation dated 23rd May, 2005 is unconstitutional.
Under Article 356 of the Constitution, the dissolution of an Assembly can
be ordered on the satisfaction that a situation has arisen in which th~ .
Government of the State cannot be carried on in accordance with the
Constitution. Such a satisfaction can be reached by the President on receipt
H of report from the Governor of a State or otherwise. It is permissible to
j

RAMESHWAR PRASAD v.U.0.1. 567

arrive at the satisfaction on receipt of the report from Governor and on A
other material. Such a satisfaction can also be reached only on the report
of the Governor. It is also permissible to reach such a conclusion even
without the report of the Governor in case the President has other relevant
material for reaching ~he satisfaction contemplated by Article 356. The
expression 'or otherwise' is of wide amplitude. [611-H; 612-A, Bl
B
2.2. 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 C
reports of the Governor. (612-C, DI

2.3. In the light of a volatile system prevailing today, it is pertinent
to recognize the crucial role played by the Governors in the working of
the democratic framework. The role of the Governor has come in for
considerable criticism on the ground that some Governors have failed to D
display the qualities of impartiality expected of them. (612-H; 614-BI

2.4. 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 E
expression "by or under the Constitution" means that the necessity to
exercise such powers may arise from any express provision of the
Constitution or by necessary implication. The Sarkaria Commission
Report further adds that such necessity may arise even from rules and
orders made "under" the Constitution. Observing that the Governor needs
to discharge "dual responsibility" - to the Union and the State - the F
Sarkaria Commission has sought to evaluate the role of the Governors in
certain controversial circumstances, such as, in appointing the Chief
Minister, in ascertaining the majority, in dismissal of the Chief Minister,
in dissolving the Legislative Assembly, in recommending President's Rule
and in reserving Bills for President's consideration. [615-C-E[
G
2.5. It is seen that one day a person is in active politics in as much
as he holds the office of the Chief Minister or Minister or a party post
and·almosfon the following day or, in any case, soon thereafter, the same
person is appointed as the Governor in another State with hardly any
cooling period. Ordinarily, it is difficult to expect detachment from party H
568 Sl PRE\1E COURT HPORTS [2006[ 1 S.C.R.

A politics from such a person while performing the constitutional functions ...
as Governor. [620-B-C!

2.6. 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
B political defections to tear into the vitals of the Indian democracy. But on
facts of the present case, this Court is 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 was no legitimate realignment of political
C parties and there was blatant distortion of democracy by induced
defections through unfair, illegal, unethical and unconstitutional means.
[624-H; 625-A, B[

2.7. The report dated 27th April, 2005 refers to (1) serious attempt
to cobble a majority; (2) winning over MLAs by various means; (3)
D targeting parties for a _split; (4) high pressure moves; (5) offering various
al,lurements like castes, posts, money etc.; and (6) Horse-trading. Almost
similar report was sent by the Governors of Karnataka and Nagaland
leading to the dissolution of the Assembly of Karnataka and Nagaland,
invalidated in Bommai 's case. Further, the contention that the Central
E Government did not act upon the report dated 27th April, 2005 is of no
relevance and cannot be considered in isolation since the question is about
the manner in which the Governor moved, very swiftly and with undue
haste, finding that one political party may be close to getting majority and
the situation had reached where claim may be staked to form the
Government which led to the report dated 21st May, 2005. It is in this
F context that the Governor says that instead of installing a Government
based on a majority achieved by a distortion of the system, it would be
preferable that the people/electorate could be provided with one more
opportunity to seek the mandate of the people. This approach makes it
evident that the object was to prevent a particular political party from
G staking a claim and not the professed object of anxiety not to permit the
distortion of the political system, as sought to be urged. Such a course is
nothing but wholly illegal and irregular and has to be described as ma/u
fide. The recommendation for dissolution of the Assembly to prevent the
staking of claim to form the Governmrnt purportedly on the ground tha~
the majority was achieved by distortion of system by allurement,
H corruption and bribery was based on such general assumptions without
RAMESHWAR PRASAD v. U.0.1. 569·

any material which are quite easy to be made if any political party not A
gaining absolute majority is to be kept out of governance. No assumption
without any basis whatever could be drawn that the reason for a group
to support the claim to form the Government by Nitish Kumar, was only
the aforesaid distortions. That stage had not reached. It was not allowed
to be reached. If such majority had been presented and the Governor B
forms a legitimate opinion that the party staking claim would not be able
to provide stable Government to the State, that may be a different
situation. Under no circumstances, the action of Governor can be held to
~ be bona fide when it is intended to prevent a political party to stake claim
for formation of the Government. After elections, every genuine attempt
is to be made which helps in installation of a popular Government, C
whichever be the political party. 1625-C-H; 626-AI

2.8. 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 t.he ground D
).. realities and the compulsion of the situation including the aspect and
relevance of coalition governance as opposed to a single party Governn.ent.
Even in the economic field, the concept of morality has been a matter of
policy and priorities o~. th,Governm.ent. The Government may give
incentive, which ideally may be considered unethical and immoral, but in E
so far as Government is concerned, it may become necessa ry to give
incentive to unearth black money. It may be difficult to leave such aspects
to be determined by high constitutional functionaries, on case to case basis,
depending upon the facts of the case, and personal mould of the
constitutional functionaries. With all these imponderables, the Constitution
does not contemplate the dissolution of Assemblies based on the F
assumption of such immoralities for formation or the satisfaction that
situation has arisen in which the Government cannot be of the Constitution
or India. (628-A-DI

2.9. Articles 355 and 356 of the Constitution set the tenor for the G
precedence of the Union over the States. It has been explained that the
rationale for introducing Article 355 was to distinctly demarca te the
functioning of the State and Union governments and to prevent any form
of unprincipled invasions by the Union into the affairs of the State. It was
felt that through the unambiguous language of Articles 355 and 356, the
Union shall be constitutionally obliged fo interfere only under certain H
570 SUPREME COURT REPOR rs (2001

A limited circumstances as laid down in the provisions. 1632-B, q

2.10. In State o(Rujusthun 's case, there was a broad consensus l
five of the seven Judges that the Court can interfere if it is satisfied
the power has been exercised ma/a fide or on "wholly extraneous or
irrelevant grounds". Some Judges have stated the rule in narrow terms
B and some others in a little less narrow terms but not a single Judge held
that the proclamation is immune from judicial scrutiny. It must be
remembered that at that time clause (5) was there barring judicial review
of the proclamation and yet they said that Court can interfere on the
ground of mu/a fides. Surely, the deletion of clause (5) has not restricted
(' the scope of judicial review but has widened it. f632-G, H; 633-A, Bl

2.11. When the facts of the present case are examined in light of the
scope of judicial review as is clear from the aforesaid which represents
ratio decidendi of majority opinion of Bommai 's case, it becomes evident
that the challenge to the impugned Proclamation must succeed. The case
D in hand is squarely covered against the Government by the dicta laid down
in Bommui '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
E 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
F 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.
1649-C-Ff
G 2.12. As opposed to the cases of dissolution of Karnataka and
Nagaland, while considering the cases of dissolution of assemblies of
Madhya Pradesh, Rajasthan and Himachal Pradesh, it was held in Bommai
that the reports of the Governors disclosed that the State Governments
had miserably failed to protect the citizens and property .of the State
H against internal disturbances, it was found that the Governor's reports
RAMESHWAR PRASAD v. U.0.1. 571

I are based on relevant material and are made bona fide and after due A
verification. It is in the light of these findings that the validity of the
Proclamation was unanimously upheld in respect of these three States.
(649-G-H; 650-AJ

2.13. It is open to the Court, in exercise of judicial review, to examine
the question whether the Governor's report is based upon relevant B
material or not; whether it is made bona fide or not; and whether the facts
have been duly verified or not. The absence of these factors resulted in
~. me majority declaring the dissolution of State Legislatures of Karnataka
and Nagaland as invalid. [659-D)

2.14. In the present case, there is nothing except the reports of the
c
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 D
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 E
Governor has mislead the Council of Ministers which lead to aid and
advice being given by the Council of Ministers to the President leading to
the issue of the impugned Proclamation. (659-F-H; 660-A)

2.15. In the present case, like in Bommai's case, there is no material
whatsoever except the ipse dixit of the Governor. The action which results F
in preventing a political party from staking claim to form a Government
after election, on such fanciful assumptions, if allowed to stand, would be
destructive of the democratic fabric. It is one thing to come to the
conclusion that the majority staking claim to form the Government, wo.uld
not be able to provide stable Government to the State but it is altogether G
different thing to say that they have garnered majority by illegal means
and, therefore, their claim to form the Government cannot be accepted.
fn the latter case, the matter may have to be left to t.he wisdom and will
of the people, either in the same House it being taken up by the opposition
or left to be determined by the people in the elections to follow. Without
highly cogent material, it would be wholly irrational for constitutional H
572 SUPREME (_'()l :RT REPfJRTS [20061 I S.C.R.

A authority to deny the claim made by a majority to form the Government , ....
only on the ground that the majority has been obtained by offering
allurements and bribe which deals have taken place in the cover of
darkness but his undisclosed sources have confirmed such deals. The extra-
ordinary emergency power of recommending dissolution of a Legislative
Assembly is not a matter of course to be resorted to for good governance
B or cleansing of the politics for the stated reasons without any authentic
material. These are the matters better left to the wisdom of others
including opposition and electorate. 1661-D-GI

2.16. The proposition that given a choice between going back to the
c electorate and accepting a majority obtained improperly, only the former
is the real alternative, 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
D 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,
E
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. 1662-DI
•
2.17. A political party primajacie having majority has to be permitted
F 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
G
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. 1663-E-GI
H
i
/'
RAMESHWAR PRASAD v.U.0.1. 573

2.18. For more than one reason, this Court is unable to accept the A
\ contention of the proclamation of the nature in question being a legislative
act. Firstly, if the contention was to be accepted, Bommai 's case would not
have held the proclamation in case of h'.arnataka and Nagaland as illegal
and invalid. Secondly, the contention was specifically rejected in the
majority opinion. The contention was that the proclamation of the present B
nature assumes the character of legislation and that it can be struck down
only on the ground on which a legislation can be struck down. Rejecting
the contention, it was held that every act of Parliament does not amount
to and does not result in legislation and that the Parliament performs many
other functions. One of such functions is the approval of the proclamation
under clause (3) of Article 356. Such approval can, by no stretch of C
imagination, be called 'legislation'. Its legal character is wholly different.
It is a constitutional function, a check upon the exercise of power under
clause (1) of Article 356. It is a safeguard conceived in the interest of
ensuring proper exercise of power under clause (1 ). It is certainly not
legislation nor legislative in character. 1664-D-FI
D
2.19. 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 E
of Rajasthan 's case is no longer the law of the land in view of it:; extension
in Bommai's case but the present case even when considered by applying
limited judicial review, cannot stand judicial scrutiny as the satisfaction
herein is based on wholly extraneous and irrelevant ground. The main
ground being to prevent a party to stake claim to form the Government.
1665-B-CJ F
2.20. 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 G
Pradesh. 1668-H; 669-AI

2.21. The provision of the Tenth Schedule dealing with defections,
those of AA Act of 1951 dealing with corrupt practice, electoral offences
and disqualification and the provisions of Prevention of Corruption Act,
1988 are legal safeguards available for ensuring purity of public life in a H
574 Sl'PREME COl RI RL\'ORIS l2006J I S.C.R.

A democracy. But, in so far as the present case is concerned, these had no
relevance at the stage when the dissolution of the Assembly was
recommended without existenc~ of any material whatsoever. There was
no material for the assumption that claim may be staked based not on
democratic principles and based on manipulation by breaking political
B parties. 1669-F, Gj

2.22. There cannot be any doubt that the oath prescribed under
Article 159 requires the Governor to faithfully perform duties of his office
and to the best of his ability preserve, protect and defend the Constitution
and the laws. The Governor cannot, in the exercise of his discretion or
C otherwise, do anything what is prohibited to be done. The Constitution
enjoins upon the Governor that after the conclusion of elections, every
possible atte~pt is made for formation of a popular Government
representing the will of the people expressed through the electoral process.
If the Governor acts to the contrary by creating a situation whereby a
party is prevented even to stake a claim and recommends dissolution to
D achieve that object, the only inescapable inference to be drawn is that the
exercise of jurisdiction is wholly illegal and unconstitutiollal. Governor's
report dated 21st May, 2UUS, inter u!iu, stated that 17 - 18 MLAs belonging
to LJP party arc moving towards JDU which would mean JDU may be in
a position to stake claim to form the Government. The further assumption
E 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 '
F 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
G 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. 1669-H; 670-A-E]

2.23. It is true as has been repeatedly opined in various reports and
by various constitutional experts that the defections have been a bane of
H the Indian Democracy but, at the same time, it is to be remembered that
(
/

RAMESHW AR PRASAD v. U .0.1. 575

the defections have to be dealt with in the manner permissible in law. A
(670-F)

2.24. If a political party with the support of other political party or
other MLA's stakes claim to form a Government and satisfies the
Governor about its majority to form a stable Government, the Governor
cannot refuse formation of Government and override the majority claim B
because of his subjective assessment that the majority was cobbled by
illegal and unethical means. No such power has been vested with the
Governor. Such a power would be against the democratic principles of
majority rule. Governor is not an autocratic political Ombudsman. If such
a power is vested in the Governor and/or the President, the consequences C
can be horrendous. The ground of maladministration by a State
Government enjoying majority is not available for invoking power under
Article 356. The remedy for corruption or similar ills and evils lies
elsewhere and not in Article 356(1 ). In the same vein, it has to be held
that the power under Tenth Schedule for defection lies with the Speaker
of the House and not with the Governor. The power exercised by the D
Speaker under the Tenth Schedule is of judicial nature. The Governor
cannot assume to himself aforesaid judicial power and based on that
assumption come to the conclusion that there would be violation of Tenth
Schedule and use it as a reason for recommending dissolution of assembly.
(670-G, H; 671-A-D) E
2.25. The Governor, a high Constitutional functionary is required
to be kept out from the controversies like disqualification of members of
a. Legislative Assembly and, therefore, there are provisions like Article
192(2) in the Constitution providing for Goyernor obtaining the opinion
of the Election Commission and acting according to such opinion, in the F
constitutional scheme of things. Similar provision, in so far as, member
of Parliament is concerned being in Article 103(2) of the Constitution.
[671-D, E(

S.R.Bommai and Ors. v. Union of India and Ors., (1994) 3 SCC 1, G
followed.

Hargovind Pant v. Dr. Raghuku/ Tilak & Ors., (1979) 3 SCC 458;
KihotoHollohan v. Zachi//hu & Ors., (1992) Supp. 2 SCC 651; Maru Ram
v. Union ofIndia and Ors., [1981) 1SCC107; Kehar Singh & Anr. v. Union
of India and Anr., [1989( l SCC 204; Maru !J.am v. Union of India, [1981 ( l H
576 SUPREME COURT REPORTS (2006] I S.C.R.

A SCC 107; Re: The Delhi Laws Act, 1912, the Ajmer-Merwara (Extension of
Laws) Act, 1947 and the Part C States (Laws) Act, 1950 119511 SCR 747;
Jayantilal Amrit Lal Shodhan v. F.N. Rana and Ors., 119641 5 SCR 294;
Rameshchandra Kachardas Porwal and Ors. v. State ofMaharashtra and Ors.,
(198112SCC722; A.K. Roy v. Union of India & Ors.. (198211 SCC 27;
B Barium Chemicals Ltd and Anr. v. Company Law Board and Ors., (1966)
Supt. SCR 311; Brundaban Nayuk v. Election Commission of India & Anr.,
(19651 3 SCR 53 and Election Commission of India & Anr. v. Dr.
Subramaniam Swamy and Anr., (1996) 4 SCC 104, referred to.

Council a/Civil Service Unions v. Minister for the Civil Service, (19841
C 3 All. ER 935; Puhlhofer v. Hillingdon, London Borough Council, 11986) I
AIL ER 467; R.K. Garg & Ors. v. Union of India & Ors., (19811 4 SCC 675
and Muhammad Sharif v. Federation of Pakistan, PLD 1988 (LAH) 725,
referred to.

Report of the Sarkaria Commission on Centre-State Relations (1988)
D (Chapters IV, VI); V.R. Krishna Iyer, A Constitutional Miscellany (Second
Edition, Lucknow:Eastern Book Co., 2003) at p.44; Constituent Assembly
Debates (Volume V!II, Revised Edition); The framing of India India's
Constitution - Select Documents (Volume IV, B. Shiva Rao (ed.), New Delhi:
Universal Law Publishing Co., 2004) p. 86; Report of P. V. Rajamannar
E Committee (1969), Inquiry Committee constituted by the Government a/Tamil
Nadu to report on the Centre-State relations; Report of the Study Team of the
Administrative Reforms Commission (1967) headed by Shri MC. Setalvad;
White Paper on the Office of the CJovernor, CJovernment of Karnataka (22nd
September, 1983); Harvard law Review, Vol. I 16 (2002-2003);Designing
f
Federalism - A Theory of Self-Sustainable Federal Institution - a write up.;
F T.K. Thope: Dr. Ambedkar and Article 356 of the Constitution, (1993) 4 SCC
(Jour) I; Constituent Assembly Debates (Volume IX, Revised Edition) at
pp.175-177, referred to.

3. As a consequence of the view taken, the Court could have made
G an order of status quo ante as prev'liling 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
H preparations for the four phase election to be conducted in the State of
RAMESHWAR PRASAD v.U.0.1. 577
Bihar but had also issued Notification in regard to first two phases before A
conclusion of arguments. Further, in regard to these two phases, before
7th October, 2005, even the last date for making nominations and scrutiny
thereof was also over. In respect of 1st phase of election, even the last date
for withdrawal of nominations also expired and polling was fixed for 18th
October, 2005. The election process had been set in motion and was at an
advanced stage. Judicial notice could be taken of the fact that considerable B
amount must have been spent; enormous preparations made and ground
works done in the process of election and that too for election in a State
like the one under consideration. Having regard to these subsequent
developments coupled with numbers belonging to different political parties,
it was thought fit not to put the State in another spell of uncertainty. C
Having regard to the peculiar facts, despite unconstitutionality of the
Proclamation, the relief was moulded by not directing status quo ante and
consequently permitting the completion of the ongoing election process
with the fond hope that the electorate may again not give fractured verdict
and may give a clear majority to one or other political party - the Indian
electorate possessing utmost intelligence and having risen to the occasion D
on various such occasions in the past. [671-G, H; 672-A-D]

4.1. A plain reading of Article 361(1) shows that there is a complete
bar to the impleading and issue of notice to the President or the Governor
inasmuch as they are not answerable to any Court for the exercise and E
performance of their powers and duties. Most of the actions are taken on
aid and a!lvice of Council of Ministers. The personal immunity from
answerability provided in Article 361 does not bar the challenge that may
be made to their actions. Under law, such actions including those actions
where the challenge may be based on the allegations of malafides are
required to be defended by Union of India or the State, as the case may F \
he. Even in cases where the personal malafides are alleged and established,
it would not be open to the Governments to urge that the same cannot be
satisfactorily answered because of the immunity granted. In such an
eventuality, it is for the respondent defending the action to satisfy the
Court either on the basis of the material on record or even filing the G
affidavit of the person against whom such allegation of personal malafides
are made. Article 361 does not bar filing of an affidavit if one wants to
file on his own. The bar is only against the power of the Court to issue
notice or making the President or the Governor answerable. In view of
the bar, the Court cannot issue direction to President or Governor for even
filing of affidavit to assist the Court. Filing of an affidavit on one's own H
578 SUPREME COURT REPORTS [2006] I S.C.R.

A 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 malajides.
1674-B-FI

B 4.2. The position in law is that the Governor enjoys complete
immunity. Governor is not answerable to any Court for the exercise and
performance of the powers and duties of his office or for any act done or
purporting to be done by him in the exercise and performance of those
..
powers and duties. The immunity granted by Article 361(1) dots not,
C however, take away the power of the Court to examine the validity of the
action including on the ground of malajides. 1676-F, GI

Union Carbide Corporation, etc., <;/c. v. Union of India, etc. etc., 11991 I
4 SCC 584; Shri Pratapsing Raojirao Rane & Ors. v. 7hc Governor o/ Uoa
& Ors. AIR (1999) Bombay 53; K.A. Mathialagan and Ors. v. The Uovernor
D of Tamil Nadu and Ors., AIR (1973) Madras 198; Riman Chandra v.
Governor, West Bengal AIR (1952) Calcutta 799; (. JJ Karkare v. T.L.
Shevde AIR (1952) Nagpur 330; State v. Kawas MantA1l 11l' :Vanavati AIR
(1960) Bombay 502 and The State of West Bengal and On. v. Sallendra Nath
Bose AIR 1964 Calcutta 184, referred to.

E In re: Richard Nixon (1982) 457 US 731, referred to.

Per K.G. BALAKRISHNAN, J. (Agreeing with the Majority except on
the question whether the proclamation dated 23rd May, 2005 dissolving f
the Assembly of Bihar is illegal and unconstitutional):
F
I. I. The power of judicial review could be exercised when an order
passed under Article 356 is challenged before the court on the ground of
malafides or upon wholly extraneous or irrelevant grounds and then only
the court would have the jurisdiction to examine it. It cannot be said that
a proclamation passed under Article 356 is legislative in character and
G outside the ken of judicial scrutiny. 1683-EI

1.2. From S. R. Bommai ·s decision, it can be discerned that the
majority was of the view that so far as the scope and ambit of judicial
review is very limited when a proclamation under Article 356 is questioned
H and similar parameters would apply in a case where a Notification is
RAMESHWAR PRASAD v.U.0.1. 579
'\
passed under Article 174(2) (b) dissolving the State Legislative Assembly. A
The plea 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. 1690-C-E]

1.3. In view of Article 7 4(2) of the Constitution, the court cannot go B
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 c
constituted Government and dissolving the duly constituted Legislative
Assembly. Any misuse of such power is to be curbed if it is exercised for
mala fide purposes or for wholly extraneous reasons based on irrelevant
grounds. The Court can certainly go into the materials placed by the
Governor which led to the decision of dissolving the State Assembly.
}. 1690-E-G] D

1.4. The Presidential proclamation dissolving the Bihar State
Legislative Assembly was issued pursuant to two reports sent in by the
Governor. It may be remembered that Article 356(1) Proclamation
imposing President's Rule was issued on 7th March, 2005. Thereafter, on
22nd· April, 2005, the Governor sent a report wherein he stated that none
E
of the political parties. either individually or with the then pre-election
combination or with post-election alliance, could stake a claim to form a
' popular Government wherein they could claim support of a simple
majority of 122 in a House of 243. The Governor had also indicated that
there are certain newspaper reports and other reports gathered through F
meeting with different parties' functionaries that some steps are being
taken to win over the elected representatives of the people through various
allurements like money, caste, post, etc. Thereafter, on 21.5.2005, the
Governor of Bihar sent another report and based on that, the Bihar State
Assembly was dissolved on 23rd May, 2005. In the report dated 21st May,
2005, the Governor reiterrted his earlier report that no party had G
approached him to form a popular Government since none could claim
~ the support of a simple majority of 122 in a House of 243. In that report,
the Governor had also stated that 17/18, or more perhaps, LJP MLAs are
moving towards the JD(U) and that various allurements have been offered
•
to them and it was an alarming feature and the Governor was also of the H
580 SUPREME COURT REPORTS [2006) I S.C.R.

A opinion that it was positively affecting the Constitutional provisions and
safeguards built therein and distorted the verdict of the people.
(690-H; 691-A-D(

1.5. It is important to note that the writ petitioners have no case that
JD(U) or any other alliance had acquired majority and that they had
B approached the Governor staking their claim for forming a Government.
No material is placed before this Court to show that the JD(U) or its
alliance with BJP had ever met the Governor praying that they had got
the right to form a Government. The plea that they were about to form a
Government and in order to scuttle that plan the Governor sent a report
C 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
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
D put their signatures. Therefore, it is incorrect to ~ay !hat the Governor
had taken steps to see that the Assembly was dissolved ha~tily 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
E in a position to form minority Government with the support of some
political parties and if their plea was rejected by the Governor, the position
would have been totally different. No such situation had been reached in
the instant case. It is also very pertinent to note that the order for
dissolution of the State Assembly was passed after about three months of
the proclamation imposing the President's Rule was issued under Article
F 356(1 ). When there was such a situation, the only possible way was to seek
a fresh election and if it was done by the President, it cannot be said that
it was a ma/a fide exercise of power and the dissolution of the Assembly
was wholly on extraneous or irrelevant grounds. It is also equally
important that in Karnataka, Meghalaya and Nagaland cases, there was
G a democratically-elected Government functioning and when there is an
allegation that it had lost its majority in the Assembly, the primary duty
was to seek a vote of confidence in the Assembly and test the strength on
the floor of the Assembly. Such a situation was not available in the present
case. It was clear that not a single political party or alliance was in a
position to form the Government and when the Assembly was dissolved
H after waiting· for a reasonable period, the same cannot be challenged on -
j

RAMESHWAR PRASAD v.U.0.1. 581
the ground that the Governor in his report had stated that some horse- A
trading is going on and some MLAs are being won over by allurements.
These are certainly facts to be taken into consideration by the Governor.
If by any foul means the Government is formed, it cannot be said to be a
· democratically-elected Government. If Governor has got a reasonable
apprehension and reliable information that such unethical means are being
adopted by the political parties to get majority, they are certainly matters B
to be brought to the notice of the President and at least they are not
irrelevant matters. Governor is not the decision-making authority. His
report would be scrutinized by the Council of Ministers and a final decision
is taken by the President under Article 174 of the Constitution. Therefore,
it cannot be said that the decision to dissolve the Bihar State Legislative C
Assembly, is mala fid~ exercise of power based on totally irrelevant
grounds. [691-E-H; 692-A-F)

S.R. Bommai & Ors. v. Union of India & Ors., [1994[ 3 SCC 1; State
of Rajasthan & Ors. v. Union of India & Ors., reported in (1977) 3 SCC
592; Barium Chemicals Ltd. & Anr. v. The Company Law Board & Ors., D
(1966) Suppl. 3 SCR 311 and M.A. Rashid & Ors. v. State of Kera/a, (1975)
2 SCR 93, relied on.

"Council of Civil Services Union & Ors. v. Minister for Civil Services
(1985) AC 374 GCHQ Lord Diplock, referred to. E
Per ARIJIT PASAYAT J. (Dissenting/ram the majority except on the
scope ofArticle 36I granting immunity to the Governor, on which concurring
with the majority):

1.1. Sometimes a power is coupled with a duty. Thus, a limited F
judicial review against administrative action is always available to the
Courts. Even after elaboration in Bommai 's case the scope for judicial
review in respect of Governors' action cannot be put on the same pedestal
as that of other administrative orders. As observed in Para 376 of the
judgment in Bommai 's case the scope of judicial review would depend upon G
facts of the given case. There may be cases which do not admit of judicial
prognosis. The principles which are applicable when an administrative
action is challenged cannot be applied stricto sensu to challenges made in
respect of proclamation under Article 356. However, in view of what is
observed explicitly in Bommai's case, the proclamation under Article 356(1)
is not legislative in character. (714-G, H; 715-A( H
582 S!PRF:vlr. COl'RT RFPORfS [2006] I S.C.R.

A 1.2. 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
B within the powers of the authority. It is an unwritten rule of the law,
constitutional and adininistrative, 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.
C (715-B, CJ

1.3. The Wednesbury principle is often misunderstood to mean that
any administrative decision which is regarded by the Court to be
unreasonable must be struck down. The correct understanding of the
Wednesbury principle is that a decision will be said to be unreasonable in
D the Wednesbury sense if (i) it is based on wholly irrelevant material or
wholly irrelevant consideration, (ii) it has ignored a very relevant material
which it should have taken into consideration, or (iii) it is so absurd that
no sensible person could ever have reached to it. (715-D, El

E 1.4. Allegation of mala-jides without any supportable basis is the last
feeble attempt of a losing litigant, otherwise it will create a smokescreen
on the scope of judicial review. This is a pivotal issue around which the
fate of this case revolves. The satisfaction of the President is justiciable.
It would be open to challenge on the ground of malafides or being based
wholly on extraneous or irrelevant grounds. The sufficiency or the
F correctness of the factual position indicated in the report is not open to
judicial review. The truth or correctness of the materials cannot be
questioned by the Court nor would it go into the adequacy of the material
and it would also not substitute its opinion for that of the President.
Interference is called for only when there is clear case of abuse of power
G 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
H in a position to form a stable Government is essentially the subjective
;
J
RAMESHWAR PRASAD v.U.0.1. 583
opinion of the Governor; of course to be based on objective materials. The A
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. [717-D, G[

1.5. The well recognized position in law is that purity in the electorate
process and the conduct of the elected representative cannot be isolated B
from the constitutional requirements. "Democracy" and "Free and Fair
Election" are inseparable twins. There is almost an inseverable umbilical
cord joining them. In a democracy the little man- voter has overwhelming
importance and cannot be hijacked from the course of free and fair
elections. His freedom to elect a candidate of his choice is the foundation C
of a free and fair election. But after getting elected, if the elected candidate
deviates from the course of fairness and purity and becomes a
"Purchasable commodity" he not only betrays the electorate, but also
pollutes the pure stream of democracy. [724-C, DI

1.6. It is not and cannot be said that by preventing a claim to be D
staked the Governor does not ac(irrationally or on extraneous premises.
Had the Governor acted with the object of preventing anyone from staking
a claim his action would have been vulnerable. The conduct of the
/ G~vernor may be suspicious and may be so in the present case, but if his
opinion about the adoption of tainted means is supportable by tested E
materials, certainly it cannot be extraneous or irrational. It would all
depend upon the facts of each case. If the Governor in a particular case
without tested or unimpeachable material merely makes an observation
'· that tainted means are being adopted, the same would attract judicial
review. But in the instant case there is some material on which the
Governor has acted. This ultimately is a case of subjective satisfaction F
based on objective materials. On the factual background one thing is very
clear i.e. no claim was staked and on the contrary the materials on record
show what was being projected. It is also clear from a bare perusal of the
documents which the petitioners have themselves enclosed to the writ
petitions that authenticity of the documents is suspect. [726-F-H; 727-A) G
1.7. Judicial response to human rights cannot be blunted by legal
jugglery. Justice has no favourite other than the truth. Reasonableness,
rationality, legality as well as philosophically provide colour to the meaning
offundamental rights. What is morally .wrong cannot be politically right.
... The petitiqners themselves have founded their claims on documents which H
•

584 SUPREME COURT REPORTS (2006] I S.C.R.

A do not have even shadow of genuineness so far as claim of majority is
concerned. If the Governor felt that what was being done was morally
wrong, it cannot be treated as politically right. This is his perception. It
may be erroneous. It may not be specifically spelt out by the Constitution
so far as his powers are concerned. But it ultimately is a perception.
Though erroneous it cannot be termed as extraneous or irrational.
B Therefore howr.ver suspicious conduct of the Governor may be, and even
if it is accepted that he had acted in hot haste it cannot be a ground to
term his action as extraneous. A shadow of doubt about bona jides does
not lead to an inevitable conclusion about malajides. Similar perceptions
by Governors may lead to chaotic conditions. There may be human errors.
C Therefore, the concerned Governor has to act carefully with care and
caution and can draw his inference from tested and unimpeachable
material; otherwise not. (727-B-E[

S.R. Bommai and Ors. v. Union ofIndia and Ors., (1994[ 3 SCC l; State
of Rajasthan and Ors. v. Union of India and Ors., 11977[ 3 SCC 592; Om
0 Kumar and Ors. v. Union of India, (20011 2 SCC 386; Union of India and
Anr. v. G. Ganayutham, 11997[ 7 SCC 463; Clariant International Ltd. and
Anr. v. Securities and Exchange Board of India, 120041 8 SCC 524; Smt.
Shalini Soni and Ors. v. Union of India and Ors., (19801 4 SCC 544; S.
Parthasarthi v. State of A.P. (1974) 3 SCC 459; State of Punjab v. V.K.
Khanna and Ors., [20011 2 SCC 330; Barium Chemicals Ltd. and Anr. v.
E Company Law Board and Ors., AIR (1967) SC 295; Kihoto Hollohan v.
Zachillhu and Ors., (1992) Supp 2 SCC 651; Jyoti Basu and Ors. v. Debi
Ghosal and Ors., (1982[ I SCC 691; People's Union/or Civil Liberties
(PUCL) and Anr. v. Union of India and Anr., [2003[ 4 SCC 399; Bhupinder
Sharma v. State of Homachal Pradesh, [2003[ 8 SCC 551 and B.R. Kapur v.
F State of Tamil Nadu and Anr., AIR (2001) SC 3435, relied on.

Udai Narain Sinha v. State of U.P. and Ors., AIR (1987) Allahabad
293; K.K. Aboo v. Union ofIndia, AIR (1965) Kerala 229; Special Reference
No.I of 2002 (2002) 8 SCC 237 and A.K. Kaul and Anr. v. Union of India
and Anr., [19951 4 SCC 73, referred to.
G Wednesbury case (1948 (1) KB 223s; Council/or Civil Services Union
v. Minister of Civil Service. (1983) 1 AC 768; R. v. Lancashire CC. exp
Huddleston, 1198612 All ER 941 (CA)[ and Franklin v. Minister of Town
and Country Planning, (19471 2 All ER 289 (HL), referred to.

Sarkaria Commission's Report on Centre-State Relations (1988), paras
H
)
RAMESHWAR PRASAD v.U.0.1. 585
4 and 8; Report of the Committee of Governors (1971); Report of the National A
\ Commission to review the working of the Constitution; Constituent Assembly
debates held on 1.6.1949 (on Article 143), 2.6.1949 (on Article 153), 3.6.1949
(on Articles 188, 277, 278 & 278-A) and on 4.8.1949 (on Articles 188, 277
and 278 and 278-A), referred to.

Wade: Administrative law (9th Edition); Maitland: Constitutional B
History; Dicey: The Law of the Constitution; New Despotism by lord Hcwart
published in 1929 and Constitutions, Constitutionalism, and Democracy by

.. Walter F. Murphy, referred to .
~

2.1. The Governor occupies a very important and significant post in
the democratic set up. When his credibility is at stake on the basis of c
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 is expected to carry out. It
is interesting to note that allegations of favouratism and ma/a jides are
D
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 malajides. This unfortunate situation E
could have been and can be avoided by acting on the recommendations
of the Sarkaria Commission and the Committee of the National,
Commission to review the working of the Constitution in the matter of
appointment of Governors. This does not appear to be convenient for the

" parties because they want to take advantage of the situation at a particular
time and cry foul when the situation does not seem favour>1ble to them. F
This is a sad reflection on the morals of the political parties who do not
loose the opportunity of politicizing the _post of the Governor. Sooner
remedial measures are taken would be better for the democracy.
(788-E-H; 789-AI

2.2. It is not deficiency in the Constitution which is responsible for G
the situation. It is clearly attributable to the people who elect the
Governors on considerations other than merit. It is a disturbing feature,
-r' i and if media reports are to be believed, Raj Bhawans are increasingly
turning into extensions of party offices and the Governors are behaving
like party functionaries of a particular party. This is not healthy for the
H
586 SU PREM!- COUR I' REPORTS [20061 I S.C.R.

A democracy. 1789-B, q

2.3. The key actor in the Centre-State relations is the Governor who
is a bridge between the Union and the State. The founding fathers
deliberately avoided election to the office of the Governor, as is in vogue
in the U.S.A. to insulate the office from the linguistic chauvinism. The
B President has been empowered to appoint him as executive head of the
State under Article t 55 in Part VI, Chapter ll. The executive power of
the State is vested in him by Article 154 and exercised by him with the
aid and advice of the Council of Ministers, the Chief Minister as its head.
Under Article 159 the Governor shall discharge his functions in accordance
with the oath to protect and defeVJd the Constitution and the law. The office
C of the Governor, therefore, is intended to ensure protection and sustenance
of the constitutional process of the working of the Constitution by the
elected executive and given him an umpire's role. He would be an arbiter
when there was a constitutional dead lock in the State and he would be
able to play an impartial role. There would be administrative mechanism
D 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 ~tate Government in times of constitutional
crisis he should bring about sobriety. The link is apparent when one finds
that Article 356 would be put into operation normally based on Governor's
E 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
F 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. [789-C-H; 790-A, Bl

2.4. Article 356, as finally adopted, limits the functions of the
G Governor to making a report to the President that a situation has arisen
in which there has been failure of the constitutional machinery. The
decision whether a Proclamation may be issued under Article 356 rests
with the President, that is to say, the Union Government. Significantly,
the President can exercise the power "on receipt of a report from the
H Governor or otherwise" if he is satisfied that the situation requires the
RAMESHWAR PRASAD v. U.0.l. 587
issue of such a Proclamation. [795-A, Bl A
2.5. Recourse to Article 356 should be the last resort for a Governor
to seek. A frequent criticism of the Governor in this connection is that he
sometimes acts at the behest of the Union Government. This criticism
emanates largely from a lack of appreciation of the situations which
confront the Governors. Imposition of President's rule normally results B
in the President vesting the Governor with executive functions which
belong to his Council of Ministers This is a responsibility which no
Governor would lightly accept. Under President's rule he functions in
relation to the administration of the State under the superintendence,
direction and control of the President and concurrently with him by virtue
of an order of the President. As Head of the State, the Governor has a C
duty to see that the administration of the State does not break down due
to political instability. He has equally to take care that responsible
Government in the State is not lightly disturbed or superseded. In ensuring
these, it is not the Governor alone but also the political parties which must
play a proper role. Political parties come to power with a mandate from D
the electorate and they owe primary responsibility to the Legislature. The
norms of parliamentary Government are best maintained by them.
(i95-C-Fl

2.6. It is not in the event of political instability alone that a Governor
may report to the President under Article 356. Governor may have to E
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 F
to his best judgment, the guiding principle being that the constitutional
machinery in the State should, as far as possible, be maintained.
(795-F-H; 796-Al

Special Reference No. I of 2002, (20021 8 SCC 237, referred to.

Wade's !ntrod~ion of Dicey's Law of the Constitution (1962) edn.
G
referred to.

3. There is no challenge to the validity of 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 H
588 SUPREME COURT REPORTS (2006] l S.C.R.

A constituted. The stand that the Governor was obliged to convene the
Session for administering oath to the members and for formation of a
Cabinet thereafter has no relevance and is also not backed by any ...
constitutional mandate. There was no compulsion on the Governor to
convene a session or to install a Cabinet unless the pre-requisites in that
regard were fulfilled. The reports of the Governor clearly indicated that
B it was not possible to convene a session for choosing a Chief Minister or
for formation of a Cabinet. Even if hypothetically it is held that the
dissolution notifications are unsustainable, yet restoration of status quo ante
is not in the present case the proper relief. As noted supra, no stake was
claimed by any person before the Governor. The documents relied upon
C to show that a majority existed lack authenticity and some of them even
have the stamp of manipulation. The elections as scheduled had reached
an advanced stage. l.Jndisputedly, the Election Commission had made
elaborate arrangements. It would be inequitable to put the clock back and
direct restoration of stats quo ante. (798-E-H; 799-A(

4. A Public Interest Litigation cannot be entertained where the stand
D taken was contrary to the stand taken by those who are affected by any
action. In such a case the Public Interest Litigation is not to be entertained.
That is the case here. (803-EJ

CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No. 257 of
2005.
E
(Under Article 32 of the Constitution of India.)

Milon K. Banerjee, AG, Goolam E. Vahanvati, SG, Gopal Subramaniam,
ASG, Soli J. Sorabjee, Ranjit Kumar, P.P. Rao, H.L. Aggarwal, Maninder
Singh, Ms. Pratibha M. Singh, Preetesh Kapur, Abhinav Mukherji, Sunil
F Fernandes, A.K. Prasad, Saurabh Mishra, Ms. Jaspreet Kaur, Satyajeet Kumar,
Ms. Shweta Singh, Ray Vikram Nath, Syed Ali Ahmed, Syed Tanweer Ahmed,
Girdhar Upadhyay, S.S. Bandyopadhyay, Vinita G. Upadhyay, Awadhesh
Kumar Singh, Rajeev Sharma, R.D. Upadhyay, Syed Tanweer Akhtar, R.D.
Upadhyay, P.S. Narasimha, Sridhar Potaraju, Ananga Bhattacharya, Avijeet
Kumar Lala, Asutosh Pandey, B.K. Prasad, R.M. Sharma, Ms. Sushma Suri,
G Navin Prakash, Ms. Sandhya Goswami, Gaurav Agrawal, S. Muralidhar, S.K.
Mendiratta, Amit Sharma, B.B. Singh, Kumar Rajesh Singh, B.P. Yadav,
Ramjee Prasad Kushwaha, Wahid Hussain, Mushtaq Ahmad and Viplav
Sharma in-person for the appearing parties. ...
The Judgment of the Court was delivered by
H
RAMESHWAR PRASAD v. U.0.1. [SABHARWAL, CJ.] 589
Y.K SABHARWAL, CJ. The challenge in these petitions is to the A
constitutional validity of Notification dated 23rd May, 2005 ordering
dissolution of the Legislative Assembly of the State of Bihar. It is a unique
case. Earlier cases that came up before this Court were those where the
dissolutions of Assemblies were ordered on the ground that the parties in
power had lost the confidence of the House. The present case is of its own
kind where before even the first meeting of the Legislative Assembly, its B
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
c
the dissolution of Assembly unqer Article 356(1) of the Constitution oflndia
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.
D
) Factual Background

Election to the State of Bihar was notified by the Election Commission
on 17th December, 2004. Polling for the said elections were held in three
phases, i.e., 3rd February, 2005, 5th February, 2005 and 13th February, 2005. E
Counting of votes took place on 27th February, 2005. Results of the said
elections were declared by the Election Commission. On 4th March, 2005,
Notification was issued by the Election Commission in pursuance of Section
73 of Representation of People Act, 1951 (for short 'the RP Act, 1951') duly
notifying the names of the members elected for all the constituencies along
with party affiliation. F
Bihar Legislative Assembly comprises of 243 members and to secure
an absolute majority support of 122 Members of Legislative Assembly (in
short 'MLAs'), is required. National Democratic Alliance (for short 'NOA'},
a political coalition of parties comprising of the Bharatiya Janata Party (for
short 'BJP') and the Janata Dal (United) (for short 'JD(U)') was the largest G
pre-poll combination having the support of 92 MLAs. The party-wise strength
in the Assembly was as under:
"(!) NOA 92
(2) RJD 75
H
590 SUPREME COURT REPORTS [2006) I S.C.R.

A (3) LJP 29
(4) Congress (I) 10
(5) CPI (ML) 07
(6) Samajwadi Party 04
(7) NCP 03
B
(8) Bahujan Samaj Party 02
(9) Independents 17
(IO) Others 09"

C Report dated 6th March, 2005 was sent by the Governor to the President,
recommending newly constituted Assembly to be kept in suspended animation
for the present. It reads as under:

"Respected Rashtrapati Jee,

The present Bihar Legislative Assembly has come to an end on
D 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-1)
E
2. Based on the results that have come up, the following is the party-
wise position:
I. R.J.D. 75
2. J.D.(U) 55
F 3. B.J.P. 37
4. Cong(!) IO
5. B.S.P. 02
6. L.J.P. 29
7. C.P.l. 03
G
8. C.P.l.(M) 01
9. C.P.l.(M.L.) 07 .. -

10. N.C.P. 03
11. S.P. 04
H
)
RAMESHWAR PRASAD v. U.O.l. [SABHARWAL, CJ.] 591

12. Independent: 17 A
243

The R.J.D. and its alliance positic-n is as follows:
I. R.J.D. 75
2. Cong.(I) JO
B
3. C.P.I. 03 (support letter
not recd.)
4. C.P.I.(M) OJ
5. N.C.P. 03 c
92

The N.D.A. alliance position is as follows:
I. B.J.P. 37
2. J.D.(U) 55 D
92

3. The present C.M., Bihar, Smt. Rabri Devi met me on 28.2.2005
and submitted her resignation along with her Council of Ministers. I
have accepted the same and asked her to continue till an alternative E
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 F
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 G
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
H
592 SUPREME COURT REPORTS [2006] I S.C.R.

A or NDA in the fonnation 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 woula not support any group in the fonnation of Government.

8. Shri Ram Vilas Paswan, National President of LJP, along with 15
B
others met me and submitted another letter (Annexure VI). They
have reiterated their earlier stand.

9. The RJD met me on 5.3.2005 in the forenoon and they staked
claim to form a Government indicating the support from the following
c parties :
I. Cong(!) 10
2. NCP 03
3. CPl(M) 01
4. BSP 02
D ~

(Copy enclosed as Ann. VII)

The RJD with the above will have only 91.

They have further claimed that some of the Independent members
may support the RJD. However, it has not been disclosed as to the
E
number of Independent MLAs from whom they expect support nor
their names.

Even if we assume the entire Independents totalling 17 to extend
support to RJD alliance, which has a combined strength of 91, the
F total would be 108, which is still short of the minimum requirement
of 122 in a House of 243.

10. The NDA delegation led by Shri Sushi! Kumar Modi, MP, met
me in the evening of 5.3.2005. They have not submitted any further
letter. However, they stated that apart from their pre-election alliance
G of 92, another l 0 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 I 02, which is short of the
minimum requirement of 122.

H
)

RAMESHWARPRASADv. U.0.1. [SABHARWAL,CJ.] 593
11. Six Independent MLAs met me on 5.3.2005 and submitted a letter A
in which they have claimed that they may be called to form a
Government and they will be able to get support of others (Annexure
VIII). They have not submitted any authorization letter supporting
their claim.

12. I have also consulted the Legal experts and the case laws B
particularly the case reported in AIR 1994 SC 1918 where the
Supreme Court in para 365 of the report summarised the conclusion.
The relevant part is para 2, i.e., the recommendation of the Sarkaria
Commission do merit serious consideration at the hands of all
concerned. Sarkaria Commission in its report has said that Governor
while going through the process of selection should select a leader C
who in his judgment is most likely to command a majority in the
Assembly. The Book "Constitution of India" written by Shri V.N.
Shukla (10th edition) white dealing with Article 75 and Article 164 of
the Constitution of India has dealt with this subject wherein it has
quoted the manner of selection by the Governor in the following D
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 doubtfol who that leader is and the E
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 F
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 G
is able to fonr 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."
H
594 SUPREME COURT REPORTS [2006] I S. C.R.

A 13. I explored all possibilities and from the facts stated above, I am
fully satisfied that no political party or coalition of parties or groups
is able to substantiate a claim of majority in the Legislative Assembly,
and having explored the alternatives with all the political parties and
groups and Independents MLAs, a situation has emerged in which no
political party or groups appears to be able to form a Government
B commanding a majority in the House. Thus, it is a case of complete
inability of any political party to form a stable Government
commanding the confidence of the majority members. This is a case
of failure of constitutional machinery.

14. I, as Governor of Bihar, am not able to form a popular Government
c in Bihar, because of the situation created by the election results
mentioned above.

15. I, therefore, recommend that the present newly constituted
Assembly be kept in suspended animation for the present, and the
President oflndia is requested to take such appropriate action/decision,
D as required."

Since no political party was in a position to fo: m a Government, a
notification was issued on 7th March, 2005 under Article 356 of the
Constitution imposing President's rule over the State of Bihar and the
E Assembly was kept in suspended animation. Another notification of the same
date was also issued, inter alia, stating that the powers exercisable by the
President shall, subject to the superintendence, direction and control of the
President be exercisable also by the Governor of Bihar.

The object of the proclamation imposing President's rule was to give
F time and space to the political process to explore the possibility of forming
a majority Government in the State through a process of political realignment
as is reflected in the speech of Home Minister Shri Shivraj V. Patil in the
Rajya Sabha on 2 lst March, 2005 when the Bihar Appropriation (Vote on
Account) Bill, 2005 was discussed. The Home Minister said :

G " ..... But, I would like to make one point very clear. We are not very
happy to impose President's Rule on the State of Bihar. Let there be
no doubt in the minds of any Members of the House; we are not
happy. After the elections we would have been happy if Government
would have been formed by the elected representatives. That was not
possible and that is why, President's Rule was imposed. But we
H
}
'
RAMESHWARPRASADv. U.0.1. [SABHARWAL,CJ.] 595

cannot take pleasure in saying "Look we did this". We are not happy A
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 B
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 C
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 D
in deference to the popular wishes of the people and announced support to
the NOA Jed by Shri Nitish Kumar. First such announcement was made by
the entire group of 17 independent MLAs on 8th April, 2005. The signed
declaration was released by these MLAs to the media. With the support of
17 independent MLAs the support base of the NOA ro~e to I09 MLAs. Later E
on, it rose to 115 MLAs with the declaration of support by the Samajwadi
Party (SP), the Bahujan Samaj Party (BSP) and the Nationalist Congress
Party (NCP).

Governor of Bihar sent a report on 27th April, 2005 to the President of
India, inter alia, stating that the newspaper reports and other reports gathered F
through meeting with various party functionaries/leaders and also intelligence
reports received, indicated a trend to gain over elected represei:itatives 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
was a disturbing feature. According to the said report, the situation was fast
approaching a scenario wherein if the trend is not arrested immediately the G
consequent political instability will further give rise to horse trading being
practiced by various political parties/groups trying to allure elected MLAs.
That it would not be possible to contain the situation without giving the
people another opportunity to give their mandate through a fresh poll. The
report is reproduced below in its entirety. H
596 SUPREME COURT REPORTS (2006] I S.C.R.

A "Respected Rashtrapati Jee, , ii

I invite a rderence to my D.O. No.33/GB dated the 6th March,
2005 through which a detailed analysis of the results of the Assembly
elections were made and a recommendation was also made to keep
the newly constituted Assembly (constituted vide Election
Commission's notification No.308/BR-L.A./2005 dated the 4th March,
2005 and 464/Bihar-LA/2005, dated the 4th March, 2005) in a
suspended animation and also to issue appropriate direction/decision.
In the light of the same, the President was pleased to issue a
proclamation under Article 356 of the Constitution of India vide
notification NO.G.S.R. 162(E), dated 7th March, 2005, and the
c proclamation has been approved and assented by the Parliament.

2. As none of the parties either individually or with the then pre-
election combination or with post-election alliance combination could
stake a claim to form a popular Government wherein they could
D claim a support of a simple majority of 122 in a House of 243, I had
no alternative but to send the above mentioned r,·port 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
E 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
F 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
G
form the Government in Bihar on UPA pattern in the centre, with the
support of Congress, LJP and others or he should at least ensure the •
continuance of President's rule in the State.

4. The National Commission to review the working of the Constitution
H has also noticed that the reasons for increasing instability of elected
RAMESHWARPRASAD v. U.0.1. [SABHARWAL, CJ.] 597

Governments was attributable to unprincipled and opportunistic A
political realignment from time to time. A reasonable degree of stability
of Government and a strong Government is important. It has also
noticed that the changing alignment of the members of political parties
so openly really makes a mockery of our democracy.

Under the Constitutional Scheme a political party goes before the B
electorate with a particular programme and it sets up candidates at the
election on the basis of such programmes. The I 0th Schedule of the
Constitution was introduced on the premise that political propriety
and morality demands that if such persons after the elections changes
his affiliation, that should be discouraged. This is on the basis that C
the loyalty to a party is a norm, being based on shared beliefs. A
divided party is looked on with suspicion by the electorate.

5. Newspaper reports in the recent time and other reports gathered
through meeting with various party functionaries/leaders and also
intelligence reports received by me, indicate a trend to gain over D
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 E
to contiirne 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 F
give rise to horse trading being practiced by various political parties/
groups trying to allure elected MLAs. Consequently it may not be
possible to contain the situation without giving the people another
opportunity to give their mandate through a fresh poll.

7. I am submitting these facts before the Hon 'ble President for taking G
such action as deemed appropriate."

According to the petitioners, Lok Janashakti Party (LJP) had contested
elections on the plank of opposing the then Government Jed by Rashtriya
Janata Dal (RJD), which again is a constituent of United Progressive Alliance H
598 SUPREME COURT REPORTS [2006] I S.C.R.
A (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 ihat he was opposed
to RJD as well as NOA led by the BJP. MLAs belonging to LJP were in a
rebellious mood. A.bout 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
B 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
C Constitution. It provides that on a merger of the political party, all the members
·-
of the new political party with which the merger has taken place if and only
if not less than two-third of the members of the said party have agreed to the
said merger. It is their allegation that in order to thwart the formation of a
Government led by JD(U) the Governor of Bihar sent another report from its
Camp Office in Delhi on 21st May, 2005 to the President of India. It was
D reiterated in the report that from the information gathered through reports from
media, meeting with various political functionaries, as also intelligence reports,
a trend was indicated to win over elected representatives of the people. In his
view a situation had arisen in the State wherein it would be desirable in the
interest of State that assembly which has been kept in suspended animation
E be dissolved so that the people.lelectorate could be provided with one more
opportunity to seek the mandate of the people at an appropriate time to be
decided in due course. The report dated 21st May, 2005 is reproduced in its
entirety as follows :

"Respected Rashtrapati Jee,
F I invite a reference to my D.O. letter No.52/GB dated 27th April,
2005 through which I had given a detailed account of the attempts
made by some of the parties notably the JD-U and BJP to cobble a
majority and lay a claim to form a Government in the State. I had
informed that around 16-17 MLAs belonging to LJP were being wooed
G by various means so that a split could be effected in the LJP. Attention
was also drawn to the fact that the RJD MLAs had also become
restive in the light of the above moves made by the JD-U.

As you are aware after the Assembly Elections in February this
year, none of the political parties either individually or with the then
H pre-election combination or with post-election alliance combination
/
RAMESHWAR PRASAD v. U.0.1. [SABHARW AL, CJ.] 599

could stake a claim to form a popular Government since they could A
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. B
The reports received by me in the recent past through the media
and also through meeting with various political functionaries, as also
intelligence reports, indicate a trend to win over elected representatives
of the people. Report has also been received of one of the LJP MLA,
who is General Secretary of the party having resigned today and also C
17-18 more perhaps are moving towards the JD-U clearly indicating
that various allurements have been offered which is very disturbing
and alarming feature. Any move by the break away faction to align
with any other party to cobble a majority and stake claim to form a
Government would positively affect the Constitutional provisions and
safeguards built therein and distort the verdict of the people as shown D
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 E
has arisen in the State wherein it would be desirabl.e 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." F
The report of the Governor was received by Union of India on 22nd
May, 2005 and on the same day, the Union cabinet met at about 11.00 P.M.
and decided to accept the report of the Governor and sent the fax message
to the President of India, who had already left for Moscow, recommending
the dissolution of the Legislative Assembly of Bihar. This message was G
received by the President of India at his Camp office in Moscow at 0152 hrs.
(!ST). President of India accorded his approval and sent the same through the
_fax message which was received at 0350 hrs. (!ST) on 23rd May, 2005. After
due process the notification was issued formally at 1430 hrs. (!ST) on 23rd
May, 2005 dissolving the Bihar Assembly which has been impugned in these H
\.

600 SUPREME COURT REPORTS (2006) I S.C.R.

A writ petitions.
Challenging proclamation dated 23rd May, 2005 issued under Article
356 of the Constitution ordering dissolution of Bihar Legislative Assembly,
petitioners have also prayed for restoration of Election Commission notification
B dated 4th May, 2005 issued under Section 73 of the RP Act of 1951.

According to the petitioners, the condition precedent for dissolving the
assembly is that there must be satisfaction of the President that a situation has
arisen in which the Government o~a State cannot be carried on in accordance
with the provisions of the Constitution. That this satisfaction has to be based
C on cogent material. Power of dissolution cannot be used to prevent the
staking of claim for the formation of a Government by a political party with
support of others. That the assembly was placed under suspendetJ animation
•
with the intention of providing time and space to political parties to explore
the possibility of providing a majority Government in the State. No sooner the
process of realignment was complete ensuring that the NDA led by Shri
D Nitish Kumar· had the support of over 135 MLAs, report was sent by the
Governor. The midnight meeting of the Cabinet was hurriedly called in order
to prevent the formation of a Government. It was incumbent upon the Governor
to make a meaningful and real effort for securing the possibility of a majority
Government in the State. According to them the intention of the Governor
E was to prevent the formation of a Government led by Shri Nitish Kumar.
That there was no materiaf available or in existence to indicate that any
political defection was being attempted through the use of money or muscle
power. In the absence of any such material the exercise of power under
Article 356 was a clear fraud on the exercise of power.

F That allegations in the Governor's report of horse trading was factually
incorrect and fictional. It was incumbent upon the Governor to verify the
facts personally from the MLAs. That under the scheme of the Constitution
the decision with regard to mergers and disqualifications on the ground of
defection or horse trading is vested in the Speaker. The Governor could not
G 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 and Ors. v. Union of India & Ors., [1994] 3 SCC l, it was
contended that action of the Governor is ma/a 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
H exercise of judicial review this Court should quash the impugned notification
RAMESHWARPRASADv. U.0.1. [SABHARWAL,CJ.] 601
and as a consequence restore the legislative assembly constituted by the A
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 B
quo ante at least as on 7th March, 2005 may be directed.

Mr. Viplav Sharma, advocate, appearing in person in writ petition No.258
of 2005 adopting the arguments of Mr.Sorabjee further contended that before
even elected candidates making and subscribing oath or affirmation, as C
contemplated by Article 188 of the Constitution, even the Assembly could
not be placed under suspended animation and status quo as on the date of
issue of notification under Section 73 of the RP Act of 1951 deserves to be
directed.

Mr. Narasimha, appearing in Writ Petition (C) No.353 for the petitioner, D
also adopted the arguments of Mr.Sorabjee but at the same time further
contended that it is not legally permissible to order the dissolution of Assembly
before its meeting even once and the MLAs being administered the oath as
contemplated by the Constitution. This was also the submission of Mr. Viplav
Sharma. Arguments on behalf of respondent Union of India were led by
learned Attorney General, Mr. Milon Banerjee, followed by learned Solicitor E
General and Additional Solicitor General, Mr. Gulam Vahanavati and Mr.
Gopal Subramaniam respectively. Mr. P.P. Rao, learned senior advocate argued
for State ofBihar. We place on record our appreciation for excellent and very
• able assistance rendered by all the advocates.

After hearing arguments on the question of the Governor not being F
answerable to any Court in view of immunity granted by Article 361(1) of
the Constitution, we accepted the submission of the Government in terms of
our order dated 8th September, 2005 that notice may not be issued to the
Governor, giving brief reason in order to be followed by detailed reasons
later. The said order reads as under : G
"On the question whether the Governor could be impleaded in his
capacity as the Governor and whether notice could be issued to him
on the writ petitions in the context of averments made and the prayers
contained in the .petitions and other aspects highlighted in the order
dated 31st August, 2005, we have heard Mr. Soli J. Sorabjee, learned H

r
602 SUPREME COURT REPORTS [2006) I S.C.R.

A senior counsel appearing in Writ Petition (C) No.257 of2005, and Mr.
Viplav Shanna, petitioner-in-person in Writ Petition (C) No.258 of2005.
We have also heard the submissions made by Mr. Milon K. Banerji,
Attorney General for India, and Mr. Gopal Subramaniam, learned
Additional Solicitor General.

B The Constitution of India grants immunity to the Governor as
provided in Article 361. Article 361 (I), 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
c and Additional Solicitor General that in view of Article 361 (I), 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
D issued under Article 356( I) of the Constitution of India on the ground
of ma/a fides or it being ultra vires. It would be for the Government
to satisfy the court and adequately meet such ground of challenge.
A ma/a 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 ma/a fide or ultra
E vires and, thus, the Government supporting the proclamation under
Article 356(1) shall have to meet the challenge. The immunity granted
under Article 361 does not mean that in the absence of Governor, the
ground of ma/a fides or proclamation being ultra vires would not be
examined by the Court. At this stage, we have not examined the .
F question whether the exercise of power by the Governor was ma/a
fide or ultra vires or not. That is a question still to be argued.

These are our brief reasons. We will give detailed reason later."

Under the aforesaid factual background, the points that fall for our
G determination are :
(I) ls it permissible to dissolve the Legislative Assembly under Article
l 74(2)(b) of the Constitution without its first meeting taking place?
(2) Whether the proclamation dated 23rd May, 2005 dissolving the
Assembly of Bihar is illegal and unconstitutional?
H
J
RAMESHWARPRASADv. U.0.1. (SABHARW AL, CJ.) 603

(3) If the answer to the aforesaid question is in affirmative, is it A
necessary to direct status quo ante as on 7th March, 2005 or 4th
March, 2005?

(4) What is the scope of Article 361 granting immunity to the
Governor?
B
After hearing elaborate arguments, by a brief order dated 7th October,
2005, the notification dated 23rd May, 2005 was held to be unconstitutional
but having regard to the facts and circumstances of. the case, relief directing
status quo ante to restore the Legislative Assembly as it stood on 7th March,
2005, was declined. The Order dated 7th October reads as under :
c
"The General Elections to the Legislative Assembly of Bihar were
held in the month of February 2005. The Election Commission of
India, in pursuance of Section 73 of the Representation of the People
Act, 1951 in terms of Notification dated 4th March, 2005 notified the
names of the elected members.
D ..
As no party or coalition of the parties was in a position to secure
122 seats so as to have majority in the Assembly, the Governor of
Bihar made a report dated 6th March, 2005 to the President of India,
whereupon in terms of Notification G.S.R. t62(E) dated 7th March,
2005, issued in exercise of powers under Article 356 of the Constitution E
of India, the State was brought under President's Rule and the
Assembly was kept in suspended animation. By another Notification
G .S.R. l 63(E) of the same date, 7th March, 2005, it was notified that
. all powers which have been assumed by the President of India, shall,
subject to the superintendence direction and control of the President,
be exercisable also by the Governor of the State. The Home Minister F
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, G
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 H
\
604 SUPREME COURT REPORTS [2006] I S.C.R.

A 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
B India, one dated 27th April, 2005 and the other dated 2 lst May,
2005. On consideration of these reports, Notification dated 23rd fyiay,
2005 was issued in exercise of the powers conferred by sub-clause
(b) of Clause (2) of Article 174 of the Constitution, read with clause
(a) of the Notification G.S.R.162(E) dated 7th March, 2005 issued
c 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
D and Mr. Viplav Sharma, advocate appearing-in-person have made
elaborate submissions in support of the challenge to the impugned
action of dismissing the assembly.

On the other hand, Mr. Milon K. Banerjee, Attorney-General for
India, Mr. Goolam E. Vahanavati, Solicitor General and Mr. Gopal
E Subramaniam, 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 having far reaching
F impact have been addressed from both sides. After the conclusion of
the hearing of oral arguments, written submissions have also been
filed by learned counse I.

Fresh elections in State of Bihar have been notified. As per press
note dated 3rd September, 2005 issued by Election Commission of
G India, the schedule for general elections to the Legislative Assembly
of Bihar has been announced. According to it, the polling is to take
place in four phases commencing from 18th October, 2005 and ending
with the fourth phase voting on 19th November, 2005. As per the
said press note, the date of Notification for first and second phase of
H. poll was 23rd September and 28th September, 2005, date of poll
RAMESHWARPRASAD v. U.0.1. [SABHAR WAL, CJ.] 605
being 18th October, 2005 and 26th October, 2005 respectively. A
Notifications for third and fourth phases of poll are to be issued on
19th and 26th October, 2005 respectively.

Keeping in view the questions involved, the pronouncement of
judgment with detailed reasons is likely to take some time and,
therefore, at this stage, we are pronouncing this brief order as the B
order of the court to be followed by detailed reasons later.

Accordingly, as per majority opinion, this court orders as under:

l. The Proclamation dated 23rd May, 2005 dissolving the
Legislative Assembly of the State ofBihar is unconstitutional. C
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 D
Proclamation dated 7th March, 2005 whereunder it was kept
under suspended animation."

POINT NO. I - Is it permissible to dissolve the Legislative Assembly
under Article 174(2) (b) of the Constitution without its first meeting
taking place? E
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 F
behalf of the JJetitioners by Mr. Narsimha and Mr. Viplav Sharma, appearing-
in-person, that a Legislative Assembly can be dissolved under Article l 74(2)(b)
only after its first meeting is held as postulated by Article l 72 of the
Constitution. The argument is that there cannot be any dissolution without
even members taking oath and the Legislative Assembly coming into existence.
What does not exist, cannot be dissolved, is the submission. In this regard, G
the question to be considered also is whether the date for first meeting of the
Legislative Assembly can be fixed without anyone being in a position to
.form the Government.

Let us first examine the relevant constitutional and statutory provisions. H
606 SUPREME COURT REPORTS (2006) I S.C.R.

A Part VI of the Constitution dealing with the States has six chapters but
relevant for our purpose are Chapter JI and Chapter III. Chapter II comprising
Article 153 to Article 167 relates to the executive, Chapter III comprising
Article 168 to Article 212 relates to the State Legislature.

B The federal structure under our Constitution contemplates that there
shall be a ·Legislature for every State which shall consist of a Governor and
one or two Houses, as provided in Article 168. Article 170 prescribes that the
Legislative Assembly of each State shall consist of members chosen by direct r
election from territorial constituencies in the States. Article 170, therefore,
brings in the democratic process of election.
c Article 164 puts into place an executive Government. It enjoins upon the
Governor to appoint the Chief Minister and other ministers on the advice of
the Chief Minister. The Council of Ministers (Article 163) exercises the
executive power of the State as provided under Article 154. Article 164(2)
provides that the Council of ministers shall be collectively responsible to the
D Legislative Assembly of the State.

As provided in Article 172, every Legislative Assembly of every State,
..
unless sooner dissolved, shall continue for five years from the date appointed
for its first meeting and no longer and the expiration of the said period of five
E years shall operate as a dissolution of the Assembly. Article 174(1) provides
that the Governor shall from time to time summon the House to meet at such
time and place as he thinks fit, but six months shall not intervene between
its last sitting in one session and the date appointed for its first sitting in the
next session. Article 174(2) (b) provides that the Governor may from time to
time dissolve the Legislative Assembly. ......
F
Every member of the Legislative Assembly of the State shall, before
taking his seat, make and subscribe before the Governor, an oath or affirmation,
as provided in Article 188 of the Constitution.

The contention urged is that the function of the Governor in summoning
G 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
H Government.
RAMESHWARPRASADv. U.O.l.[SABHARWAL,CJ.] 607

According to Mr. Narasimha, the Governor failed to fulfill these A
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 B
the Legislative Assembly is not even constituted, where is the question of its
dissolution, is the contention urged. The submission is that under the scheme
of Indian Constitution, it is impermissible to dissolve a Legislative Assembly
before its first meeting and members making oath or affirmation as required
by Article 188. According to the petitioners, tinder Indian Constitution, the
Legislative Assembly is duly constituted .only upon the House being summoned C
and from the date appointed for its first meeting. Article 172 which provides
for duration of State Legislatures reads as under:

"172. Duration of State Legislatures - (I) Every Legislative Assembly
of every State, unless sooner dissolved shall continue for (five years)
from the date appointed for its first meeting and no longer and the D
expiration of the said period of (five years) shall operate as a
dissolution of the Assembly:
Provided that the said period, may while a proclamation of Emergency
is in operation, be extended by Parliament by law for a period not E
exceeding one year at a time and not extending in any case beyond
a period of six months after the· Proclamation has ceased to operate.

·- (2) The Legislative Council of a State shall not be subject to
dissolution, but as nearly as possible one third of the members thereof
shall retire as soon as may be on the expiration of every second year
in accordance with the provisions made in that behalf by Parliament
F

by.law.

The aforesaid constitutional provision stipulates that five years term of
a Legislative Assembly shall be reckoned from the date appointed for its first
meeting and on the expiry of five years commencing from the date of the G
first meeting, the Assembly automatically stands dissolved by afflux of time.
The duration of the Legislative Assembly. beyond five years is impermissible
in view of the mandate of the aforesaid provision that the Legislative Assembly
shall continue for five years and 'no longer'. Relying upon these provision~,
it is contended that the due constitution of the Legislative Assembly can only
be after its first meeting when the members subscribe oath or affirmation H
608 SUPREME COURT REPORTS [2006] I S.C.R.

A under Article 188. The statutory deemed constitution of the Assembly under
Section 73 of the R.P. Act, 1951, according to the petitioners, has no relevance
for determining due constitution of Legislative Assembly for the purpose of
Constitution of India.

B Reference on behalf of the petitioners has also been made to law existing
prior to the enforcement of the Constitution of India contemplating the
commencement of the Council of State and Legislative Assembly from the
date of its first meeting. It was pointed out that Section 63(d) in the Government
of India Act, 1915 which dealt with Indian Legislature provided that every
Council of State shall continue for five years and every Legislative Assembly
C 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
D 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,
E is as under:

"73. Publication of results of general elections to the House of the
People and the State Legislative Assemblies. Where a general election

F
is held for the purpose of constituting a new House of the People or
a new State Legislative Assembly, there shall be notified by [the
Election Commission] in the Official Gazette, as soon as may be after
[the results of the elections in all the constituencies] [other than these
-
in which the poll could not be taken for any reason on the date
originally fixed under clause (d) of section 30 or for which the time
for completion of the election has been extended under the provisions
of section 153] have been declared by the returning officer under the
G provisions of section 53 or, as the case may be section 66, the names
of the members elected for those constituencies] and upon the issue
of such notification that House or Assembly shall be deemed to be
duly constituted."

In the present case, Notification under Section 73 of the RP Act, 1951
H
RAMESHWARPRASADv. U.0.1.[SABHARWAL,CJ.] 609
was issued on 4th March, 2005. The deemed constitution of the Legislative A
Assembly took place under Section 73 on the issue of the said notification.
The question is whether this deemed constitution of Legislative Assembly is
only for the purpose of the RP Act, 1951 and not for the constitutional
provisions so as to invoke power of dissolution under Article 174(2)(b). The
stand of the Government is that in view of aforesaid legal fiction, the
constitution of the Legislative Assembly takes place for all purposes and, B
thus, the Legislative Assembly is deemed to have been 'duly constituted' on
4th March, 2005 and, therefore, the Governor could exercise the power of
dissolution under Article 174(2)(b).

Section 73 of the RP Act, 1951 enjoins upon the Election Commission
to issue notification after declaration of results of the elections in all the C
constituencies. The superintendence, direction and control of elections to
Parliament and to the Legislature of every State vests in Election Commission
under Article 324 of the Constitution. Article 327 provides that Parliament may
make provision with respect to all matters relating to, or in connection with,
elections to the Legislative Assembly of a State and all other matters necessary D
for securing the 'due constitution' of the House of the Legislature. Article 329
bars the interference by courts in electoral matters except by an election
petition presented to such authority and in such manner as may be provided
for by or under any law made by the appropriate Legislature. Article 327 read
with Section 73 of the RP Act, 1951 provide for as to when the House or
Assembly shall be 'duly constituted', No provision, constitutional or statutory, E
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 I 74(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 F
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 G
that the issue of notification under Section 73 shall not be deemed to affect
• the duration of the State Legislative Assembly, if any, functioning immediately
before the issue of the said notification. In fact, clause (b) further fortifies the
conclusion that the duration of the Legislative Assembly is different than the
due constitution thereof. In the present case, we are not concerned with the H
question of duration of the Assembly but with the question whether the
610 SUPREME COURT REPORTS [2006] I S.C.R.

A Assembly had been duly constituted or not so as to enable the Governor to
exercise the powerofdissolution under Article 174(2)(b). The Constitution of
India does not postulate one 'due constitution' for the purposes of elections
under Part XV and another for the purposes of the executive and the State
Legislature under Chapter II and Ill of Part VI. The aforenoted provisions
B existing prior to the enforcement of Constitution of India are also of no
relevance for determining the effect of deemed constitution of Assembly
under Section 73 of the RP Act, 1951 to exercise power of dissolution under
Article 274 (2)(b ).

In K.K. Abu v. Union ofIndia and Ors., AIR(l965) Kerala 229, a learned
C Single Judge of the High Court rightly came to the conclusion that neither
Article 172 nor Article 174 prescribe that dissolution of a State Legislature can
only be after commencement of its term or after the date fixed for its first
meeting. Once the Assembly is constituted, it becomes capable of dissolution.
This decision has been referred to by one of us (Arijit Pasayat, J.) in Special
Reference No. I of 2002 (popularly known as Gujarat Assembly Election
D matter) [2002] 8 sec 237. No provision of the Constitution stipulates that
the dissolution can only be after the first meeting of the State Legislature. The
acceptance of the contention of the petitioners can also lead to a breakdown
of the Constitution. In a given case, none may come forth to stake claim to
form the Government, for want of requisite strength to provide a stable
E Government. If petitioners' contention is accepted, in such an eventuality, the
Governor will neither be able to appoint Executive Government nor would he
be able to exercise power of dissolution under Article I 74(2)(b). The
Constitution does not postulate a live Assembly without the Executive
Government.

F On behalf of the petitioners, reliance has, however, been placed upon
a decision of a Division Bench of Allahabad High Court in the case of Udai
Narain Sinha v. State of U.P. and Ors., AIR [1987] All.203]. Disagreeing with
the Kerala High Court, it was held that in the absence of the appointment of
a date for the first meeting of the Assembly in accordance with Article 172(1 ),
G 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
H Assembly so as to enable them to function after being summoned to meet
RAMESHW AR PRASAD v. U. 0.1. [SABHARWAL, CJ.] 611

,J under Article 174 of the Constitution. We are unable to read any such A
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. B
This case does not fall in the later category.

\ In Gujarat Assembly Election Matter, the issue before the Constitution
Bench was whether six months' period contemplated by Article 174(1) applies
to a dissolved Legislative Assembly. While dealing with that question and
holding that the said provision applies only to subsisting Legislative Assembly c
and not to a dissolved Legislative Assembly, it was held that the constitution
. ,, of any Assembly can only be under Section 73 of the RP Act, 1951 and the
requirement of Article 188 of Constitution suggests that the Assembly comes
into existence even before· its first sitting commences. (Emphasis supplied by
us).
'(" D
....\
In view of the above, the first point is answered against the petitioners.

POINT N0.2: Whether the proclamation dated 23rd May, 2005
dissolving the Assembly of Bihar is illegal and unconstitutional?

This point is the heart of the matter. The answer to the constitutional E
validity of the impugned notification depends upon the scope and extent of
judicial review in such matters as determined by a Nine Judge Bench decision
in Bommai 's case. Learned counsel appearing for both sides have made
·,,-....
elaborate submissions on the question as to what is the ratio decidendi of
Bommai 's case.
F
According to the petitioners, the notification dissolving the Assembly
is illegal as it is based on the reports of the Governor which suffered from
serious legal and factual infirmities and are tainted with pervasive ma/a fides
which is evident from the record. It is contended that the object of the reports
of the Governor was to preverit political party led by Mr. Nitish Kumar to
G
form the Government The submission is that such being the object, the
consequent notification of dissolution accepting the recommendation deserves
.. to be anmilled.

Under Article 356 of the Constitution, the dissolution of an Assembly
can be ordered on the satisfaction that a situation has arisen in which the H
612 SUPREME COURT REPORTS [2006] I S.C.R.

A Government of the State cannot be carried on in accordance with the
Constitution. Such a satisfaction can be reached by the President on receipt
of report from the Governor of a State or otherwise. It is permissible to arrive
at the satisfaction on receipt of the report from Governor and on other material.
Such a satisfaction can also be reached only on the report of the Governor.
B It is also permissible to reach such a conclusion even without the report of
the Governor in case the President has other relevant material for reaching
the satisfaction contemplated by Article 356. The expression 'or otherwise'
is of wide amplitude.

In the present case, it is not in dispute that the satisfaction that a
C 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.

D The Governor in the report dated 6th March, 2005 has referred to
Bommai 's case as also to the recommendations of Sark.Jria Commission.
Sarkaria Commission Report in Chapter IV deals extensively with the role of
the Governors. Since in this case, the dissolution of the A~sembly is based
solely on the reports of the Governor and the issue also is as to the role
E played by the Governor and submissions also having been made on role
which is expected from a high constitutional functrary like Governor, it
would be useful to first examine that aspect.

Role of Governor

The role of the Governor has been a key issue in the matters of Central-
F
State relations. The Constitution of India envisages three tiers of Government
the Union, State and the Local Self-Government. From the functional
standpoint, it is stated that such a Constitution "is not a static format, but a
dynamic process" [Report of the Sarkaria Commission on Centre-State
Relations (1988)]. In the context of Union-State relations it has been noted
G that "the very dynamism of the system with all its checks and balances brings
in its wake problems and conflicts in the working of Union-State relations."

In the light of a volatile system prevailing today, it is pertinent to
recognize the crucial role played by the Governors in the working of the
democratic framework. Addressing the Conference of Governors in June 2005,
H the President of India Dr. A.P.J. Abdul Kalam stressed the relevance of
t
f
RAMESHWARPRASADv. U.0.1. [SABHARWAL,CJ.] 613

recommendations of the Sarkaria Commission and observed that "While there A
are many checks and bala~es provided by the Constitution, the office of the
Governor has been bestowed with the independence to rise above the day-to-
day politics and override compulsions either emanating from the central system
or the state system." The Prime Minister Dr. Manmohan Singh on the same
occasion noted that "you are the representatives of the center in states and B
he~ce, you bring a national perspective to state level actions and activities."

In Hargovind Pant v. Dr. Raghukul Tilak & Ors. [1979) 3 SCC 458,
observing on the issue as to whether a Governor could be considered as an
"employee" of the Government of India, this Court said "it is no doubt true
that the Governor is appointed by the President which means in effect and C
substance the Government of India, but that is only a mode of appointment
and it does not make the Governor an employee or servant of the Government
of India."

Referring to Article 356 of the Constitution, the Court reasoned that
"one highly significant role which he (Governor) has to play under the D
Constitution is of making a report where he finds that a situation has arisen
in which the Government of the State cannot be carried on in accordance
with the provisions of the Constitution" and further added that the Governor
"is not amenable to the directions of the Government of India, nor is he
accountable to them for the manner in which he carries out his functions and
duties. He is an independent constitutional office which is not subject to the E
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 F
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 G
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."
H
614 SUPREME COURT REPORTS [2006] I S.C.R.

A Relevant for the present controversy, very significant observations were
made in Bommai's case, when it was said "He (Governor) is as much bound
to exercise this power in a situation contemplated by Article 356 as he is
bound not to use it where such a situation has not really arisen" (para 272
Jeevan Reddy, J. Emphasis supplied by us)

B The role of the Governor has come in for considerable criticism on the
ground that some Governors have failed to display the qualities of impartiality
expected of them. The Sarkaria Commission Report has noted that "many
have traced this mainly to the fact that the Governor is appointed by, and
holds office during the pleasure of the President, i.e., in effect, the Union
C Council of Ministers."

Rejecting the suggestion of an elected Governor, the Constituent
Assembly repeatedly stressed on consultation with the Provincial/State
Government prior to the appointment of the Governor. Sir Alladi
Krishnaswamy Ayyar is quoted to have stated that "a convention of consulting
D the provincial cabinet might easily grow up" as was said to be the case in
Canada (White Paper on the Office of the Governor, Government of Karnataka
(22nd September, 1983) cf V.R. Krishna Iyer, A Constitutional Miscellany
(Second Edition, Lucknow: Eastern Book Co., 2003) at p.45). Shri Jawaharlal
Nehru had also observed in the debate on the appointment of Governor in the
E Constituent Assembly that a Governor ''must be acceptable to the Province,
he must be acceptable to the Government of the Province and yet he must not
be known to be a part of the party machine of that province." He was of the
opinion that a nominated Governor shall have "far fewer common links with
the Centre."

Querying as to what could be an objective and representative body
F
which will fit into our Constitutional framework to facilitate the appointment
of Governors on meritorious basis, the Sarkaria Commission has observed
that "There is no gainsaying that a procedure must be devised which can
ensure objectivity in selection and adherence to the criteria for selection and
insulate the system from political pressures. Also, the new procedure must
G not only be fair but should be seen to be fair." (Chapter IV "Role of the
Governor", Report of the Sarkaria Commission on Centre-State Relations
(1988) at para 4.6.30). Recommending that the Vice-President of India and
the Speaker of the Lok Sabha should be consulted by the Prime Minister in
selecting a Governor, the Sarkaria Commission has noted that "such
H consultation will greatly enhance the credibility of the selection process."
-
/
RAMESHWARPRASADv. U.0.1. [SABHARWAL,CJ.] 615
The other related issue of debate was regarding the extent of A
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 B
discussion, and Dr. Ambedkar is stated to have "maintained that vesting th1
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
c
that the Governor can exercise his discretionary powers only if there is a
compelling necessity to do so. It has been reasoned that the expressiOn "by
or under the Constitution" means that the necessity to exercise such powers
may arise from any express provision of the Constitution or by necessary
. implication. The Sarkaria Commission Report further adds that such necessity D
may arise even from rules and orders made "under" the Constitution.

Observing that the Governor needs to discharge "dual responsibility" to
the Union and the State-the Sarkaria Commission has sought to evaluate the
role of the G.:>vernors in certain controversial circumstances, such as, in
appointing the Chief Minister, in ascertaining the majority, in dismissal of E
the Chief Minister, in dissolving the Legislative Assembly, in recommending
President's Rule and in reserving Bills for President's consideration.

Finding that the position of the Governor is indispensable for the
successful working of the Constitutional scheme of governance, the Sarkaria F
Commission has noted that "most of the safeguards will be such as cannot
be reduced to a set of precise rules .of procedure or practice. This is so
because of the very nature of the office and the role of the Governor. The
safeguards have mostly to be in the nature of conventions and practices, to
' be understood in their proper pers-pective and faithfully adhered to, not only
by the Union and the State Governments but also by the political parties." G
(Chapter IV "Role of the Governor", Report of the Sarkaria Commission on
Centre-State Relations (1988) at para 4.5.07). It was further added that "the
fact that it will be impossible to lay down a concrete set of standards and
norms for the functioning of a Governor will make it difficult for a
Parliamentary Committee or the Supreme Court to inquire into a specific H
616 SUPREME COURT REPORTS [2006] I S.C.R.

A charge against a Governor."
Instrument of Instructions:

The Constituent Assembly, pursuant to the Report of the Provincial
Constitution Committee, had decided to insert an Instrument of Instructions
B to the Governors in the form of a Schedule to the Constitution. Such an
instrument was found to be necessary, "because of the mode of appointment
and the injunction to act upon the advice of Ministers were not contained
in the Constitution itself." (The framing of India India's Constitution Select
Documents (Volume IV, B. Shiva Rao (ed.), New Delhi: Universal Law Publishing
Cp, 2004) at p. 86. The complete test of the suggested Instructions is
C reprroduced in pp. 88-90). In the Government of India Act, 1935, the Instrument
of Instructions appeared as instructions from the Sovereign.
• The suggested list of instructions considered by the Constituent Assembly
included value based standards that are expected of a Governor in discharging
D his duties vis-a-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
E 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
F 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 Co:lstitution as the
Assembly felt that "it is preferable not to put them into the body of the
Constitution, because they are conventions rather than legal rules." However,
G the same was not appended to the Constitution and lamenting about it, Shri
A.G. Noorani has stated that the Instrument of Instructions could have codified
conventions between the President and the Governors if allowed to exist.
(A.G. Noorani, Constitutional Questions in India-The President, Parliament
and the States (New Delhi: Oxford University Press, 2000) at p.11)

H The P.V. Rajamannar Committee (1969), Inquiry Committee constituted
(
f
RAMESHWARPRASADv. U.0.L [SABHARWAL,CJ_] 617
by the Government of Tamil Nadu to report on the Centre-State relations, and A
the Study Team of the Administrative Reforms Commission (1967) headed by
Shri M.C. Setalvad, have been quoted to have opined that "a specific provision
should be inserted in the Constitution enabling the President to issue
Instruments of Instructions to the Governors. The Instruments of Instructions
should lay down guidelines indicating the matters in respect of which tlie B
Governor should consult the Central Government or in relation to which the
Central Government could issue directions to him." (White Paper on the
Office of the Governor, Government of Karnataka (22nd September, 1983) cf
\ V.R. Krishna Iyer, A Constitutional Mi!cellany (Second Edition, Lucknow:
Eastern Book Co., 2003) at p.47). Jiistice Krishna Iyer has stated that a
"Handbook" setting out the guidelines f6r Governors must be prepared officially C
by the Law Commission and approv~d by the Parliament to be kept as a
reference in the same status as that of ail Instrument of Instructions. However,
the Sarkaria Commission has observ~d that "considering the multi-faceted
role of the Governor and the nature of 'his functions and duties, we are of the
view that it would be neither feasible nor desirable to formulate a
comprehensive set of guidelines for the exercise by him of his discretionary D
powers. No two situations which may require a Governor to use his discretion,
are likely to be identical."

Discretionary Powers of the Governor:

Expounding in detail on the exercise of discretionary powers by the E
Governor, the Sarkaria Commission has mainly recommended the following:?

Appointment of the Chief Minister. It is clear that the leader of the
party which has an absolute majority in the Legislative Assembly
should invariably be called upon by the Governor to form a F
Government. However, if there is a fractured mandate, then the
Commission recommends an elaborate step-by-step approach and has
further emphasized that "the Governor, while going through the
process of selection as described, should select a leader who, in his
(Governor's) judgment, is most likely to command a majority in the
Assembly. The Governor's subjective judgment will play an important G
role." Upon being faced by several contesting claims, the Commission
suggests that the most prudent measure on part of the Governor would
r. 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 H
618 SUPREME COURT REPORTS [2006) l S.C.R.

A 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-
B 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
State to settle matters themselves". The Commission recommended
that "the Governor should first consider dissolving the Assembly and
c arranging for a fresh election and before taking a decision, he should
consult the leaders of the political parties concerned and the Chief
Election Commissioner."

Para 4.11.04 of Sarkaria Commission Report specifically deals with the
D situation where no single party obtains absolute majority and provides the
order of preference the Governor should follow in selecting a Chief Minister.
The order of preference suggested is :

I. An alliance of parties that was formed prior to the Elections.

2. The largest single party staking a claim to form the Government
E with the support of others, including "independents"

· 3. A post-electoral coalition of parties, with all the partners in the
coalition joining the Government.

4. A post-electoral alliance of parties, with some of the parties in the -"
alliance forming a Government and the remaining parties,
F
including "independents" supporting the Government from outside.

The Sarkaria Commission has noticed that in a number of situations of
political instability in States, the Governors recommended President's Rule
under Article 356 without exhausting all possible steps under the Constitution
G to induct or maintain a stable Government. The Governors concerned neither
gave a fair chance to contending parties to form a Ministry, nor allowed a
fresh appeal to the electorate after dissolving the Legislative Assembly. Almost
all these cases have been criticized on the ground that the Governor", while
making their recommendations to the President behaved in a partisan manner.
The report further states that there has been no uniformity of approach in
H such situations and that these aspects have been dealt with in Chapter VI
I
RAMESHWAR PRASAD v. U.0.1. [SABHARWAL, CJ.] 619
'Emergency Provisions'. A
In Chapter VI, Sarkaria Commission dealt with the emergency provisions
noting the concern of framers of the Constitution of need for such provision
in a country of our dimensions, diversities, disparities and "multitudinous
people, with possibly divided loyalties". They took care to provide that, in a
situation of such emergency, the Union shall have overriding powers to B
control and direct all aspects of administration and legislation throughout the
country. They realised that a failure or breakdown of the constitutional
,\ machinery in a State could not be ruled out as an impossibility and a situation
may arise in which the Government of the State cannot be carried on in
accordance with the provisions of the Constitution.
c
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 D
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 E
noted that the constitutional framers did not intend that this power should be
exercised for the purpose of securing good Government. It also notices that
this power cannot be invoked, merely on the ground that there are serious
allegations of corruption against the Ministry.

Whether it is a case of existing Government losing the majority support F
or of installation of new Government after fresh elections, the act of the
Governor in recommending dissoltition of Assembly should be only with sole
object of preservation of the Constitution and not promotion of political
interest of one or the other party.
G
In the present context of fractured verdicts in elections, the aforesaid
discussion assumes great importance and relevance. The criteria suggested in
Sarkaria Commission Report for appointment of a person as a Governor is :

(i) He should be eminent in some walk of Hfe;
(ii) He should be a person from outside the State; H
620 SUPREME COURT RHORTS (2006] I S.C.R.

A (iii) He should be a detached figure and not too intimately connected
with the local politics of the State; and
(iv) He should be a person who has not taken too great a part in
politics generally and particularly in the recent past.

B It has not been seriously disputed by learned counsel appearing for the
parties that, unfortunately, the criteria has been observed in almost total
breach by all political parties. It is seen that one day a person is in active
politics in as much as he holds the office of the Chief Minister or Minister
or a party post and almost on the following day or, in any case, soon thereafter,
the same person is appointed as the Governor in another State with hardly
C any cooling period. Ordinarily, it is difficult to expect detachment from party
politics from such a person while performing the constitutional functions as
Governor.

On this issue, we would like to say no more and leave this aspect to the
wisdom of the political parties and their leaders to discuss and debate and
D arrive at, if possible, a national policy with some common minimum parameters
applicable and acceptable to all major political parties.

Defections

At this stage, we may consider another side issue, namely, defections
E being a great evil.

Undoubtedly, defection is a great evil. It was contended for the
Government that the unprincipled defections induced by allurements of office,
monetary consideration, pressure, etc. were destroying the democratic fabric.
F With a view to control this evil, Tenth Schedule was added by the Constitution
(Fifty-Second Amendment) Act, 1985. Since the desired goal to check
defection by the legislative measure could not be achieved, law was further
strengthened by the Constitution (Ninety-first Amendment) Act, 2003. The
contention is that the Governor's action was directed to check this evil, so
that a Government based on such defections is not formed.
G
Reliance has been placed on the decision in the case of Kihoto Hollohan
v. Zachi/lhu and 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
H Tenth Schedule were not able to achieve the desired goal of checking defection, I
RAMESHWARPRASADv. U.0.1. [SABHARWAL,CJ.] 621
by 91 st Amendment, defection was made more difficult by deleting provision A
:y 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
91 st Amendment.

In Kihoto 's case, the challenge was to validity of the Tenth Schedu.le, B
as it stood then. Argument was that this law was destructive of the basic
structure .of the Constitution as it is violative of the fundamental principle of
\ Parliamentary democracy, a basic feature of the Indian Constitutionalism and
is destructive of the freedom of speech, right to dissent and freedom of
conscience as the provisions seek to penalize and disqualify elected C
representatives for the exercise of these rights and freedoms which are essential
to the sustenance of the system of parliamentary democracy. It was also
urged that unprincipled political defections may be an evil, but it will be the
beginning of much greater evils if the remedies, graver than the decease
itself, are adopted. It was said that the Tenth Schedule seeks to throw away
the baby with the bath water. D
Dealing with aforesaid-submissions, the Court noted that, in fact, the
real question was whether under the Indian Constitutional Scheme, is there
any immunity from constitutional correctives against a legislatively perceived
political evil of unprincipled defections induced by the lure of office and
monetary inducements. It was notec;I that the points raised in the petition are, E
indeed, far reaching and of no small importance-invoking the 'sense of
relevance and constitutionally stated principles of unfamiliar settings'. On the
one hand there was the real and imminent threat to the very fabric of Indian
democracy posed by certain level of political behaviour conspicuous by their
utter and total disregard of well recognised political proprieties and morality. F
These trends tend to degrade the tone of political life and, in their wider
propensities, are dangerous to and undermine the very survival of the cherished
values of democracy. There is the legislative determination through
experimental constitutional processes to combat that evil. On the other hand,
there may be certain side-effects and fall-out which might affect and. hurt
even honest dissenters and conscient.ious objectors. While dealing with the G
argument that the constitutional remedy was violative of basic features of the
Constitution, it was observed that the argument ignores the essential organic
and evolutionary character of a Constitution and its flexibility as a living
_entity to provide for the demands and compulsions of the changing times and
needs. The people of this country were not beguiled into believing that the H
..
622 SUPREME COURT REPORTS [2006] l S.C.R.

A menace of unethical and unprincipled changes of political affiliations is
something which the law is helpless against and is to be endured as a necessary
concomitant of freedom of conscience. The unethical political defections was
described as a 'canker' eating into the vitals of those values that make
democracy a living and worthwhile faith.

B 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 undem1ine
public confidence in it which, in the ultimate analysis, is its source of
C 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 politisal stability and socidl utility depends on such shared beliefs
and concerted action of its Members in furtherance of those commonly
D 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 - nay, indeed, its very survival. Intra-party debates are
....
of course a different thing. But a public image of disparate stands by
E Members of the same political party is not looked upon, in political
tradition, as a desirable state of things. Griffith and Ryle on
"Parliament, Functions, Practice & Procedure" ( 1989 Edn. page 119)
say:
"Loyalty to party is the norm, being based on shared beliefs. A -'
F 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
G understandable therefore that a Member who rejects the party
whip even on a single occasion will attract attention and more
criticism than sympathy. To iibstain 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."
H
RAMESHWAR PRASAD v. U.0.1. [SABHARW AL, CJ.) 623
Clause (b) of sub-para ( 1) of Paragraph 2 of the Tenth Schedule gives A
effect to this pri1Jciple and sentiment by imposing a disqualification
on a Member who votes or abstains from voting contrary to "any
directions" issued by the political party. The provision, however,
recognises two exceptions : one when the Member obtains from the
political party prior permission to vote or abstain from voting and the B
other when the Member has voted without obtaining such permission
but his action has been condoned by the political party. This provision
itself accommodates the possibility that there may be occasions when
a Member may vote or abstain from voting contrary to the direction
of the party to which he belongs. This, in itse If again, may provide
a clue to the proper understanding and construction of the expression C
"Any Direction" in clause (b) of Paragraph 2( I) whether really all
directions or whips from the party entail the statutory consequences
or whether having regard to the extra-ordinary nature and sweep of
the power and the very serious consequences that flow including the
extreme penalty of disqualification the expression should be given a D
meaning confining its operation to the contexts indicated by the objects
(
.} and purposes of the Tenth Schedule. We shall deal with this aspect
separately."

Our attention was also drawn to the objects and reasons for the 9lst
Constitutional Amendment. It states that demands were made from time to E
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. F
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 G
d.ecision of House of Lords in the case of Council of Civil Service Unions
v. Minister for the Civil Service, [1984] 3 All.ER 935 on the aspect of
irrationality to the effect that "it applies to a decision may be so outrageous
, or in defiance of logic or of accepted moral standards that no sensible person
who had applied his 'mind to the question to be decided, could have arrived
at it". It is contended that the Governor has many sources info1mation H
624 SUPREME COURT REPORTS [2006) I S.C.R.

A wherefrom led him to conclude that the process that was going on in the State
of Bihar was destroying the very fabric of democracy and, therefore, such '.:
approach cannot be described as outrageous or in defiance of logic, particularly,
when proof in such cases is difficult if not impossible as bribery takes place
in the cover of darkness and deals are made in secrecy. It is, thus, contended
B that Governor's view is permissible and legitimate view.

Almost similar contention has been rejected in Bommai 's case.

The other decision of House of Lords in Puhlhofer v. Hillingdon,
London Borough Council, (1986] I All.ER 467 at 474 relied upon by the
C respondents, has been considered by Justice Sawant in Bommai's case. The
reliance was to the proposition that where the existence or non-existence of
a fact is left to the judgment and discretion of a public body and that fact
involves a broad spectrum ranging from the 'obvious' to the 'debatable' to
the 'just conceivable', it is the duty of the Court to leave the decision of that
fact to the public body to whom Parliament has entrusted the decision-making
D power save in a case where it is obvious that the public body, consciously
or unconsciously, are acting perversely. But in the present case, the inference
sought to be drawn by the Governor without any relevant material, cannot
fall in the category of 'debatable' or 'just conceivable', it would fall in the
category of 'obviously perverse'. On facts, the inescapable inference is that
E the sole object of the Governor was to prevent the claim being made to form
the Government and the case would fall under the category of 'bad faith'.

The question in the present case is not about MLAs voting in violation
of provisions of Tenth Schedule as amended by the Constitution (91 st
Amendment), as we would presently show.
F
Certainly, there can be no quarrel with the principles laid in Kihoto 's
case about evil effects of defections but the same have no relevance for
determination of point in issue. The stage of preventing members to vote
against declared policies of the political party to which they belonged had not
reached. If MLAs vote in a manner so as to run the risk of getting disqualified,
G 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
H and defend the Constitution and the laws, has a concomitant duty and
RAMESHWARPRASAD v. U.0.1. [SABHARWAL, CJ.] 625
obligation to preserve democracy and not to permit the 'canker' of political A
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 B
distortion of democracy by induced defections through unfair, illegal, unethical
and unconstitutional means.

The report dated 27th April, 2005 refers to ( i) 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 C
castes, posts, money etc.; and (6) Horse-trading. Almost similar report was
sent by the Governors of Karnataka and Nagaland leading to the dissolution
of the Assembly of Karnataka and Nagaland, invalidated in Bommai 's case.
Further, the contention that the Central Government did not act upon the
report dated 27th April, 2005 is of no relevance and cannot be considered in
';
)
isolation since the question is about the manner in which the Governor moved, D
very swiftly and with undue haste, finding that one political party may be
close to getting majority and the situation had reached where claim may be
staked to form the Government which led to the report dated 2 Ist May, 2005.
It is in this context that the Governor says that instead of installing a
Government based on a majority achieved by a distortion of the system, it E
would be preferable that the people/electorate could be provided with cine
more opportunity to seek the mandate of the people. This approach makes it
evide.nt that the object was to prevent a particular political party from staking
Y·· a claim and not the professed object of anxiety not to permit the dis<ortion
of the political system, as sought to be urged. Such a course is nothing but
wholly illegal and irregular and has to be described as mala fide. The F
recommendation for dissolution of the Assembly to prevent the staking of
claim to form the Government purportedly on the ground that the majority
was achieved by distortion of system by allurement, corruption and bribery
was based on such general assumptions without any material which are quite
easy to be made if any political party not gaining absolute majority is to be G
kept out of governance. No assum~tion without any basis whatever could be
drawn that the reason for a group to support the claim to form the Government
.. by Nitish Kumar, was only the aforesaid distortions. That stage had not
reached. It was not allowed to be reached. If such majority had been presented
and the Governor forms a legitimate opinion that the party staking claim
would not be able to provide stable Government to the State, tha! may be a H
626 SUPREME COURT REPORTS [2006] I S.C.R.

A different situation. Under no circumstances, the action of Governor can be ,·,/,
held to be bona fide when it is intended to prevent a political party to stake
claim for formation of the Government. After elections, every genuine attempt
is to be made which helps in installation of a popular Government, whichever
be the political party.

B Interpretation of a Constitution and Importance of Political Parties

For principles relevant for interpretation of a Constitution, our attention
was drawn to what Justice Aharon Barak, President of Supreme Court of
Israel says in Harvard Law Review, Vol.116 (2002-2003) dealing particularly
C 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
D '
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,
E political and historical realities often unimagined by its framers. The
judiciary is the guardian of the constitution and must, in interpreting
its provisions, bear these considerations in mind."

It is further said that the political question doctrine, in particular, remits
entire areas of public life to Congress and the President, on the grounds that
F 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.

G In fact, the scope of judicial review as enunciated in Bommai 's case is
in tune with the principles sought to be relied upon.

In support of the proposition that in Parliament Democracy there is
importance of political parties and that interpretation of the constitutional
provisions should advance the said basic structure based on political parties,
H our attention was drawn to write up Designing Federalism-A Theory of Self-
RAMESHWARPRASADv. U.0.1. [SABHARWAL,CJ.] 627
· Sustainable Federal Institution and what is said about political parties in a A
Federal State which is as under:

"Political parties created democracy and ....... modern democracy is
unthinkable save in terms of parties.

Schattschneider 1942 : I B

Here is a factor in the organisation of federal Government which is of
primary importance but which cannot be ensured or provided for in
\ a constitution-a good party system

Wheare 1953: 86
c
Whatever the general social conditions, if any, that sustain the federal
bargain, there is one institutional condition that controls the nature of
the bargain in all instances ....... with which I am familiar. This is the
structure of the party system, which may be regarded as the main
". - variable intervening between the background social conditions and D
/ the specific nature of the federal bargain.

Riker 1964 : 136

In a country which was always to be in need of the cohesive force
of institutions, the national parties, for all their faults, were to become
E
at an early hour primary and necessary parts of the machinery of
Government, essential vehicles to convey men's loyalties to the state.

't-- Hofstadter 1969: 70-I

It is contended that the political parties are the main means not only whereby
F
provincial grievances are aired but also whereby centralised and decentralised
trends are legitimised. This contention is made in connection with the alleged
stand of two-third MLAs of LJP against the professed stand of that political
party.

We are afraid that on fae-:s of present case, the aforesaid concept and G
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.

H
628 SUPREME COURT REPORTS [2006) I S.C.R.

A 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
B 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
c 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 ofIndia and Ors.. [1981] 4 SCC 675, paras 18 and 31. It may be difficult
to leave such aspects to be determined by high constitutional functionaries,
on case to case basis, depending upon the facts of the case, and personal
mould of the constitutional functionaries. With all these imponderables, the
D constitution does not contemplate the dissolution of Assemblies based on
the assumption of such immoralities for formation of the satisfaction that
- '
'
situation has arisen in which the Government cannot be of the Constitution
of India.

Article 356 and Bommai 's case
E
Article 356( I) of the Constitution is as follows :

"356.( 1) Provisions in case offailure of constitutional machinery in
State.--{!) If the President, on receipt of report from the Governor of
1
the State or otherwise, is satisfied that a situation has arisen in which
F the Government of the State cannot be carried on in accordance with
the provisions of this Constitution, the President may by Proclamation-
(a) assume to himself all or any of the functions of the Government
of the State and all or any of the powers vested in or exercisable
by the Governor or any body or authority in the State other than
G the Legislature of the State;
(b) declare that the powers of the Legislature of the State shall be
exercisable by or under the authority of Parliament; J

(c) make such incidental and consequential provisions as appear to
the President to be necessary or desirable for giving effect to the
H
j
I
RAMESHWARPRASADv. U.0.l. [SABHARWAL,CJ.] 629

objects of the Proclamation, including provisions for suspending A
in whole or in part the operation of any provisions of this
Constitution relating to any body or authority in the State:

Provided that nothing in this clause shall authorise the President
to assume to himself any of the powers vested in or exercisable by
a High Court, or to suspend in whole or in part the operation of any B
provision of this Constitution relating to High Courts."

Power under Article 356(1) is an emergency power but it is not an
\ absolute power. Emergency means a situation which is not normal, a situation
which calls for urgent remedial action. Article 356 confers a power to be
exercised by the President in exceptional circumstances to discharge the c
obligation cast upon him by Article 355. It is a measure to protect and
preserve the Constitution. The Governor takes the oath, prescribed by Article .
159 to preserve, protect and defend the Constitution and the laws to the best
of his ability. Power under Article 356 is conditional, condition being formation
of satisfaction of the President as contemplated by Article 356(1). The
'(
D
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 E
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 F
of the material on the basis of which the advice is given. The Courts
are not interested in either the advice given by the Ministers to the
President or the reasons for such advice. The Courts are, however,
justified in probing as to whether there was any material on the basis
of which the advice was given, and whether it was relevant for such ·
G
advice and the President could have acted on it. Hence when the
Courts undertake an enquiry into the existence of such material, the
( prohibition contained in Article 74(2) does not negate their right to
know about the factual existence of any such ·material."

It was further said that the Parliament would be entitled to go into the H
630 SUPREME COURT REPORTS [2006] I S.C.R.

A material on basis of what the Council of Ministers tendered the advice and,
therefore, secrecy in respect of material cannot remain inviolable. It was said
that:

'W hE:n the Pmd::m at:Dn is cha1'mge:i by makitg outaprima facie
case with regard to its invalidity, the burden would be on the Union
B Government to satisfy that there exists material which showed that
the Government could not be carried on in accordance with the
provisions of the Constitution. Since such material would be
exclusively within the knowledge of the Union Government, in view
of the provisions of Section I06 of the Evidence Act, the burden of
c proving the existence of such material would be on the Union
Government."

On the similar lines, is the opinion of Jeevan Reddy, J. :

"Clause (2) of Art. 74, understood in its proper perspective, is thus
confined to a limited aspect. It protects and preserves the secrecy of
D the deliberations between the President and his Council of Ministers. '
In fact, Cl. (2) is a reproduction of sub-sec. (4) of S. 10 of the '·
Government of India Act, 1935. (The Government of India Act did
not contain a provision corresponding to Art. 74(1) as it stood before
or after the Amendments aforementioned). The scope of CI. (2) should
E not be extended beyond its legitimate fields. In any event, it cannot
be read or understood as conferring an immunity upon the council of
ministers or the Minister/Ministry concerned to explain, defend and
justify the orders and acts of the President done in exercise of his
functions. The limited provision contained in Art. 74(2) cannot
override the basic provisions in the Constitution relating to judicial
F review. If and when any action taken by the President in exercise of
his functions is questioned m a Court of Law, it is for the Council of
Ministers to justify the same, since the action or order of the President
is presumed Jo have been taken in accordance with Art. 74(1). As to
which Minister or which official of which Ministry comes forward to
G defend the order/ action is for them to decide and for the Court to be
satisfied about it. Where, of course, the act/order questioned is one
pertaining to the executive power of the Government of India, the
J
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
H
-;.
/

RAMESHWARPRASADv. U.0.1. [SABHARWAL,CJ.] 631
act/order of Government of India, though expressed in the name of the A
President. It is for the concerned Minister or Ministry, to whom the
function is allocate4 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 B
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 C
become part of advice. Advice is what is based upon the said material.
Material is not advice. The material may be placed before the President
to acquaint him - and if need be to satisfy him - that the advice
being tendered to him is the proper one. But it cannot mean that such
material, by dint of being placed before the President in support of the
advice, becomes advice· itself. One can understand if the advice is D
tendered in writing; in such a case that writing is the advice and is
covered by the protection provided by Art. 74(2). But it is difficult to
appreciate how does the supporting material, becomes part of advice.
The respondents cannot .say that whatever the President sees - or
whatever is placed before the President becomes prohibited material E
and cannot be seen or summoned by the Court. Art. 74(2) must be
interpreted and understood in the context of entire constitutional
system. Undue emphasis and expansion of its parameters would engulf
valuable constitutional guarantees. For these reasons, we find if difficult
to agree with the reasoning in State of Rajasthan on this score, insofar
as it runs contrary to our holding." F
The scope of judicial review has been expanded by Bommai and dissent
has been expressed from the view taken in State of Rajasthan 's case.

The above approach shows objectivity even in subjectivity. The
constitutionalism or constitutional system of Government abhors absolutism- G
it is premised on the Rule of Law in which subjective satisfaction is substituted
( by objectivity provided by the provisions of the Constitution itself. This line
is clear also from Maru Ram v. Union of India and Ors., [1981] I SCC 107.
It would also be clear on in depth examination of Bommai that declared the
dissolution of three Assemblies illegal but before we further revert to that H
632 SUPREME COURT REPORTS [2006] I S.C.R.

A decision, a brief historical background including the apprehension of its •r.
abuse expressed by our founding fathers may be noted.

Articles 355 and 356 of the Constitution set the tenor for the precedence
of the Union over the States. It has been explained that the rationale for
introducing Article 355 was to distinctly demarcate the functioning of the
B State and Union governments and to prevent any form of unprincipled
invasions by the Union into the affairs of the State. It was felt that through
the unambiguous language of Articles 355 and 356, the Union shall be
constitutionally obliged to interfere only under certain limited circumstances
as laid down in the provisions.
c Referring to what is now Article 355, Dr. Ambedkar had reasoned that
"in view of the fact that we are endowing the Provinces with plenary powers
and making them sovereign within their own fields it is necessary to provide
that if any invasion of the provincial field is done, it is in virtue of this
obligation." (T.K. Thope, Dr. Ambedkar and Article 356 of the Constitution
D [1993] 4 SCC (Jour) I]. 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
E order an election allowing the people of the province to settle matters by
themselves. It is only when those two remedies fail that he would resort to
this Article." Dr. Ambedkar admitted that these articles were "liable to be
abused" and that he cannot "altogether deny that there is a possibility of these
articles being employed for political purposes." But he reasoned that such an
"objection applies to every part of the Constitution which gives power to the
F Centre to override the Provinces" and added that the "proper thing we ought
to expect is that such articles will never be called into operation and they
would remain a dead letter." (Constituent Assembly Debates (Volume IX,
Revised Edition) at pp.175-177).

Scope of Judicial Review under Article 356 State of Rajasthan v. Union of
G India:

In State of Rajasthan 's case, there was a broad consensus among five
)
of the seven Judges that the Court can interfere if it is satisfied that the power
has been exercised ma/a fide or on "wholly extraneous or irrelevant grounds".
H Some learned Judges have stated the rule in narrow terms and some others
j

RAMESHWARPRASADv. U.0.1. [SABHARWAL,CJ.] 633

,.,.
.... ·"-; · in a little less narrow terms but not a single learned Judge held that the A
proclamation is immune from judicial scrutiny. It must be remembered that
at that time clause (5) was there barring judicial review of the proclamation
and yet they said that Court can interfere on the ground of ma/a fides. Surely,
the deletion of clause (5) has not restricted the scope of judicial review but
has widened it.
B
Justice Reddy in Bommai 's case has noticed, in so far as it was relew.nt,
the ratio underlying each of the six opinions delivered by Seven Judge Bench
in the case of State of Rajasthan (supra) as under :

"Beg, C. J. The opinion of Beg, C. J. contains several strands of
thought. They may be stated briefly thus: c
(i) The language of Article 356 and the practice since 1950 shows
that the Central Government can enforce its will against the State
Governments with respect to the question how the State Governments
should function and who should hold reins of power.
D
(
J (ii) By virtue of Article 365(5) and Article 74(2), it is impossible for
the Court to question the satisfaction of the President. It has to decide
the case on the basis of only those facts as may have been admitted
by or placed by the President before the Court.

(iii) The language of Article 356(1) is very wide. It is desirable that E
conventions are developed 'Channelising the exercise of this power.
The Court can interfere only when the power is used in a grossly
perverse and pnreasonable manner so as to constitute patent misuse
)- .
of the provisions or to an abuse of power. The same idea is expressed
at another place saying that if "a constitutionally or legally prohibited
F
or extraneous or collateral purpose is sought to be achieved" by the
proclamation, 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.
G
(iv) The assessment of the Central Government that a fresh chance
should be given to the electorate in certain States as well as the
l 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. H
634 SUPREME COURT REPORTS [2006] I S.C.R.

A 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
B Judge held that where the reasons disclosed by the Union of India are
wholly extraneous, the Court can interfere on the ground of ma/a
fides. Judicial scrutiny, said the learned Judge, is available "for the
limited purpose of seeing whether the reasons bear any rational nexus
with the action proposed". The Court cannot sit in judgment over the
satisfaction of the President for determining whether any other view
c of the situation is reasonably possible, opined the learned Judge.
Turning to the facts of the case before him, the learned Judge observed
that the grounds assigned by the Central Government in its counter-
affidavit cannot be said to be irrelevant to Article 356. The Court
cannot go deeper mto the matter nor shall the Court enquire whether
D there were any other reasons besides those disclosed in the counter-
affidavit. )

'
P. N. Bhagwati and A. C. Gupta, JJ. The learned Judges enunciated
the following propositions in their opinion: The action under Article
356 has to be taken on the subjective satisfaction of the President.
E The satisfaction is not objective. There are no judicially discoverable
and manageable standards by which the Court can' examine the
correctness of the satisfaction of the President. The satisfaction to be
arrived at is largely political in nature, based on an assessment of
various and varied facts and factors besides several imponderables
and fast changing situations. The Court is not a fit body to enquire
F into or determine the correctness of the said satisfaction or assessment,
as it may be called. However, if the power is exercised ma/a fide or
is based upon wholly extraneous or irrelevant grounds, the Court
would have jurisdiction to examine it. Even clause (5) is not a bar
when the contention is that there was no satisfaction at all.
G The scope of judicial review of the action under Article 356, - the
learned Judges held - is confined to a "narrow minimal area: May
be that in most cases, it would be difficult, if not impo~5ible, to
challenge the exercise of power under Article 356(1) on the aforesaid
limited ground, because the facts and circumstances on which the
H satisfaction is based, would not be known. However, where it is
, RAMESHWAR PRASAD v. U.0.1. [SABHAR WAL, CJ.] 635
possible, the existence of satisfaction can always be challenged on A
t:.-' the ground that it is mala fide or based on wholly extraneous and
irrelevant grounds."

We may say with great respect that we find it difficult to agree with
the above formulations in toto. We agree only with the statements
regarding the permissible grounds of interference by Court and the B
effect of clause (5), as it then obtained. We also agree broad1y with
the first proposition, though not in the absolute terms indicated therein.
~
~ Goswami and Untwalia, JJ. The separate opinions of Goswami and
Untwalia, JJ. emphasise one single fact, namely, that inasmuch as the
facts stated in the counter-affidavit filed by the Home Minister cannot c
be said to be "malafide, 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 D
~ unless the action is "guided by extraneous consideration" or "personal I
.>
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 E
356."

Bommai's case

The Nine Judge Bench considered the validity of dissolution of
Legislative Assembly of States of Karnataka, Meghalaya, Nagaland, Madhya F
Pradesh, Himachal Pradesh and Rajasthan. Out of six States, the majority
held as unconstitutional the dissolution of Assemblies of Karnataka, Nagaland
and Meghalaya as well. Six opinions have been expressed. There is unanimity
on some issues, likewise there is diversity amongst several opinions on various
issues.
G
Karnataka Facts

~ In the case of Karnataka, the facts were that the Janta Party being the
majority party in the State Legislature had formed the Government under the
leadership ofShri S.R. Bommai on August 30, 1988 following the resignation
on August 1, 1988 of the earlier Chief Minister Shri Hegde who headed the H
636 SUPREME COURT REPORTS [2006] I S.C.R.
---
~

A ministry from March 1985 till his resignation. On 17th April, 1989 one legislator
presented a letter to the Governor withdrawing his support to the Ministry. '.t
On the next day he presented to the Governor 19 letters allegedly written by
17 Janta Dal legislators, one independent but associate legislator and one
legislator belonging to the BJP which was supporting the ministry, withdrawing
their support to the ministry. On receipt of these letters, the Governor is said
B to have called the Secretary of the Legislature Department and got the
authenticity of the signatures on the said letters verified. On April 19, 1989,
the Governor sent a report to the President stating therein that there were
dissensions in the Janta Party which had led to the resignation of Shri Hegde
and even after the formation of the new party viz. Janta Dal, there were
c dissensions and defections. In support, the Governor referred to the 19 letters
received by him. He further stated that in view of the withdrawal of the
support by the said legislators, the Chief Minister Shri Bommai did not
command a majority in the Assembly and hence it was inappropriate under
the Constitution, to have the State administered by an Executive consisting
of Council of Ministers which did not command the majority in the House.
D He also added that no other political party was in a position to form the
Government. He, therefore, recommended to the President that he should '
exercise power under Article 356( I). The Governor did not ascertain the
view of Shri Bommai either after the receipt of the 19 letters or before
makinK his report to the President. On the next day i.e. April 20, 1989, 7 out
E of the 19 legislators who had allegedly sent the letters to the Governor
complained that their signatures were obtained on the earlier letters by
misrepresentation and affinned their support to the Ministry. The State Cabinet
met on the same day and decided to convene the Session of the Assembly
within a week i.e. on April 27, 1989. The Chief Minister and his Law Minister
met the Governor on the same day and informed him about the decision to
F summon the Assembly Session. The Chief Minister offered to prove his
majority on the floor of the House, even by pre-poning the Assembly Session,
if needed. To the same effect, the Governor however sent yet another report
to the President on the same day i.e. April 20, 1989, in particular, referring
to the letters of seven Members pledging their support to the Ministry and
G 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
H very day, the President issued the Proclamation in dissolving the House. The
»
Rt\MESHWARPRASADv. U.0.1. [SABHARWAL,CJ.] 637
Proclamation was thereafter approved by the Parliament as required by Article A
356(3).

A writ petition filed in the High Court challenging the validity of
dissolution was dismissed by a three Judge Bench inter alia holding that the
facts stated in the Governors report cannot be held to be irrelevant and that
the Governor's satisfaction that no other party was in a position to form the B
Government had to be accepted since his personal bona fides were not
questioned and his satisfaction was based upon reasonable assessment of all
the relevant facts. The High Court relied upon the test laid down in the State
of Rajasthan case and held that on the basis of materials disclosed, the
satisfaction arrived at by the President could not be faulted. C
Nagaland Facts

In the case of Nagaland, the Presidential Proclamation dated August 7,
1988 was issued under Article 356(1) imposing President's rule. At the relevant
time in the Nagaland Assembly there were 60 legislators, 34 belonging to D
Congress (I), 18 to Naga National Democratic Party and I to Naga Peoples'
Party and seven were independent legislators. On July 28, 1988, 13 out of the
34 MLAs of the ruling Congress (I) party informed the Speaker of the
Assembly that they have formed a separate party and requested him for
allotment of separate seats for them in the House. The Session was to
commence on August 28, 1988. By decision dated July 30, 1988 the Speaker E
held that there was a split in the party within the meaning of the Tenth
Schedule of the Constitution. On July 31, 1988, Shri Vamuzo, one of the 13
defecting MLAs who had formed a separate party, informed the Governor
that he commanded the support of 35 out of the then 59 Members in the
Assembly and was in a position to form the Government.On August 3, 1988, F
the Chief Secretary of the State wrote to Shri Vamuzo that according to his
information, Shri Vamuzo had wrongfully confined the MLAs who had formed
the new party. The allegations were denied by Shri Vamuzo and he asked the
Chief Secretary to verify the truth from the Members themselves. On
verification, the Members told the Chief Secretary that none of them was
confined as alleged. On August 6, 1988 the Governor sent a report to the G
President of India about the formation of a new party by the 13 MLAs. He
also stated that the said MLAs were allured by money. He further stated that
the said MLAs were kept in forcible confinement by Mr. Vamuzo and one
other person, and that the story of split in the ruling party was not true. He
. added that the Speaker was hasty in according recognition to the new group H
638 SUPREME COURT REPORTS [2006] I S.C.R.

A of the 13 members and commented that hor5e-trading was going on in the
1
State. He made a special reference to the insurgency in Nagaland and also 1
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
B 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 B.ench. The Bench differed on the effective operation of
C 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
D Sawant speaking for himself and Justice Kuldip Singh came to the conclusion
that althi.:>ugh the advice given by the Council of Ministers is free from the
gaze of the Court, the material on the basis of which the advice is given
cannot be kept away from it and is open to judicial scrutiny. On the facts,
Justice Sawant expressed the view that the Governor should have allowed
E Shri Vamuzo to test his strength on the floor of the House notwithstanding
the fact that the Governor in his report has stated that during the preceding
25 years, no less than 11 Governments had been formed and according to his
information, the Congress (I) MLAs were allured by the monetary benefits
and that amounted to incredible lack of political morality and complete
disregard of the wishes of the electorate.
F
Meghalaya

Insofar as the Proclamation in respect of the Meghalaya is concerned,
that was also held to be invalid. The ground on which dissolution was
invalidated was the constitutional functionary had failed to realize the binding
G legal consequences of the orders of this Court and the constitutional obligation
to give effect to the said order.

Facts of Madhya Pradesh, Rajasthan and Himachal Pradesh >
Insofar as the cases of States of Madhya Pradesh, Rajasthan and
H Himachal Pradesh are concerned the dismissal of the Governments was a
RAMESHWARPRASADv. U.0.1.[SABHARWAL,CJ.] 639
consequence of violent reactions in India and abroad as well as in the A
neighbouring countries where some temples were destroyed, as a result of
demolition of Bahri Masjid structure on 6th December, 1992. The Union of
India is said to have tried to c;ope up the situation by taking several steps
including banning of some organizations which had along with BJP given a
call for Kar sevaks to march towards Ayodhya on December 6, 1992. The
Proclamation in respect of these States was issued on January 15, 1993. The B
Proclamations dissolving the assemblies were issued on arriving at satisfaction
as contemplated by Article 356(1) on the basis of Governor's report. It was
held that the Governor's reports are based on relevant materials and are made
bona fide and after due verification.

The Conclusion Nos. I, II, IV, VI, VII, IX and X in the opinion of
c
Justice Sawant are as under:

"I. The validity of the Proclamation issued by the President under
Article 356(1) is judicially reviewable to the extent of examining
,. whether it was issued on the basis of any material at all or whether D
) the material was relevant or whether the Proclamation was issued in
the ma/a fide exercise of the power. When aprimafacie 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 either the report of the Governor or other than the
report. E
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, F
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) G
till at least both the Houses of Parliament approve of the Proclamation.
,
1 VI. In appropriate cases, the Court will have power by an interim
injunction, to restrain the holding of fresh elections to the Legislative
Assembly pending the final disposal of the challenge to the validity
H
·::
640 SUPREME COURT REPORTS [2006] I S.C.R.

A of the Proclamation to avoid the fait accompli and the remedy of
judicial review being rendered fruitless. However, the Court will not
interdict the issuance of the Proclamation or the exercise of any other
power under the Proclamation.

VII. While restoring the status quo ante, it will be open for the Court
B io mould the relief suitably and declare as valid actions taken by the
President till that date. It will also be open for the Parliament and the
Legislature of the State to validate the said actions of the President.

IX. The Proclamations dated April 21, 1989 and October 11, 1991
and the action taken by the President in removing the respective
c Ministries and the Legislative Assemblies of the State of Kamataka
and the State of Meghalaya challenged in Civil Appeal No. 3645 of
1989 and Transfer Case Nos. 5 and 7 of 1992 respectively are
unconstitutional. The Proclamation dated August 7, 1988 in respect
of State of Nagaland is also held unconstitutional. However, in view
of the fact that fresh elections have since taken place and the new
D
Legislative Assemblies and Ministries have been constituted in all the
three States, no relief is granted consequent upon the above
declarations. However, it is declared that all actions which might
have been taken during the period the Proclamation operated, are
valid. The Civil Appeal No. 3645 of 1989 and Transfer case Nos. 5
E and 7 of 1992 are allowed accordingly with no order as to costs. Civil
Appeal Nos. 193-194 of 1989 are disposed of by allowing the writ
petitions filed in the Gauhati High Court accordingly but without
costs.

X. The Proclamations dated 15th December, 1992 and the actions
F taken by the President removing the Ministries and· dissolving the
Legislative Assemblies in the States of Madhya Pradesh, Rajasthan
and Himachal Pradesh pursuant to the said proclamations are not
unconstitutional. Civil Appeals Nos. 1692, 1692A-1692C, 4627-30
of 1993 are accordingly allowed and Transfer case Nos. 8 and 9 of
1993 are dismissed with no order as to costs."
G
Justice Jeevan Reddy has expressed opinion for himself and Justice
Agrawal. The conclusions Nos. 2, 3, 7, 8 and 12 in paragraph 434 are relevant
for our purpose and the same read as under:

"(2) The power conferred by Art. 356 upon the President is a
H
j
RAMESHWAR PRASADv. U.0.1. [SABHARWAL, CJ.] 641

conditioned power. It is not an absolute power. The existence of A
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
B
(3) Though the power of dissolving of the Legislative Assembly can
be said to be implicit in clause (I) 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 C
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(1) 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 E
introduced by 38th (Amendment) Act) by the 44th (Amendment)
Act, removes the cloud on the reviewability of the action. When
called upon, the Union of India has to produce the material on the
basis of which action was taken. It cannot refuse to do so. if it seeks
to defend the action. The court will not go into the correctness of the
material or its adequacy. Its enquiry is limited to see whether the F
material was relevant to the action. Even if part of the material is
irrelevant, the court cannot interfere so long as, there is some material
which is relevant to the action taken.

(8) If the court strikes down the proclamation, it has the power to G
restore the dismissed Government to office and revive and reactivate
the Legislative Assembly wherever it may have been dissolved or
kept under suspension. In such a case, the court has the power to
declare that acts done, orders passed and laws made during the period
the proclamation was in force shall remain unaffected and be treated
as valid. Such declaration, however, shall not preclude the Government/ H
Legislative Assembly or other competent authority to review, repeal
642 SUPREME COURT REPORTS (2006) I S.C.R.

A or modify such act orders and laws.

(12) The proclamations dated January 15, 1993 in respect of Madhya
Pradesh, Rajasthan and Himachal Pradesh concerned in Civil Appeals
Nos. 1692, 1692A-1692C of 1993, 4627-4630of1990, Transferred Case
(C) No. 9 of 1993 and Transferred Case No. 8 of 1993 respectively are
B not unconstitutional. The Civil Appeals are allowed and the judgment
of the High Court of Madhya Pradesh in M.P.(C) No. 237 of I 993 is
set aside. The Transferred Cases are dismissed."

Justice Jeevan Reddy has also expressed agreement with the conclusions
C I, II and IV to VII in the Judgment of Justice Sawant delivered on behalf of
himself and Justice Kuldip Singh.

Justice Pandian has expressed agreement with the opinion of Justice
P.B. Sawant on his conclusions I, II and IV to VIII but so far as the reasoning
and other conclusions are concerned, the learned Judge has agreed with the
D Judgment of Justice Reddy.

For determining the scope of judicial review in terms of law enunciated
by Bommai, it is vital to keep in view that majority opinion in that case
declared as illegal the dissolution of assemblies of Karnataka and Nagaland.
At an appropriate place later, we will note the reason that led to this declaration.
E
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
F 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
G consider the contents of the Proclamation or reasons disclosed therein and in
extreme cases the material produced pursuant to discovery order nisi to find
the action is wholly irrelevant or bears no nexus between purpose of the
action and the satisfaction reached by the President or does not bear any
rationale to the proximate purpose of the Proclamation. In that event, the
H Court may declare that the satisfaction reached by the President was either
RAMESH WAR PRASAD v. U.0.1. [SABHARWAL, CJ.] 643
t on wholly irre\e.vant grounds or colourable exercise of power and consequently, A
Proclamation issued under Article 356 would be declared unconstitutional.

It is appa~ent that Justice Ahmadi and Justice Ramaswamy though in
minority, yet learned Judges have frowned upon the highly irrational action.

Now, let us see the opinion of Justice Sawant, who spoke for himself B
and Justice Kuldip Singh and with whom Justice Pandian, Justice Jeevan
Reddy and Justice Agrawal agreed, to reach the conclusion as to the invalidity
of Proclamation dissolving assemblies of Karnataka and Nagaland.
:. . .

Learned ·Judge has opined that the President's satisfaction has to be C
based on objective material. That material may be available in the report sent
to the President by the Governor or otherwise or both from the report and
other sources. Further opines Justice Sawant that the objective material, so
available must indicate that the Government of State cannot be carried on in
accordance with the provisions of the Constitution. The existence of the
objective material showing that the Government of the State cannot be carried D
on in accordance with the provisions of the Constitution is a condition
precedent before the issue of the Proclamation.

Reference has been made to a decision of the Supreme Court of Pakistan
on the same subject, although the language of the provisions of the relevant E
Articles of Pakistan Constitution is not couched in the same terms. In
Muhammad Sharif v. Federation of Pakistan, PLD 1988 (LAH) 725, the
question was whether the order of the President dissolving the National
Assembly on 29th May, 1988 was in accordance with the powers conferred
on him under Article 58(2)(b) of the P.akistan Constitution. It was held in that
case that it is not quite right to contend that since it was the discretion of the F
President, on the basis of his opinion, the President could dissolve the National
Assembly but he has to have the reasons which are justifiable in the eyes of
the people and supportable by law in a court of justice. He could not rely
upon the reasons which have no nexus to the action, are bald, vague, general
or such as can always be given and have been given with disastrous effects G
(Emphasis supplied by us). It wouid be instructive to note as to what was
stated by the learned Chief Justice and Justice R.S. Sidhwa, as reproduced in
the opinion of Justice Sawant:

"Whether it is 'subjective' or 'objective' satisfaction of the
President or it is his 'discretion' or 'opinion', this much is quite H
644 SUPREME COURT REPORTS [2006) 1 S.C.R.

A clear that the President cannot exercise his powers under the 1

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
B 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 ifthere be
no basis or justification for the order under the Constitution, the
c Courts will have to perform their duty cast on them under the
Constitution. While doing so, they will not be entering in the
political arena for which appeal to electorate is provided for."
Dealing with the second argument, the learned Chief Justice held:

D "If the argument be correct then the provision 'Notwithstanding
)
anything contained in clause (2) of Article 48" would be rendered
redundant as if it was no part of the Constitution. It is obvious and
patent that no letter or part of a provision of the Constitution can be
said to be redundant or non-existent under any principle of construction
of Constitutions. The argument may be correct in exercise of other
E
discretionary powers but it cannot be employed with reference to the
dissolution of National Assembly. Blanket coverage of validity and
unquestionability of discretion under Article 48(2) was given up when
it was provided under Article 58(2) that 'Notwithstanding clause (2)
of Article 48 ..... the discretion can be exercised in the given
F circumstances. Specific provision will govern the situation. This will
"
also avoid expressly stated; otherwise it is presumed to be there in
Courts of record.Therefore, it is not quite rig'it to contend that since
it was in his 'discretion', on the basis of his 'opinion' the President
could dissolve the National Assembly. He has to have reasons which
G are justifiable in the eyes of the people and supportable by law in a
Court of Justice ..... It is understandable that if the President has any
justifiable reason to exercise his 'discretion' in his 'opinion' but does
not wish to disclose, he may say so and may be believed or if called
upon to explain the reason he may take the Court in confidence
without disclosing the reason in public, may be for reason of security
H of State. After all patriotism is not confined to the office holder for
l
RAMESHW AR PRASAD v. U. 0. I. [SABHARWAL, CJ.] 645

-{ the time being. He cannot simply say like Caesar it is my will, opinion A
or discretion. Nor give reasons which have no nexus to the action, are
bald, vague; general or such as can always be given and have been
given with disastrous effects ...... ".

Dealing with the same arguments, R,S. Sidhwa, J. stated as follows:
B
" .... .I have no doubt that both the Governments are not compelled to
disclose all the reasons they may have when dissolving the Assemblies
\ under Arts. 58(2)(b) and 112(2) (b ). If they do not choose to disclose
all the material, but only some, it is their pigeon, for the case will be
decided on a judicial scrutiny of the limited material placed before
the Court and if it happens to be totally.irrelevant or extraneous, they c
must suffer."

It is well settled that if the satisfaction is ma/a 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 D
' • 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]
1SCC204 and Maru Ram v. Union of India, [1981] l 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 E
the conditions precedent to the issue of Proclamation have been satisfied or
not. This examination will necessarily involve the scrutiny as to whether
there existed material for the satisfaction of the President that the situation
)-- had arisen in which the Government of the State could not be carried on
in accordance with the provisions of the Constitution. While considering the
question of material, it was held that it is not the personal whim, wish, view F
or opinion or the ipse dixit of the President de hors the material but a
legitimate inference drawn from the material placed before him which is
relevant for the purpose. In other words, the President has to be convinced
of or has to have sufficient proof of information with regard to or has to be
free from doubt or uncertainty about the state of things indicating that the
G
,, situation in question has arisen. (Emphasis supplied by us). Although,
therefore, the sufficiency or otherwise of the material cannot be questioned,
~ the legitimacy of inference drawn from material is certainly open to judicial
review.

It has been further held that when the Proclamation is challenged by H
646 SUPREME COURT REPORTS [2006] 1 S.C.R.

A making a prima facie case with regard to its invalidity, the burden would be
--
i'
on the Union Government to satisfy that there exists material which showed
that the Government could not be carried on in accordance with the provisions
of the Constitution. Since such material would be exclusively within the
knowledge of the Union Government in view of the provisions of Section 106
of the Evidence Act, the burden of proof would be on the Union Government.
B
Thus having reached the aforesaid conclusions as to the parameters of
the judicial review that the satisfaction cannot be based on the personal
whim, wish, view, opinion or ipse dixit de hors the legitimate inference from
the relevant material and that the legitimacy of the inference drawn was open ...
c to judicial review, the report on basis whereof Proclamation dissolving the
Assembly of Karnataka had been issued was subjected to a close scrutiny, as
is evident from paragraphs 118, 119 and 120 of the opinion of Justice Sawant
which read as under:

"118. In vi~w of the conclusions that we have reached with regard to
D the parameters of the judicial review, it is clear that the High Court 'J
had committed an error in ignoring the most relevant fact that in
view of the conflicting letters of the seven legislators, it was improper
on the part of the Governor to have arrogated to himself the task of
holding, firstly, that the earlier nineteen letters were genuine and
were written by the said legislators of their free will and volition. He
E had not even cared to interview the said legislators, but had merely
got the authenticity of the signatures verified through the legislature
Secretariat. Secondly, he also took upon himself the task of deciding
that the seven out of the nineteen legislators had written the subsequent
letters on account of the pressure from the Chief Minister and not out
of their free will. Again he had not cared even to interview the said
F
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 lo adopt was to await the test on the floor of the
House which test the Chief Minister had willingly undertaken to go
G 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
H
{
RAMESHWAR PRASADv. U.O.L [SABHARW AL, CJ.] 647
before him who were supporting the Chief Minister, if the Governor A
~
thought that the situation posed such grave threat to the governance
of the State that he could not await the result of the floor-test in the
House. We are of the view that this is a case where all canons of
propriety were thrown to wind and the undue haste made by the
Governor in inviting the President to issue the Proclamation under
Article 356(1) clearly smacked of malafides. The Proclamation issued
B
by the President on the basis of the said report of the Governor and
in the circumstances so obtaining, therefore, equally suffered from
\ ma/a fides. A duly constituted Ministry was dismissed on the basis of
,#,
material which was neither tested nor allowed to be tested and was
no more than the ipse dixit of the Governor. The action of the Governor c
was more objectionable since as a high constitutional functionary, he
was expected to conduct himself more firmly, cautiously and
circumspectly. Instead, it appears that the Governor was in a hurry
to dismiss the Ministry and dissolve the Assembly. The Proclamation
having been based on the said report and so-called other i11formation
'( which is not disclosed was, therefore, liable to be struck down. D
j

(Emphasis supplied by us)

119. In this connection, it is necessary to stress that in all cases where
the support to the Ministry is claimed to have been withdrawn by
some Legislators, the proper course for testing the strength of the E
Ministry is holding the test on the floor of the House. That alone is
the constitutionally ordained forum for seeking openly and objectively
the claims and counter-claims in that behalf. The assessment of the
~-
strength of the Ministry is not a matter of private opinion of any
individual, be he the Governor or the President. It is capable of being
F
demonstrated and ascertained publicly in the House. Hence when
such demonstration is possible, it is not open to bypass it and instead
depend upon the subjective satisfaction of the Governor or the
President. Such private assessment is an anathema to the democratic
principle, apart from being open to serious objections of personal
ma/a fides~ It is possible that on some rare occasions, the floor-test G
.... may be impossible, although it is difficult to envisage such situation .
...( Even assuming that there arises one, it should be obligatory on the
Governor in such circumstances, to state in writing, the reasons for
not holding the floor-test. The High Court was, therefore, wrong in
~ • holding that the floor test was neither compulsory nor obligatory or
H
648 SUPREME COURT REPORTS f2006) I S.C.R.

A that it was not a pre-requisite to sending the report to the President
..,'
recommending action under Article 356(1). Since we have already
referred to the recommendations of the Sarkaria Commission in this
connection, it is not necessary to repeat them here.

(Emphasis supplied by us)
B
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
...
c by the High Comt 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
D 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 Government could enjoy the
confidence of the House. That is also the recommendation of the
E Five-member Committee of the Governors appointed by the President
pursuant to the decision taken at the Conference of Governors held
in New Delhi in November 1970, and of the Sarkaria Commission
quoted above. It is also obvious that beyond the report of the Governor,
there was no other material before the President before he issued the
Proclamation. Since the "facts" stated by the Governor in his report,
F
as pointed out above contained his own opinion based on
unascertained material, in the circumstances, they could hardly be
said to form an objective material on which the President could have
acted. The Proclamation issued was, therefore, invalid. "

G (Emphasis supplied by us)

The view of the High Court that the facts stated in the Governor's ,.
report had to be accepted was not upheld despite the fact that the Governor }..

had got the authenticity of the signatures of 19 MLAs on letters verified from
the Legislature Secretariat, on the ground that he had not cared to interview
H the legislators and that there were conflicting letters from the seven legislators. •
,~

RAMESHW AR PRASAD v. U.0.1. [SABHARW AL, CJ. J 649

':;.. The conclusion drawn by the Governor that those seven legislators had written A
the subsequent letters on account of the pressure from the Chief Minister and
not out of their own free will was frowned upon, particularly when they had
not been interviewed by the Governor. It was further observed that it is not
known from where the Governor got the information about the horse-trading
going on between the legislators. Further conclusion reached was that the
Governor had thrown all cannons of propriety to the winds and showed B
undue haste in inviting the President to issue Proclamation under Article
356(1) which clearly smacked of ma/a fides. It was noticed that the facts
\ stated by the Governor in his report were his own opinion based on
unascertained material and in the circumstances they could hardly be said to
form the objective material on which the President could have acted. c
When the facts of the present case are examined in light of the scope
of the judicial review as is clear from the aforesaid which represents ratio
decidendi of majority opinion of Bommai's case, it becomes evident that the
challenge to the impugned Proclamation must succeed.
D
The case in hand is squarely covered against the Government by the
dicta laid down in Bommai's case. There cannot be any presumption of
allurement or horse-trading only for the reason that some MLAs, expressed
the view which was opposed to the public posture of their leader and decided
to support the formation of the Government by the leader of another political
party. The minority Governments are not unknown. It is also not unknown E
that the Governor, in a given circumstance, may not accept the claim to fonii
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 F
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 Kamataka and Nagaland, G
'.
while considering the cases of dissolution of assemblies of Madhya Pradesh,
Rajasthan and Himachal Pradesh, it was held in Bommai that the reports of
.{
the Governors disclosed that the State Governments had miserably failed to
protect the citizens and property of the State against internal disturbances, it
~ was found that the Governor's re;mrts are based on relevant material and are
H
~

650 SUPREME COURT REPORTS [2006] I S.C.R.

A made bona fide and after due verification. It is in the light of these findings
that the validity of the Proclamation was unanimously upheld in respect of
T
t
..
these three States.

Now, let us revert to the reasoning given in the opinion of Justice B.P.
Jeevan Reddy, speaking for himself and Justice Agrawal.
B
As already noticed, Justice Reddy to the extent stated in para 324
expressed his dissent with the reasoning of State of Rajasthan case.

Before we examine paragraph 389, wherein Justice Reddy has noticed,
~
in brief, eight reasons given by the Special Bench of the High Court in
c dismissing the writ petition and the opinion of learned Judge as contained in
para 391, we feel that to fully appreciate Bommai 's case which reversed Full
Bench decision of Karnataka High Court, it would be quite useful to note
what exactly was stated by the High Court in Paragraphs 28 to 34 of its
judgment reported in S.R. Bommai & Ors. v. Union of India & Ors., AIR
(1990) Karnataka 5]. The said paragraphs read as under :
D ~

''28. Coming to the second facet of the contention of Mr. Soli Sorabjee,
we find that the criticism levelled is that the inference drawn by the
Governor that there is no other party which is in a position to form
the Government, is not only vague but factually incorrect and hence
E the President had no relevant material to arrive at his satisfaction for
proclamation issued by him.

The aforesaid contention again is without any merit for the reasons:
(i) that the Governor formed the said satisfaction which can necessarily
be the result of his own impressions. Narration of events in no way
F advances the case of satisfaction because the very satisfaction of the
Governor is an integral part of the material relevant fact. It may also
be that the Governor would have met several MLAs and enquired of
them. But whl>at transpired between them cannot be a matter of record.
In the context where the Governor's personal bona fides are not in
question, his satisfaction expressed is to be assumed as part of the
G relevant material facts in the sense that the very satisfaction stated
therein comprehends within itself the idea of all the other necessary ~

factors, (ii) the report of 19th April, 1989 has to be read with the }-
second report of 20th April, 1989 wherein "atmosphere getting
vitiated" and "horse-trading" were referred. "Pressurisation of MLAs",
H "Horse-trading" and "vitiating atmosphere" referred to in the report
RAMESHWAR PRASAD v: U.0.1. [SABHARW AL, CJ.] 651
necessarily indicate the existence of facts for the satisfaction that no A
'\- other party was in a position to fonn 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 cl~rification or further report.
However, if the President chose to accept the statement of the Governor
B
as to the satisfaction that none else was in a position to fonn 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 c
Ministry was found to have lost the majority in the House, it is left
to the discretion of the Goven)or to call upon someone else to fonn
the Ministry, whom he thinks is in a position to command majority
in the House. Further, absolutely no material has been placed before
us to show that any other party or individual staked his or her claim
to fonn a stable Ministry; rather, throughout, the petitioners' case has D
'(
,. been that the existing Ministry headed by Sri S. R. Bommai continued
to enjoy the support of the majority in the House. This premise was
held to be not correct for which material facts were given in both the
reports made by the Governor.

29. It may be emphasised that a person holding majority does not
E
require time to prove that majority. Instead of telling the Governor
that he would prove majority on the floor of the House, the Chief
Minister could have as well obtained the signatures of 113 MLAs and
>-- placed before the Governor to demonstrate his strength. Moreover,
the second report of the Governor also conveys certain material facts; F
some of the ML As who withdrew their support to Sri S. R. Bommai
wrote again withdrawing the earlier letters with oscillation and
ficklemindedness. Fluctuating loyalties leading to unhealthy practice
are pointed out in the report. The democratic culture was being
vulgarised. Vitiation of the atmosphere was felt by the Governor. In
the context of the prevailing situation the Governor was certainly G
entitled to report to the President the aforesaid facts. We, are therefore,
of the firm view that the two reports of the Governor conveyed to the
President the essential and relevant facts from which the President
could assess the situation for an action under Art. 356 of the
Constitution. H
\
652 SUPREME COURT REPORTS [20061 I S.C.R.

A 30. Another major attack levelled against the reports of the Governor
by Mr. Soli Sorabjee was that nowhere in the report's it is stated that
the State Government cannot be carried on in accordance with the
Constitution. In other words, there is no material on the record to
show that there has been Constitutional breakdown of the machinery
in the Stale. In support of his argument the learned counsel drew our
B attention to the statement in the report which reads:

"It is not appropriate under the circumstances to have the State
administered by an Executive consisting of Council of Ministers
who do not command the majority in the House."
C What was sought to be argued by the learned counsel was to say that
it is not appropriate is quite different from saying that there is a
constitutional breakdown, and as the Governor only feels that it is not
appropriate, there was no legal justification for taking the impugned
action.

D 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. 'Inappropriateness'
E 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 .,
F Governor in this sentence clearly asserts his understanding of the true
principle that an Executive having no majority support in the Legislature,
if carries on the Government, will be administering the State not in
accordance with the Constitution.

31. In view of the aforesaid discussion, we find no escape from the
G conclusion that the grounds stated and material supplied in the reports
of the Governor are neither irrelevant nor vague, that the reasons
.,
disclosed bear a reasonable nexus with the exercise of the particular
power and hence the satisfaction of the President must be treated as
conclusive, and that there is no scope at all for a finding that the
action of the President is in flagrant violation of the very words of
H
I

=::)'
RAMESHWARPRASAD v. U.0.1. [SABHARW AL, CJ.] 653
Art. 3 56(1 ). A
,,
'(
32. Mr. Soli Sorabjee also contended that the factors like the alleged
'unethical methods adopted during the formation of Janata Dal'
'expansion of cabinet', 'horse-trading' and 'atmosphere getting ~
vitiated'•1ue not only vague but have no nexus at all with the question
of failure of Constitutional machinery. The learned counsel also laid B
great stress by contending that the Governor by acting upon the letters
given by 19 legislators had circumvented the Anti Defection legislation,
the primary aim of which is to discourage the toppling game by

" legislators by changing their loyalties, and by acting upon those letters
the legislators were permitted, in substance, to play the game of
toppling the ruling Ministry without incurring the consequences of
c
Anti-Defection law because; if these legislators had withdrawn their
support in the House and voted against the Ministry, they would have
incurred disqualification under Anti-Defection Law. Reliunce upon
these letters is contrary to the underlying purpose and the essence of
Anti-Defection legislation and therefore illegitimate and prohibited. D

r •' The learned counsel buttressed his arguments by contending that if
the floor test had been held the legislators who had written letters
might have changed their mind for several valid reasons e.g. (i) change
in the style of functioning of leadership, (ii) change in the leadership,
(iii) realisation for maintaining party unity, (iv) unwillingness to incur
disqualification under Anti-Defection legislation and (v) not giving a
E
pretext for imposition of President's Rule. In support of the contention
that. the floor test has always been recognised as the legitimate and
relevant method, Sri Soli Sorabjee relied on the judgment of the
)- Orissa High Court in Bijayananda v. President of India, Sarkaria
Commission Report page 173 para6.5.0l, the judgment of Gauhati F
High Co•Jrt in Vamuzo v. Union of India, (1988) 2 Gaub 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.
G
33. In our view, the aforesaid contentions/ points urged by the learned
counsel do not iii 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 narrati~ in nature. What was
H
\'
654 SUPREME COURT REPORTS (2006] I S.C.R.

A 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
B command a majority in the House but should also be backed by the
majority members outside the house so that the Government would
not be under a perennial pressure of being dislodged whenever the
House meets again. r
We have gone through the judgments of the Orissa and Gauhati High
c Courts mentioned above and find that the same are distinguishable.
In Bijayanand's case the main fact was that the Leader of the
Opposition who had shown his majority in the House was not tailed
upon to form the Ministry not because he had no majority but because
the Governor expected that the majority might fall at any moment
..._
and there may be no stable Ministry, and on this aspect G. K. ~isra,
D
C.J. observed that the Governor is not concerned whether the Ministry )
•
could be stable in future. If the Ministry which would have been
formed by the Leader of the Opposition would have fallen afterwards,
the Governor would have been justified to recommend for the
President's Rule if at that time no other person was in a position to
E from an alternative Ministry by having majority support. But, in the
instant case, the position is entirely different as at the initial stage
itself the Governor has in unequivocal terms stated in his report that
he is also satisfied that there is no other party which is in a position

--
to form the Government. -(

F Coming to the case of Vamuzo, ( 1988(2) Gauh LJ 468) the facts are:

"Hokishe Serna formed the Government in 1987. Chishi attempted
to bring down and destabilise the Government. To achieve that

G
end he offered money and lured the separated group of 13 to step
out from the ruling party. The Governor called the episode
'incredible lack of political morality and complete disregard of
-
the wishe~ of the electorates on the part of the breakway
congressmen'. That none of them therefore had ever expressed
any grievances to the Chief Minister at any time in the past. The
13 persons are kept under forcible confinement by K. L. Chishi
and Vamuzo. The split of the party is not true. It is obvious that
H
RAMESHWARPRASADv. U.0.l. [SABHARWAL,CJ.] 655
what may be called a political group of the darkest hue has been A
..,
'~
stated in his absence contrary to the, noble Naga character and
democratic traditions'. The recognition by the Speaker was done
in haste. The entire incident manifests political horse trading and
machinations. He added there is proof that they are the group of
13 persons have not separated from the ruling party voluntarily
B
If we look at those facts, again we find that there is absolutely no
similarity of the aforesaid facts to the two material facts in the case
on hand. In the said case, as found on those facts, the Governor was
held to have exceeded his jurisdiction and the facts stated therein
were found to be irrelevant to the provisions of Art. 356(1), by the c
Gauhati High Court.

So far as Sarkara 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 D
1 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 E
existing laws, which implies that till these recommendations are moulded
into constitutionally enforceable norms the existing law would prevail.

34. Mr. Soli Sorabjee had made pointed reference to the Tenth Schedule
\--
i.e. Anti Defection Law, for bringing home his point that the factum
of the withdrawal of the support by 19 legislators was wholly irrelevant. F
This argument was advanced to prove his point that in the .context
of Anti Defection Legislation, floor test was the most relevant, legitimate
and surest method to determine whether the Council of Ministers
headed by Sri S.R. Bommai commanded the majority in the House or
not. We are afraid, we are unable to agree with this submission of the
learned counsel. The introduction of Tenth Schedule in the G
Constitution has not in any way affected the exercise of power under
-( Art. 356 nor has it amended Art. 356 in any manner. The amending
body which inserted the Tenth Schedule to the Constitution had
before it several decisions (speciaHy the Rajasthan Case as to the
scope of Art. 356. There is a presumption that the law-making body H
I
~

656 SUPREME COURT REPORTS [2006] I S.C.R.

A was aware of the existing interpretation given by the Supreme Court
on a provision of law or of a Constitutional provision. If the said
..'
Constitutional provision (Art. 356) was untouched while adding a new
schedule to the Constitution elsewhere without reference to the existing
provision (Art. 356), we have to presume that the existing interpretation
of the said provision continues to govern the situation. It is not
B possible to hold that the interpretation given to Art. 356 in Rajasthan
Case, if continued to govern it, would destroy the efficacy of the
Tenth Schedule. Tenth Schedule to the Constitution is applicable to
_,I-
the transaction of business inside the House of Legislature. The ami
defection activity outside the House is not penalised in any manner
c by Tenth Schedule. Concept of the failure of the Constitutional
machinery of the Government is not confined to the loss of majority
by a ministry in the House; it may be due to several reasons. Therefore,
if meeting of the Legislature. was contemplated as a mandatory
requirement preceding a report of the Governor for an action under
Art. 356 and floor test was impliedly made the sole and exclusive test
-
D to judge the stability of the Ministry (after the Tenth Schedule was .
added to the Constitution), the Tenth Schedule would have been
suitably worded, or Art. 356 would have been altered."

In para 389, Justice Reddy states that the High Court has dismissed the
writ petition giving following reasoning :
E
"(I) The proclamation under Article 356(1) is not immune from
judicial scrutiny. The court can examine Whether the satisfacdon has

F
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
G 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 jides" are not questioned,

H
his satisfaction that no other party is in a position to form the
-
j
RAMESHW AR PRASAD v. U.0 .I. [SABHAR WAL, CJ.] 657
.....,
~
government has to be accepted as true and is based upon a reasonable A
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 ),
B
(6) The introduction of Xth Schedule to the Constitution has not
affected in any manner the content of the power under Article 356.
J...'
(7) Since the proclamation has to be issued on the satisfaction of the
Union council of ministers the Governor's report cannot be faulted
on the ground of legal ma/a jides. c
(8) Applying the test indicated in the State of Rajasthan v. Union of
India, the court must hold, on the basis of material disclosed, that the
subjective satisfaction arrived at by the President is conclusive and
cannot be faulted. The proclamation, therefore, is unobjectionable."

Except for aforesaid reasons I and 2, other reasons were not accepted
D
by Justice Reddy. Learned Judge did not accept the reasoning of the High
Court that where Governor's personal bona jides are not questioned, his
satisfaction that no party is in a position to form the Government has to be
accepted as true as it is based on reasonable assessment of all the relevant
facts. The Court also did not accept the reasoning that the Governor's report E
cannot be faulted on the ground of ma/a fides. Learned Judge has stated that
the question whether government has lost the confidence of the House is not
a matter. to be determined by the Governor or for that matter anywhere else
~-
except the floor of the House. The House is the place where the democracy
is in action. It is not a question of subjective satisfaction of the Governor. It
would be useful to note what has been observed in paragraph 391 which F
reads thus:'·

"391. We must also say that the observation under point (7) is equally
misplaced. It is true that action under Article 356 is taken on the basis
of satisfaction of the Uni0n Council of Ministers but on that score it
G
cannot be said that 'legal ma/a jides' of the Governor is irrelevant.
......
When the Article speaks of the satisfaction being formed on the basis
.... of the Governor's report, the legal malajides, if any, of the Governor

-
cannot be said to be irrelevant. The Governor's report may not be
conclusive but its relevance is undeniable. Action under Article 356
can be based only and exclusively upon such report. Governor is a H
658 SUPREME COURf REPORTS [2006] I S.C.R.

A very high constitutional functionary. He is supposed to act fairly and
honestly consistent with his oath. He is actually reporting against his
own Government. It is for this reason that Article 356 places such
implicit faith on his report. If, however, in a given case his report is
vitiated by legal ma/a fides, it is bound to vitiate the President's
action as well. Regarding the other points made in the judgment of
B 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
c 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
D 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
E said question on his own or on his own verification. This is not a
matter within his subjective satisfaction. It is an objective fact capable
of being established ')n the floor of the House. It is gratifying to note
that Sri R. Venkataraman, the former President of India has affirmed
this view in his Rajaji Memorial Lecture (Hindustan Times dated
February 24, 1994).
F
The substantial reasons given by the High Court in paragraphs 28 to 34
for dismissing the writ petition did not find favour with this :::ourt. Dealing
with the report of the Governor in respect of Karnataka, it was held that in
the circumstances it cannot be said that the Governor's report contained or
G was based upon relevant material. There could be no question of the Governor
making an assumption of his own.

Clearly, Bommai's case expanded the scope of judicial review. True,
...
observations by Justice Reddy were made in the context of a situation where
the incumbent Chief Minister is alleged to have lost the majority support or
H the confidence of the House and not in the context of a situation arisen after
)
RAMESHWARPRASADv. U.0.1. [SABHARWAL,CJ.] 659
~ a general election in respect whereof no opinion was expressed, but, in our A
view the principles of scope of judicial review in such matters cannot be any
different. By and large, same principles will apply when making
recommendation for dissolution of a newly elected Assembly and again
plunging the State to elections.

Justice Reddy, for upholding the dissolution of the State Legislatures of B
Madhya Pradesh, Rajasthan and Himachal Pradesh also came to the conclusion
\. that the reports of the Governor disclosed that the State Government had
miserably failed to protect the citizens and the property of the State against
the internal disturbances and on the basis of the said report, the President
fonned the requisite satisfaction. Dealing with the circumstances in the State C
of Madhya Pradesh, it was held that 'Governor's reports are based upon
relevant material and are made bona fide and after due verification'.
(Emphasis supplied by us)

Thus, it is open to the Court, in exercise of judicial review, to examine
! the question whether the Governor's report is based upon relevant material D
or not; whether it is made bona fide or not; and whether the facts have been
duly verified or not. The absence of these factors resulted in the majority
declaring the dissolution of State Legislatures of Kall).ataka and Nagaland as
invalid.

In view of the above, we are unable to accept the contention urged by E
the Id. 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 F
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 G
remembered that this Court is the sentinel on the qui vive. In the facts and
circumstances of this case, the Governor may be main player, but Council of
Ministers should have verified facts stated in the report of the Governor
before hurriedly accepting it as a gospel truth as to what Governor stated.
Clearly, the Governor has mislead the Council of Ministers which lead to aid H
\

660 SUPREME COURT REPORTS [2006] I S.C.R.

A and advice being given by the Council of Ministers to the President leading
to the issue of the impugned Proclamation.

Regarding the argument urged on behalf of the Government of lack of
judicially manageable standards and, therefore, the court should leave such
complex questions to be determined by the President, Union Council of
B Ministers and the Governor, as the situation like the one in Bihar, is full of
many imponderables, nuances, implications and intricacies and there are too
many ifs and buts not susceptible of judicial scrutiny, the untenability of the ,./
argument becomes evident when it is examined in the light of decision in
Bommai' case upholding the challenge made to dissolution of the Assemblies
c of Karnataka and Nagaland. Similar argument defending the dissolution of
these two assemblies having not found favour before a Nine Judge Bench,
cannot be accepted by us. There too, argument was that there were no judicially
manageable standards for judging Horse-trading, Pressure, Atmosphere being
vitiated, wrongful confinement, Allurement by money, contacts with insurgents

D
in Nagaland. The argument was rejected. .,
The position was different when Court considered validity of dissolution
of Assemblies of Madhya Pradesh, Rajasthan and Himachal Pradesh.

In paragraphs 432 and 433 of the opinion of Justice Jeevan Reddy in
Bommai 's case, after noticing the events that led to demolition of Babri
E Masjid on 6th December, 1992, the assurances that had been given prior to
the said date, the extraordinary situation that had arisen after demolition, the
prevailing tense communal situation, the learned Judge came to the conclusion
that on material placed before the Court including the reports of the Governors, -I ~

it was not possible to say that the President had no relevant material before
him on the basis of which he could form satisfaction that BJP Governments
F
of Madhya Pradesh, Rajasthan and Himachal Pradesh cannot disassociate
themselves from the action and its consequences and that thtse Governments,
controlled by one and the same party, whose leading lights were actively
campaigning for the demolition of structure, cannot be disassociated from the
acts and deeds of the leaders of BJP. It was further held that if the President
G was satisfied that the faith of these BJP Governments in the concept of
secularism was suspected in view of the acts and conduct of the party
controlling these Governments and that in the volatile situation that developed ~.

pursuant to the demolition, the Government of these States cannot be carried
on in accordance with the provisions of the Constitution the Court is not able
to say that there was no relevant material upon which he could be so
H
I
RAMESHW AR PRASAD v. U.0 .I. [SABHARWAL, CJ.} 661
• y satisfied. Under these circumstances, it was observed that the Court cannot A
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 · B
Sawant which held that the material relied upon by the Governor was nothing

- but his ipse dixit came to the conclusion that the said dissolution were illegal.
The majority opinion and the correct ratio thereof can only be appreciated if
it is kept in view that the majority has declared invalid the dissolution of
Assemblies of Karnataka and Nagaland and held as valid the dissolution of c
the Assemblies of Madhya Pradesh, Rajasthan and Himachal Pradesh. Once
this factor is kept in full focus; it becomes absolutely clear that the plea of
perception of the same facts or the argument of lack of any judicially manageable
standards would have no legs to stand.

~-...- In the present case, like in Bommai 's case, there is no material D
whatsoever except the ipse dixit of the Governor. The action which results
in preventing a political party from staking claim to form a Government after
election, on such fanciful assumptions, if allowed to stand, would be destructive
of the democratic fabric. It is one thing to come to the conclusion that the
majority staking claim to form the Government, would not be able to provide
stable Government to the State but it is altogether different thing to say that
E
they have garnered majority by illegal means and, therefore, their claim to
form the Government cannot be accepted. In the latter case, the matter may
have to be left to the wisdom and will of the people, either in the same House
it being taken up by the opposition or left to be determined by the people in
the elections to follow. Without highly cogent material, it would be wholly F
irrational for constitutional authority to deny the claim made by a majority
to form the Government only on the ground that the majority has been obtained
by offering allurements and bribe which deals have taken place in the cover
of darkness but his undisclosed sources have confirmed such deals. The
extra-ordinary emergency power of recommending dissolution of a Legislative
Assembly is not a matter of course to be resorted to for good governance or G
cleansing of the politics for the stated reasons without any authentic material.
~
These are the matters better left to the wisdom of others including opposition
and electorate.

It was also contended that the present is not a case of undue haste. H
662 SUPREME COURT REPORTS [2006] I S.C.R.

A The Governor was concerned to see the trend and could legitimately come
to the conclusion that ultimately. people would decide whether there was an
,
'ideological realignment", then there verdict will prevail and the such realigned
group would win elections, to be held as a consequence of dissolution. It is
urged that given a choice between going back to the electorate and accepting
B a majority obtained improperly, only the former is the real alternative. The
proposition is too broad and wide to merit acceptance. Acceptance of such
a proposition as a relevant consideration to invoke exceptional power under
Article 356 may open a floodgate of dissolutions and has far reaching alarming
and dangerous consequences. It may also be a handle to reject post-election
alignments and realignments on the ground of same being unethical, plunging
C 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,
D 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 :

E l. After polls, two or more political parties come together to form the
majority and stake claim on that basis for formation of the
Government. There may be reports in the media about bribe having
been offered to the elected members of one of the political parties
for its consenting to become part of majority. If the contention of
the respondents is to be accepted, then the constitutional
F
functionary can decline the formation of the Government by such
majority or dissoive the House or recommend its dissolution on
the ground that such a group has to be prevented to stake claim
to form the Government and, therefore, a situation has arisen in
wh;ch the Government of the State cannot be carried on in
G accordance with the provisions of the Constitution.
2. A political party stakes claim to form the Government with the
support of independent elected candidates so as to make the
deficient number for getting majority. According to the media
reports, under cover of darkness, large sums of bribe were paid
H by the particular party to independent elected candidates to get
RAMESHWARPRASADv. U.0.1. [SABHARWAL, CJ.) 663
....y their support for formation of Government. The acceptance of the A
contention of the respondents would mean that without any cogent
material the constitutional functionary can decline the formation
of the Government or recommend its dissolution even before such
a claim is made so as to prevent staking of claim to form the
Government.
B
We are afraid that resort to action under Article 3 56( I) under the
aforesaid or similar eventualities would be clearly impermissible. These are
not the matters of perception or of the inference being drawn and assumptions
being made on the basis whereof it could be argued that there are no judicial
manageable standards and, therefore, the Court must keep its hands off from
examining these matters in its power of judicial review. In fact, these matters,
c
particularly without very cogent material, are outside the purview of the
constitutional functionary for coming to the conclusion that a situation has
arisen in which the Government of the State cannot be carried on in accordance
. with the provisions of the Constitution.
D
..'Y'
;. The contention that the installation of the Government is different than
removal of an existing Government as a consequence of dissolution as was
the factual situation before the Nine Judge Bench in Bommai 's case and,
therefore, same parameters cannot be applied in these different situations, has
already been dealt with hereinbefore. Further, it is to be remembered that a
political party prima facie having majority has to be permitted to continue E
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
F
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.
G
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

l preventive and/or curative and, therefore, a constitutional functionary would
be well within his rights to deny formation of the Government to a group of
H
~ parties or elected candidates on the ground of purity of political process is
664 SUPREME COURT REPORTS (2006) I S.C.R.

A of no avail on the facts and circumstances of this case, in view of what we
have already stated. Even if preventive, power cannot be abused.

Another contention urged is that the power under Article 3 56 is
legislative in character and, therefore, the parameters relevant for examining
the validity of a legislative action alone are required to be considered and in
B that light of the expressions such as 'ma/a fide' or 'irrational' or 'extraneous'
have to be seen with a view to ultimately find out whether the action is ultra
vires or not. The contention is that the concept of malajides as generally
understood in the context of executive action is unavailable while deciding I
the validity of legislative action. The submission is that that the malajides or
C extraneous consideration cannot be attributed to a legislative act which when
challenged the scope of inquiry is very limited.

For more than one reason, we are unable to accept the contention of the
proclamation of the nature in question being a legislative act. Firstly, if the
contention was to be accepted, Bommai's case would not have held the
D proclamation in case of Karnataka and Nagaland as illegal and invalid.
Secondly, the contention was specifically rejected in the majority opinion of
Justice Jeevan Reddy in paragraph 377. The contention was that the
proclamation of the present nature assumes the character of legislation and
that it can be struck down only on the ground on which a legislation can be
struck down. Rejecting the contention, it was held that every act of Parliament
E does not amount to and does not result in legislation and that the Parliament
performs many other functions. One of such functions is the approval of the
proclamation under clause (3) of Article 356. Such approval can, by no
stretch of imagination, be called 'legislation'. Its legal character is wholly
different. It is a constitutional function, a check upon the exercise of power
F under clause (I) of Article 356. It is a safeguard conceived in the interest of
ensuring proper exercise of power under clause ( 1). It is certainly not legislation
nor legislative in character.

Mr. Subramaniam, learned Additional Solicitor General, however,
contended that Bommai 's case proceeded on the assumption that the
G 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
H at 205-206; Rameshchandra Kachardas Porwal & Ors. State of Maharashtra
RAMESHWARPRASAD v. U.0.1. [SABHARWAL, CJ.) 665
•& Ors., [1981] 2 SCC 722], A.K. Roy v. Union ofIndia & Ors., [1982] l SCC A
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 B
satisfaction can always be challenged on the ground that it is ma/a fide or
based on wholly extraneous and irrelevant grounds. Apart from the fact that
the narrow minima,! area of judicial review as advocated in State of Rajasthan 's
case is no longer the law of the land in view of its extension in Bommai's
case but the present case even when considered by applying limited judicial C
review, cannot stand judicial scrutiny as the satisfaction herein is based on
wholly extraneous and irrelevant ground. The main ground being to prevent
a party to stake claim to form the Government.

In State of Rajasthan 's case, in para 185, Justice Untwalia observed
that this Court is not powerless to interfere with such an order which is ultra D
vires, wholly illegal or ma/a fide as in such a situation it will tantamount in
law to be no order at all. Further observing that it is incompetent and hazardous
for the Court to draw conclusions by investigation of facts by entering into
the prohibited area but at the same time it would be equally untenable to say
that the Court would be powerless to strike down the order, if on its face, or, E
by going round the circumference of the prohibited area, the Court finds the
order as a mere pretence or colourable exercise of the .extraordinary powers
given under certain Articles of the Constitution and thus in a given case it
,._ may be possible to conclude that it is a fraud on the exercise of the power.
In the present case, we have reached the conclusion that the action of the
Governor was a mere pretence, the real object being to keep away a political F
party from staking a claim to form the Government.

Referring to the opinion of Justice Reddy, in Bommai's case, it was
contended for the respondents that the approach adopted in Barium Chemicals
Ltd. and Anr. v. Company Law Board and Ors., [ 1966] Supt. SCR 311 and G
other cases where action under challenge is taken by statutory or administrative
authorities, is not applicable when testing the validity of the constitutional
action like the present one. For proper appreciation of the contention, it may
-(
be useful to reproduce in full paragraphs 372 and 373 from which certain
observations were relied upon. The same read as under:
H
"372. Having noticed various decisions projecting different points of
666 SUPREME COURT REPORTS [2006] I S.C.R.

A view, we may now proceed to examine what should be the scope and
reach of judicial review when a proclamation under Article 356( I) is
questioned. While answering this question, we should be, and we are,
aware that the power conferred by Article 356( 1) upon the President
is of an exceptional character designed to ensure that the Government
of the States is carried on in accordance with the Constitution. We are
B 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
I
sense, it is not really a power but an obligation cast upon the President
C 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
D
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
E moderation and not in excess.''

(Emphasis supplied by us)

Further, learned Judge states that :

F "373. Whenever a proclamation under Article 356 is questioned, the
court will no doubt start with the presumption that it was validly
issued but it will not and it should not hesitate to interfere if the
invalidity or unconstitutionality of the proclamation is clearly made
out. Refusal to interfere in such a case would amount to abdication
of the duty cast upon the court - Supreme Court and High Courts
G - by the Constitution. Now, what are the grounds upon which the
court can interfere and strike down the proclamation? While discussing
the decisions herein-above, we have indicated the unacceptability of
the approach adopted by the Privy Council in Bhagai Singh v.
Emperor, AIR (1931) PC 111 and King Emperor v. Bengari Lal Sarma,
H AIR ( 1945) PC 48. That was in the years 1931 and 1944, long before
the concept of judicial review had acquired its present efficacy. As
/

RAMESHWAR PRASAD v. U.0.1. [SABHARWAL, CJ.] 667

stated by the Pakistan Supreme Court, that view is totally unsuited to A
a democratic polity. Even the Privy Council has not stuck to that view,
as is evident from its decision in the case from Malaysia Stephen
Kalong Ningkan v. Government of Malaysia, (I 970) AC 379. In this
case, the Privy Council proceeded on the assumption that such a
proclamation is amenable to judicial review. On facts and circumstances B
of this case, it found the action justified. Now, coming to the approach
adopted by the Pakistan Supreme Court, it must be said-as indicated
herein before-that it is coloured by the nature of the power conferred
upon the President by Section 58(2)(b) of the Pakistani Constitution.
The power to dismiss the federal Government and the National
Assembly is vested in the President and President alone. He has to C
exercise that power in his personal discretion and judgment. One man
against the entire system, so to speak-even though that man too is
elected by the representatives of the people. That is not true of our
Constitution. Here the President acts on the aid and advice of the
Union Council of Ministers and not in his personal capacity. Moreover,
there is the check of approval by Parliament which contains members D
from that State (against the Government/Legislative Assembly of which
State, action is taken) as well. So far as the approach adopted by this
Court in Barium Chemicals is concerned, it is a decision concerning
subjective satisfaction of an authority created by a statute. The
principles evolved then cannot ipso facto be extended to the exercise E
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 "Y this court in State of F
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 G
those arenas, because of the very nature of those functions. They are
not the matters which the court is equipped to deal with. The court
has never interfered in those matters because they do not admit of
judicial review by their very nature. Matters concerning foreign policy,
relations with other countries, defence policy, power to enter into
treaties with foreign powers, issues relating to war and peace are H
668 Sl'PREME COURT REPORTS [2006] I S.C.R.

.. A some of the matters where the court would decline to entertain any
petition for judicial review. But the same cannot be said of the power l'
under Article 356. It is another matter that in a given case the court
may not interfere. It is necessary to affirm that the proclamation under
Article 356(1) is not immune from judicial review, though the parameters
thereof may vary from an ordinary case of subjective satisfaction."
B
The aforesaid paragraphs cannot be read in isolation and have to be
seen while bearing in mind that learned Judge invalidated dissolution of
Assembly of Kamataka and Nagaland. Be that as it may, in the present case,
I
the validity of the impugned notification is not being judged on application
C of principles available for judging the validity of administrative actions.
Further, para 376 of the opinion of Justice Jeevan Reddy is very
instructive and it may be reproduced as under :

"We recognise that judicial process has certain inherent limitations. It
is suited more for adjudication of disputes rather than for administering
D the country. The task of governance is the job of the Executive. The
Executive is supposed to know how to administer the country, while
the function of the judiciary is limited to ensure that the Government
is carried on in accordance with the Constitution and the Laws.
Judiciary accords, as it should, due weight to the opinion of the
E Executive in such matters but that is not to say, it defers to the
opinion of Executive altogether. What ultimately determines the scope
ofjudicial review is the facts and circumstances of the given case. A
case may be a clear one ·- like Meghalaya and Karnataka cases -
where the court can find unhesitatingly that the proclamation is bad.
There may also be cases ·- like those relating to Madhya Pradesh,
F Rajasthan and Himachal Pradesh -where the situation is so complex,
full of imponderables and a fast-evolving one that the court finds it
not a matter which admits of judicial prognosis, that it is a matter
which should be leji to the judgment of and to be handled by the
Executive and may be in the ultimate analysis by the people themselves.
G The best way of demonstrating what we say is by dealing with the
concrete cases before us.

(Emphasis supplied by us)

It is evident from the above that what ultimately determines the scope
H of judicial review is the facts and circumstances of the given case and it is
RAMESHWARPRASADv. U.0.1. [SABHARWAL,CJ.] 669
for this reason that the Proclamations in respect of Karnataka and Nagaland A
··were held to be bad and nm 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 B
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 C
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 ex<1mine, for the present purpose, para 4 of the Tenth Schedule dealing
with merger and/or deemed merger. In this view the question sought to be D
raised that there cannot be merger of legislative party without the first merger
of the original party is not necessary to be examined. The contention sought
· to be raised was that even if two-third legislators of LJP legislative party had
agreed to merge, in law there cannot be any merger without merger of original
party and even in that situation those two-third MLAs would have earned E
disqualification. Presently, it is not necessary to decide this question. It could
not have been gone into by the Governor for recommending dissolution.

The provision of the Tenth Schedule dealing with defections, those of
RP Act of 1951 dealing with corrupt practice, electoral offences and
disqualification and the provisions of Prevention of Corruption Act, 1988 are F
legal safeguards available for ensuring purity of public life in a democracy.
But, in so far as the present case is concerned, these had no relevance at the
stage when the dissolution of the Assembly was recommended without
existence of any material whatsoever. There was no material for the assumption
that claim may be staked based not on democratic principles and based on G
manipulation by breaking political parties.

There cannot be any doubt that the oath prescribed under Article 159
requires the Governor to faithfully perform duties of his office and to the best
of his ability preserve, protect and defend the Constitution and the laws. The
Governor cannot, in the exercise of his discretion or otherwise, do anything H
670 SUPREl'v!E COURT REPORTS [2006 I I S.C.R.

A what is prohibited to be done. The Constitution enjoins upon the Governor
that after the conclusion of elections, every possible attempt is made for
formation of a popular Government representing the will of the people expressed
through the electoral process. If the Governor acts to the contrary by creating
a situation whereby a party is prevented even to stake a claim and recommends
B dissolution to achieve that object, the only inescapable inference to be drawn
is that the exercise of jurisdiction is wholly illegal and unconstitutional. We
have already referred to the Governor report dated 21st May, 2005, inter alia,
stating that 17-18 MLAs belonging to LJP party are moving towards JDU /
which would mean JOU may be in a position to stake claim to forn1 the
Government. The further assumption that the move of the said members was
C 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.
D 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 fa,r as the functions, duties
E 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 j
~
Democracy but, at the same time, it is to be remembered that the defections
F have to be dealt with in the manner permissible in law.

If a political party with the support of other political party or other
MLA' s stakes claim to form a Government and satisfies the Governor about
its majority to form a stable Government, the Governor cannot refuse formation
G of Government and override the majority claim because of his subjective
assessment that the majority was cobbled by illegal and unethical means. No
such power has been vested with !he Governor. Such a power would be
.
---
against the democratic principles of majority rule. Governor is not an autocratic
political Ombudsman. If such a power is vested in the Governor and/or the
•
President, the consequences can be horrendous. The ground of ma!
H administration by a State Government enjoying majority is not available for
-
RAMESHWARPRASADv. U.0.1.[SABHARWAL,CJ.] 671
invoking power under Article 356. The remedy for corruption or similar ills and A
evils lies elsewhere and not in Article 356(1). In the same vein, it has to be
held that the power under Tenth Schedule for defection lies with the Speaker
of the House and not with the Governor. The power exercised by the Speaker
under the Tenth Schedule is of judicial nature. Dealing with the question
whether power of disqualification of members of the House vests exclusively B
with the House to the exclusion of judiciary which in Britain was based on
certain British legislature practices, as far as India is concerned, it was said
in Kihoto 's case that :

"It is, therefore, inappropriate to claim that the det.erminative
jurisdiction of the Speaker or the Chairman in the Tenth Schedule is C
not a judicial power and is within the non-justiciable legislative area."

The Governor cannot assume to himself aforesaid judicial power and
based on that assumption come to the conclusion that there would be violation
of Tenth Schedule and use it as a reason for recommending dissolution of
assembly. D
<.f
The Governor, a high Constitutional functionary is required to be kept
out from the controversies like disqualification of members of a Legislative
Assembly and, therefore, there are provisions like Article 192(2) in the
Constitution providing for Governor obtaining the opinion of the Election
Commission and acting according to such opinion, in the constitutional scheme E
of things. Similar provision, in so far as, member of Parliament is concerned
being in Article 103(2) of the Constitiltion {Brundaban Nayak v. Election
Commission of India & Anr. (1965) 3 SCR 53 and Election Commission of
~. India & Anr. v. Dr. Subramqniam Swamy & Anr., [ 1996) 4 SCC 104.

For all the aforesaid reasons, the Proclamation dated 23rd May, 2005 F
is held to be unconstitutional.

POINT N0.3 : 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?
G
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 H

~'-.
672 SUPREME COURT REPORTS [2006) I S.C.R.

A realities and taking a pragmatic view. As a result of the impugned Proclamation,
the Election Commission of India had not only made preparations for the four
phase election to be conducted in the State of Bihar but had also issued
Notification in regard to first two phases before conclusion of arguments.
Further, in regard to these two phases, before 7th October, 2005, even the last
date for making nominations and scrutiny thereof was also over. In respect
B of l st phase of election, even the last date for withdrawal of nominations also
expired and polling was fixed for I 8th October, 2005. The election process had
been set in motion and was at an advanced stage. Judicial notice could be I
taken of the fact that considerable amount must have been spent; enormous
preparations made and ground works done in the process of election and that
C too for election in a State like the one under consideration. Having regard to
these subsequent developments coupled with numbers belonging to different
political parties, it was thought fit not to put the State in another spell of
uncertainty. Having regard to the peculiar facts, despite unconstitutionality
of the Proclamation, the relief was moulded by not directing status quo ante
D and consequently permitting the completion of the ongoing election process
with the fond hope that the electorate may again not give fractured verdict \
and may give a clear majority to one or other political party the Indian
electorate possessing utmost intelligence and having risen to the occasion on
various such occasions in the past.

POINT N0.4: What is the scope of Article 361 granting immunity to
E the Governor?

By order dated 8th September, 2005, we held that the Constitution of
India grants immunity to the Governor as provided in Article 361.

F Article 361 (I), inter alia, provides that the Governor shall not be
answerable to any Court for the exercise and performance of the powers and
duties of his office or for any act done or purported to be done by him in the
exercise and performance of those powers and duties. We accepted the
submissions made on behalf of the respondents that in view of this Article
notice could not be issued to the Governor, at the same time, further noticing
G that the immunity granted does not affect the power of this Court to judicial
scrutinise attack made on the Proclamation issued under Article 356(1) of the
Constitution of India on the ground of ma/afides or it being ultra vires and
that it would be for the Government to satisfy the Court and adequately meet

H
such ground of challenge. A ma/a fide act is wholly outside the scope of the
power and has no existence in the eyes of the law. We, further held that the ..
/
>-
RAMESHWARPRASADv. U.0.1. [SABHARWAL,CJ.] 673

expression 'purported to be done' in Article 361 does not cover acts which A
are ma/a 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 ma/a fide or being ultra vires would not be examined
by the Court. This order was made at the stage when we had not examined B
the question whether the exercise of power by the Governor was ma/a 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 (I) which grants protection to the President and the Governor
c
reads as under :

"361. Protection of President and Governors and Rajpramukhs.--{I)
The President, or the Governor or Rajpramukh of a State, shall not
be answerable to any court for the exercise and performance of the D
I powers and duties of his office or for any act done or purporting to
be done by him in the exercise and performance of those powers and
duties :

Provided that the .conduct of the President may be brought under
review by any court, tribunal or body appointed or designated by E
either House of Parliament for the investigation of a charge under
article 61: Provided further that nothing in this clause shall be construed
as restricting the right of any person to bring appropriate proceedings
against the Government of India or the Government of a State.

(2) No criminal proceedings whatsoever shall be instituted or continued F
against the President, or the Governor of a State, in any court during
his term of office.

(3) No process for the arrest or imprisonment of the President, or the
Governor of a State, shall issue from any court during his term of
office. G
(4) No civil proceedings in which relief is claimed against the
President, or the Governor of a Slate, shall be instituted during his
term of office in any court in respect of any act done or purporting
to be done by him in his personal capacity, whether before or after
he entered upon his office as President, or as Governor of such Stale, H
674 SUPREME COURT REPORTS [2006] I S.C.R.

A until the expiration of two months next after notice in writing has been
delivered to the President or the Governor, as the case may be, or left
at his office stating the nature of the proceedings, the cause of action
therefor, the name, description and place of residence of the party by
whom such proceedings are to be instituted and the relief which he
claims."
B
A plain reading of the aforesaid Article shows that there is a complete
bar to the impleading, and issue of notice to the President or the Governor
inasmuch as they are not answerable to any Court for the ex1ircise and
performance of their powers and duties. Most of the actions are taken on aid
C and advice of Council of Ministers. The personal immunity from answerability
provided in Article 361 does not bar the challenge that may be made to their
actions. Under law, such actions including those actions where the challenge
may be based on the allegations of malajides are required to be defended by
Union of India or the State, as the case may be. Even in cases where the
personal malajides are alleged and established, it would not be open to the
D Governments to urge that the same cannot be satisfactorily answered because
of the immunity granted. In such an eventuality, it is for the respondent \
defending the action to satisfy the Court either on the basis of the material
on record or even filing the affidavit of the person against whom such
allegation of personal malafides are made. Article 361 does not bar filing of
E 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 (I) is
F 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 malajides.

In Union Carbide Corporation, etc., etc. v. Union of India, etc. etc.,
[ 199 I] 4 SCC 584, dealing with Article 361 (2) of the Constitution, Justice
Venkataha!liah referred to the famous case of Richard Nixon [(1982) 457 US
G 731) about theoretical basis for the need for such immunity. It was said

"Article 361(2) of the Constitution confers on the President and the
Governors immunity even in respect of their personal acts and enjoins
that no criminal proceedings shall be instituted against them during
their term of office. As to the theoretical basis for the need for such
H immunity. the Supreme Court of the United States in a case concerning
I
f
RAMESHWARPRASADv. U.0.1. [SABHARWAL,CJ.] 675

"-, immunity from civil liability (Richard Nixon v. Ernest Fitzgerald, 457 A
US 731 : 73 Law Ed 2d 349) said:

" .....This Court necessarily also has weighed concerns of public
policy, especially as illuminated by our history and the structure
,,
of our Government... ..
" .... .In the case of the President the inquiries into history and
B
policy though mandated independently by our case, tend to
converge. Because the Presidency did not exist through most of
the development of common law, any historical analysis must
draw its evidence primarily from our constitutional heritage and
structure. Historical inquiry thus merges almost at its inception c
with the kind of "public policy" analysis appropriately undertaken
by a federal court. This inquiry involves policies and principles
"'- .' that may be considered implicit in the nature of the President's
office in a system structured to achieve effective Government
under, a constitutionally mandated separation" of powers."
D
'f
.> (L Ed p.367)

" .... .In view of the special nature of the President's constitutional
office and functions, we think it appropriate to recognise absolute
Presidential immunity from damages liability for acts within the "outer
perimeter" of his official responsibility. E
Under the Constitution and laws of the United States the President
has discretionary responsibilities in a broad variety of areas, many of
~
)- them highly sensitive. In many cases it would be difficult to determine
which of the President's innumerable "functions" encompassed a
particular action ..... "
F

A division Bench of the Bombay High Court in the case of Shri
Pratapsing Raojirao Rane & Ors v. The Governor of Goa & Ors., AIR
(1999) Bombay 53 has correctly held that in respect of his official acts, the
Governor is not answerable to the Court even in respect of charge of ma/a G
fide and that in such an eventuality the Governor cannot be said to be under
the duty to deal with the allegations of ma/a fide. The Constitutional Law of
India, 4th Edn. by H.M.Seervai has been rightly relied upon in the said
judgment. The observations made by full Bench of the Madras High Court
in K.A. Mathialagan & Ors. v. The Governor of Tamil Nadu & Ors. AIR
(1973) Madras 198 that the Governor would be under duty to deal with H
676 SUPREME COURT REPORTS [2006] I S.C.R.

A allegations of ma/a fide in order to assist the Court has been rightly described ,:-
in Seervai' s commentary being in direct conflict with the complete personal
immunity of the Governor.

The words 'purported to be done' are of wide amplitude. In Biman
Chandra v. Governor, West Bengal, AIR (1952) Calcutta 799 it was held that
B 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 '" TL.Shevde, AIR (1952) Nagpur 330 construing the
C 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.
D
In State v. Kawas Manekshaw Nanavati, AIR (1960) Bombay 502 full
Bench of the High Court held that Article 361 only gives personal protection
to the Governor. It is not necessary that the Governor should be a party to
the proceeding. Validity of actions can be considered and decided in the
absence of the Governor. In The State of West Bengal and Ors. v. Sallendra
E Nath Bose, AIR (19640 Calcutta 184] it was held that a citizen is not without
redress even though he cannot implead the Governor as a party but can be
given relief.

The position in law, therefore, is that the Governor enjoys complete
F immunity. Governor is not answerable to any Court for the exercise and
performance of the powers and duties of his office or for any act done or
purporting to be done by him in the exercise and rerformance of those
powers and duties. The immunity granted by Article 361 (I) does not, however,
take away the power of the Court to examine the validity of the action
including on the ground of malajides.
G
In view of the above, while holding the impugned Proclamation dated
23rd May, 2005 unconstitutional, we have moulded the relief and declined to
grant status quo ante and consequentially permitted the completion of ongoing
election process.

H All petitions are disposed of accordingly.
RAMESH WAR PRASAD v. U.0.1. [BALAKRISHNAN, J.) 677

K.G. BALAKRISHNAN, J. I have had the advantage of reading in'draft A
the judgment prepared by Hon'ble the Chief Justice of India, Shri Y. K.
Sabharwal and I find myself unable to agree with the decision on point No.
2 formulated in the judgment. On all other points, I gratefully adopt the
exposition of, law and agree with the decisiOn proposed by the learned Chief
Justice. Point No. 2 is as follows :-"
B
(1) ................................................ ..

(2) Whether the proclamation dated 23rd May, 2005 dissolving the
Assembly of Bihar is illegal and unconstitutional?"

Few factual details are necessary to decide the question. The election c
to the Bihar State Legislature was held in the month of February, 2005 and
the results of the election were declared on 23rd March, 2005. The names of
the members elected to the Bihar State Legislature were notified by the
Election Commission. Certain political groups and political parties participated
and the National Democratic Alliance (for short 'NOA'), a coalition comprising
- Bhartatiya Janata Party (for short 'BJP')·and Janata Dal (United) (for short D
,J1
•'JO(U)") secured the largest support of MLAs. The_ party-wise strength in the
Assembly was as follows :-
"(1) NDA 92
(2) RID 75
E
(3) UP ·~

(4) Congress (I) 10
(5) CPI (ML) 07
(6) Samajwadi Party 04
(7) NCP 03
F
(8) Bahujan Samaj Party 02
(9) Independents 17
(10) Others 09"

In order to secure an absolute majority to form a Government in the G
State ofBihar, support of 122 Members of Legislative Assembly was required.
-i NOA could secure only 92 seats and no other political parties or group came
forward to support NOA to form a Government. RJD was also in the same
dilemma. UP, another political party which was under the leadership of Shri
Ram Vilas Paswan had .secured 29 seats in the State Legislature. This political H
678 SUPREME COURT REPOP.TS [2006] I S.C.R.

A party did not extend support either to NOA or RJO. As none could form a I'
,,
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
B of India under Article 356 of the Constitution on 7th March, 2005 is not
challenged in most of the petitions before us. In one of the petitions, the
Notification issued on 7th March, 2005 under Article 356 of the Constitution
I.
is also challenged but the petitioner could not substantiate his contentions
and the very challenge itself is highly belated.
c While the Assembly was in suspended animation, the two political
groups, the NOA which had secured 92 seats and the RJO which had secured
75 seats in the State Legislature made attempts to form a Government in the
State of Bihar. It appears that the LJP, which had secured 29 seats in the State
Legislature was not prepared to extend support either to NOA or RJO. When
D the (Vote on Account) Bill of 2005 for the State of Bihar was presented ~
before the Parliament, the Home Minister made a statement to the effect that
the President's Rule would not be continued for a long time and they would
have been happy if a Government had been formed by the elected
representatives and that the elected representative should talk to each other
and create a situation in which it becomes possible for them to form a
E
Government. The discussion must have been continued between the political
parties.

On 27th April, 2005 the Governor of Bihar sent a Report to the President
of India wherein he stated that he had received Intelligence Reports to the
F effect that some elected representatives were said to have been approached
by factions within the party and outside the party with various allurements
like money, castes and posts etc. and the same was a disturbing trend. He
also cautioned that if the trend is not arrested immediately, the political
instability would further deepen and the horse .. trading would be indulged in
by various political parties and it would not be possible to contain the situation
G and the people should be given a fresh opportunity to elect their representatives.

It seems that pursuant to letter dated 27th April, 2005 sent by the
Governor of Bihar to the President, no decision was taken by the President •
for dissolution of the State Assembly. Again on 2 Ist May, 2005 the Governor
of Bihar sent a letter to the President and this is the crucial document on the
H
RAMESHWAR PRASAD v.U.0.1. [BALAKRISHNAN. J.] 679

·~ basis of which the Bihar State Legislative Assembly was dissolved under~ A
Article 174 (2) (b) of the Constitution. The letter is as follows :-"

"Respected Rashtrapati Jee,

I invite a reference to my D.O. letter No. 52/GB dated 27th April,
2005 through which I had given a detailed account of the attempts B
made by some of the parties notably the JD-U and BJP to cobble a
majority and lay a claim to form a Government in the State. I had
informed that around 16-17 MLAs belonging to LJP were being wooed
by various means so that a split could be effected in the LJP. Attention .
was also drawn to the fact that the RJD MLAs had also become
restive in the light of the above moves made by the JDU. c
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 D
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 E
and also through meeting with various political functionaries, as also
intelligence reports, indicate a trend to win over elected representatives
of the people. Report has also been received of one of the LJP MLA,
who is General Secretary of the party having registered today and
also 17-18 more perhaps are moving towards the JD-U clearly F
indicating that various allurements have been offered which is very
disturbing and alarming feature. Any move by the break away faction
to align with any other party to cobble a majority and stake claim to
form a Government would positively affect the Constitutional
provisions and safeguards built therein and distort the verdict of the
people as shown by the results in the recent Elections. If these attempts G
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
H
680 SUPREME COURT REPORTS (2006] I S.C.R.

A possible to contain the situation. Hence in my view a situation has y
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."
B
The gist of the letter written by the Governor is that political parties
either individually or with the then pre-election combination or with post-
election alliance combination could not stake a claim to form a popular
Government since none could claim support of a simple majority of 122 in
C a House of 243 members and, therefore, the Preside'!t issued a Proclamation
under Article 356. The Governor further stated that he had received information
through media and reports gathered through meeting with various political
functionaries that there had been a trend to win over elected representatives
of the people and 17-18 MLAs were moving towards JD(U) and various
allurements had been offered to them. Governor also if!dicated that any move
D by the break-away faction to align with any other party, to cobble a majority
and stake a claim to form a Government would positively affect the
Constitutional provisions and safeguards provided therein. The Governor was
of the view that if the Assembly is dissolved, the political parties would get
another opportunity to seek a fresh mandate of the people. From the letter,
E it is clear that no political party or group or alliance had approached the
Governor claiming absolute majority in the State Legislature nor did they try
to form a Government "ith the help of other political parties or independent
MLAs.

The Report of the Governor was received by the Union of India on
F 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.

G We heard learned Attorney General, Mr. Milon K. Banerji; learned
Solicitor General, Mr. Ghoolam E. Yahanvati; 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
H the petitioner submitted their written arguments. Most of the arguments
, RAMESH WAR PRASAD v. U.0.1. [BALAKRISHNAN, J.] 681

-........... centered around the decision rendered by this Hon'ble Court in S.R. Bommai A
and Ors. v. Union of India and Ors., [1994] 3 SCC I. The decision in S.R.
Bommai's case was rendered by a Nine Judge Bench and several opinions
were expressed. Justice B.P. Jeevan Reddy gave a separate judgment with
which Justice S.C. Agrawal agreed. Justice A.M. Ahmadi, Justice J.S. Verma,
Justice K. Ramaswamy and Justice Yogeshwar Dayal agreed with certain B
propositions given by Justice B.P. Jeevan Reddy. Although there was a broad
concurrence with the views expressed by Justice Jeevan Reddy, Justice Sawant
& Kuldip Singh, JJ. struck a different note and their approach, reasoning and
conclusion are not similar.

In order to understand the scope and ambit of the decision in S.R. C
Bommai 's case it is necessary to see the earlier decision in State of Rajas than
and Ors. v. Union of India and Ors., reported in [ 1977] 3 SCC 592. The facts
which had led to the filing of that case was that in March, 1977 elections
were held to the Lok Sabha and the result of the elections was interpreted to
mean that the Congress party had lost people's mandate. The Union Home
Minister sent a letter to the Chitf Ministers of certain States asking them to D
advise their respective Governors to dissolve the Assemblies and seek a fresh
mandate from the people. The letter together with the statement made by the
Union Law Minister was treated as a threat to dismiss those State Governments.
They approached this Hon'ble Court by filing suits and writ petitions. In that
case, six opinions were delivered by the Seven Judge Bench. Though all of E
them agreed that the writ petitions and suits be dismissed, the reasonin'g were
not uniform. Some of the opinions in that judgment can be briefly stated as
follows :-

Bhagwati, J. on behalf of Gupta, J and himself, while dealing with the
"satisfaction of the President" prior to the issuance of the Proclamation under F
Article 356 (I), stated as follows :-

"So long as a question arises whether an authority under the
Constitution has acted within the limits of its power or exceeded it,
it can certainly be decided by the Court. Indeed it would be its
Constitutional obligation to do so ........ This Court is the ultimate G
interpreter of the Constitution and to this Court is assigned the delicate
task of determining what is the power conferred on each branch of
Government, whether it is limited, and if so, what are the limits and
whether any action of that branch transgresses such limits. It is for
this Court to uphold the Constitutional values and to enforce the H
682 SUPREME COURf REPORTS (20061 I S.C.R.

A Constitutional limitations. That is the essP.nce of the Rule of Law ....."
r"
He went on to say :-

" .... Here the only limit on the power of the President under Art. 356,
clause (I) is that the President should be satisfied that a situation has
arisen where the Government of the State cannot be carried on in
B
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
c 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
D
described as 'judicially discoverable and manageable standards'. It
would largely be a political judgment based on assessment of diverse
and varied factors, fast changing situations, potential consequences,
public reaction, motivations and responses of different classes of people
and their anticipated fufure behaviour and a host of other
E considerations ..... "

He further stated :-

" ..... .// mus/ of course be conceded that in most cases it would be
difficult, if not impossible, to challenge the exercise of power under
Art. 356, clause ( 1) even on this limited ground, because the facts
F
and circumstances on which the satisfaction is based would not be
known. but where ii is possible, the existence of the satisfaction can
always be challenged on !he ground that ii is mala fide or based on
wholly extraneous and irrelevant grounds. .. This is the narrow minimal
area in which the exercise of power under Article 356, Clause(/) is
G subject to judicial review and apart from it. it cannot rest with the
Court lo challenge the sati~factwn of the President that the situation
contemplated in that clause exists".

(Emphasis supplied)

H Beg, CJ was of the opinion that by virtue of Article 356 and Article 74(2)
RAMESHWAR PRASAD v.U.0.1. [BALAKRISHNAN, J.] 683
of the Constitution, it is impossible for the court to question the 'satisfaction' A
of the. President. It is to be decided on the basis of only those facts as may
have been admitted or placed before the court. Beg CJ was Jiso of the opinion
that the language of Article 356 and the practice since 1950 shows that the
Central Government can enforce its will against the State Government with
respect to the question as to how the State Government should function and B
should hold reigns of power. But these views were not accepted by the
majority. YV Chandrachud, J, speaking on the scope of judicial review held
), that if the reasons disclosed by the Union of India are wholly extraneous, the
court can interfere on the ground of ma/a fides. "Judicial scrutiny", said the
learned Judge, is available "for the limited purpose of seeing whether the
reasons bear any rational nexus with the action proposed. The court cannot C
sit in judgment over the 'satisfaction' of the President for determining, if any
other view is reasonably possible." As regards the facts disclosed in the case,
the learned Judge was of the view that the facts disclosed by the Central
Government in its counter affidavit cannot be said to be irrelevant to Article
356. Goswami and Untwalia, JJ. gave separate opinions and expressed the D
.--{ view that the facts stated cannot be said to be e·xtraneous or irrelevant.
j ·.

From the dicta laid down in State of Rajasthan.'s case, it is clear that the
power of judicial review could be exercised when an order passed under
Article 356 is challenged before the court on the ground of ma/a jides or upon
wholly extraneous or irrelevant grounds and then only the court would have E
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
·t . in State of Rajasthan 's case.

On a careful examination of the various opinions expressed in S.R F
Bommai 's case, it is clear that the majority broadly accepted the dict:i 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.
G
P.B. Sawant, J. speaking for himself ~nd Kuldip Singh, J. took a different
view and held that the same principles would apply when a proclamation
under Article 356 also is challenged. Some of the observations made by the
learned Judges would make the position clear.

In S. R Bommai 's case, a plea was raised that the principles of judicial H
684 SUPREME COURT REPORTS [2006) I S.C.R.

A review as laid down in Barium Chemicals f.td & Anr. v. The Company Law
Board and Ors.. [ 1966] Suppl. 3 SCR 311 are applicable and the subjective
satisfaction of the President as contemplated under Article 356 could be
examined. In the Barium Chemical's case, the Corppany Law Board under
Section 237(b) of the Companies Act appointed four inspectors to investigate
B the affa~rs of the appellant-company on the ground that the Board was of the
opinion that there were circumstances suggesting that the business of the
appellant-company was being conducted with intent to defraud its creditors,
members or any other persons and that the persons concerned in the
management of the affairs of the company had in connection therewith, been
guilty of fraud, misfeasance and other misconduct towards the company and
C its members. The company filed a writ petition challenging the said order. In
reply to the writ petition, the Chairman of the Company Law Board filed an
affidavit and contended that there was material on the basis of which the
order was issued and that he had himself examined this material and formed
the necessary opinion within the meaning of the said Section 237(b) of the
D Companies Act. The majority of the Judges held that the circumstances
disclosed in the .affidavit must be regarded as the only material on the basis ,_
of which the Board formed the opinion before ordering an investigation under
Section 237(b) and that the circumstances could not reasonably suggest that
the company was being conducted to defraud the creditors, members or other
persons and, therefore, the impugned order was held ultra vires the section.
E Hidayatullah, J. as he then was, stated that the power under Section 237(b)
is discretionary power and the first requirement for its exercise is the honest
formation of an opinion that an investigation is necessary and the next
requirement is that there are circumstances suggesting the inferences set out
in the section. An action not based on circumstances suggesting an inference
F of the enumerated kind will not be valid. Although the formation of opinion
is subjective, the existence of circumstances relevant to the inference as the
sine quo non for action must be demonstrable. If their existence is questioned,
it has to be proved at least prima facie. It is not sufficient to assert that the
circumstances must be such as to lead to conclusions of action definiteness.

G 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. v. State of Kera/a, [ 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. v. Minister for
H Civil Services. (1985) AC 374 GCHQ would apply when Presidential
RAMESH WAR PRASAD v. U.O.l. [BALAKRISHNAN, J.] 685

Proclamation under Article 356 is challenged. This plea also was not accepted A
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:
B
"From these authorities, one of the conclusions which may safely be
drawn is that the exercise of power by the President under Article
356(1) to issue Proclamation is subject to the judicial review at least
to the extent of examining whether the conditions precedent to the
issuance of the Proclamation have been satisfied or not. This
examination will necessarily involve the scrutiny as to whether there c
existed material for the satisfaction of the President that a situation
had arisen in which the Government of the State could not be carried
on in accordance with the provisions of the Constitution......... .

In other words, the President has to be convinced of, or has to have D
sufficient proof of information with regard to or has to be free from
doubt or uncertainty about the state of things indicating that the
situation in question has arisen. Al1hough, 1herefore, Lhe sufficiency
or otherwise of the material cannol be queslioned, the legilimacy of
inference drawn from such ma/erial is cer/ainly open to judicial
review. E
The above opinion expressed by Sawant J., to which Kuldip Singh, J.
also agreed was not fully accepted by other Judges. B.P. Jeevan Reddy, J.
speaking for himself and Agrawal, J., held that the proclamation under Article
356 is liable to judicial review and held that the principles of judicial review,
which are applicable when an administrative action is challenged, cannot be F
applied stricto sensu.

At the end of the judgment, Jeevan Redddy, J. summarized the
conclusions and conclusions (6) and (7) speak of the scope and ambit of
judicial review. Clause (l), (2), (6) and (7) are relevant for the purpose of the
present case. These are as follows: G
(I) Article 356 of the Constitution confers a power upon the President
to be exercised on!y where he is satisfied that a situation has arisen
where the government of a State cannot be carried on in accordance
with the provisions of the Constitution, Under our Constitution, the
H
686 SUPREME COURT REPORTS [2006 J I S.C.R.

A power is really that of the Union Council of Ministers with the Prime
,. '
Minister at its head. The satisfaction contemplated by the Article is
subjective in nature.

(2) The power conferred by Art. 356 upon the President is a
conditioned power. It is not an absolute power. The existence of
B 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 t_
consideration at the hands of all concerned.

c [3)

[4]

[5]

(6) Article 74(2) merely bars an enquiry into the question whether
D any, and if so, what advice was tendered by the ministers to the ..,.
President. It does not bar the court from calling upon the Union ..
Council of Ministers (Union of India) to disclose to the court the
material upon which the President haJ formed the requisite satisfaction.
The material on the basis of which advice was tendered does not
E 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
F 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 ma/a fide or based un whully irrelevant
or extraneuus grounds. The deletion of clause (5) (which was
G introduced by 38th (Amendment) Act) by the 44th (Amendment)
Act, removes the cloud on the reviewability of the action. When
called upon, the Union of India has to produce the material on the
basis of which action was taken. It cannot refuse to do so, if it seeks
to defend the action. The court will not go intu the correctness of the
H material or its adequacy. Its enquiry is limited to S<-'e whetha the
RAMESH WAR PRASAD v.U.0.1. [BALAKRISHNAN. J.] 687
... material was relevant to the action. Even if part of the material is A
"" irrelevant, the court cannot interfere so long as there is some material
which is relevant to the action taken.

[Emphasis supplied]

Justice Ratnavel Pandian agreed with Jeevan Reddy J. on his conclusions B
on all the above points. He disagreed with only Clause (3) of the summary
of conclusions. Clause (3) deals only with the power of dissolving the
.~
legislative assembly which shall be exercised by the President only after
proclamation under clause {I) of Article 356 is approved by both the Houses
of Parliament and until such approval the President can only suspend the
Legislative Assembly by suspending the provisions of the Constitution relating C
to the Legislative Assembly.

J.S. Verma, Ahmadi and Ramaswami, JJ. took a different note. Ahmadi,
J. was of the opinion that the court cannot interdict the use of the constitutional
,..( power conferred on the President under Article 356 unless the same is shown D
i to be malajide. Before exercise of the Court's jurisdiction, sufficient caution
must be administered and unless a strong and cogent prima facie case is
made out, the President, i.e. the executive must not be caJled upon to answer
the charge. Ramaswamy, J. was also of the same opinion.

Verma, J. was of the view that the test for adjudging the validity indicated E
in the The Barium Chemicals Ltd. 's case and other cases of that category
have no application for testing and invalidating a proclamation issued under
Article 356. He was of the opinion that only cases which permit application
of totally objective standards for deciding whether the constitutional machinery
has failed are amenable to judicial review and the remaining cases wherein
there is any significant area of subjective satisfaction dependent on some F
imponderables or inferences are not justiciable because there are no judicially
manageable standards for resolving that controversy and those cases are subject
only to political scrutiny and correction for whatever its value in the 'existing
political scenario.

It is important to note that in S. R. Bommai's case, majority of Judges
G
held, that as regards the imposition of President's Rule in Karnataka,
Meghalaya and Nagaland, the Presidential proclamations were unconstitutional.
The facts which ultimately led to the Presidential proclamation under Article
356(\) in two States are significant to understand the law laid down in S.R.
Bommai's case. H
688 SUPREME COURT REPORTS [2006] I S.C.R.

A 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
fonned the Government under the leadership ofShri 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
B 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 verifled. Governor
C then sent a report to the President stating therein that there were dissensions
in the Janta Party which had led to the resignation of Shri Hegde and he
referred to the 19 letters received by him and in view of withdrawal of
support by the said legislators , the Chief Minister Shri Bommai did not
command a majority m the Assembly and no other political party was in a
position to fonn the government and, therefore, recommended to the President
D to exercise power under Article 356( I). The Governor did not ascertain the
view of the Chief Minister, Shri Bommai, and on the next day, seven out of
the nineteen legislators who had allegedly written the said letters to the
Governor made a complaint that their signatures were obtained by
misrepresentation. The Governor also did not take any steps directing the
E Chief Minister to seek a vote of confidence in the legislature nor met any of
the legislators who had allegedly defected from the Janta Party. It was in this
background that the proclamation issued by the President on the basis of the
said report of the Governor and in the circumstances so obtaining, equally
suffered from malafides. The duly constituted Ministry was dismissed on the
basis of the material which was no more than the ipse dixit of the Governor.
F
In the case of Meghalaya, Meghalaya United Parliamentrary Party
(MUPP) which had a majority in the Legislative Assembly fonned the
government in March, 1990 under the leadership of Shri B.B. Lyngdoh. One
Kyndiah Arthree was at the relevant time the Speaker of the House. He was
G elected as the leader of the opposition known as United Meghalaya
Parliamentary Forum (UMPF). On his election, Shri Arthree claimed support
of majority of the members in the Assembly and requested the Governor to
invite him to fonn the government. The .Governor asked the Chief Minister
Shri Lyngdoh to prove his majority on the floor of the House. A special
sessions was convened on 7.8.91 and a Motion of Confidence in the Ministry
H was moved. Thirty Legislators supported the Motion and 27 voted against
j
I

RAMESHW AR PRASAD v. U.0.1. [BALAKRISHNAN. J.) 689

~"! it. Instead of announcing the result of the voting on the Motion, the Speaker A
declared that he had received a complaint against five independent MLAs of
the ruling coalition front alleging that they were disqualified as legislators
under the anti-defection law and since they had become disentitled to vote,
he' .was suspending their right to vote. On this announcement, there was
uproar in the Ho~~e and it had to he adjoumed. On 11.8.1991, the Speaker.
issued show cause notices to the alleged defectors. The five MLAneplied B
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 Govemor'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 C
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 D
independent MLAs who had obtained interim orders from the court moved
a contempt petition before this court against the Speaker. The Speaker made
a declaration in a press statement defying the interim order of this Court. On
8.10.1991, this Court passed an order directing that all authorities of the State
should ensure the compliance of the Court's interim order of 6.9.1991 and E
four of the five independent MLAs received invitation to attend the Session
of the Assembly. After the Motion of Confidence in the Ministry was put to
vote, the Speaker declared that 26 voted for the Motion and 26 against it and
excluded the votes of the four independent MLAs. The 26 MLAs who had
supported the Ministry and four MLAs who had voted in favour of the
Motion elected a new Speaker and the new Speaker declared that the Motion F
of Confidence in the Ministry had been carried since 30 MLAs had voted in
favour of the Government. They thereafter sent letters to the Governor that
they had voted in favour of the Ministry. However, the Governor wrote a
letter to the Chief Minister asking him to resign in view of what had transpired
in the Session on 8.10.1991. Jhe Chief Minister moved this Court against the G
letter of the Governor. Despite all these facts, the President on 11.10.1991
issued a proclamation under Article 356(1) and in the proclamation it was
stated that the President was satisfied on the basis of the report from the
Governor and other information received by him that the situation had arisen
in which the Government of the State could not be carried on in accordance
with the provisions of the Constitution. H
690 SUPREME COURT REPORTS (20061 I S.C.R.

A In the case ofNagaland also, similar si!Uation had arisen. The facts are
not necessary to be stated in detail.

In all thes.: three cases where the Presidential Proclamations issued
under Article 356 were quashed by this Court, were States wherein the
Government was functioning on the strength of the majority, whereas in the
B instant case the decision of dissolution of the Assembly was evidently passed
on the report of the Governor when the Assembly was in suspended animation
and there was no democratically elected Government in the State and, therefore,
there was no question of testing the majority of the Government on the floor
of the Assembly.
c From the S. R. Bommai 's decision, it can be discerned that the majority
was of the view that so far as the scope and ambit of judicial review is very
limited when a proclamation under Article 356 is questioned and similar
parameters would apply in a case where a Notification is passed under Article
174(2) (b) dissolving the State Legislative Assembly. The plea raised by the
D Additional Solicitor General, Shri Gopal Subramaniam that the Notification
dissolving Assembly is of a legislative character and could be challenged
only on the ground of absence of legislative compctcn~.: or ultra vires of the
Constitution, cannot be accepted. This plea was raised ir1 Rujasthan 's case as
well as in S. R. Bommai's case, but it was rightly rejected in both the cases.
E 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
F 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 malu fide purposes or for wholly
extraneous reasons based on irrelevant grounds. The Court can certainly go
G into the materials placed by the Governor which led to the decision of
dissolving the State Assembly.

The Presidential proclamation dissolving the Bihar State Legislative
Assembly was issued pursuant to two reports sent in by the Governor. It may
H be remembered that Article 356( I) Proclamation imposing President's Rule was
RAMESHWAR PRASADv.U.0.1. [BALAKRISHNAN, JJ 691

issued on 7th March, 2005. Thereafter, on 22nd April, 2005, the Governor sent A
a report wherein he stated that none of the political parties. either individually
or with the then pre-election combination or with post-election alliance, could
stake a claim to form a popular Government wherein they could claim support
of a simple majority of 122 in a House of243. The Governor had also indicated
that there are certain newspaper reports and other reports gathered through B
meeting with different parties' functionaries that some steps are being taken
to win over the elected representatives of the people through various
allurements like money, caste, post, etc. Thereafter, on 21.5.2005, the Governor
of Bihar sent another report and based on that, the Bihar State Assembly was
dissolved on 23rd May, 2005. In the report dated 21st May, 2005, the Governor
reiterated his earlier report that no party had approached him to form a C
popular Government since nune could claim the support of a simple majority
of 122 in a House. of 243. In that report, the Governor had also stated that
17/18, or more perhaps, LJP MLAs are moving tawards the JD(U)_a_nd that
various allurements have been offe~ed to them and it was an alarming feature
and the Governor was also of the opinion that it was positively affecting the D
-(
.... Constitutional provisions and safeguards built therein and distorted the verdict
of the people.

The contention urged by learned ASG, Shri Gopal Subramaniam was
that this is the material which was placed before the President before a
Proclamation was issued under Article I74(2)(b) of the Constitution. It is E
important to note that the writ petitioners have no case that JD(U) or any
other alliance had acquired majority and that they had approached the Governor
staking their claim for forming a Government. No material is placed before
\- us to show that the JD(U) or its alliance with BJP had ever met the Governor
praying that they had got the right to form a Government. The plea of the F
petitioners' counsel is that they were about to form a Government and in
order to scuttle that plan the Governor sent a report whereby the Assembly
was dissolved to defeat that plan is without any basis. The Governor in his
report stated that 17 or 18 members of the LJP had joined the JD(U)-BJP
alliance, but no materials have been placed before us to show that they had,
in fact, joined the alliance to form a Government. One letter has been produced G
by one of the petitior.'!rs 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 1

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 H
an·y case that they had obtained majority support or were about to get a
~

692 SUPREME COURT REPORTS [2006 J I S.C.R.

A majority support or were in a position to form minority Government with the .,, ,.
support of some political parties and if their plea was rejected by the Governor,
the position would have been totally different. No such situation had been
reached in the instant case. It is also very pertinent to note that the order for
dissolution of the State Assembly was passed after about three months of
the proclamation imposing the President's Rule was issued under Article
B
356(1 ). When there was such a situation, the only possible way was to seek
a fresh election and if it was done by the President, it cannot be said that
it was a ma/a.fide exercise of power and the dissolution of the Assembly was
wholly on extraneous or irrelevant grounds. It is also equally important that '
in Karnataka, Meghalaya and Nagaland cases, there was a democratically-
c elected Government functioning and when there is an allegation that it had
lost its majority in the Assembly, the primary duty was to seek a vote of
confidence in the Assembly and test the strength on the floor of the Assembly.
Such a situation was not available in the present case. It was clear that not
a single political party or alliance was in a position to form the Go\ernment
D and when the Assembly was dissolved after waiting for a reasonable period, ").
the same cannot be challenged on the ground that the liuv.:rnor in his report
•
had stated that some horse-trading is going on and some MLAs are being
won over by allurements. These are certainly facts to be taken into consideration
by the Governor. If by any foul means the Government is formed, it cannot
be said to be a democratically-elected Government. If Governor has got a
E reasonable apprehension and reliable information such unethical means are
being adopted by the political parties to get majority, they are certainly
matters to be brought to the notice of the President and at least they are not
irrelevant matters. Governor is not the decision-making authority. His report
would be scrutinized by the Council of Ministers and a final decision is taken -f
•
F by t.he President under Article 174 of the Constitution. Therefore, it c~nnot
be said that the decision to dissolve the Bihar State Legislative Assembly, is
ma/a fide exercise of power based on totally i-relevant grounds.

Applying the parameters of judicial review of Presidential action in this
regard, I do not think that the petitioners in these writ petitions have made
G out a case for setting, aside the Notification issued by the President on 23rd
May, 2005. The Writ Petitions are without any merit they are liable to be
dismissed.

ARIJIT PASA YAT J. In the last few years the attack on actions of
'
Governors in the matter of installation/dissolution of ministries has increased,
H
I

RAMESH WAR PRASAD v. U.0.1. {PASA YAT. J.] 693
which itself is a disturbing feature. A Governor has been assigned the role of A
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 .de.vote himself to thei·service and the well being of the
B
. people of the State concerned. When allegations are made that he is partisan
A- and/or is acting like an agent ofa 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. c
Challenge in these writ petitions is to the constitutionality, legality and
validity of a Notification GSR 333(E) dated 23.5.2005 of the Union of India
in ordering dissolution of the Bihar Legislative Assembly. Writ Petition (C)
No.257 of 2005 has. been filed by four persons who were elected to the
dissolved Legislative Assembly. Petitioner No. l Shri Rameshwar Prasad was D
elected as a candidate of the Bhartiya Janta Party (in short 'BJP'). Petitioner
No.2 Shri Kishore Kumar was elected as an independent candidate. Petitioner
No.3 Shri Rampravesh Rai was elected as a candidate of the Janta Dal United
(in short 'JOU') while petitioner No. 4 Dr. Anil Kumar was elected as a
candidate of the Lok Janshakti Party (in short 'LJP').
E
Writ Petition (C) No.353 of 2005 has been filed by Smt. Purnima
Yadav who was elected as an independent candidate. Writ Petition (C) No.258
of 2005 has been filed by Shri Viplav Sharma, an Advocate, styled as a
Public Interest litigation.

All these writ petitions have been filed under Article 32 of the F
Constitution. In Viplav Sharma' s Writ Petition in addition to the challenges
made by the writ petitioners in other two writ petitions, prayer has been made
for a direction to the Governor of Bihar to administer oath to all the elected
members of the 13th Legislative Assembly of the State of Bihar and make
such assembly functional, purportedly in terms of Articles 172 and 176 of the G
Constitution and appoint the Chief Minister and Council of Ministers in
terms of Article 164( I) of the Constitution. Further, consequential prayers
have been made for a direction to the Election Commission of India (in short
the 'Election Commission') not to hold fresh elections for the constitution of
14th State Legislative Assembly. It has also been prayed to direct stay the
effect and operation of the purported report dated 22.5.2005 of the Governor H
694 SUPREME COURT REPORTS 12006] I S.C.R.

A of Bihar to the Union Cabinet inter-alia recommending the dissolution of the r
Assembly and the Presidential Proclamation dated 7.3.2005 placing the 13th
State Legislative Assembly under suspended animation and the Presidential
Proclamation dated 23.5.2005. In essence, his stand was that since the State
Legislative Assembly was yet to be functional there was no question of
dissolving the same: Certain other prayers have been made for laying down
B the guidelines and directions with which we shall deal with in detail later on.
It is to be noted that by order dated 25. 7.2005 it was noted that Mr. Viplav
Sharma had stated before the Bench hearing the matter that he does not press
the prayers (i), (ii), (vii) and (viii) in the writ petition.

C The challenges in essence, as culled out from the submissions made by
the petitioners are essentially as follows:

The dissolution of the Legislative Assembly by the impugned
Notification dat~d 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
D (a) of the Proclamation number GSR l62(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
E 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
F government also would not be proper to be installed where the difference
between the requisite majority and the minority was not very small. The
House was assured that the Government was not interes\ed in continuation of
President's Rule for a long time. It was categorically stated that sooner it
disappears the better it would be for the State of Bihar, for democracy and
for the system that has been followed in this country. The Governor was
G requested to explore the possibilities of formation of a Government. This
could be achieved by talking to the elected representatives. Contrary to what
was held out by the Home Minister, on totally untenable premises and with
the sole objective of preventing Shri Nitish Kumar who was projected to be
as the Chief Ministerial candidate by the National Democratic Alliance (in
H short the · NDA') with support of a break away group of LJP and independents.
RAMESHWARPRASADv. U.0.1. [PASAYAT,J.] 695

In hot-haste, a report was given, which was attended to with unbelievable A
speed and the President's approval was obtained. The hot-haste and speed
with which action was taken clearly indicates mala-fides. Though the Governor
made reference to some horse trading or allurements the same was clearly on
the basis of untested materials without details. Action of the Governor is of
the nature which was condemned by this Court in SR. Bommai and Ors. v. B
Union of India and Ors., [ 1994] 3 SCC I. It was submitted that similar views
expressed by respective Governors did not find acceptancein the cases of
dissolution of Assemblies in . Karnataka and Meghalaya. in the said case.
Though the Proclamations in respect of Madhya Pradesh, Rajasthan and
Himachal Pradesh were held to be not unconstitutional, yet the parameters of
the scope of judicial review were highlighted. Even if it is accepted that the C
Governor's opinion is to be given respect and honour in view of the fact that
he holds a high constitutional office, yet when the view is tainted with ma/a-
fides the same has to be struck down. In the instant case according to learned
counsel for petitioners, the background facts clearly established that the
Governor was not acting bona fide and his objective was to prevent installation
of a majority Government. Even if it is accepted for the sake of arguments D
that the majority was cobbled by unfair means that is a matter with which the
Governor has no role to play. It is for the Speaker of the Assembly, when
there is a floor test to consider whether there was any floor crossing. If any
material existed to show that any Legislature was lured by unfair means that
is for the electorate to take care of and the media to expose. That cannot be E
a ground for the Governor to prevent somebody from staking a claim when
he bas 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. F
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 G
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 JOU in its efforts to form a Government. Clear decisions
were taken in that regard. Some Independent M.L.As had also extended, their
support to Mr. Nitish Kumar. The Governor cannot refuse to allow formation
of a Government once the majority is established. The only exception can be H
696 SUPREME COURT REPORTS [2006] I S.C.R.

A where the Governor is of the view that a stable Government may not be )"
formed by the claimants. It is not the position in the case at hand. Mr. Nitish
Kumar had support of legislators, more than the requisite number and in fact
the number was far in excess of the requisite number. The Governor's actions
show that he was acting in a partisan manner to help some particular political
B parties.

The scope of judicial review was delineated by this Court in State of
Rajasthan and Ors. v. Union of India and Ors., [ 1977] 3 SCC 592) and was J
further expanded in Bommai 's case (supra). Tested on the touchstone of the •
guidelines set out in Rajasthan 's case (supra) and Bommai's case (supra) the
C Governor's report is clearly unsustainable and consequential Presidential
Proclamation is unconstitutional. It is to be noteel that the Presidential
Proclamation was based solely on the Governor's report as has been accepted
by the Union of India.

Mr. P.S. Narasimha and Mr. Viplav Sharma supported the stand.
D Additionally, with reference to their additional stands noted supra in the writ
petitior.s, they submitted that the President's Notification is not sustainable
and is unconstitutional.

In response, Mr. Milon K. Banerjee, learned Attorney General, Mr.
Goolam E. Vahanvati, learned Solicitor General, Mr. Gopal Subramaniam,
E learned Additional Solicitor General, Mr. P.P. Rao, learned senior counsel
and Mr. B.B. Singh, learned counsel submitted that there is no quarrel about
the scope of judicial review of this Court in matters relating to Proclamation
under Article 356(1) and consequentially Article 174(2) of the Constitution.
But the factual scenario as projected by the petitioners is really not so. i
F In the instant case, the Governor had not in reality prevented anybody
from staking a claim. It is nobody's case that somebody had staked a claim.
What the Governor had indicated in his report dated 21.5.2005 (not dated
22.5.2005 as stated in the writ petitions by the writ petitioners) was that
effort was to get the majority by tainted means by allurements like money,
G caste, posts and such unfair and other objectionable means. When the
foundation for the claim was tainted the obvious inference is that it would not
lead to a stable government and the same is clearly visible. It has been
submitted that the parameters of judicial review are extremely limited so far
as the Governor's report is concerned and consequential actions taken by the
President. The Governor cannot be a mute spectator when democratic process
H is tampered with by unfair means. The effort is to grab power by presenting
/

RAMESHWAR PRASAD v. U.0.1. (PASAYAT, J.] 697

a majority, the foundation of which is based on factors which are clearly anti A
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 B
object is to grab power at any cost even by apparent unfair and tainted
means, the Governor cannot allow such a government to be installed. By
doing so, the Governor would be acting contrary to very essence of democracy.
The purity of electorate process would get polluted. The framers of the
Constitution never intended that democracy or governance would be
manipulated. Defections strike at the root of representative government. They C
are unconstitutional, illegal, illegitimate, unethical and improper. The Tenth
Schedule cannot take care of all situations and certainly not in the case of
independents. It would be too hollow to contend that the floor test would
cure all impurity in gathering support of the legislatures. Floor test cannot
always be a measure to restrain the corrupt means adopted and in cobbling
the majority. It is also too much to expect that by exposure of the corrupt D
means so far as a particular legislature is concerned, by the people or by the
media the situation would improve. Since there is no material to show that
any party staked a claim and on the contrary as is evident from the initial
report of the Governor dated 6.3 .2005 that nobody was in a position to stake
a claim and the fact that passage of about three months did not improve the E
situation, the Governor was not expected to wait indefinitely and in the
process encourage defections or adoption of other objectionable activities. It
is submitted that ratio in State of Rajasthan 's case (supra) so far as the scope
of judicial review is concerned has not been expanded in Bommai 's case
(supra), and the parameters remain the same.
F
With reference to Tenth Schedule more particularly sub-paragraphs 2
and 4 it is submitted that dis-qualification had been clearly incurred by the
members of LJP break away group. There was in fact no merger of the so-
called break away group with JOU. The documents filed by the petitioners
amply show that there was only a proposal and in fact not any merger. G
Documents on the other hand show that the so called resolution was also
manipulated. One person had signed for several persons and even the signatures
-\ differ. If really the persons were present in the so called meeting, adopted the
resolution purported to have been taken, there was no reason as to why
concerned participants did not sign the resolution ~nd somebody else signed
it in their favour. This clearly shows that on the basis of manipulated documents H
698 SUPRE~E COl'RT RF!'ORTS [2006[ I S.C.R.

A it was attempted to be projected as if Shri Nitish Kumar had a majority.
Interestingly, Shri Nitish Kumar has not filed any petition and only four
members have filed the petitions though claim was that more than 122 had
extended support. Though that by itself may not be a ground to throw out the
petitions, yet the petitions certainly suffer from legal infirmity. As amply
proved, the petitioners have not approached this Court with clean hands and
B 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
C person as to how ~nd 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
D to be valid and in order. The plea taken in the so called Public Interest )

Litigation is to the contrary. The factual position in Bommai 's case (supra)
was different. It related to cases where elected governments were in office
and the Governors directed dissolution. The position is different here. Further
it is submitted that the power exercised by the Governor is legislative in
E character and it can only be nullified on the ground of ultra-vi res. The reports
of the National Commission To Review the Working of The Constitution and
Sarkaria Commission have amply indicated the role to be played by the
Governors and sanctity to be attached to their report. Even when the parameters
of judicial review spelt out in the State uf Rajas than and Bommai 's cases
(supra) are kept in view, the impugned report and consequential President's
F Notification do not suffer from any infirmity to warrant interference. It is
further submitted that the Election Commission had notified fresh elections
and even if for the sake of arguments if any defect is noticed in the Governor's
report or the consequential President's Notification, that cannot be a ground
to stall the election already notified. People can give their mandate afresh and
G the plea that large sums of money would be spent if the fresh elections are
held is really 110 answer to preventing installation of a government whose
foundation is shaky. It is submitted that the report does not even show a trend
of any partisan approach vis-u-vis any political party by the Governor who
was acting independently. In fact before the report dated 21.5.2005 on which
the final decision for th.: Presidential Proclamation was taken a report dated
H 27.4.2005 was given which clearly indicated that no party was in a position
)
RAMESHWAR PRASAD v. U.0.l. [PASAYAT,J.) 699
to fonn the Government. The Governor has clearly indicated the source from A
which he came to know about the efforts to fonn the Government by illegal
means. It is pointed out that the decision relied upon by Mr. P.S. Narasimha
and Mr. Viplav Shanna i.e. Udai Narain Sinha v. State of UP. and Ors., AIR
( 1987) Allahabad 293 does not really reflect the correct position in law and
was rendered in the peculiar fact situation. On the contrary, the decision of B
the Kerala High Court in K.K. Aboo v. Union of India, AIR (1965) Kerala
229) lays the correct position. Stand that because of Articles 172 or 174 of
the Constitution there is no scope of dissolving the Assembly before it was
summoned to hold the meeting is not acceptable on the face of Section 73
of the Representation of People Act, 1951 (in short the 'RP Act'). It is
pointed out that the decision in K.K. Aboo 's case (supra) was approved to be C
laying down the correct law by a Constitution Bench of this Court in Special
Reference No. I of 2002 (2002 (8) SCC 23 7.

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
"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 E
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 F
party-wise position:
I. R.J.D. 75
2. J.D.(U) 55
3. B.J.P. 37
4. Cong.(!) 10 G
5. B.S.P. 02
6. L.J.P. 29
7. C.P.I. 03
H
700 SUPREME COURT REPORTS (2006] I S.C.R.

A 8. C.P.l.(M) 01
,, ,
9. C.P.I. (M.L.) 07
IO. N.C.P. 03
11. S.P. 04
12. Independent 17
B
243

The R.J.D. and its alliance position is as follows:
I. R.J.D. 75
c 2. Cong (I) 10
3. C.P.I. 03 (support letter not
received)
4. C.P.l.(M) 01
D 5. N.C.P. 03
)-
92

The N.D.A. alliance position is as follows:
I. B.J.P. 37
E
2. J.D.(U) Si

92

F 3. The present Chief Minister, Bihar, Smt. Rabri Devi met me on
28.2.2005 and s11bmitted her resignation alongwith her Council of
Ministers. I have accepted the same and asked her to continue till an
alternative arrangement is made.

4. A delegation of members of L.J.P. met me in the afternoon of
G 28.2.2005 and they submitted a letter (Annexure II) signed by Shri
Ram Vilas Paswan, President of the Party, stating therein that they
will neither support the R.J.D. nor the B.J.P. in the formation of
government. The State President of Congress Party, Shri Ram Jatan
Sinha, also met me in the evening of 28.2.2005.

H 5. The State President of B.J.P., Shri Gopal Narayan Singh alongwith
RAMESHWAR PRASAD v. U.0.1. [PASAYAT, J.] 701
supporters met me on 1.3.2005. They have submitted a letter A
(Annexure Ill) stating that apart from combined alliance strength of
92 (BJP and JD(U) they have support of another 10 to 12 Independents.
The request in the letter is not to allow the R.J.D. to form a
Government.

6. Shri Dadan Singh, State President of Samajwadi Party, has sent a B
letter (Annexure IV) indicating their decision not to support the R.J.D.
or N.D.A. in the formation of the Govt. He also met me on 2.3.2005.

7. Shri Ram Naresh Ram, Leader of the C.P.I. (M.L.-Lib), Legislature
Party alongwith 4 others met me and submitted a letter (Annexure V)
that they would not support any group in the formation of Government. C
8. Shri Ram Vilas Paswan, National President of L.J.P. alongwith 15
others met me and submitted another letter (Annexure VJ). They
have re-iterated their earlier stand.
9. The R.J.D. met me on 5.3.2005 in the forenoon and they staked D
claim to form a Government indicating the support from the following
parties:
I. Cong.(!) 10
2. N.C.P. 03
3. C.P.I. (M) 01 E
4. B.S.P. 02 (copy enclosed as
Annex.VII)
--) The R.J.D. with the above will have only 91.

They have further claimed that some of the Independent members F
may support the R.J.D. However, it has not been disclosed as to the
number of Independent M.L.As. from whom they expect support nor
their names.

Even if we assume the entire independents totalling 17 to extend
support to R.J.D. alliance, which has a combined strength of 91, the G
total would be I08, which is still short of the minimum requireme~t.
of 122 in a House of 243.

10. The N.D.A. delegation led by Shri Sushi! 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 H
702 SUPREME COURT REPORTS [2006] I S.C.R.

A of 92, another I0 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 I02, which is short of the
minimum requirement of 122.

B 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.

c 12. I have also consulted the legal experts and the case laws particularly
the case reported in AIR 1994 SC 1918 where the Supreme Court in
para 365 of the report summarized the conclusion. The relevant part
is para 2, i.e. the recommendation of the Sarkaria Commission do
merit serious consideration at the hands of all concerned. Sarkaria
Commission in its report has said that Governor while going through
D
the process of selection should select a leader who in his judgment
is most likely to command a majority in the Assembly. The Book
'
"Constitution of India" written by Shri V.N. Shukla (10th Edition)
while dealing with Articles 75 and 164 of the Constitution of India
has dealt with this subject wherein it has quoted the manner of selection
E 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 r
when it may be doubtful who that leader is and the Governor may
F have to exercise his personal judgment in selecting the C.M. Under
the Constitutional scheme which envisages that a person who
enjoys the confidence of the Legislature should alone be appointed
as C.M.".
In Bommai case referred to above in para 153 S.C. has stated with
G regard to the position where. I quote:
"Suppose after the General Elections held, no political party or
coalition of parties or groups is able to secure absolute majority
in the Legislative Assembly and despite the Governor's exploring
the alternatives, the situation has arisen in which no political
H party is able to form stable Government, it would be case of
j

RAMESHWAR PRASAD v. U.0.1. [PASA YAT. J.] 703
...
.... 'i completely demonstrable inability of any political party to fonn A
a stable Government commanding the confidence of the majority
members of the Legislature. It would be a case of failure of
constitutional machinery".

13. I explored all possibilities and from the facts stated above, I am
fully satisfied that no political party or coalition of parties or groups B
is able tu substantiate a claim of majority in the Legislative Assembly,
and having explored the alternatives with all the political parties and
1' groups and Independents M.L.As., a situation has emerged in which
no political party or groups appears to be able to fonn a Government
commanding a majority in the House. 'Thus, it is a case of complete
inability of any political party to forni a stable Government c
commanding the confidence of the majority members. This is a case
of failure of constitutional machinery.

14. I, as Governor ofBihar, am not able to fonn ·a popular Government
in Bihar, because of the situation created by the election results
-(
mentioned above.
D
~

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 a.ppropriate action/decision,
..
I
as required.
E
With regards,

Yours sincerely,
-~
" Dr. A.P.J. Abdul ~ala~,
(Buta Singh)
F
President of India,
Rashtrapati Bhavan,
New Delhi.
D.O. No. 52/GB Patna, the 27th April,2005
G
Respected Rashtrapati Jee,
r ~ I invite a reference to my D.O. No.33/GB dated the 6th March,
I
2005 through which a detailed analysis oftlie results of the Assembly

~ elections were made and a recommendation was also made to keep
the newly constituted Assembly (C.onstituted vide Election H

l)
704 SUPREME COURT REPORTS [2006) I S.C.R.

A 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.
ln 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
B been approved and assented by the Parliament.

1. As none of the parties either individually or with the then pre-
election combination or with post-election alliance combination could
stake a claim to form a popular Government wherein they could
claim a support of a simple majority of 122 in a House of 243, I had
c no alternative but to send the above mentioned report with the said
recommendation.

3. l 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 th~ State. Contacts in JD-U and BJP have informed
D
that 16-17 LJP MLAs have been won over by various means and
attempt is being made to win over others. The JD-U is also targeting
Congress for creating a split. lt 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
E 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
F to either form the Government in Bihar on UPA pattern in the Centre,
with the support of Congress, LJP and others or he should at least
ensure the continuance of President's rule in the State.

4. The National Commission to Review the working of the
Constitutiqn has also noticed that the reasons for increasing instability
G
of elected Governments was attributable to unprincipled and
opportunistic political realignment from time to time. A reasonable
degree of stability of Government and a strong Government is
important. lt has also been noticed that the changing alignment of
the members of political parties so openly really makes a mockery
H of our democracy.
RAMESHWAR PRASAD v. U.0.1. [PASAYA T. J.] 705
Under the Constitutional Scheme a political party goes before the A
electorate with a particular programme and it sets up candidates at the
election on the basis of such programmes. The I0th Schedule of the
Constitution was introduced on the premise that political propriety
and morality demands that if such persons after the elections changes
his affiliation, that should be discouraged. This is on the basis that the B
loyalty to a party is a norm being based on shared beliefs. A divided
party is looked on with suspicion by the electorate.

5. Newspaper reports in the recent time and other reports gathered
through meeting with various party functionaries/leaders and also
intelligence reports received by me, indicate a trend to gain over C
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 .
.
D

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 E
give rise to horse trading being practised by various political parties/
groups trying to allure elected MLAs. Consequently it may not be
possible to contain the situation without giving the people another
opportunity to give their mandate through a fresh poll.

7. I am submitting these facts before the Hon'ble President for taking F
such action as deemed appropriate.

With regards,

Yours sincerely,
G
(Buta Singh)

H
706 SUPREME COURT REPORTS [2006) I S.C.R.

A Dr. A.P.J. Abdul Kalam.
President of India,
,. ..
Rashtrapati Bhavan,
New Delhi."
D.O. No. 140/PS-GB/BN Patna, the 21st May, 2005

B Respected Rashtrapati Jee,

I invite a reference to my D.O. letter No. 52/GB dated 27th April
2005 through which I had given a detailed account of the attempts
made by some of the parties notably the JD-U and BJP to cobble a
majority and lay a claim to form a Government in the State. I had
c 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 MLAsHhad also become
restive in the light of the above moves made by the JD-U.

As you are aware after the Assembly Elections in February this
D 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
E 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 4 -
and also through meeting with various political functionaries, as also
F intelligence reports, indicate a trend to win over elected representatives
of the people. Report has also been received of one of the LJP MLA,
who is General Secretary of the party having resigned today and also
17-18 more perhaps are movin6 towards the JD-U clearly indicating
that various allurements have been offered which is a very disturbing
and alarming feature. Any move by the break away action to align
G with any other party to cobble a majority and stake claim to form :o.
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.
H
RAMESHWAR PRASADv. U.0.1. [PASAYAT, J.] 707
Keeping the above mentioned circumstances, I am of the A
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 B
more opportunity to seek the mandate of the people at an appropriate
time to be decided in due course.
r" With regards,

Yours sincerely
c
Sd/-
(Buta Singh)
Dr. A.P.J. Abdul Kalam,
President of India,
~
-(
.
Rashtrapati Bhavan, D
New Delhi.

We shall first deal with the question as to the essence of the judgment
in Bommai 's case (supra). .
E
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 F
Judges have held that the exercise of powers under Article 356( I) is
subject to judicial review but in the matter of justiciability of the
satisfac!Nn of the President, the view of the majority (Pandian,
Ahmadi, Verma Agrawal, Yogeshwar Dayal and Jeevan Reedy, JJ.)
is that the principles evolved in Barium Chemicals for adjudging the G
valid1iy of an action based on the subjective satisfaction of the authority
created by statute do not, in their entirety, apply to the exercise of a
constitutional power under Article 356. On the basis of the judgment
of Jeevan Reddy, J., which takes a narrower view than that taken by
Sa want, J ., it can be said that the. view of the majority (Pandian,
Kuldip Singh. Sawant. Agrawal and Jeevan Reddy, JJ.) is that: H
708 5UPRF.ME l'Ol'RT REPORTS [2006] I S.C.R.

A (i) the satisfaction of the President while making a Proclamation under
Article 356 (I) is justiciable;

(ii) it would be open to challenge on the ground of ma/a fides or
being based wholly on extraneous and or irrelevant grounds;

B (iii) even if some of the materials on which the action is taken is
found to be irrelevant, the court would still not interfere so long as
there is some relevant material sustaining the action;

(iv) the truth or correctness of the material cannot be questioned by
the court nor will it go into the adequacy of the material and it will
'·
c also not substitute it opinion for that of the President;

(v) the ground of ma/a /ides takes in inter alia situations where the
Proclamation is found to be a clear case a abuse of power or what is
sometimes called fraud on power;

(vi) the court will not lightly presume abuse or misuse of power and
D will make allowance of the fact that the Pr..:sidt:nt and the Union
Council of Ministers are the best judge of the si!aation and that they
"'
are also in possession of information and mataial and that the
Constitution has trusted their judgment in the matter; and

(vii) this does not mean that the President and the Council of Ministers
E are the final arbiters in the matter or that their opinion is conclusive."

If the State of Rajasthan 's case (supra) and Bommai 's case (supra) are
read together it is crystal clear that in Bommai 's case, the scope of judicial
review as set out in the State of Rajasthan 's case (supra) was elaborated as -i -
•
is clear from the summation in A.K. Kau/'s case (supra).
F
Lord Greene said in 1948 in the famous Wednesbury case ( 1948 (I) KB
223s) that when a statute gave discretion to an administrator to take a decision,
the scope of judicial review would remain limited. He said that interference
was not permissible unless one or the other of the following conditions was
G 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 Dip lock in Council for
~
Civil Services Union v. Minister of Civil Service (1983) I 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
H
RAMESHWAR PRASADv. U.0.1. [PASAYAT. J.] 709
irregularity and irrationality. He, however, opined that "proportionality" was A
"'" a "future possibility".

In Om Kumar and Ors. v. Union of India, [200 I] 2 SCC 386, this Court
observed, inter alia, as follows:

"The principle originated in Prussia in the nineteenth century and B
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 C
below.

By "proportionality", we mean the question whether, while
regulating exercise of fundamental rights, the appropriate or least-
restrictive choice of measures has been made by the legislature or the D
administrator so as to achieve the object of the legislation or the
purpose of the administrative order, as the case may be. Under the
principle, the court will see that the legislature and the administrative
authority "maintain a proper balance between the adverse effects which
the legislation or the administrative order may have on the rights,
liberties or interests of persons keeping in mind the purpose which E
they were intended to serve". The legislature and the administrative
authority are, however, given an area of discretion or a range of
choices but as to whether the choice made infringes the rights
excessively or not is for the court. That is what is meant by
proportionality.
F
xxx xxx xxx xxx xxx

The development of the principle of "strict scrutiny" or
"proportionality" in administrative law in England is, however, recent.
Administrative action was traditionally being tested on Wednesbury
grounds. But in the last few years, administrative action affecting the G
freedom of expression or liberty has been declared invalid in several
cases applying the principle of "strict scrutiny". In the case of these
freedoms, Wednesbury principles are no longer applied. The courts
in England could not expressly apply proportionality in the absence
of the convention but tried to safeguard the rights zealously by treating H
710 SUPREME COURT PEPORTS (2006] I S.C.R.

A the said rights as basic to the common law and the courts then applied r' •
the strict scrutiny test. In the Spycatcher case Attorney General v.
Guardian Newspapers ltd.. (No.2) (1990) I AC 109 (at pp. 283-
284 ), Lord Goff stated that there was no inconsistency between the
convention and the common law. In Derbyshire County Council v.
Times Newspapers ltd., (1993) AC 534, Lord Keith treated freedom
B of expression as part of common law. Recently, in R. v. Secy. Of
State for Home Deptt., ex p. Simms, [ 1999] 3 All ER 400 (HL ), the
right of a prisoner to grant an interview to a journalist was upheld
treating the right as part of the common law. Lord Hobhouse held
. that the policy of the administrator was disproportionate. The need
c for a more intense and anxious judicial scrutiny in administrative
decisions which engage fundamental human rights was re-emphasised
in in R. v. lord Saville exp, [I 999] 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
D 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 Depll. ex p Br ind (I 99 l ) I AC 696. That case related to
directions given by the Home Secretary under the Broadcasting Act,
E I98 I 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,
'-
F preclude the broadcasting by such persons through the medium of a
film, provided there was a "voice-over" account, paraphrasing what
they said. The applicant's claim was based directly on the European
Convention of Human Rights. Lord Bridge noticed that the Convention
rights were not still expressly engrafted into English law but stated
that freedom of expression was basic to the Common law and that,
G even in the absence of the Convention, English Courts could go into
the question (see p. 748-49).
~
....... whether the Secretary of State, in the exercise of his discretion,
could reasonably impose the restriction he has imposed on the
broadcasting organisations"
H
RAMESHWARPRASAD v. U.0.1. [PASA YAT. J.) 711
and that the courts were A
"not perfectly entitled to start from the premise that any restriction
·of the right to freedom of expression requires to be justified and
nothing less than an important public interest will be sufficient to
justify it".

Lord Templeman also said in the above case that the courts could go B
into th.e question whether a reasonable minister could reasonably have
concluded that the interference with this freedom was justifiable. He
said that "in terms of the Convention" any such interference must be
both necessary and proportionate (ibid pp. 750-51 )..

In the famous passage, the seeds of the principle of primary and
c
secondary review by courts were planted in the administrative law by
Lord Bridge in the Brind case ( 1991) I AC 696. Where Convention
rights were in question the courts could exercise a right of primary
review. However, the courts would exercise a right of secondary
--( review based only on Wednesbury principles in cases not _affecting D
j '
the rights under the Convention. Adverting to cases where fundamental
freedoms were not invoked and where administrative action was
questioned, it was said that the courts were then confined only to a
secondary review while the primary decision would be with the
administrator. Lord Bridge explained the primary and secondary review
as follows: E
"The primary judgment as to whether the particular competing
public interest justifying the particular restriction imposed falls to
be made by the Secretary of State to whom Parliament has
entrusted the discretion. But, we are entitled to exercise a secondary F
judgment by asking whether a reasonable Secretary of State, on
the material before him; could reasonably make the primary
judgment."

In Union of India and Anr. v. G. Ganayutham, [ 1997] 7 SCC 463, in
. paragraph 31 this Court observed as follows:
G
."31. The current position of proportionality in administrative law in
England and India can be st1mmarized as. follows:

(I) To judge the val{dity of any ad1ninistrative order or statutory
discretion, normally the Wednes.bury test is to be applied to find out
if the decision was illegal or suffered from procedural improprieti.es H
712 SUPREME COURT REPORTS (2006] 1 S.C.R.

A 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
B 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 I KB 223) test.
; .
(2) The court would not interfere with the administrator's decision
c 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.
D
(3)(a) As p~r Bugdaycay (1987 AC 514), Brind (1991 (I) AC 696)
and Smith ( 1996 (I) All ER 257) as. long as the Convention is not
incorporated into English law, the English courts merely exercise a
secondary judgment to find out if the decision-maker could have, on
the material before him, arrived at the primary judgment in the manner
E he has done.

(3 )(b) If the Convention is incorporated in England making
available the principle of proportionality, then the English courts will
render primary judgment on the validity of the administrative action l •

and find out ifthe restriction is disproportionate or excessive or is not
F based upon a fair balancing of the fundamental freedom and the need
for the restriction thereupon.

(4)(a) The position in our country, in administrative law, where
no fundamental freedoms as aforesaid are involved, is that the courts/
tribunals will only play a secondary role while the primary judgment
G as to reasonableness will remain with the executive or administrative
authority. The secondary judgment of the court is to be based on
Wednesbury and CCSU principles as stated by Lord Greene and Lord
Diplock respectively to find if the executive or administrative authority
has reasonably arrived at his decision as the primary authority".
H
)
/

RAMESHWAR PRASAD v. U.0.1. [PASAYAT, J.) 713
~ The common thread running through in all these decisions is that the A
Court should not interfere with the administrator's decision unless it was
illogical or suffers from procedural impropriety or was shocking to the
conscience of the Court, in the sense that it was in defiance of logic or moral
standards. In view of what has been stated in the Wednesbury 's case (supra)
the Court would not go into the correctness of the choice made by the B
administrator open to him and the Court should not substitute its decision to
that of the administrator. The scope of judicial review is limited to the
, 1o. deficiency in decision-making process and not the decision.

According to Wade, Administrative Law (9th Edition) is the law relating
to the control of powers of the executive authorities. To consider why such C
a law became necessary, we have to consider its historical background.

Up to the 19th century the functions of the State in England were
· confined to (i) defence of the country from foreign invasion, and (ii)
maintenance of law and order within the country.
D
This vast expansion in the State functions resulted in large number of
legislations and also for wide delegation of State functions by Parliament to
executive authorities, so also was there a need to create a body of legal
principles to c9ntrol and to check misuse of these new powers conferred on
the State auth6rities in this new situation in the public interest. Thus, emerged
Administrative Law. Maitland pointed out in his Constitutional History; E
"Year by year the subordinate Government of E~glatid 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." F

But in the early 20th century following the tradition of Dicey's classic
exposition in his: The Law of the Constitulion, there was a spate of attacks
on parliamentary delegation culminating in the book New Despotism by the
then Chief Jlistice of England, Lord Hewart published in 1929. In response, G
the British Government in 1932 set up a committee called the Committee on
Ministerial Powers headed by Lord Donoughmore, to examine these complaints
--{_ and criticisms .. However, the Donoughmore Committee rejected the argument
of Lord Hewart and accepted the reality that a modern State cannot function
without delegation of vast powers to the executive authorities, though there
must be some control on them. · H
714 SUPREME COURT REPORTS 12006] I S.C.R.

A In R. v. Lancashire CC. exp Huddleston (1986] 2 All ER 941 CA, it
was said about Administrative Law that it

"has created a new relationship between the courts and those who
derive their authority from the public law. one of partnership based
on a common aim. namely, the maintenance of the highest standards
B of public administration".

In liversidge v. Anderson [ 1941] 3 All E.R. 338 (HL) the .case
related to the Defence (General) Regulations, 1939 which provided: J,

"If the Secretary of State has reasonable cause to believe any
C person to be of hostile origin or association he may make an order
against that person directing that he be detained.''

The detenu Liversidge challenged the detention order passed against
him by the Secretary of State. The majority of the House of Lords, except
Lord Atkin, held that the Court could not interfere because the Secretary of
D State had mentioned in his order that he had reasonable cause to believe that
liversidge was a person of hostile origin or association. Liversidge was
delivered during the Second World War when the executive authority had
unbridled powers to detain a person without even disclosing to the Court on
what basis the Secretary had reached to his belief. However, subsequently,
E · the British courts accepted Lord Atkin' s dissenting view that there must be
some relevant material on the basis of which the satisfaction of the Secretary
of State could be formed. Also, the discretion must be exercised keeping in
view the purpose for which it was conferred and the object sought to be
achieved, and must be exercised within the four corners of the statute (See:
I •
Clariant International ltd. and Anr. v. Securities and Exchange Board of
F India, [2004] 8 sec 524)
Sometimes a power is coupled with a duty. Thus, a limited judicial
review against administrative action is always available to the Courts. Even
after elaboration in Bommai 's case (supra) the scope for judicial review in
respect of Governors' action cannot be put on the same pedestal as that of
G other administrative orders. As observed in Para 376 of judgment in Bommai 's
case (supra) the scope of judicial review would depend upon facts of the
given case. There may be cases which do not admit of judicial prognosis. The
principles which are applicable when an administrative action is challenged •
cannot be applied stricto sensu to challenges made in respect of proclamation
H under Article 356. However, in view of what is observed explicitly in
)

RAMESl-IWAR PRASAD v. U.0.1. [PASAYAT, J.] 715
~ ~.,, Bommai 's case (supra), the proclamation under Article 356(1) is not legislative A
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 B
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 C
whenever a decision-making function is entrusted to the subjective satisfaction
of a statutory functionary, there is an implicit obligation to apply his mind
to pertinent and proximate matters only, eschewing the irrelevant and the
remote. (See: Smt. Shalini Soni and Ors. v. Union of India and Ors., [1980]
4 sec 544).
-( D
The Wednesbury principle is often _misunderstood to mean that any
administrative decision which is regarded by the Court to be unreasonable
must be struck down. The correct understanding of the Wednesbury principle
is that a decision will be said to be unreasonable in the Wednesbury sense if
(i) it is based on wholly irrelevant material or wholly irrelevant consideration,
(ii) it has ignored a very relevant material which it should have taken into E
consideration, or (iii) it is so absurd that no sensible person could ever have
reuched to it.

As observed by Lord Diplock in CCSU's case (supra) a decision will
be said to suffer from Wednesbury unreasonableness if it is "so outrageous
in its defiance of logic or of accepted moral standards that no sensible person F
who had applied his mind to the question to be decided could have arrived
at it".

A Constitution is a unique legal document. It enshrines a special kind
of norm and stands at the top of normative pyramid. Difficult to amend, it G
is designed to direct human behavior for years to come: It shapes the
appearance of the State and its aspirations throughout history. It determines
~I the State's fundamental political views. It lays the foundation for its social
values. It determi-nes its.commitments and orientations. It reflects the events
of the past. It lays the foundation for the present. It determines how the future
will look. It is philosophy, politics, society, and law all in one. Performance H
716 SUPREME COURT REPORTS [2006] I S.C.R.

A of all these tasks by a Constitution requires a balance of its subjective and
objective elements, because "it is a constitution we are expounding." As
Chief Justice Dickson of the Supreme Court of Canada noted:

"The task of expounding a constitution is crucially different from that
of construing a statute. A statute defines present rights and obligations.
B 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,
c be capable of growth and development over time to meet new social,
political and historical realities often unimagined by it framers. The
judiciary is the guardian of the constitution and must, in interpreting
its provisions, bear these considerations in mind."

D 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
E 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).
1 •
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
F degree of autonomy, a status principally attainable in the modern world by
being able to share in the Governance of their community. Because direct
rule is not feasible for the mass of citizens, most people can share in self
government only by delegating authority to freely chosen representatives.
Thus Justice Hugo L. Black expressed a critical tenet of democratic theory
G when he wrote: "No right is more precious in a free country than that of
having a voice in the election of those who make the laws under which
we ... must live."

For democratic theory, what makes governmental decisions morally
binding is process: the people's freely choosing representatives, those
H representatives' debating and enacting policy and later standing for re-election,
RAMESHWARPRASAD v. U.0.L [PASAYAT,J.] 717
~ " and administrators' enforcing that policy. Democratic theory, therefore, tends A
to embrace both positivism and moral relativism.

Whereas democratic theory turns to moral relativism, constitutionalism
turns to moral realism. It presumes that "out there" lurk discoverable standards
to judge whether public policies infringe on human dignity. The legitimacy
of a policy depends not simply on the authenticity of decision makers' B
credentials but also. on substantive criteria. Even with the enthusiastic urging
> t of a massive majority whose representatives have meticulously observed proper
processes, government may not trample on fundamental rights. For
constitutionalists, political morality cannot be weighed on a scale in which
"opinion is an omnipotence," only against the moral criterion of sacred, C
individual rights. They agree with ~afferson: "An elective despotism was not
the government we fought for.. ...." .(From Constitutions, Constitutiona/ism,
and Democracy by Walter F. Murphy).

Allegation of ma/a-jides without any supportable basis is the last feeble
-( attempt of a losing litigant, otherwise it will create a smokescreen on the D
scope of judicial review. This is a pivotal issue around which the fate of this
case revolves. As was noted in A.K. Kau/'s case (supra) the satisfaction of the
President is justiciable. It would be open to challenge on the ground of ma/a
fides or being based wholly on extraneous or irrelevant grounds. The
sufficiency or the correctness of the factual position indicated in the report
is not open to judicial review. The truth or correctness of the materials cannot E
be questioned by the Court nor would it go into the adequacy of the material
and it would also not substitute its opinion for that of the President. Interference
1 ~ is called for only when there is clear case of abuse of power or what is some
times called fraud on power. The Court will not lightly presume abuse or
misuse of power and will make allowance for the fact that the decision p
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 G
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 H
718 SUPREME COURT REPORTS (2006 I I S.C.R.

A allurement of any kind is not a matter which can be considered by the
Governor. The scope of judicial review of Governor's decision does not and
cannot stand on the same footing as that of any other administrative decision .
. In almost all legal inquiries intention as distinguished from motive is the all
important factor and in common parlance a malicious act stands equated with
B an intentional act without just cause or excuse. Whereas fairness is synonymous
with reasonableness bias stand included within the attributes and broader
purview of the word "malice" which in common acceptation implies "spite"
or "ill will". Mere general statements will not be sufficient for the purpose
of indication of ill will. There must be cogent evidence available on record
to come to a conclusion as to whether in fact there was bias or mala fide
C involved which resulted in the miscarriage of justice. The tests of real
likelihood and reasonable suspicion are really inconsistent with each other.
(See S. Parthasarthi v. State of A.P., (1974) 3 SCC 459). The word 'bias' is
to denote a departure from the standing of even handed justice. (See: Franklin
v. Minister of Town and Country Planning [l 947) 2 All ER 289 (HL).

D
In State of Punjab v. V.K. Khanna and Ors., (200 l] 2 SCC 330, it was
observed as follows:

"Incidentally, Lord Thankerton in Franklin v. Minister of Town and
Country Planning, (1948 AC 87: [1947) 2 All ER 289 (HL) opined
E that the word "bias" is to denote a departure from the standing of
even-handed justice. Kumaon Manda/ Vikas Nigam Ltd. v. Girja
Shankar case (200 I) I SCC 182 further noted the different note
sounded by the English Courts in the manner following: (SCC pp.199- ~ I

20 I, paras 30-34)
F "30. Recently however, the English courts have sounded a different
note, though may not be substantial but the automatic disqualification
theory rule stands to some extent diluted. The affirmation of this
dilution however is dependent upon the facts and circumstances of
the matter in issue. The House of Lords in the case of R. v. Bow
G Street Metropolitan Stipendiary Magistrate. ex p Pinochet Ugarte
(No. 2) (2000) I AC 119) observed:

' ... In civil litigation the matters in issue will normally have <tn
economic impact: therefore a Judge is automatically disqualified
if he stands to make a financial gain as a consequence of his own
H decision of the cas• But if. as in the present case, the matter at
;

RAMESHWARPRASADv. U.O.L [PASAYAT.J.] 719

issue does not relate to money or economic advantage but is A
concerned with :he promotion of the cause, the rationale
disqualifying a Judge applies just as much ifthe Judge's decision
will lead to the promotion of a cause in which the Judge is involved
together with one of the parties.'

31. Lord Brown-Wilkinson at p. 136 of the report stated : B
'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 C
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 D
I -(
objects. Only in cases where a Judge is taking an active PJle as
tru~tee 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 E
interest.'
32. Lord Hutton also in Pinochet case (2000) 1 AC 119) observed :
'There could be cases where the interest of the Judge in the
subject-matter of the proceedings arising from his strong F
commitment to some cause or belief or his association with a
person or body involved in the proceedings could shake public
confidence in the administration of justice as much as a
shareholding (which might be small)' in a public company involved
in the litigation.'
33. Incidentally in Locabail [Locabai/ (UK.) Ltd v. Bayfield G
Properties Ltd., (2000)] QB 451 the Court of Appeal upon a detail
analysis of the oft-cited decision in R. v. Gough (1993 AC 646)
together with the Dimes case (Dimes v. Grand Junction Canal, ( 1853)
3 HL Cas 759 : 10 ER 301), Pinochet case (2000) I AC 119),
Australian High Court's decision in the case of J.R.L .. exp C.J.L.. Re H
720 SUPREME COURT REPORTS (2006 J I S.C.R.

A (1986) 161 CLR 342) as also the Federal Court in Ebner, Re (1999)
161 ALR 557) and on the decision of the Constitutional Court of
South Africa in President of the Republic of South Africa v. South
African Rugby Football Union, (1999) 4 SA 147 stated that it would
be rather dangerous and futile to attempt to define or list the factors
which may or may not give rise to a real danger of bias. The Court
B of Appeal continued to the effect that everything will depend upon
facts which may include the nature of the issue to be decided. It
further observed :

'By contrast, a real danger of bias might well be thought to arise
if there were personal friendship or animosity between the Judge
c and any member of the public involved in the case; or if .he
Judge were closely acquainted with any member of the public
involved in the case, particularly if the credibility of that individual
could be significant in the decision of the case; or if, in a case
where the credibility of any individual were an issue to be decided
D by the Judge, he had in a previous case rejected the evidence of
that person in such outspoken terms as to throw doubt on his
ability to approach such person's evidence with an open mind on
any later occasion; or if on any question at issue in the proceedings
before him the Judge had expressed views, particularly in the
course of the hearing, in such extreme and unbalanced terms as
E to throw doubt on his ability to try the issue with an objective
judicial mind (Vakuta v. Kelly (1989) 167 CLR 568)); or if, for
any other reason, there were real ground for doubting the ability
of the Judge to ignore extraneous considerations, prejudices and j •

predilections and bring an objective judgment to bear on the issues
F 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
G 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
H objection w iII be.'
}

RAMESHWAR PRASAD v. U.0.1. [PASAY AT. J.] 721
34. The Court of Appeal judgment in locabail (200 QB 451) though A
apparently as noticed above sounded a different note but in fact, in
more occasions than one in the judgment itself, it has been clarified
that conceptually the issue of bias ought to be decided on the facts
and circumstances of the individual case - a slight shift undoubtedly
from the original thinking pertaining to the concept of bias to the
effect that a mere apprehension of bias could otherwise be sufficient." B
In Bommai's case (supra) though all the learned Judges held that exercise
of power under Article 356(1) of the Constitution is subject to judicial review
but in the matter of justiciability of the satisfaction of the President, the
majority view was to the effect that the principles evolved in Barium Chemicals C
ltd. and Anr. v. Company law Board and Ors., AIR (1967) SC 295 for
adjudging the validity of an action based on the subjective satisfaction of the
authority created by the Statute do not in their entirety apply to the exercise
of constitutional power under Article 356 of the Constitution . .Mala fide
intent or biased attitude cannot to be put on a strait-jacket formula but depend
upon facts and circumstances of each case and in that perspective judicial D
precedent would not be of much assistance. It is important to note that in
Bommai 's case (supra) this Court was concerned with cases of dissolution of
Assemblies when cabinets were in office. Though at first flush, it appears
that the factual background in Karnataka's case (supra) dealt with in Bommai's •·
case (supra) has lot of similarity with the factual position in hand, yet on a E
deeper analysis the position does not appear to be so. The factual position
was peculiar. In the instant case, the Governor's report reveals that the source
of his opinion was intelligence reports, media reports and discussions with
functionaries of various parties. A plea was raised by the petitioners that it
has not been indicated as to functionaries of which party the Governor had
discussed with. That cannot be a ground to hold the report to be vulnerable. F
As was not'ed in Bommai's case (supra) the sufficiency or correctness of
factual aspects cannot be dealt with. Therefore, as noted above, the only
question which needs to be decided is whether the conclusions of the Governor
that if foul means are adopted to cobble the majority it would be against the
spirit of democracy. AgaitJ the question would be if means are foul can the
Governor ignore it and can it be said that his view is extraneous or irrational. G

In the report dated 27.4.2005 to which reference has been made in the
report dated 21.5.2005 reference is made to allurements like money, caste,
posts etc. and this has been termed as a disturbing feature. In both the reports,
the opinion of the Governor is that if these attempts are allowed to continue, H
....,

722 SUPREME COURT REPORTS [2006] I S.C.R.

A it would amount to tampering with constitutional provisions. Stand of the
I
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., [I 992] Supp 2 SCC 65 I the
B 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
c 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 processes of the fundamental law, the
Constitution must be treated as a logical whole. Westel Woodbury
D Willoughby in The Constitutional Law of the United States (2nd Edn.
Vol. I p.65) states: "
"The Constitution is a logical whole, each provision of which is
an integral part thereof, and it is, therefore, logically proper, and
, indeed imperative, to construe one part in the light of the provisions
E of the other parts."

27. A constitutional document outlines only broad and general
principles meant to endure and be capable of flexible application to
changing circumstances a distinction which differentiates a statute
from a Charter under which all statutes are made. Cooley on 1 '
F Constitutional Limitations (8th edn. Vol.I, p.129) says:

"Upon the adoption of an amendment to a Constitution, the
amendment becomes a part thereof; as much so as it had been
originally incorporated in the Constitution; and it is to be construed
accordingly."
G
Again, in paragraph 41, the position was illuminatingly stated by Mr.
Justice M.N. Venkatachaliah (as His Lordship then was). A right to elect, i-
fundamental though it is to democracy is anomalously enough neither a ~

fundamental right nor a common law right. It is pure and simple, a statutory
right. So it is the right to be elected. So is the right to dispute an election.
H Outside of statute, there is no right to elect, no right to be elected and no right
RAMESHWAR PRASAD v. U.0.l. [PASAYA T,J.J 723
to dispute an election. Statutory creations they are and therefore subject to A
statutory limitation. (See Jyoti Basu and Ors. v. Debi Ghosal and Ors.,
[1982] 1 sec 691).

Democracy as noted above is the basic feature of the Constitution. Jn
paragraphs 44 and 49 of Kihoto 's case (supra) it was noted as follows:
B
"44. But a political party functions oh the strength of shared beliefs.
Its own political stability and social utility depends on such shared
i ~· 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 C
will not only embarrass its public image and popularity but also
undermine public confidence in it which, in the ultimate analysis, is
its source sustenance-nay, indeed, its very survival. Intra party debates
are of course a different thing. But a public image of disparate stands
by Members of the same political party is not looked upon, in political
tradition, as a desirable state of things. Griffith and Ryle on Parliament D
·f Functions, Practice and Procedure ( 1989 Edn., p.119) says;
f
"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 E
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 F
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 G
dis-qualification for defection. Unprincipled defection is a political
and social evil. It is perceived as such by the legislature. People,
apparently, have grown distrustful of the emotive political exultations
that such floor-crossing belong to the sacred area of freedom of
conscience, or of the right to dissent or of intellectual freedom. The H
724 SUPREME COURT REPORTS (2006] I S. C.R.

A anti-defection law seeks to recognize the practical need to place the ~
/
proprieties of political and personal conduct-whose awkward erosion
and grotesque manifestations have been the bane of the times above
certain theoretical assumptions which in reality have fallen into a
morass of personal and political degradation. We should, we think,
defer to this legislative wisdom and perception. The choices in
B constitutional adjudications quite clearly indicate the need for such
deference. "Let the end be legitimate, let it be within the scope of the
Constitution and all means which are appropriate, which are adopted
to that end ... " are constitutional." .,. '
Therefore, the well recognised position in law is that purity in the
c electorate process and the conduct of the elected representative cannot be
isolated from the constitutional requirements. "Democracy" and "Free and
Fair Election" are inseparable twins. There is almost an inseverable umbilical
cord joining them. In a democracy the little man- voter has overwhelming
importance and cannot be hijacked from the course of free and fair elections.
D His freedom to elect a candidate of his choice is the foundation of a free and .,.
fair election. But after getting elected, if the elected candidate deviates from
· the course of fairness and purity and becomes a "Purchasable commodity" he
not only betrays the electorate, but also pollutes the pure stream of democracy.

Can the governor whose constitutional duty is to safeguard the purity
E throw up his hands in abject helplessness in such situations?

As noted by this Court in People's Union for Civil Liberties (PUCL)
and Anr. v. Union of India and Anr., [2003) 4 SCC 399 a well informed voter
is the foundation of democratic structure. If that be so, can it be said that the
Governor will remain mute and silent spectator when the elected representatives '
F act in a manner contrary to the expectations of the voters who had voted for
them. In paragraph 94 of it was noted as follows:

"94. The trite saying that 'democracy is for the people, of the people
and by the people' has to be remembered for ever. In a democratic
republic, it is the will of the people that is paramount and becomes

-
G
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
H subject or issue", as observed by this Court in Lily Thomas v. Speaker.
j
RAMESH WAR PRASADv. U.0.1. [PASAY AT,J.] 725

~
Lok Sabha, [1993] 4 SCC 234 quoting from Black's Law Dictionary. A
'~·
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 B
and custodians of Government. People look to them for ventilation
and redressal of their grievances. They are the focal point of the will
' i- and authority of the people at large. The moment they put in papers
for contesting the election, they are subjected to public gaze and
c
public scrutiny. The character, strength and weakness of the candidate
is widely debated. Nothing is therefore more important for sustenance
of democratic polity than the voter making an int(!lligent and rational
choice of his or her representative. For this, the voter should.be in a
position to effectively formulate his/her opinion and to ultimately
express that opinion through ballot by casting the vote. The
-f concomitant of the right to vote which is the basic postulate of D
democracy is thus two fold: first, formulation of opinion about the
candidates and second, the expression of choice by casting the vote
in favour of the preferred candidate at the polling booth. The first
step is complementary to the other. Many a voter will be handicapped
in formulating the opinion and making a proper choice of the candidate E
unless the essential information regarding the candidate is available.
The voter/citizen should have at least the basic information about the
contesting candidate, such as his involvement in serious criminal
., offences. To scuttle the flow of information-relevant and essential
t
would affect the electorate's ability to evaluate the candidate. Not
only that, the information relating to the candidates will pave the way F
for public debate on the merits and demerits of the candidates. When
once there is public disclosure of the relevant details concerning the
candidates, the Press, as a media of mass communicatio_n and voluntary
organizations vigilant enough to channel the public opinion on right
lines will be able to disseminate the information and thereby enlighten G
and alert the public at large regarding the adverse antecedents of a
candidate. It will go a long way in promoting the freedom of speech
and expression. That goal would be accomplished in two ways. It will
help the voter who is interested in seeking and receiving information
'
about the candidate to form an opinion according to his or her
conscience and best of Judgment and secondly it will facilitate the H
726 SUPREME COURT REPORTS [2006) I S.C.R.

A Press and voluntary organizations in imparting information on a matter
of vital public concern. An informed voter-whether he acquires •
information directly by keeping track of disclosures or through the
Press and other channels of communication, will be able to fulfil his
responsibility in a more satisfactory manner. An enlightened and
informed citizenry would undoubtedly enhance democratic values.
B 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 tum, it would lead to the preservation of the integrity of electoral
process which is so essential for the growth of democracy. Though
c 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
D 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
E India that apart of Governor's role to ensure that the Government is stable,
the case may not be covered by the Tenth Schedule and it cannot be said that
by avoiding the Tenth Schedule by illegitimate or tainted means a majority
if gathered leaves the Governor helpless, and a silent onlooker to the tampering
of mandate by dishonest means. It is not and cannot be said that by preventing
a claim to be staked the Governor does not act irrationally or on extraneous
F premises. Had the Governor acted with the object of preventing anyone from
staking a claim his action would have been vulnerable. The conduct of the
Governor may be suspicious and may be so in the present case, but if his
opinion about the adoption of tainted means is supportable by tested materials,
certainly it cannot be extraneous or irrational. It would all depend upon the
facts of each case. If the Governor in a particular case without tested or
G unimpeachable material merely makes an observation that tainted means are
being adopted, the same would attract judicial review. But in the instant case
there is some material on which the Governor has acted. This ultimately is
a case of subjective satisfaction based on objective materials. On the factual
background one thing is very clear i.e. no claim was staked and on the
H contrary the materials on record show what was being projected. It is also
RAMESHWARPRASADv. U.0.1. [PASAYAT,J.] 727

clear from a bare perusal of the documents which the petitioners have A
themselves enclosed to the writ petitions that authenticity of the documents
is suspect.

Judicial response to human rights cannot be blunted by legal jugglery.
(See: Bhupinder Sharma v. State of Himachal Pradesh [2003] 8 SCC 551).
Justice has no favourite other than the truth. Reasonableness, rationality, · B
legality as well as philosophically provide colour to the meaning of
fundamental rights. What is morally wrong cannot be politically right. The
petitioners themselves have founded their claims on documents which do not
have even shadow of genuineness so far as claim of majority is concerned.
If the Governor felt that what was being done was morally wrong, it cannot C
be treated as politically right. This is his perception. It may be erroneous. It
may not be specifically spelt out by the Constitution so far as his powers are .
concerned. But it ultimately is a perception. Though erroneous it cannot be
termed as extraneous or irrational. Therefore however suspicious conduct of
the Governor may be, and even if it is accepted that he ~ad acted in hot haste
it cannot be a ground to term his action as extraneous. A shadow of doubt D
about bona fides does not lead to an inevitable conclusion about ma/a 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. E
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 F
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( I) read with (4) was obliged to appoint as Chief
Minister whosoever the majority party in the Legislature nominated, regardless
of whether or not the person nominated was qualified to be a member of the G
legislature under Article 173 or was disqualified in that behalf under Article
191, and the only manner in which a Chief Minister who was not qualified
or who was disqualified could be removed was by a vote of no-confidence
in the legislature or by the electorate at the next elections and that the Governor
was so obliged even when the person recommended was, to the Governor's H
728 SUPREME COliRT REPORTS [2006 I I S.C.R.

A knowledge, a non-citizen, under age, a lunatic or an undischarged insolvent, , ~

and the only way in which a non-citizen, or under age or lunatic or insolvent
Chief Minister could be removed was by a vote of no-confidence in the
legislature or at the next election, is to invite disaster.

The situation cannot be different when the Chief Minister nominated
B was to head a Ministry which had its foundation on taint and the majority is
cobbled by unethical means or corrupt means. As was observed in B.R.
Kapur 's case (supra) in such an event the constituiional purity has to be
t <
maintained and the Constitution has to prevaii over the will of the people.

c of. But,Withtaking
these conclusions the writ applications could have been disposed
note of some of the disturbing features highlighted by learned
counsel about the suspicious and apparently indefensible roles of some
Governors, it is necessary to deal with some of the relevant aspects.

It is relevant to take note of what the Sarkaria Committee had said
about the role of Governors:
D ~

; I. INTRODUCTION

4.1.0 I. The role of the Governor has emerged as one of the key
issues in Union State relations. The Indian political scene was
dominated by a single party for a number of years after Independence.
E Problems which arose in the working of Union-State relations were
mostly matters for adjustment in the intra-party forum and the
Governor had very little occasion for using his discretionary powers.
The institution of Governor remained largely latent. Events in Kerala
in 1959 when President's rule was imposed, brought into some
F prominence the role of the Governor, but thereafter it.did not attract
much attention for some years. A major change occurred after the
Fourth General Elections in 1967. In a number of States, the party in
power was different from that in the Union. The subsequent decades
saw the fragmentation of political parties and emergence of new
regional parties frequent, sometimes unpredictable realignments of
G 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
H impact on Union-State relations. Points of friction between the Union
RAMESH WAR PRASAD v. U.0.1. [PASA YAT, J.] 729
and the States began to multiply. .A
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 necessa_ry objectivity either in the manner of
exercise of their discretion or in their role as a vital link between the B
Union and the States. Many have traced this mainly to the fact thal
the Governor is appointed by, and holds office during the pleasure
of. the President, (in effect, the Urtion 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, C
has evoked strong resentment. Frequent removl_lls and transfers of
Governors before the end of their tenure has lowered the prestige of
this office. Criticism has also been levelled that the Union Government
utilizes the Governor's for its own political ends. Many Governors,
looking forward to further office under the Union or active role in
-{ politics after their tenure, came to regard themselves as agents of the D
Union.

(Underlined for emphasis)

2. Historical background:

4.2.0 I. The Government of India Act, 18 58 transferred the E
responsibility for administration Of India from the East India Company
to the British Crown. The Governor then became an agent of the
') Crown, functioning under the general supervision of the Governor-
General. The Montagu-Chelmsford Reforms (1919) ushered in
responsible Government, albeit in a rudimentary form. However, the F
Governor continued to be the pivot of the Provincial administration.

4.2.02. The Government of India Act, 1935 introduced provincial
autonomy. The Governor was now required to act on the advice of
Ministers responsible to the Legislature. Even so, it placed certain
special responsibilities on the Governor, such as prevention of grave G
menace to the peace or tranquility of the Province, safeguarding the
-{ legitimate interests of minorities and so on. The Governor could also
act in his discretion in specified matters. He functioned under the
general superintendence and control of the Governor General,
whenever he acted in his individual judgment or discretion.
H
730 SUPREME COURT REPORTS [2006] I S.C.R.

, 1
A 4.2.03. In I937 when the Government of India Act, 1935 came into
force, the Congress party commanded a majority in six provincial
legislatures. They foresaw certain difficulties in functioning under
the new system which expected Ministers to accept, without demur,
the censure implied, ifthe Governor exercised his individual judgment
for the discharge of his special responsibilities. The Congress Party
B agreed to assume office in these Provinces only after it received an
assurance from the Viceroy that the Governors would not provoke a
conflict with the elected Government. t <

4.2.04. Independence inevitably brought about a change in the role of
the Governor. Until the Constitution came into force, the provisions
c of the Government of India Act, 1935 as adapted by the India
(Provisional Constitution) Order, 1947 were applicable. This Order
omitted the expressions 'in his discretion', 'acting in his discretion'
and 'exercising his individual judgment', wherever they occurred in
the Act. Whereas, earlier, certain functions were to be exercised by
D 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
E 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.

F 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
G concept of an elected Governor was therefore given up in favour of
a nominated Governor. Explaining in the Constituent Assembly why
a Governor should be nominated by the President and not elei;ted
Jawaharlal Nehru observed that "'an elected Governor would to some
extent encourage that separatist provincial tendency more than
H otherwise. There will be far fewer common links with the Centre."
RAMESHWARPRASADv. U.0.1. [PASAYAT,J.] 731
4.2.07. The second issue related to the extent of discretionary powers A
to be allowed to the Governor. Following the decision to have a
nominated Governor, references in the various Articles of the Draft
Constitution relating to the exercise of specified functioned by the
Governor 'in his discretion' were deleted. The only explicit provisions
retained were those relating to Tribal Areas in {\.ssam where the B
administration was made a Central responsibility. The Governor as
agent of the Central Government during the transitional period coulo
act independently of his Council of Ministers. Nonetheless, no change
was made in Draft Article 143, which referred to the discretionary
powers of the Governor. This provision in Draft Article 143 (now
Article 163) generated considerable discussion. Replying to it, Dr. C
Ambedkar maintained that vesting the Governor with certain
discretionary powers was not contrary to responsible Government.

Xx xx xx xx

·l 4.3.09. The Constitution contains certain provisions expressly D
providing for the Governor to Act:-
(A) in his discretion; or
(B) .in his individual judgment; or
(C) independently of the State Council of Ministers; vis. E
(a)(i) Governors of all the States-Reservation for the consideration
of the President of any Bill which, in the opinion of the Governor
would, if it became law, so derogate from the powers of the High
Court as to endanger the position which that Court is by the
Constitution designed to fill (Second Proviso to A.rticle 200). F
(ii) The Governors of Arunachal Pradesh, Assaw, Meghalaya,
Mizoram, Nagaland, Sikkim and Tripura have been entrusted with
some specific functions to be exercised by them in their discretion
(vi de Articles 37 I A, 371 F and 371 H and paragraph 9 of the Six th
Schedule). These have been dealt with in detail in Section I4 of G
this Chapter.
(b) The Governors of Arunachal Pradesh and Nagaland have been
entrusted with a special responsibility with respect to law and order
in their respective States. In the discharge of this responsibility, they
are required to exercise their "individual judgment" after consulting H
their Council of Ministers. This aspect also has been discussed in
732 SUPREME COURT REPORTS (2006] I S.C.R.

A Section 14 of this Chapter. f
1

(c) Governors as Administrator of Union Territory-Any 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
B 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
C 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
D
(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
E which he has performed the dull role, as envisaged in (a) and (b)
above, has attracted much criticism. The burden of the complaints
against the behaviour of Governors, in general, is that they are unable
to shed their political inclinations, predilections and prejudices while
dealing with different political parties within the State. As a result,
sometimes the decisions they take in their discretion appear as partisan
F and intended to promote the interests of the ruling party in the Union
Government, particularly ifthe Governor was earlier in a·ctive politics
or intends to enter politics at the end of his term. Such a behaviour,
it is said, tends to impair the system of Parliamentary democracy,
detracts from the autonomy of the States, and generates strain in
G Union State relations.

In the Report of the "National Commission to review the working of
the Constitution" the role of the Governor has been dealt with in the following
words:

"The powers of the President in the matter of selection and appointment
H
RAMESHWAR PRASAD v. U.0.1. [PASAYAT, J.] 733

of Governors should not be diluted. However, the Governor of a A
State should be appointed by tbe President only after consultation
with the Chief Minister of that State. Normally the five year term
should be adhered to and removal or transfer should be by following
a similar procedure as for appointment i.e. after consultation with the
Chief Minister of the concerned State.
B
(Para 8.14.2)

In the matter of selection of a Governor, the following matters
mentioned in para 4.16.0 I of Volume I of the Sarkaria Commission
Report should be kept in mind:-
c
(i) He should be eminent in some walk of life.
(ii) He should be a person outside the State.
(iii) He should be a detached figure and not too intimately
connected with the local politics of the State; and
D
(iv) He should be a person who has not taken too great a part in
politics generally, and particularly in the recent past.
In selecting a Governor in accordance with the above criteria,
persons, belonging to the minority groups continue to be given a
chance as hitherto. (para 8.14.3) E
There should be a time-limit-say a period of six months within
which the Governor should take a decision whether to grant assent or
to reserve a Bill for consideration of the President. If the Bill is
reserved for consideration of the· President, there should be a time-
limit, say of three months, within which the President should take a F
decision whether to accord his assent or to direct the Governor to
return it to the State Legislature or to seek the opinion of the Supreme
Court regarding the constitutionality of the Act under Article 143.
(Para 8.14.4.)

8.14.6. Suitable amendment shouid be made in the Constitution so G
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
H
734 SUPREME COUR f REPORTS 12006] I S.C.R.

A to avoid any doubts in court proceedings.
1

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 he
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
B 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
c Bill, the assent shall be deemed to be a general assent for all
purposes of the Constitution."

Suitable amendment may also be made in Article 200.

Article 356 should not be deleted . .But it must be used sparingly
and only as a remedy of the last resort and after exhausting action
D under other articles like 256, 257 and 355.

(Paras 8.18 and 8.19.2)

8.16-Use-Misuse -of Article 356

E "Since the coming into force of the Constitution on 26th January,
1950, Article 356 and analogous provisions have been invoked 111
times. According to a Lok Sabha Secretariat study, on 13 occasions
the analogous provision namely Section 51 of the Government of
Union Territories Act, 1963 was applied to Union Territories of which
only Pondicherry had a legislative assembly until the occasion when
F it was last applied. In the remaining 98 instances the Article was
applied I0 times technically due to the mechanics of the Constitution
in circumstances like re-organisation of the States, delay in completion
of the process of elections, for revision of proclamation and there
being no party with clear majority at the end of an election. In the
G remaining 88 instances a close scrutiny of records would show that
in as many as 54 cases there were apparent circumstances to warrant
invocation of Article 356. These were instances of large scale
defections leading to reduction of the ruling party into minority,
withdrawal of support of coalition partners, voluntary resignation by
the government in view of widespread agitations, large scale militancy,
H
RAMESHWARPRASADv. U.0.1. [PASAYAT. J.] 735
judicial disqualification of some members of the ruling party causing A
loss of majority in the House and there being nQ alternate· party
capable of forming a Government. About 13 cases of possible misuse
are such in which defections and dissensions could have been alleged
to be result of political manoeuvre or cases in which floor tests could
have finally proved loss of support but were not resorted to. In 18 B
cases common perception is that of clear misuse. These involved the
dismissal of 9 State Governments in April 1977 and an equal number
in February 1980. This analysis shows that number of cases of
imposition of President's Rule out of 111, which could be considered
as a mis-use for dealing with political problems or considerations
irrelevant for the purposes in that Article such as mat-administration C
in the State are a little over 20. Clearly in many cases including those
arising out of States Re-organisation it would appear that the
President's Rule was inevitable. However, in view of the fact that
Article 356 represents a giant instrument of constitutional control of
one tier of the constitutional structure over the other raises strong D
misapprehensions.

8.17- Sarkaria Commission- Chapter 6 of the Sarkaria Commission
Report deals with emergency provisions, namely, Articles 352 to 360.
The Sarkaria Commissfon has made 12 recommendations; 11 of which
are related to Article 356 while I is related to Article 355 of the E
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
f
driven interference in self-governance of States. The underlined theme
of the recommendations is to promote a constitutional structure and F
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
G
8.19.5- In case of poiitical breakdown, the Commission recommends
that before issuing a proclamation under Article 356 the concerned
State should be given an opportunity to explain its position and redress
the situation, unless the situation is such, that following the above
course would not be in the interest of security of State, or defence of H
the country, or for other reasons necessitating urgent action.
736 SUPREME COURT REPORTS [2006] I S.C.R.

A 8.20. Situation of Political breakdown

Xx xx xx xx

8.20.3. The Commission recommends that the question whether the
Ministry in a State has lost the confidence of the Legislative Assembly
B or not, should be decided only on the floor of the Assembly and
nowhere else. If necessary, t!1e Union Government should take the
required steps, to enable the Legislative Assembly to meet and freely
transact its business. The Governor should not be allowed to dismiss
the Ministry, so long as it enjoys the confidence of the House. It is
only where a Chief Minister refuses to resign, after his Ministry is
c defeated on a motion of no-confidence, that the Governor can dismiss
the State Government. In a situation of political breakdown, the
Governor should explore all possibilities of having a Government
enjoying majority support in the Assembly. If it is not possible for
such -a Government to be installed and if fresh elections can be held
D without avoidable delay, he should ask the outgoing Ministry, (if
there is one), to continue as a caretaker government, provided the
Ministry was defeated solely on a issue, unconnected with any
allegations of maladministration or corruption and is agreeable to
continue. The Governor should then dissolve the Legislative Assembly,
leaving the resolution of the constitutional crisis to the electorate.
E
8.20.4. The problem of political breakdown would stand largely
resolved if the recommendations made in para 4.20.7 in Chapter 4 in
regard to the election of the leader of the House (Chief Minister) and
the removal of the Government only by a constructive vote of no-
F confidence are accepted and implemented.

8.20.5. Normally President's Rule in a State should be proclaimed on
the basis of Governor's Report under article 356( I). The Governor's
report should be a "speaking document", containing a precise and
clear statement of all material facts and grounds, on the basis of
G which the President may satisfy himself, as to the existence or
otherwise of the situation contemplated in Article 356.

8.21. Conslilu/ionu/ Amendments

8.21.1- Article 356 has been amended I 0 times principally by way of
H amendment of clause 356(4) and by substitution/omission of proviso
to Article 356(5). These were basically procedural changes. Article
RAMESHWAR PRASAD r. U.0.1. [PASAYAT. J.] 737
356, as amended by Constitution (44th Amendment) provides that a A
resolu.tion 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 B
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 C
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 D
Punjab. Circumstances may arise where even without the proclamation
of Emergency under Article 352, it may be difficult to hold general
elections to the State Assembly. In such a situation continuation of
President's Rule may become necessary. It may, therefore, be more
practicable to delink the two conditions allowing for operation of E
each condition in its own specific circumstances for continuation o.f
the President's Rule. This would allow for flexibility and save the
Constitution from the need to amend it from time to time.

8.21.3. The Commission recommends that in clause (5) of Article
356 of the Constitution, in sub-clause (a) the word "and" occurring F
at the end should be substituted by "or" so that even without the State
being under a proclamation of Emergency, President's rule may be
continued if elections cannot be held.

8.21.4. Whenever a proclamation under Article 356 has been issued
and approved by the Parliament it may become necessary to review G
the continuance in force of the proclamation and to restore the
democratic processes earlier than the expiry of the stipulated period.
The Commission are of the view that this could be secured by
incorporating safeguards corresponding, in principal, to clauses (7)
and (8) of Article 352. The Commission, therefore, recommends that
clauses (6) and (7) under Article 356 may be added on the following H
738 SUPREME COURT REPORTS [2006] I S.C.R.

A lines: "(6) Notwithstanding anything contained in the foregoing
clauses, the President shall revoke a proclamation issued under clause
(I) or a proclamation varying such proclamation if the House of the
Peopk passes a resolution disapproving, or, as the case may be,
disapproving the continuance in force of, such proclamation. (7) Where
a notice in writing signed by not less than one-tenth of the total
B number of members of the House of the People has been given, of
their intention to move a resolution for disapproving, or, as the case
may be, for disapproving the continuance in force of, a proclamation -< ,
issued under clause (I) or a proclamation varying such proclamation:

(a) to the Speaker, if the House is in session; or
c
(b) to the President, ifthe House is not in session, a special >itting
of the House shall be held within fourteen days from the date on
which such notice is received by the Speaker, or, as the case may be.
by the President, for the purpose of considering such resolution "

D 8.22- Dissolution of Assembly

8.22.1. When it is decided to issue a proclamat.«11 under Article
356( I), a matter for consideration that arises is whetha the Legislative
Assembly should also be dissolved or not. Article 356 does not
explicitly provide for dissolution of the Assembiy. One opinion is
E 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
F
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 J that every proclamation issued under Article 356 shall
be laid before both Houses of Parliament and shall cease to operate
G 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.:!2.2 The Commission having considered these two opinions in the
H background of repeated criticism of arbitrary use of Article 356 by
RAMESHWAR PRASAD v. U.0.1. [PASAYAT,J.] '739
the executive, is of the view that the check provided under clause 3 A
of Article 356 would be ineffective by an irreversible decision before
Parliament has had an opportunity to consider it. The power of
dissolution has been inferred by reading sub-clause (a) of clause I of
Article 356 along with Article 174 which empowers the Governor to
dissolve Legislative Assembly. Having regard to the overall
constitutional scheme it wou Id be necessary to secure the exercise of B
consideration of the proclamation by the Parliament before the
Assembly is dissolved.

8.22.3. The Commission, therefore, recommends that Article 356
should be amended to ensure that the State Legislative Assembly
should not be dissolved either by the Governor or the President before C
the Proclamation issued under Article 356(1) has been laid before
Parliament and it as had an opportunity to consider it.

It would also be appropriate to take note of very enlightening discussions
)
in the Constituent Assembly which throw beacon light on the role of D
Governors, parameters of powers exercisable under Articles 174 and 356 of
the Constitution.

Constituent Assembly met on !st June. 1949

Article 143
E
(Amendment Nos. 2155 and 2156 were not moved)

I ) H. V. Karnath (C.P. & Berar: General): Mr. President, Sir, I move:

"That in clause (I) of Article 143, the words 'except in so far as
he is by or under this Constitution required to exercise his functions F
or any of them in his discretion' be deleted."

If this amendment were accepted by the House, this clause of Article
143 would read thus :-

"There shall be a Council of Ministers with the Chief Minister at
G
the head to aid and advise the President in the exercise of his
functions."
~
Sir, it appears from a reading of this clause that the Government of
India Act of 1935 has been copied more or less blindly without
mature consideration. There is no strong or valid reason for giving
H
740 SUPREME COURT REPORTS [2006 J I S.C.R.
....
A the Governor more authority either in his discretion or otherwise vis-
a-vis his ministers, than has been given to the President in relation to
his ministers. If we turn to Article 61 (1), we find it reads as follows:-

"There shall be a Council of Ministers with the Chief Minister at
the head to aid and advise the Governor in the exercise of his
B 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
c 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 ....
D additional powers, namely, discretionary powers. 1 feel that no
departure from the principles of constitutional Government should be
""
favoured except for reasons of emergt:ncy and these discretionary
powers must be done away with. I hope this amendment of mine will
commend itself to the House. I move, Sir.
E Prof. K. T. Shah (Bihar: General) : Mr. President, 1 beg to move:
,,

"That in clause (I) of Article 143, after the word 'head a comma
be placed and the words 'who shall be responsible to the Governor
and shall' be inserted and the word to' be deleted."

F So, that the amended Article would read.

"(l) There shall be a Council of Ministers with the Chief Minister at
the head who shall be responsible to the Governor and shall aid and
advise the Governor in the exercise of his functions ...... etc."

Sir, this is a logical consequence of the general principle of this Draft
G
Constitution, namely, that the Government is to be upon the collective
responsibility of the entire Cabinet to the legislature. At the same ..
time, in the Cabinet the Prime Minister or the Chief Minister or by
whatever title he is described would be the Principal Adviser and I
would like to fix the responsibility definitely by the Constitution on
H
RAMESl-IWAR PRASADv_ U.0.1. [PASAYAT,J.J 741

the Chief Minister, the individual Ministers not being in the same A
position. Whatever may be the procedure or convention within the
Cabinet itself, however the decisions of the Cabinet may be taken, so
far as the Governor is concerned, I take it that the responsibility
would be of the Chief Minister who will advise also about the
appointment of his colleagues or their removal if it should be necessary. B
It is but in the fitness of things that he should be made directly
responsible for any advice tendered to the Constitutional head of the
State, namely, the Governor. As it is, in my opinion, a clear corollary
from the principles we have so far accepted, l hope there would be
no objection to this amendment.

(AmetiJments Nos. 2159 to 2163 were not moved.)
c
Mr. President: There is no other amendment. The Article and the
amendments are open to discussion.

Shri T. T. Krishnamachari : Mr. President, I am afraid l will have to
oppose the amendment moved by my honourable Friend Mr. Karnath, D
only for the reason that he has not understood the scope 'of the clearly
and his amendment arises out of a misapprehension.

Sir, it is no doubt true, that certain words from this Article may be
removed, namely, those which refer to the exercise by the Governor
of his functions where he has to use his discretion irrespective of the E
advice tendered by his Ministers. Actually, I think this is more by
way of a safeguard, because there are specific provisions in this Draft
Constitution which occur subsequently where the Governor is
empowered to act in his discretion irrespective of the advice tendered
by his Council of Ministers. There are two ways of formulating the p
idea underlying it. One is to make a mention of this exception in this
Article 143 and enumerating the specific power of the Governor where
he can exercise his discretion in the 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 G
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 H
742 SI ;pREME COURT REPORTS 12006] I S.C.R.

A the normal practice to which I see my honourable Friend Mr. Karnath
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
B
honourable Friend is trying to make, while he concedes that the
discretionary power of the Governor can be given under Article 188,
seems to be pointless. If it is to be given in Article 188, there is no + '
harm in the mention of it remaining here. No harm can arise by
specific mention of this exception of Article 143. Therefore, the serious
c objection that Mr. Karnath finds for mention of this exception is
pointless. l therefore think that the Article had better be passed without
any amendment. If it is necessary for the House either to limit the
discretionary power of the Governor or completely do away with it,
it could be done in the Articles that occur subsequently where specific
mention is made without which this power that is mentioned here
D cannot at all be exercised. That is the point I would like to draw the
attention of the House to and I think the Article had better be passed
as it is.

Dr. P. S. Deshmukh (C. P. & Berar: General): Mr. President, Mr. T.
T. Krishnamachari has clarified the position with regard to this
E
exception which has been added to clause (I) of Article 143. If the
Governor is, in fact, going to have a discretionary power, then it is
necessary that this clause which Mr. Karnath seeks to omit must
remain.

Sir, Besides this, I do not know if the Drafting Committee has
F
deliberately omitted or they are going to provide it at a later stage,
and I would like to ask Dr. Ambedkar whether it is not necessary to
provide for the Governor to preside at the meetings of the Council of
Ministers. I do not find any provision here to this effect. Since this
Article 143 is a mere reproduction of section 50 of the Government
G of India Act, 1935, where this provision does exist that the Governor
in his discretion may preside at the meetings of the Council of Minister,
I think this power is very necessary. Otherwise, the Ministers may
exclude the Governor from any meetings whatever and this power
unless specifically provided for. would not be available to the
Governor. I would like to draw the attention of the members of the
H
RAMESHWAR PRASAD v. U.O.l. [PASAYAT. J.] 743
Drafting Committee to this and to see if it is possible either to accept A
an amendment to Article 143 by leaving it over or by making this
provision in some other part. I think this power of the Governor to
preside over the meetings of the Cabinet is an essential one and ought
to be provided for.

Shri Brajeshwar Prasad: Mr. President, Sir, the Article provides- B
"That there shall be a Council of Minister with the Chief Minister
at the head to aid and advise the Governor in the exercise of his
functions".

Sir, I am not a constitutional lawyer but I feel that by the Provisions C
of this Article the Governor is not bound to act according co 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 D
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 E
that the Governor should be vested not only with the power to act in
his discretion but also with the power to act in his individual judgment.
I feel that the Governor should be vested with the power of special
responsibilities which the Governor under the British regime were
vested in this country. I feel that there is a dearth of leadership in the
provinces. Competent men are not available and there are all kinds of
F
things going on in the various provinces. Unless the Governor is
ve.sted with large powers it will be difficult to effect any improvement
in the Provincial administration. Such a procedure may be
undemocratic but such a procedure will be perfectly right in the interest
of the country. I feel there is no creative energy left in the middle G
class intelligentsia of this country. They seem to have become bereft
of initiative and enterprise. The masses who ought to be the rulers of
this land are down-trodden and exploited in all ways. Under these
circumstances there is no way left open but for the Government of
India to take the Provincial administrations in its own hands. I feel
H
744 SUPREME COURT REPORTS (2006[ I S.C.R.

A that we are on the threshold of a revolution in this country. There will
be revolution, bloodshed and anarchy in th is country. I feel that at
this juncture it is necessary that all powers should remain centralised
in the hands of the Government of India. In certain provinces the
machinery of law and order seems to have completely broken down.
Dacoities, arson, loot, murder and inflationary conditions are rampant.
B
I am opposed to this Article, because I am convinced that federalism
cannot succeed in a country which is passing through a transitory
period. The national economy of America is fully developed. It can r '
afford to have a federal form of Government. In a country where
there is no room for expansion and for economic development, there
c is no necessity for a centralised economy. In India when our
agriculture, industry, minerals etc. are in an incipient stage of
development, it is necessary that power must be vested in the hands
of the Government of India. Federalism was in vogue in the 19th
century when the means of communications were undeveloped. The
technical knowledge and resources at the disposal of Governments in
D ancient times were of a very meager character. Today the situation
has completely changed. Means of communications have developed
rapidly. Technical knowledge and the necessary personnel at the
disposal of the Government of India are of such a wide character that
it can undertake to perform all the functions which a modern
E Government is expected to perform. There is another reason why I
am opposed to this Article. In this country there is no scope for
federalism. All governments have become more or less unitary in
character. lfwe 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
F 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
G 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 9 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
H be guided by the advice of his Ministers but it is expected that in
RAMESH WAR PRASAD v. U.0.l. [PASAY AT, J.] 745

accordance with the Constitution-al practice prevailing in all countries A
where responsible Government exists the Governor will in all matters
accept the advice of his Ministers. This does not however mean that
where the Statute clearly lays down that action in regard to specified
matters may be taken by him on his own authority this Article 143 will
stand in his way.
B
My Friend Mr. T. T. Krishnamachari said that as Article 188 of the
Constitution empowered the Governor to disregard the advice of his
Ministers and to take the administration of the province into his own
hands, it was necessary that these words should be retained, i.e. the,
discretionary power of the Governor should be retained. If however, C
he assured us, Article 188 was deleted later, the wording of Article 143
could be reconsidered. 1 fully understand this position and appreciate
it, but I should like the words that have been objected to by my Friend
Mr. Karnath to be deleted. I do not personally think that any harm will
be done if they are not retained and we can then consider not merely
Article 188 but also Article 175 on their merits; but in spite of the D
y assurance of Mr. Krishnamachari the retention of the words objected
to does psychologically create the impression that the House is being
asked by the Drafting Committee to commit itself in a way to a
principle that it might be found undesirable to accept later on. I shall
say nothing with regard to the merits of Article 188. I have already E
briefly expressed my own views regarding it and shall have an
opportunity of discussing it fully later when that Article is considered
by the House. But why should we, to being with, use a phraseology
that it an unpleasant reminder of the old order and that makes us feel
that though it may be possible later to reverse any decision that the
House may come to now, it may for all practical purposes be regarded F
as an accomplished fact? I think Sir, for these reasons that it will be
better to accept the amendment of my honourable Friend Mr. Karnath,
and then to discuss Articles 157 and 188 on their merits.

I should like to say one word more before I close. If Article 143 is
passed in its present form, it may give rise to misapprehensions of the G
kind that my honourable Friend Dr. Deshmukh seemed to be labouring
under when he asked that a provision should be inserted entitling the
Governor to preside over the meetings of the Council of Ministers.
The Draft Const'itution does not provide for this and I think wisely
does not provide for this. It would be contrary to the traditions of H
746 SCPRF7vl': COL:RT REPORTS [20061 1 S.C.R.

A n:sponsible government as they have bl:!en established in Great British
and the British Dominions. that the Governor or the Governor-General
>hould, 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 t.'1e Governor of the decisions come to by the
Council of Ministers in regard to administrative matter and the
B 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
c 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. Karnath is better than what the Drafting
Sub-Committee seem to approve.

D Prof. Shibban Lal Saksena (United Provinces: General): Mr. President,
Sir, I heard very carefully the speech of my honourable Friend, Mr.
Krishnamachari, and :1is arguments for the retention of the words
which Mr. Karnath wants to omit. If the Governor were an elected
Governor, I could have understood that he should have these
discretionary powers. But now we are having nominated Governors
E
who will function during the pleasure of the President, and I do not
think such persons should be given powers which are contemplated
in Article 188.

Then, if Article 188 is yet to be discussed - and it may well be
rejected then it is not proper to give these powers in this Article
F
beforehand. If Article 188 is passed, then we may reconsider this
Article and add this clause if it is necessary. We must not anticipate
that we shall pass Art 1cle 188, after all that has been said in the House
about the powers of the Governor.

These words are a reminder of the humiliating past. I am afraid that
G
if these words are retained, some Governor may try to imitate the
Governors of the past and quoit: them as precedents, that th is is how
the Governor on such an occasion acted in his discretion. I think in
our Constitution as we are now framing it, thest: powers of the
Governors are out of place; and no less a person than the honourable
H Pandit Gov ind Ballabh Pant had given notice of the amendment which
RAMESHWAR PRASAD v. U.O.l. [PASl\YAT. J.] 747

Mr. Karnath has moved. I think the wisdom of Pandit Pant should be A
sufficient, guarantee that this amendment be accepted. It is just possible
that Article 188 may not be passed by this House. If there is an
emergency, the Premier of the province himself will come forward to
request the Governor that an emergency should be declared, and the
aid of the Centre should be obtained to meet the emergency. Why B
should the Governor declare an emergency over the head of the
Premier of the Province? We should see that the Premier and the
Governor of a Province are not at logger heads on such an occasion.
I \
A situation should not be allowed to arise when the Premier says that
he must carry on the Government, and yet the Governor declares an
emergency over his head and in spite of his protestations. This will C
make the Premier absolutely impotent. I think a mischievous Governor
may even try to create such a situation if he so decides, or if the
President wants him to do so in a province when a party opposite to
that in power at the Centre is in power. I think Article 188, even if it
is to be retained should be so modified that the emergency should be D
de£lared by the Governor on the &dvice 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 E
from my honourable radical Friends Mr. Karnath 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 F
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 G
the Centre. Take for instance subjects like Defence involving questions
of peace or war, of relationship with foreign countries; of our
commercial relations, exports and imports. All these are subjects which
affect the whole body politic, and the provinces cannot remain
unaffected, they cannot be left free of the policy of the Centre. The
H
748 gSlJPREME COliRT RE PORTS [20061 I S.C.R.

A policy which is evoked in the Centre should be followed by all the
States, and if the Governors were to be in the hands of the provincial
Ministers then there will be various policies in various provinces and
the policy of each province shall be as unstable as the ministry. For
there would be ministers of various types having different party labels
and different programmes to follow. Their policies must differ from one
B another; it will therefore be all the more necessary that there must be
coordination of programmes and policies between the States and the
Central Government. The Governor being the agency of the Centre is
the only guarantee to integrate the various Provinces or States. The '
Central Government also expresses itself through the provincial States;
c along with their own administration, they have also to function on
behalf of the Central Government. A Governor shall act as the agency
of the Centre and will Sf'e that the Central policy is sincerely carried
out. Therefore the Governor's discretionary powers shou Id not be
interfered with. Democratic trends are like a wild beast. Say what you
will, democracy goes by the whims and fancies of parties and the
D
masses. There must be some such machinery which will keep this wild
beast under control. 1 do not deprecate democracy. Democracy must
have its way. But do not let it degenerate into chaos. Moreover the
State governments may not be quite consistent in their own policies.
Governments may change after months or years: with them will change
E their policies. The Governors may change too, but the policy and
instructions given by the Centre to the Governors will remain practically
unchanged. The more the powers given to the States the more vigilant
must be the control. The Governor must remain as the guardian of the
Central policy on the one side, and the Constitution on the other. His
F ~owers therefore should not be interfered with.

Shri B. M. Gupta (Bombay: General): Sir, I think the explanation given
by my honourable Friend Mr. T. T. Krishnamachari Should be accepted
by the House and the words concerning discretion of the Governor
should be allowed to stand till we dispose of Artich~ 175 and Article
G 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
H know the intentions of the Drafting Committee for the future but as
RAMESH WAR PRASAD v. U.0.1. [PASA YAT, J.] 749

,; ., far as the Draft before us is concerned I think the Drafting Committee A
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 B
constitutional head. If he presides over the meeting of the Cabinet be
shall have an effective voice in shaping the decisions of the Cabinet
-~
.I 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
c
be maintained. Therefore, Sir, I oppose the proposal of Dr. Deshmukh.

Shri Alladi Krishnaswami Ayyar (Madras: General): Sir, there is really
no difference between those who oppose and those who approve the
amendment. In the first place, the general principle is laid down in
y
D
~
Article 143 namely, the principle of ministerial responsibility, that the
Governor in the various spheres of executive activity should act on·
·'
the advice of his ministers. Then the Article goes on to provide
"except in so far as he is by or under this Constitution required to
exercise his functions or any of them in his discretion." So long as
there are Articles in the Constitution which enable the Governor to act E
in his discretion and in certain circumstances, it may be, to over-ride
the cabinet or to refer to the President, this Article as it is framed is
perfectly in order. If later on the House comes to the conclusion that
t those Articles which enable the Governor to act in his discretion in
specific cases should be deleted, it will be open to revise this Article.
But so long as there are later Articles which permit the Governor to
F
act in his discretion and not on ministerial responsibility, the Article
as drafted is perfectly in order.

The only other question is whether first to make a provision in Article
143 that the Governor shall act on ministerial responsibility and then
G
to go on providing "Notwithstanding anything contained in Article
143 ........ he can do this" or "Notwithstanding anything contained in
Article 143 he can act in his discretion." I should think it is a much
better method of drafting to provide in Article 143 itself that the
Governor shall always act on ministerial responsibility excepting in
H
~

750 SUPREME COURT REPORTS (2006J I S.C.R.

A particular or specific cases where he is empowered to act in his ...
discretion. If of course the House comes to the conclusion that in no
case shall the Governor act in his discretion, that he shall in every
case act only on ministerial responsibility, then there will be a
consequential change in this Article. That is, after those Articles are
considered and passed it will be quite open to the House to delete
B the latter part of Article 143 as being consequential on the decision
come to by the House on the later Articles. But, as it is, this is
perfectly, in order and I do not think any change is warranted in the
1
language of Article 143. It will be cumbrous to say at the opening of

c
each "Notwithstanding anything contained in Article 143 the Governor
can act on his own responsibility".
·-
Shri H. V. Karnath: 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
D but only in Governors?

Pandit Thakur Das Bhargava (East Punjab: General): Sir, I beg to
oppose the amendment of Mr. Karnath. 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
E order paper as Article I42-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
' .
F Governor shall exercise very wide powers and very significant powers
too. If we look at Article I44 -it says:
"The Governor's ministers shall be appointed by him and shall
hold office during his pleasure."
G So he has the power to appoint his ministers. But when the ministers
are not in existence who shall advise him in the discharge of his
functions'? When he dismisses his ministry then also he will exercise
his functions under his own discretion.
..
Then again, when the Governor calls upon the leader of a party for
H
7
~~

RAMESH WAR PRASADv. U.0.1. (PASA YAT, J.) 751
the choice of ministers, after a previous ministry has been dissolved, A
'I in that case there will be no ministry in existence; and who will be
there to advise him? Therefore he will be exercising his functions in
his discretion. It is wrong to assume that the Governor will not be
charged with any functions which he will exercise in his discretion.
Articles 175 and 188 are the other Articles which give him certain
functions which he has to exercise in his discretion. B

Under Article 144 (4) there is a mention of the Instrument oflnstructions
,
' which is given in the Fourth Schedule. The last paragraph of it runs
thus:
"The Governor shall do all that in him lies to maintain standards c
of good administration, to promote all measures making for moral,
social and economic welfare and tending to fit all classes of the
population to take their due share in the public life and government
of the state, and to secure amongst all classes and creeds co-
operation, goodwill and mutual respect for religions beliefs and
sentiments."
D

My submission is that according to me the Governor shall be a
guide, philosopher and friend of the Ministry as well as the people
in general, so that he will exercise certain functions some of which
will be in the nature of unwritten conventions and some will be such
as will be expressly conferred by this Constitutions. He will be a man
E
above party and he will look at the Minister and government from
a detached standpoint. He will be able to influence the ministers and
members of the legislature in such a.manner that the administration
will run smoothly. In fact to say that a person like him is merely a
dummy, an automaton or a dignitary without powers is perfectly F
wrong. It is quite right that so far as our conception of a constitutional
governor goes he will have to accept the advice of his ministers in
many matters but there are many other matters in which the advice will
neither be available nor will he be bound to accept that advice.

(underlined for emphasis) G

Under Article 147 the Governor has power for calling for information
---4\ 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 H
752 SUPREME COURT REPORTS [2006] I S.C.R.

A been taken by a \1inister 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
B 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
c Article 143.

Shri H. V. Pataskar (Bombay: General): Sir, Article 143 is perfectly clear.
With regard to the amendment of my honourable Friend Mr. Karnath
various points were raised, whether the Governor is to be merely a
figure-head, whether he is to be a constitutional head only or whether
D he is to have discretionary powers. To my mind the question should
be looked at from and entirely different point of view. Article 143
merely relates to the functions of the ministers. It does not primarily
relate to the power and functions of a Governor. It only says:

"There shall be a Council of Ministers with the Chief Minister
E at the head to aid and advise the Governor in the exercise of his
functions."

Granting that we stop there, is it likely that any complications will
arise or that it will interfere with the discretionary powers which are
proposed to be given to the Governor? In my view Article 188 is
F
probably necessary and I do not mean to suggest for a moment that
the Governor's powers to act in an emergency which powers are given
under Article 188, should not be there. My point is this, whether if
this Provision, viz., "excc:pt in so far as he is by or under this
Constitution required to exercist his functions or any of them in his
G discretion", is not there, is it going to affect the powers that are going
to be given to him to act in his discretion under Article 188? I have
carefully listened lo my honourable Friend and respected constitutional
lawyer. Mr. Alladi Krishnaswami Ayyer, but I was not able to follow
why a provision like this is necessary. He said that instead later on,
while considering Article 188, we might have to say "Notwithstanding
H
l

RAMESHWAR PRASAD v. U.O.L [f'ASAY AT, J.] 753
,, anything contained in Article 143." In the first place to my mind it is A
'\.
not necessary. In the next place, even granting that it becomes
necessary at a later stage to make provision on Article 188 by saying
"notwithstanding anything contained in Article 143", it looks so
obnoxious to keep these words here and they are likely to enable
certain people to create a sort of unnecessary and unwarranted prejudice
against certain people. Article 143 primarily relates to the functions of B
the ministers. Why is it necessary at this stage to remind the ministers
,I ~ of the powers of the Governor and his functions, by telling them .that
they shall not give any aid or advice in so far as he, the Governor is
required to act in his discretion? This is an Article which is intended
to define the powers and functions of the Chief Minister. At that point c
to suggest this, looks like lacking in courtesy and politeness. Therefore
I think the questic .. .;,1ould be considered in that way. The question
is not whether we are going to give discretionary power to the
Governors or not. The question is not whether he is to be merely a
figure-head or otherwise. These are question to be debated at their
f
proper time and place. When we are considering Article 143 which D
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 E
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. F
Shri Krishna Chandra Sharma (United Provinces: General): Sir, the
position is that under Article 41 the executive powers of the Union
are vested in the President and these may be exercised by him in
accordance with the Constitution and the law. Now, the President of
the Union is responsible for the maintenance of law and order and for G
good Government. The Cabinet of the State is responsible to the
-4 people thnugh the majority in the Legislature. Now, what is the link
' between the President and the State? The link is the Governor.
Therefore through the Governor alone the President can discharge his
functions for the good Government of the country. In abnormal H
>

754 SUPREME COURT REPORTS (2006] I S.C.R.
...
A circumstances it is the Governor who can have recourse to the
emergency powers under Article 188. Therefore the power to act in his
discretion under Article 143 ipso facto follows and Article 188 is
necessary and cannot be done away with. Therefore certain emergency
powers such as under Article 188 are necessary for the Governor to
discharge his function of maintaining law and order and to carry on
B the orderly government of the State.

I wish to say word more with regard to Professor Shah's amendment
that the Minister shall be responsible to the Governor. The Minister
has a majority in the legislature and as such, through the majority, he
is responsib:.: to the people. If he is responsible to the Governor, as
c distinguished from his responsibility to the Legislature and through
the legislature to the people of the State, then he can be overthrown
by the majority in the legislature and he cannot maintain his position.
He cannot hold the oflice. Therefore it is an impossible proposition
that a Minister could ever be responsible lo the Governor as
D distinguished from. his responsibility to the people through the
majority in the legislature. He should therefore be responsible lo the
legislature and the people and not to the President. That is the only
way in which under the scheme in the Draft Constitution the
government of the country can he carried on.

E (underlined for emphasis)

Shri Rohini Kumar Chaudhari: (Assam: General): I rise to speak more
in quest of clarification and enlightenment than out of any ambition
to make a valuable contribution to this debate.

F Sir, one point which largely influenced this House in accepting the
Article which provided for having nominated Governors was that the
Honourable Dr. Ambedkar was pleased to assure us that the Governor
would be merely a symbol. I ask the honourable Dr. Ambedkar now,
whether any person who has the right to act in his discretion can be
said to be a mere symbol. I am told that this provision for nominated
G 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
H. England.
,~

RAMESH WAR PRASADv. U.0.1. [PASAYAT, J.] 755
A
\ Sir. I know to my cost and to the cost of my Province what 'acting A
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. 1 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. B
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,
1 am afraid we are still living in the past which we all wanted to forget.

We have always thought that ii is better to be governed by the will
of the people than to be governed by the will of a single person who
c
nominates the Governor who could act in his discretion. If this
Governor is given the power to act in his discretion there is no
power on earth to prevent him from doing so. He can be a veritable
king Stork. Furthermore, as the Article says, whenever the Governor
., thinks that he is acting in his discretion nowhere can he be questioned D
There may be a dispute between the Ministers and the Governor
about the competence of the former to advise the Governor; the
Governor's voice would prevail and the voice of the Ministers would
count for nothing. Should we in this age countenance such a state
of affairs? Should we take more then a minute to dismiss the idea of
having a Governor acting in the exercise of his discretion? It may be E
said that this matter may be considered hereafter. But I feel that when
once we agree to this provision, it would not take long for us to
( )- realise that we have made a mistake. Why should that be so? Is there
any room for doubt in this matter? Is there any room for thinking that
anyone in this country, not to speak of the.members of the legislature, F
will ever countenance the idea of giving the power to the Governor
nominated by a single person to act in the exercise of his discretion?
1 would submit, Sir, if my premise is correct, we should not waste a
single moment in discarding the provisions which empower the
Governor to act in his discretion.
G
(underlined for emphasis)

I also find in the last clause of this Article that the question as to what
advice was given by a Minister should not be enquired into in any
court. I only want to make myself clear on this point. There are two
functions to be discharged by a Governor. In one case he has to act H
756 SUPRE:'v!E COURT REPORTS [2006[ I S.C.R.

A on the advice of the Minister and in the other case he has to act in
the exercise of his discretion. Will the Ministry be competent to
advise the Governor in matters where he can exercise his discretion?
If l remember a right, in I937 when there was a controversy over this
matter whether Ministers would be competent to advise the Governor
in matters where the Governor could use his discretion, it was
B understood that Ministers would be competent to advise the Governor
in the exercise of his discretion also and if the Governor did not
accept their advice, the Ministers were at liberty to say what advice
they gave. I do not know that is the intention at present. There may
be cases where the Ministers are competent to give advice to the
c Governor but the Governor does not accept their advice and docs
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 Govern,r, instead of
D f!Cting on the advice of his Minister, acts in a difforc> way. If the
Minister are criticised for anything the Governor does 01 . 1s 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?
E Why should we not allow the Ministers the liberty lo 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?
l would say, Sir-and I may be excused for saying so--- that the best
that can be said in favour of this Article is that it is a close imitation
F of a similar provision in the Government of India Act, 1935, which
many Members of this House said, when is was published, that they
would not touch even with a pair of tongs.

(underlined for emphasis)

G The Honourable Dr. B. R. Ambedkar : Mr. President, Sir, I did not think
that it would have been necessary for me to speak and take part in
this debate after what my Friend, Mr. T. T. Krishnamachari, had said
on this amendment of Mr. Karnath, but as my Friend, Pandit Kunzru,
pointedly asked me the question and demanded a reply, I thought that
out of courtesy I should say a few words. Sir, 1he main and the
H
RAMESHW AR PRASAD v. lJ.0.1. [PASA YAT, J.] 757

crucial question is, should the Governor have discretionary powers? A
It is that question which is the main and the principal question.
After we come to some decision on this question, the other question
whether the words used in the last part of clause (1) of Article 143
should be retained in that Article or should be transferred somewhere
else could be usefully considered. The first thing, therefore, that 1
propose to do so is to devote myself of this question which, as I said, B
is the crucial question. It has been said in the course of the debate
that the retention of discretionary power in the Governor is contrary
to responsible government in the provinces. It has also been said
that the retention of discretionary power in the Governor smells of
the Government of India Act, 1935, which in the main was C
undemocratic. Now, speaking for myself, I have no doubt in my mind
that the retention on the vesting the Governor with certain discretionary
powers is in no sense contrary to or in no sense a negation of
responsible government. I do not wish to rake up the point because
on this point I can very well satisfy the House by reference to the
provisions in the Constitution of Canada and the Constitution of D
Australia. I do not think anybody in this House would dispute that
the Canadian system of government is not a fully responsible system
of government, nor will anybody in this House challenge that the
Australian Government is not a responsible form of government.
Having said that, I would like to read section 55 of the Canadian E
Constitution.

"Section 55.-Where a Bill passed by the House of Parliament is
presented to the Governor-General for the Queen's assent, he shall,
according to his discretion, and subject to the provisions of this Act,
either assent thereto in the Queen's name, or withhold the Queen's F
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?
G
The Honourable Dr. B. R. Ambedkar: That does not matter at all. The
date of the Act does not matter.

Shri H. V. Karnath: Nearly a century ago.

The Honourable Dr. B.R. Ambedkar: This is my reply. The Canadians H
758 SUPREME COURT REPORTS (2006] I S.C.R.

A 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
B
done so. Therefore in reply to Pandit Kunzru I can very well say that
the Canadians and the Australians do not think such a provision is
an infringement of responsible government.

Shri Lokanath Misra (Orissa: General): On a point of order, Sir, are we
C going to have the status of Canada or Australia? Or are, we going to
have a Republic Constitution?

The Honourable Dr. B. R. Ambedkar: I could not follow what he said.
If, as I hope, the House is satisfied that the existence of a provision
vesting a certain amount of discretion in the Governor is not
D incompatible or inconsistent with responsible government, there can
be no dispute that the retention of this clause is desirable and, in my
judgment, necessary. The only question that arises is ....

Pandit Hirday Nath Kunzru : Well, Dr. Ambedkar has missed the point
of the criticism altogether. The criticism is not that in Article 175 some
E powers might not be given to the Governor, the criticism is against
vesting the Governor with certain discretionary powers of a general
nature in the Article under discussion.

The Honourable Dr. B. R. Ambedkar: I think he has misread the
Article. I am sorry I do not have the Draft Constitution with me.
F "Except in so far as he is by or under this Constitution," those are
the words. If the words were "except whenever he thinks that he
should exercise this power of discretion against the wishes or against
the advice of the ministers", then I think the criticism made by my
honourable Friend Pandit Kunzru would have been valid. The clause
G is a very limited clause: it says: "except in so far as he is by or under
this Constitution". Therefore, Article 143 will have to be read in
conjunction with such other Articles which specifically reserve the
power to the Governor. It is not a general clause giving the Governor
power to disregard the advice of his ministers in any matter in which
-
H he finds he ought to disregard. There, I think, lies the fallacy of the
argument of my honourable Friend, Pandit Kunzru.
4.

RAMESHWAR PRASAD v. U.0.1. [PASAYAT, J.] 759
_...,,.
\ Therefore, as I said, having stated that there is nothing incompatible A
with the retention of the discretionary power in the Governor in
specified cases with the system of responsible Government, the only
question that arises is, how should we provide for the mention of this
discretionary power? It seems to me that there are three ways by
which this could be done. One way is to omit the words from Article
143 as my honourable Friend, Pandit Kunzru, and others desire and
B
to add to such Articles as 175, or 188 or such other provisions which
/ the House may hereafter introduce, vesting the Governor w_ith the
"' discretionary power, 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 c
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.
y
Now the matter which seems to find some kind of favour with my D
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
E
portion of clause (I) of Article 143 if! 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
rior have we exhausted all the possibilities of other provisions being F
made, vesting the Governor with discretionary power. If I knew that,
I would very readily agree to amend Article 143 and to mention the
specific, but that cannot be done now. Therefore, my submission is
that no wrong could be done if the words as they stand in Article 143
remains as they are. They are certainly not inconsistent.
G
Shri H. V. Karnath: Is there no material difference between Article 61 (I)
~ relating to the President vis-a-vis his ministers and this ?

The Honourable Dr. B. R. Ambedkar : Of course there is because we
do not want to vest the President with any discretionary power.
H
760 SUPREME COL'RT RFPORTS [2006) l S.C.R.

A Because the provincial Governments 1re required to work in
subordination to the Central Government, and therefore, in order to
see that they do act in subordination to the Central Government the
Governor will reserve certain things in order to give the President the
opportunity to see that the rules under which the provincial
Governments are supposed to act according to the Constitution or in
B
subordination to the Central Government are observed.

Shri H. V. Karnath: Will it not be better to specify certain Articles in
the Constitution with regard to discretionary power, instead of
conferring general discretionary powers like this?

C The Honourable Dr. B. R. Ambedkar : l said so, that I would very
readily do it. I am prepared to introduce specific Articles, if I knew
what are the Articles which the House is going to incorporate in the
Constitution regarding vesting of the discretionary powers in the
Governor.
D Shri H. V. Karnath: Why not hold it over?

The Honourable Dr. B. R. Ambedkar : We can revise. This House is
perfectly competent to revise Article 143. If after going through the •
whole of it, the House feels that the better way would be to mention
the Articles specifically, it can do so. It is purely a logomachy.
E
Shri H. V. Karnath: Why go backwards and forwards?

Mr. President: The question is:

"That in clause (I) of Article 143, the words 'except in so far as
he is by or under this Constitution required to exercise his
F
functions or any of them in his discretion be deleted."
The amendment was negatived.

Mr. President: The question is:

"That in clause ( l) of Article 143, after the word 'head' a comma
G
be placed and the words 'who shall be responsible to the
Governor and shall' be inserted and the word 'to' be deleted."
...

H
The amendment was negatived.

Mr. President: The question is:
..
r !

RAMESllWAR PRASAD v. U.0.1. [PASA YAT, J.)
~~-
761
"That Article 143 stand part of the Constitution." A
. The motion was adopted.

Article 143 was added to the Constitution.

Constituent Assembly met. on 2nd June, 1949
B
ARTICLE 153

Mr. President: Article 153 is for the consideration of the House.

With regard to the very first aritendmen~ No. 2321, as we had a similar
amendment with· regard to Article 69 which was discussed at great C
length the other day, does Professor Shah wish to move it?

Prof. K. T. Shah: !fl am in order I would like to move it. But if you
~le it out, it cannot be moved.

Mr. President: It is not a question of ruling it out. If it is moved, there
f will be a repetition of the argument once put forward. D
Prof. K. T. Shah: I agree that this is a similar amendment, but not
identical. . ··

Mr. President: I have not said it is identical. ,1
IE
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. F
Mr. President: Then amendments Nos. 2328, 2329 and 2330 also go.
Amendment No. 2331 is not moved.

Mr. Mohd. Tahir (Bihar: ":luslim): Mr. President, I move:
G
"That at the end of sub-clause (c) of clause (2) of Article 153, the
. words 'if the Governor is satisfied that the administration is failing
and the ministry has become unstable' be inserted."

In this clause certain powers have been given to the Governor to
summon, prorogue or dissolve the Legislative Assembly. Now I want H
•
-1
762 SUPREME COURT REPORTS (2006] I S.C.R.

\ A that some reasons may be enumerated which necessitate the dissolution
ofa House. I find that to clause (3) of Article 153 there is an amendment '
of Dr. Ambedkar in which he wants to omit the clause which runs
thus: "(3) the functions of the Governor under sub-clause (a) and (c)
of clause (2) of this Article shall be exercised by him in his discretion."
I, on the other hand, want that some reasons should be given for the
B dissolution. Nowhere in the Constitution are we enumerating the
conditions wid circumstances under which the House can be dissolved
If we do not put any condition, there might be difficulties. Supposing
. in some province there is a party in po.wer with whose views the " '
· some reasons to dissolve the Assembly and make arrangements for
c fresh elections. If such things happen there will be no justification
for a dissolution of the House. Simply because a Governor does not
subscribe to the views of the majority party the Assembly should not
be dissolved To avoid such difficulties I think it is necessary that
some conditions arid circumstances should be enumerated in the .
Constitution under which alone the Governor can dissolve the House.
D There should be no other reason for dissolution of the House except
mal~administration or instability of the Ministry and its unfitness to

' work. Therefore this matter should be considered and we should
provide for certain ~onditions and circumstances under which the
Governor can dissolve the House. \
:
E (underlined for emphasis)
,
Mr. President: The next amendment, No. 2333, is not moved. Dr.
Ambedkar may move amendment No. 2334.

The Honourable Dr. B.R. Ambedkar: Sir, I move:
F
"That clause (3) of Article 153 be omitted."

This clause is apparently inconsistent with the scheme for a
Constitutional Governor.

Mr. President: Amendment No. 2335 is the same as the amendment
G
just moved. Amendment No. 233~ is not moved.

Shri H. V. Karnath: Mr. President, Sir, may I have your leave to touch
,__
upon the meaning or interpretation of the amendment that has just
'
been moved by my learned Friend, Dr. Ambedkar? If this amendment
·H is accepted by the House it would do away with the discretionary
I
~
RAMESHWAR PRASAD v. U.0.1. [PASA YAT, U 763
·---------
powers given to the Governor. There is, however, sub-clause (b). Am -A
.

• 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.
B
Shri H.V. Karnath: 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
sumrnon 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.
c
Mr. President: That is exactly what is not being done now. All the
three are being put on a par.

Shri H. V: Karnath: 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 D
f Union shall have a Council of Ministers to aid and advise him in the
exercise of his functions.

The corresponding Article here is 143:

wThere shall be a Council of Minister with the Chief Minister at the E
head to aid and advise the Governor in the exercise of his functions ......"

Sir, as you pointed out in connection with an Article relating to the
President vis-a-vis his Council of Ministers, is there any provision in ,_.
the Constitution which binds the Governor to accept or to follow
always the advice tendered to him by his Council of Ministers? Power
is being conferred upon him under this Article to dissolve the F
Legislative Assembly. This is a fairly serious matter in all democracies.
11tere have been instances in various democracies, even in our own
provinces sometimes, ~hen: a Cabinet seeking to gain ~ime against a
motion of censure being brought against them, have sought the
Governor's aid, in getting the Assembly prorogued. This of course is G
not so serious as dissolution o.f_the Legislative Assembly. Here the
Article blindly says, ~subject to the provisions of this Article." As
regards Clause (I) of the Article, I am glad that our Parliament and our
other Legislatures would meet more often and for longer periods. I
__, hope that will be considered and will be given effect to at the H
764 SUPREME COURT REPORTS [2006] I S.C.R.

A appropriate time. Clause (2) of this Article is important because it
deals with the dissolution of the Assembly by the Governor of a State
and in view of the fact that there is no specific provision-of course
it may be understood and reading between the lines Dr. Ambedkar
might say that the substance of it is there, but we have not yet
decided even to do·away with the discretionary powers of the Governor
B to accept the advice tendered to him by his Council of Ministers,
there is a lacuna in the Constitution. Notwithstanding this, we are
conferring upon him the power to dissolve the Legislative Assembly,
without even mentioning that he should consult or be guided by the
advice of his Ministers in this regard. 1 am constrained to say that this
c power which we are conferring upon the Governor will be out of tune
with the new set-up that we are going to create in the country unless
we bind the Governor to accept the advice tendered to him by his
Minister. I hope that this Article will be held over and the Drafting
Committee will bring forward another motion later on revising or
altering this Article in a suitable manner.
D
Shri Gopal Narain (United Provinces: General): Mr. President, Sir, before
speaking on this, 1 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
E 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
F 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
G must allow us at least to sleep in our seats or do something else than
sit in this House. Sir, I support this Article.

Mr. President: I am afraid I am helpless in this matter. I leave it to the
good sense of the Members.

H Shri Brajeshwar Prasad: (Rose to speak).
·~

RAMESH WAR PRASAD v. U.0.1. [PASA YAT. J.] 765
~
''\
Mr. Presidem. Do you wish to speak after this? (Laughter). A
The Honourable Dr. B.R. Ambedkar: I do not think I need reply. This
matter has been debated quite often.

Mr. President: Then I will put the amendments to vote.

The question is: B
"That at the end of sub-clause (c) of clause (2) of Article 153, the
j. \ . words 'if the Governor is satisfied that the administration is failing
and the ministry has become unstable' be inserted."
The amendment was negatived. c
Mr. President: The question is:
"That clause (3) of Article 153 be omitted."
The amendment was adopted.

l
Mr. President: The question is: D
"That Article 153, as amended, stand part of the Constitution."
The motion was adopted.
Article 153, as amended, was added to the Constitution
Constituent Assembly met on 3rd August, 1949 E
Article 278. Provisions in case of Failure of Constitutional machinery in
States.

xxx xxx xxx xxx
F
Pandit Hirday Nath Kunzru (United Provinces: General): Mr. President,
I am really very glad that the framers of the Constitution have at last accepted
the view that Article 188 should not find a place in our Constitution. That
Article was inconsistent with the establishment of responsible Government in
the provinces and the new position of the Governor. It is satisfactory that this
has at last been recognised and that the Governor is not going to be invested G
with the power that Article 188 proposed to confer on him. It is, however, now
proposed to achieve the purpose of Article 188 and the old Article 278 by
a revision of Article 278. We have today to direct our attention not merely
to Articles 278 and 278-A, but also to Article 277-A. This Article lays down
that it will be the duty of the Union to ensure that the government of every H
766 SUPREME COURT REPORTS 12006) I S.C.R.

A State is carried on in accordance with the provisions of this Constitution. It
does not merely authorise the Central Government to protect the State against
external aggression or internal Commotion; it goes much further and casts on
it the duty of seeing that the Government of a province is carried on in
accordance with the provision of this Constitution. What exactly do these
B words mean? This should be clearly explained since the power to ensure that
the provincial constitutions are being worked in a proper way makes a
considerable addition to the powers that the Central Government will enjoy
to protect a State against external aggression or internal disturbance. I think,
Sir, that it will be desirable in this connection to consider Articles 275 and 276, ' ' .
for their provisions have vital bearing on the that have been placed before
C 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,
D 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
E empowered to make laws with regard to any matter even though it may not
be included in the Union List. It will thus have the power of passing laws on
subjects included in the State List. Further, the Central Legislature will be able
to confer powers and impose duties on the officers and authorities of the
Government of India in regard to any matter in respect of which it is competent
to pass legislation. Now the effect of these two Articles is to enable the
F Central Government to intervene when owing to external or internal causes
the peace and tranquility of India or any part of it is threatened. Further, if
misgovernment in a province creates so much dissatisfaction as to endanger
the public peace, the Government of India will have sufficient power, under
these Articles to deal with the situation. Wh'at more is needed then in order
G to enable the Central Government to see that the government of a province
is carried on in a proper manner. It is obvious that the framers of the
Constitution arc thinking not of the peace and tranquility of the country, of
the maintenance of law and order but of good government in provinces. They
will intervene not merely to protect provinces against external aggression and
internal disturbances but also to ensure good government within their limits.
H
RAMESH WAR PRASAD v. U.0.l. [PASA YAT, J.] 767

"(
In other words, the Central Government will have the power to intervene to A
protect the electors against themselves. If there is mismanagement or
inefficiency or corruption in a province, I take it that under Articles 277, 278
and 278-A taken together the Central Government will have the power. I do
not use the word 'President' because he will be guided by the advice of his
Ministers to take the government of that province into its own hands. My
honourable Friend, Mr. Santhanam gave some instances in order to show how B
a breakdown might occur in a province even when there was no external
aggression, no war and no internal disturbance. He gave one very unfortunate
" illustration to explain his point. He asked us to suppose that a number of
factions existed in a province which prevented the government of that province
from being carried on in accordance with the provisions of this Act i.e., I c
suppose efficiently. He placed before us his view that in such a case a
dissolution of the provincial legislature should take place so that it might be
found out whether the electors were capable of applying a proper remedy to
the situation. If, however, in the new legislature the old factions-I suppose
by factions he meant parties-re-appeared, then the Central Government in his
opinion would be justified in taking over the administration of the province. D
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 E
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 F
an extent as to create a grave situation in India or in any part of it, then the
Central Government will have the right to intervene under Articles 275 and
276. Is it right to go further than this? We hear serious complaints against
the governments of many provinces at present, but it has not been suggested
so far that it will be in the ultimate interests of the country and the provinces G
concerned that the Central Government should set aside the provincial
governments and practically administer the provinces concerned, as if they
_j
were Centrally administered areas. It may be said, Sir, that the provincial
governments at present have the right to intervene when a m·unicipality or
District Board is guilty of gross and persistent mal-administration, but a
municipality or a District Board is too small to be compared for a moment in H
768 SUPREME COURT REPORTS (20061 I S.C.R.

A any respect with a province. The very size of a province and the number of
electors in it place it on a footing of its own. If responsible.government is
to be maintained, then the electors must be made to feel that the power to
apply the proper remedy when misgovernment occurs rests with them. They
should know that it depends upon them to choose new representatives who
B will be more capable of acting in accordance with their best interests. If the
Central Government and Parliament are given the power that Articles 277, 278
and 278-A read together propose to confer on them, there is a serious danger
that whenever there is dissatisfaction in a province with its government,
appeals will be made to the Central Government to come to its rescue. The
provincial electors will be able to throw their responsibility on the shoulders
C of the Central Government. Is it right that such a tendency should be
encouraged? Responsible Government is the most difficult form of government.
It requires patience, and it requires the courage to take risks. If we have
neither the patience nor the courage that is needed, our Constitution will
virtually be still-born. I think, therefore, Sir, that the Articles that we are
discussing are not needed. Articles 275 and 276 give the Central Executive
D and Parliament all the power that can reasonably be conferred on them in
order to enable them to see that law and order do not break down in the
•
country, or that misgovernment in any part of India is not carried to such
lengths as to jeopardise the maintenance of law and order. ~t is not necessary
to go any further. The excessive caution that the framers of the Constitution
E seem to be desirous of 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 th~ 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
F 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
G 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 thcough 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
H Indian electors. This is an important fact that must be clearly recognised, but
I
t

RAMESHWAR PRASAD v. U.O.L [PASAYAT, J.] 769

'\ I do not think that the lapse of two years since the adapted Government of A
India Act, 1935, came into force, warrants the acceptance of the Articles now
before us. The purpose of section 93 was political. Its object was to see that
the Constitution was not used in such away as to compel the British
Government to part with more power than it was prepared to give to the
people of India. No such antagonism between the people arid the Government B
of India can exist in future. Whatever differences there may be, will arise in
regard to administrative or financial or economic questions. Suppose a province
~ in respect of economic problems, takes a more radical line than the Government
of India would approve. I think this will be no reason for the interference of
the Government of India.

Shri T. T. Krishnamachari (Madras: General): What happens if the
c
provincial government deliberately refuses to obey the provisions of the
Constitution and impedes the Central Government taking action under Article
275 and 276?

r Pandit Hirday Nath Kunzru: No province can-do it. It cannot because D
it would be totally illegal. But if such a situation arises the Central Government
will have sufficient power under Articles 275 and 276 to intervene at once.
It will have adequate power to take any action that it likes. It can ask its own
officers to take certain duties on themselves and if those officers are impeded
in the discharge, of their duties, or, if force is used against them-to take an
extreme case-the Central Government will be able to meet such a challenge E
effectively, without our accepting the Articles now before ns. I should like the
House to consider the point raised by my honourable Friend Mr. Krishnamacha•i
) very carefully. I have thought over such a situation in my own mind, over and
over again, and every time I have come to the conclusion that Articles 275
and 276 will enable the Government of India to meet effectively such a F
manifestation oil recalcitrance, such a rebellious attitude as that supposed by
Mr. Krishnamachari. In such a grave situation, the Government of India will
have the power to take effective action under Articles 275 and 276. What need
is there then for the Articles that have been placed before us?

Sir, one of the speakers said that we should not be legalistic. Nobody G
has discussed the Articles moved by Dr. Ambedkar in a legalistic spirit. I
-4 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 H
770 SUPREME COl'RT REPORTS (2006) I S.C.R.

A 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
B 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
C amendments to the Constitution should be allowed to be made in the same
way as those of ordinary laws are. I think that the Prime Minister in a speech
that he made here some months ago expressed the same view If this idea is
accepted by the House, if say for five years the Constitution can be amended
in the same way as an ordinary law, then we shall have sufficient time to see
how the Provinces develop and how their government is carried on. If
D experience shows that the position is so unfortunat.· as to require that the
Central Government should make itself responsible " 't merely for the safety
of every Province but also for .its good government then you can come
forward with every justification for an amendment of the Constitution. But I
do not see that there is any reason why the House should agree to the
E Articles placed before us today by Dr. Ambedkar.

Sir, I oppose these Articles.

Shri L. Krishnaswami Bharathi (Madras: General): Sir, I felt impelled by
a sense of duty to place a certain point of view before the House, or else I
F would not have come before the mike. I feel the need for a brief speech. I
accord my wholehearted support to the new Articles moved by Dr. Ambedkar,
but I am not at all convinced of the wisdom of the Drafting Committee in
deleting Article 188. It is this point of view which I want to emphasise.

Sir, that Article has a history behind it. There was a full-dress debate
G on it for two days when eminent Premiers participated in it. We must
understand what Article 188 is for. It is not for normal conditions. It is in a
state of grave emergency that a Governor was, under this Article, invested
with some powers. I may remind the House of the debate where it was Mr.
Munshi's amendment which ultimately formed part of Article 188. In moving
the amendment Dr. Ambedkar said that no useful purpose would be served
H
RAMESH WAR PRASAD v. U.O.l. [PASAYA T. .I.] 771
....I by allowing the Governor to suspend the Constitution and that the President A
must come into the picture even earlier. Article 188 provides for such a
possibility. It merely says that when the Governor is satisfied that there is
such a grave menace to peace and tranquility he can suspend the Constitution.
It is totally wrong to imagine that he was given the power to suspend the
Constitution for a duration of two weeks. Clause (3) provides that it is his
duty to forthwith communicate his Proclamation to the President and the
B
President will become seized of the matter under Article 188. That is an
I .\. important point which seems lost sight of. The Governor has to immediately
communicate his Proclamati-0n. The Article was necessitated because it was
convincingly put forward by certain Premiers. There may be a possibility that
c
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 D
(

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 E
Cabinet and gets their consent the purpose of the Article would be defeated.
Therefore, it was only with a view to see in such a contingency where the
Governor finds, that delay will defeat the very objective, that Article 188 was
provided for. I see no reason why the Drafting Committee in their wisdom
ruled out such a possibility. It is no doubt true that the Article was framed
two years ago, but since those two years many things have happened that F
show that there is urgent need for the man on the spot to decide and act
quickly so that a catastrophe may be prevented. Today there is an open
defiance of authority everywhere and that defiance is well-organised. Before
the act, they cut off the telephone wires, as they did in the Ca/cul/a Exchange.
That is what is happening in many parts of the country. Therefore, when
G
there is a coup d'era; it is just possible they will cut off communications and
difficulties may arise. It is only to provide for this possibility that !he
-~
Governor is given these powers. I do not think there will be any foul of a
Governor who will, if there is time, fail to inform the President. I would like
to have an explanation as to why this fool-proof arrangement has been
H
772 SUPREME COURT REPORfS [2006J I S.C.R.

A changed and why we have become suspicious that the Governor will act in
a wrong manner. According to the provision, he has to forthwith communicate
to the President and the President may say, "Well, I am not convinced; cancel
it." You must take into consideration that the Governor will be responsible,
acting wisely and in order to save the country from disaster. The President
B comes into the picture directly, because the Governor has to communicate the
matter forthwith according to clause (3) of Article 188. As Mr. President said,
it is sheer commonsense that the man on the spot should be given the powers
to deal with the situation, so that it may not deteriorate. I am not at all •
convinced of the wisdom of the change. The provision as now proposed is
not as fool-proof as it ought to be.
c (underlined for empnasis)

Besides, I would like to have an explanation as to why the Drafting
Committee goes out of the way to delete the provision which was considered
and accepted by the House previously. In my view it is improper, because the
O House had decided it. If we appoint a Drafting Committee,'' e direct them to
draft on the basis of the decisions taken by us. Is this the '~ .;y in which they
should draft? Their duty was to scrutinise the decisions alreilJy arrived at and
then draft on that basis. Therefore, I would like to have an c:xplanation - -
a convincing explanation-as to what happened within these two years which
has made the members of the Drafting Committee delete this wholesome,
E 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
F decisions. We took important decisions in this House as '.o 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
G 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. l beg to point out that all the amendments and amendments
to amendments which have been moved today are to be found for the first
time only on the amendment lists for this week which have been circulated
H only within a day or two from today. So serious and radical changes should
RAMESHWARPRASADv. U.0.1.[PASAYAT.J.] 773

not have been introduced at the last minute when there is not sufficient time A
for slow people like us to see what is happening and whether these changes
really fit in with our original decisions and with other parts of the Constitution
as a whole. I submit that the Drafting Committee has been drifting from our
original decisions, from the Draft Constitution and from our original
amendments. It would perhaps be more fitting to call the Drafting Committee B
"the Drifting Committee". I submit that the deletion of Article 188 is a very
important and serious departure from principles which the House solemnly
accepted before. Some honourable Members who usually take the business
of the House seriously have attempted to support these changes on the
ground that some emergency powers are highly necessary. I agree with them
that emergency powers are necessary and I also agree that serious forces of C
disorder are working in a systematic manner in the country and drastic powers
are necessary. But what I fail to appreciate is the attempt to take away the
normal power of the Governor or the Ruler of a Stale to intervene and pass
emergency orders. It is that which is the most serious change. In fact,
originally the Governor was to be elected on adult suffrage of the province,
but now we have made a serious departure that the Governor is now to be D
appointed by the President. This is the first blow to Provincial Autonomy.
Again, we have deprived the Upper Houses in the States of real powers; not
merely have we taken away all effective powers from Upper Houses in the
Provinces, but also made it impossible for them to function properly and
effectively. We are now going to take away the right of the Ministers of a E
State and the Members of the Legislatures and especially the people at large
from solving their own problems. As soon as we deprive the Governor or a
Ruler of his right to interfere in grave emergencies, at once we deprive the
) elected representatives and the Ministers from having any say in the matter.
As soon as the right to initiate emergency measures is vested exclusively in
the President, from that moment you absolve the Ministers and Members of F
the local legislatures entirely from any responsibility. The effect of this
would mean that their moral strength and moral responsibility will be
seriously undermined It is the aspect of the problem to which I wish to draw
the attention of the House.

(underlined for emphasis)
G

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 H
174 SUPREME COURT REPORTS (2006] I S.C.R.

A 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
B the Ministers and the members, but the action of the President will be jeered
at, tabooed aild boycotted by the people of the State, the Members of the
Legislature and the Ministers themselves.
..
xxx xxx xxx

c cannotPandit Thakur Das Bhargava : I think the constitutional machinery
be regarded ordinarily to have failed unless the dissolution powers
are exercised by the Governor under section 153.

Xxx xxx xxx xxx
I think we are drifting, perhaps unconsciously, towards a dictatorship.
D Democracy will flourish only in a democratic atmosphere and under
democratic conditions. let people commit mistakes and learn by experience.
Experience is a great tutor The arguments to the contrary which we have
heard today were the old discarded arguments of the British bureaucracy.
The British said that they must have overriding powers, that we cannot
E manage our affairs and that they only knew how to manage our affairs. They
said also that if we mismanaged things they will supersede the constitution
and do what they thought fit. What has been our reply to this? It was that
"Unless you make us responsible for our acts, we can never learn the business
of government. If we mismanage the great constitutional machinery, we must
be made responsible for our acts. We must be given the opportunity to
F remedy the defects". This argument of ours is being forgotten. The old British
argument that they must intervene in petty Provincial matters is again being
revived and adopted by the very opponents of that argument. In fact, very
respected Members of this House are adopting almost unconsciously the old
argument of the British Government. I submit that even the hated British did
G not go so far as we do. I submit our reply to that will be the same as our
respected leaders gave to the British Government. I submit, therefore, that too
much interference by the Centre will create unpleasant reactions in the States.
If you abolish provincial autonomy altogether that would be logical. But to
make them responsible while making them powerless would be not a proper
thing to do.
H (underlined for emphasis)
RAMESHWAR PRASAD v. U.0.1. [PASAY AT. J.] 775
Then I come to the proviso to clause (I) of Article 278. It safeguards A
against the rights of the High Court in dealing with matters within their
special jurisdiction. A Proclamation of emergency will not deprive the High
Court of its jurisdiction. That is the effect of this proviso. But it conveniently
forgets the existence of the Supreme Court. While it takes care to guarantee
the rights of the High Courts against !he Proclamation, the rights of the B
Supreme Court are not guaranteed. I only express the hope that the absence
of any mention of the Supreme Courl in the proviso will not affect the powers
of that Court.

Shri T. T. Krisnamachari: It is not necessary because the Central
Government is subject to the jurisdiction of the Supreme Court under all C
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. D
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. E
(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 F
Prasad) in the Chair.

Articles I 88, 277-A and 278-continued.

- xxx xxx xxx
G
Then coming to proposed Article 278-A sub-clause (a) and (b) of clause
(I) are new. Clause (a) is new and (b) is consequential. The new point which
has been introduced is also revolutionary. Instead of allowing the Provincial
Legislatures to have their say on the emergency legislation and thereby
giving the Provincial Assemblies an opportunity to assess the guilt or innocence H
776 SUPREME COURT REPORTS [20061 I S.C.R.

A of the Ministers or other person or to give a verdict, the responsibility is .
thrown on the Parliament. 'That would again, as I submitted yesterday. go to
make the Central Government and the Parliament unpopular in the State
concerned. It may happen that Provincial Ministers and others are guilty of
mismanagement and misgovernment; but if we do not allow the Provincial
B Assemblies to sit in judgment over them, the result would be that guilty or
innocent persons, lawbreakers and law-abiding persons, good or bad people
in the State should all be combined. The result would be that those for whose
misdeeds the Emergency Powers would be necessary, would be made so
many heroes; they would be lionised, and the object of teaching them a
lesson would be frustrated. The Centre would be unpopular on the ground
C that it is poking its nose unnecessarily and mischievously into their domestic
affairs.

Then, Sir, in sub-clause (c) of clause (I) of this Article 278-A, the
President is expected to authorize and sanction the Budget as the head of the
D Parliament. This would be an encroachment on the domestic budget of the
Provinces and the States. That would be regarded with a great deal of dis-
favour. It would have been better to allow the Governor or the Ruler to
function and allow their own budget to be managed in their own way.
Subventions may be granted but that expenditure should not be directly
managed by the President.
E
Coming to clause (d) there is an exception in favour of Ordinances
under Article I 02 to the effect that "the President may issue Ordinances
except when the Houses of Parliament are in session". The sub-clause is
misplaced in the present Article. There is an appropriate place where
Ordinances are dealt with. Sub-clause (d) should find a place among the
F group of Articles dealing with Ordinances and not here. This i5 again the
result of hasty drafting.

These are some of the difficulties that have been created. It is not here
necessary to deal with them in detail. The most important consequence of this
G encroachment on the States sphere would be that we would be helping the
communist techniques. Their technique is that by creating trouble in a Province
or a State, they would partially paralyse the administration and thereby force
the Emergency Powers. Then, they will try to make those drastic powers

-
unpopular. What is more, they will make the guilty Minislers and guilly
ojjicers heroes. The legislature of the State would, as I have submitted, be
H deprived of the right of discussion. If the President takes upon himself the
RAMESH WAR PRASAD v. U.O.L [PASAYAT, J.] 777
responsibility of emergency powers, then his action, I suppose, cannot be A
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 B
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. The result would be that C
very soon these very drastic powers calculated to strengthen the hands of
the Centre will be rather a source of weakness in no distant time.
I
i
(underlined for emphasis)

xxx xxx D
There is an implication in Article 278 which is something like saying,
that you must overcome evil by good and meet lawlessness with law. The
President has no powers to meet undemocratic forces in the country except
in a cratic manner. It is like saying that the forces of evil must be overcome
by the forces of non-violence and good. Practical statesmen and law-makers E
will not accept this proposition easily.

Xxx xxx xxx

Mr. President: Dr. Ambedkar.
F
The Honourable Dr. B. R. Ambedkar (Bombay : General) : Sir, although
these Articles have given rise to a debate which has lasted for nearly five
hours, I do not think that there is anything which has emerged from this
debate which requires me to modify my attitude towards the principles that
are embodied in these Articles. I will therefore not detain the House much
longer with a detailed reply of any kind. G
I would first of all like to touch for a minute on the amendment
suggested by my Friend Mr. Karnath in Article 277-A. His amendment was
that the word "and" should be substituted by the word "or". I do not think
that that is necessary, because the word "and" in the context in which it is
H
778 SUPREME COURT REPORTS [2006] I S.C.R.

A placed is both conjunctive as well as disjunctive, which can be read in both
ways, "and" or ·'or", as the occasion may require. 1, therefore, do not think
that it is necessary for me to accept that amendment, although I appreciate
his intention in making the amendment.

The second amendment to which I should like to refer is that moved by
B my Friend Prof. Saksena, in which he has proposed that one of the things
which the President may do under the Proclamation is to dissolve the
legislature. I think that is his amendment in substance. I entirely agree that
that is one of the things which should be provided for because the people
of the province ought to be given an opportunity to set matters right-by
C reference to the legislature. But I find that that is already covered by sub-
clause (a) of clause (I) of Article 278, because sub-clause (a) proposes that
the President may assume to himself the powers exercisable by the Governor
or the ruler. One of the powers which is vested and which is exercisable by
the Governor is to dissolve the House. Consequently, when the President
issues a Proclamation and assumes these powers under sub-clause (a), that
D power of dissolving the legislature and holding a now election will be
automatically tran?femd 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
E 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
F 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 practically mean what the
American Constitution means, namely that the form of the constitution
G prescribed in this Constitution must be maintained. Therefore, so far as that
point is concerned we do not think that the Drafting Committee has made any
departure from an established principle.

The other point of criticism was that Articles 278 and 278-A were
H unnecessary in view of the fact that there are already in the Constitution
-
RAMESHWAR PRASAD v. U.0.1. [!'ASAY AT, J.] 779
Articles 275 and 276. With all respect I must S\Jbmit that he (Pandit Kunzru) A
has altogether misunderstood the purposes and intentions which underlie
Article 275 and the present Article 278. His argument was that after all what
you want is the right to legislate on provincial subjects. That right you get
by the terms of Article 276, because under that the Centre gets the power,
once the Proclamation is issued, to legislate on all subjects mentioned in List
II. I think that is a very limite~ understanding of the provisions contained B
either in Articles 275 and 276 or in Articles 278 and 278-A.

I should like first of all to draw the attention of the House to the fact
that the occasions on which the two sets of Articles will come into operation
are quite different. Article 275 limits the intervention of the Centre to a state C
of affairs when there is war or aggression, internal or external. Article 278
refers to the failure of the machinery by reasons other than war or aggression.
Cortsequently the operative clauses, as I said, are quite different. For instance,
when a proclamation of war has been issued under Article 275, you get no
authority to suspend the provincial constitution. The provincial constitution
would continue in operation. The legislature will continue to function and D
possess the powers which the constitution gives it; the executive will retain
its executive power and continue to administer the province in accordance
with the law of the province. All that happens under Article 276 is that the
Centre also gets concurrent power of legislation and concurrent power of
administration. That is what happens under Article 276. But when Article 278 E
comes into operation, the situation would be totally different. There will be
no legislature in the province, because the legislature would have been
suspended. There will be practically no executive authority in the province
unless any is left by the proclamation by the President or by Parliament or
by the Governor. The two situations are quite different. I think it is essential
that we ought to keep the demarcation which we have made by component F
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 G
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
H
y

780 SUPREME COURT REPORTS [2006] I S.C.R.

A 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
B familiar therefore with its de facto and de jure meaning. I do not think any
further explanation is necessary.

Xxx xxx xxx xxx '

c whichThe Honourable Dr. B. R. Ambedkar: In regard to the general debate
has taken place in wnich 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
D by my honourable Friend Mr. Gupte yesterday that the proper thing we ought
to ex;iect is that such Articles will never be called into operation and that they
•
would remain a dead letter. If at all they are brought into operation, I hope
the President, who is endowed with these powers, will take proper precautions
before actually suspending the administration of the provinces. I hope the
first thing he will do would be to issue a mere warning to a province that has
E erred, that things were not happening, in the way in which they were intended
to happen in the Constitution. If that warning fails, the second thing for him
to do will be to order an election allowing the people of the province to settle
matters by themselves. It is only when these two remedies fail that he would
resort to this Article. It is only in those circumstances he would resort to this
F Article. I do not think we could then say that these Articles were imported
in vain or that the President had acted wantonly.

Shri H. V. Karnath : Is Dr. Ambedkar in a position to assure the House
that Article 143 will now be suitably amended?

G The Honourable Dr. B. R. Ambedkar: I have said so and I say now that
when the Drafting Committee meets after the Secorid Reading, it will look into
the provisions as a whole and Article 143 will be suitably amended if necessary.
,_
Mr. President: I will now put the amendment to vote one after another.

H The question is :
RAMESHWAR PRASAD v. U.0.1. [PASA VAT, J.] 781

"That Article 188 be deleted." A
The motion was adopted.

Article 188 was deleted from the Constih1tion.

Mr. President: Then I will take up Article 277-A.
B
The question is :

"That in amendment No. 121 of List I (Second Week) of
Amendments to Amendments, in the proposed new Article 277-
A, for the word 'Union' the words 'Union Government' be
substituted." c
The amendment was negatived.

Mr. President: Now I will put amendment No. 221.

The question is :
D
"That in amendment No. 121 of List I (Second Week) of
Amendments to Amendments in the proposed new Article 277-
A for the word 'and' where it occurs for the first time, the word
'or' be substituted."

The amendment was negatived. E
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 F
substituted."

The amendment was negatived.

Mr. President : The question is :

"That after Article 277 the following new Article be inserted:- G
'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, H
782 SUPREME COURT REPORTS (2006] I S.C.R.

A 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.
B
Mr. President: The question is:

"That in amendment No. 160 of List II. (Second Week), of
Amendments to Amendments in clause (1) of the proposed
Article 278, for the word 'Ruler' the words the Rajpramukh' be

c substituted."

The amendment was negatived.

Mr. President: The question is:

"That in amendment No. 160 of List II (Second Week) of
Amendments to Amendments, in clause (1) of the proposed
D
Article 278, the words 'or otherwise' be deleted."

The amendment was negatived.

Mr. President : The question is:

"That in amendment No. 160 of List II (Second Week): of
E
Amendments to Amendments, in clause (1) of the proposed
Article 278, after the words 'is satisfied that' the words 'a grave
emergency has arisen which threatens the peace and tranquillity
of the State and that' be added."

The amendment was negatived.
F
Mr. President: The question is:

"That in amendment No. 160 of List II (Second Week) of
Amendments to Amendments for the first proviso to clause (4)
of the proposed Article 278, the following be substituted-
G ' Provided that the President may if he so thinks fit order at any
time. during this period a dissolution of the State legislature
followed by a fresh general election, and the Proclamation shall
cease to have effect from the day on which the newly elected
legislature meets in session'."

H The amendment was negatived.
y
I

RAMESH WAR PRASAD v.U.0.1. [PASAYAT, J.] 783
Mr. President: The question is: A
"That for Article 278, the following articles be substituted
278( 1). Provisions in case of failure of constitutional machinery in
States. - If the President, on receipt of a report from the Governor or
Ruler of a State or otherwise, is satisfied that the government of the
State cannot be carried on in accordance with the provisions of the B
Constitution, the President may by Proclamation-

(a) assume to himself all or any of the functions of the
Government of the State and all or any, of the powers
vested in or exercisable by I the Governor or Ruler, as the C
case may be, or any body or authority in the State other
than the Legislature of the State;

(b) declare that the powers of the Legislature of the State
shall be exercisable by or under the authority of
Parliament;
D
(c) make such incidental and consequential provisions as
appear to the President to be necessary or desirable for
giving effect to the objects of the Proclamation, including
provisions for suspending in whole or in part the operation
of any provisions of this Constitution relating to any E
body or authority in the State :

Provided that nothing in this clause shall authorise the President to
assume to himself any of the powers vested in or exercisable by a
High Court or to suspend in whole or in part the operation of any
provisions of this Constitution relating to High Courts. F
(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 G
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 H
<
'
784 SUPREME COURT REPORTS (2006] I S.C.R.

A 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
B resolutions approving the Proclamation have been passed by both
Houses of Parliament.

(4) A Proclamation so approved shall, unless revoked, cease to operate
on the expiration of six months form the date of the passing of the
second of the resolutions approving the Proclamation under clause (3) ,_
c of this Article :

Provided that if and so often as a resolution appro' ing the
continuance in force of such a proclamation is passed: by both Houses
of Parliament, the Proclamation shall, unless revoked, continue in
force for a further period of six months from the date on which under
D
this clause it would otherwise have ceased to operate, but no such
Proclamation shall in any case remain in force lt•r more than three
years:

Provided further that ifthe dissolution of the House of the People
E takes place during any, such period of six months and a resolution
approving the continuance in force of such Proclamation has not been
passed by the House of the People during the said period, the
Proclamation shall cease to operate at the expiration of thirty days
from the date on which the House of the People first sits after its
reconstitution unless before the expiration of that period resolutions
F approving the Proclamation have been passed by both Houses of
Parliament.

278-A. Exercise of legislative powers under proclamation issued
under Article 278. (I). Where by a Proclamation issued under clause
(I) of Article 278 of this Constitution it has been declared that the
G powers of the Legislature of the State shall be exercisable by or under
the authority of Par! iament, it shall be competent-

(a) for Parliament to delegate the power to make laws for, the State to
the President or any other authority specified by him in, that behalf-

H (b) for Parliament or for the President or other authority to whom the
RAMESH WAR PRASAD v.U.0.1. fPASA Y AT. J.] 785
power to make laws is delegated under sub-clause (a) of this clause A
to make laws conferring powers and imposing duties or authorising
the conferring of powers and the imposition of duties upon the
Government of India or officers and authorities of the Government of
India.

(c) for the President to authorise when the House of the People is not B
in session expenditure from the Consolidated Fund of the State pending
the sanction of such expenditure by Parliament;

(d) for the President to promulgate Ordinances under Article 102 of
this Constitution except when both Houses of Parliament are in session.
c
(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 (I) 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 D
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." E
The amendment was adopted.

Mr. President: The question is:

"That the proposed Article 278 stand part of the Constitution."
F
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." G
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 H
786 SUPREME COURT REPORTS (2006) I S.C.R.

A on 25.11.1949 contained the following significant observations:
"As much defence as could be offered to the Constitution has been
offered by my friends Sir Alladi Krishnaswami Ayyar and Mr. T.T.
Krishnamachari. I shall not therefore enter into the merits of the
Constitution. Because I feel, however good a Constitution may be,
.
B it is sure to turn out bad because those who are called to work it,

.
happen to be a bad lot. However bad a Constitution may be, it may
turn out to be good if those who are called to work it, happen to
~
be a good lot. The working of a Constitution does not depend wholly
upon the nature of the Constitution. The Constitution can provide
c only the organs of State such as the legislature, the executive and the
judiciary. The factors on which the working of those organs of State
depends are the people and the political parties they will set up as
their instrument to carry out their wishes and their politics. Who can
say how the people of India and their parties will behave? Will they
uphold constitutional methods of achieving their purposes or will
D they prefer revolutionary methods of achieving them? If they adopt
the revolutionary methods, however good the Constitution may be, it
requires no prophet to say that it will fail. It is, therefore, futile to pass
any judgment upon the Constitution without reference to the part
which the people and their parties are likely to play ................ Jefferson,
E the great American statesman who played so great a part in the
making of the American Constitution, has expressed some very weighty
views which makers of Constitutions can never afford to ignore. In
one place, he has said:
"We may consider each generation as a distinct nation, with a
F right, by the will of the majority, to bind themselves, but none
to bind the succeeding generation, more than the inhabitants of
another country."
In another place, he has said:
"The idea that institutions established for the use of the nation
G
cannot be touched or modified, even to make them answer their
end, because of rights gratuitously supposed in those employed
to manage them in the trust for the public, may perhaps be a
salutary provision against the abuses of a monarch, but is mot
-
absurd against the nation itself. Yet our lawyers and priests
H generally inculcate this doctrine, and suppose that preceding
r

RAMESHWAR PRASADv.U.O.l. [PASAYAT, J.] 787
generations held the earth more freely than we do; had a right A
to impose laws on us, unalterable by ourselves, and that we, in
the like manner, can make laws and impose burdens on future
generations, which they will have no right to alter; in fine, that
the earth belongs to the dead and not the living."

1 admit that what Jefferson has said is not merely true, but is absolutely B
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 C
by denying to the people the right to amend the Constitution as in
Canada or by making the ameni;lment 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 D
prove that any Constituent Assembly anywhere in the world has, in
the circumstances in which this country finds itself, provided such a
facile procedure for the amendment of the Constitution. If those who
are dissatisfied with the Constitution have only to obtain a two-thirds
majority and if they cannot obtain even a two-thirds majority in the
Parliament elected on adult franchise in their favour, their dissatisfaction E
with the Constitution cannot be deemed to be shared by the general
public.

There is only one point of constitutional import to which 1 propose
to make a reference. A serious complaint is made on the ground that
there is too much of centralization and that the States have been F
re<luced to municipalities. It is clear that this view is not only an
exaggeration, but is also founded on a mis-understanding of what
exactly the Constitution contrives to do. As to the relation between
the Centre and the State, it is necessary to bear in mind the fundamental
principle on which it rests. The basic principle of federalism is that the G
legislative and executive authority is partitioned between the Centre
and the States not by any law to be made by the Centre but by the
Constitution itself. That is what the Constitution does. The States
under our Constitution are in no way dependent upon the Centre for
·their legislative or executive authority. The Centre and the States are
H
788 SUPREME COURT REPORTS (2006] I S.C.R. -
A co-equal in this matter. It is difficult to see how such a Constitution
can be called centralism. It may be that the Constitution assigns to
the Centre a larger field for the operation of its legislative and executive

B
authority than is to be found in any other federal Constitution. It may
be that the residuary powers are given to the Centre and not to the
States. But these features do not form the essence of federalism. The
-
chief mark of federalism, as I said, lies in the partition of the legislative
and executive authority between the Centre and the units by the
Constitution. This is the principle embodied in our Constitution. There
can be no mistake about it. It is, therefore, wrong to say that the
States have been placed under the Centre. The Centre cannot by its
c own will alter the boundary of that partition. Nor can the judiciary. For
as has been well said:

"Courts I11ay modify, they cannot replace. They can revise earlier
interpretations as new arguments, new points of view are presented,
they can shift the dividing line in marginal cases, but there are barriers
D they cannot pass, definite assignments of power they cannot reallocate.
They can give a broadening construction of existing powers, but they
cannot assign to one authority powers explicitly granted to another."

The first charge of centralization defeating federalism must therefore
fall.
E
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
F 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 tides 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.
G 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
ma/a fides. This unfortunate situation could have been and can be avoided
by acting on the recommendations of the Sarkaria Commission and the
Committee of the National Commission to review the working of the
Constitution in the matter of appointment of Governors. This does not appear
H to be convenient for the parties because they want to take advantage of the
RAMESllWAR PRASAD v. U.0.1. i PASA Y AT . .I.] 789
situation at a particular time and cry foul when the situation does not seem A
favourable to them. This is a sad reflection on the morals of the political
parties who do not loose the opportunity of politicizing the post of the
Governor. Sooner remedial measures are taken would be better for the
democracy.

It is not deficiency in the Constitution which is responsible for the B
situation. It is clearly attributable to the people who elect the Governors on
considerations other than merit. It is a disturbing feature, and if media reports
are to be believed, Raj Bhawans are increasingly turning into extensions of
party offices and the Governors are behaving like party functionaries of a
particular party. This is not healthy for the democracy. C
The key actor in the Centre-State relations is the Governor who is a
bridge between the Union and the State. The founding fathers deliberately
avoided election to the office of the Governor, as is in vogue in the lJ.S.A.
to insulate the office from the linguistic chauvinism. The President has been
empowered to appoint him as executive head of the State under Article 155 D
in Part VI, Chapter II. The executive power of the State is vested in him by
Article 154 and exercised by him with the aid and advice of the Council of
Ministers, the Chief Minister as its head. Under Article 159 the Governor shall
discharge his functions in accordance with the oath to protect and defend the
Constitution and the law. The office of the Governor, therefore, is intended
to ensure protection and sustenance of the constitutional process of the E
working of the Constitution by the elected executive and given him an umpire's
role. When a Gandh.ian economist Member of the Constituent Assembly
wrote a letter to Gandhiji of his plea for abolition of the office of the Governor,
Gandhiji wrote to him for its retention, thus; the Governor had been given a
very useful and necessary place in the scheme of the team. He would be an p
arbiter when there was a constitutional dead lock in the State and he would
be able to play an impartial role. There would be administrative mechanism
through which the constitutional crisis would be resolved in the State. The
Governor thus should play an important role. In his dual undivided capacity
as a head of the State he should impartially assist the President. As a
constitutional head of the State Government in times of constitutional crisis G
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
- I
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 H
790 SUPREME COURT REPORTS [2006] I S.C.R.

A 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
B for any personal benefit or merely to elevate the personal status of the current
holder of that office.

In Sarkaria Commission's report it was lamented that some Governors
were not displaying the qualit1,es of impartiality and sagacity expected of them.
The situation does not seem to have improved since then.
c
Reference to Report of the Committee of Governors (1971) would also
be relevant. Some relevant extracts read as follows:

"According to British constitutional conventions, though the power to
D grant to a Prime Minister a dissolution of Parliament is one of the personal
prerogatives of the Sovereign, it is now recognized that the Sovereign will
normally accept the advice of the Prime Minister since to refuse would be
tantamount to dismissal and involve the Sovereign in the political controversy
which inevitably follows the resignation of a Ministry. A Prime Minister is
entitled to choose his own time within the statutory five year limit for testing
E whether his majority in the House of Commons still reflects the will of the
electorate. Only if a break up of the main political parties takes place can the
personal discretion of the Sovereign become the paramount consideration.
There are, however, circumstances when a Sovereign may be free to seek
informal advice against that of the Prime Minister. Professor Wade, in
Constitutional Law (Wade and Phillips, Eighth Edn. 1970), states these
F circumstances thus:
"If the Sovereign can be satisfied that (1) an existing Parliament is still
vital and capable of doing its job, (2) a general election would be
detrimental to the national eccnomy, more particularly if it followed
closely on the last election, and (3) he could rely on finding another
G Prime Minister who was willing to carry on his Government for a
reasonable period with a working majority, the Sovereign could
constitutionally refuse to grant a dissolution to the Prime Minister in I -
office".

Prof. Wade further observes:
H
I
'(

RAMESHWARPRASADv.U.0.1. [PASAYAT, J.] 791

"It will be seldom that all these conditions can be satisfied. Particularly A
dangerous to a constitutional Sovereign is the situation which would
arise if having refused a dissolution to the outgoing Prime Minister
he was faced by an early request from his successor for a general
election. Refusal might be justified if there was general agreement
inside and outside the House of Commons that a general election
should be delayed and clearly it would be improper for a Prime Minister B
to rely on defeat on a snap vote to justify an election".

The observations of Hood Phillips in his latest book, Reform of the
Constitution (1970), are relevant:

"There is no precedent in this country of a Prime Minister, whose C
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 D
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 ifthe 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 E
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
F
We may first examine the precise import of Article 356 which sanctions
President's rule in a State in the event of a break-down of the constitutional
machinery. Four our present purpose, it is enough to read the language of
clause (l) of the Article: ·.

Article 356(1): G

- -~ 356. Provisions in case of failure of constitutional machinery in
State.-( I) If the President, on receipt of report from the Governor of
the State or otherwise, is satisfied that a situation has arisen in which
the government of the State cannot be carried on in accordance with
H
792 Sl;PREME COURT REPORI S [2006] I S.C.R.

A the provisions of this Constitution, the President may by Proclamation

(a) assume to himself all or any of the functions of the Government
of the State a;1d all or any of the powers vested in or exercisable by
the Governor or any body or authority in the State other than the
Legislature of the State;
B
(b) declare that the powers of the Legislature of the State shall be
exercisable by or under the authority of Parliament;

(c) make such incidental and consequential provisions as appear to
the President to be necessary or desirable for giving effect to the
c objects of the Proclamation, including provisions for suspending in
whole or in part the operation of any provisions of this Constitution
relating to any body or authority in the State:

Provided that nothing in this clause shall authorise the President to
assume to himself any of the powers vested in or exercisable by a
D High Court, or to suspend in whole or in part the operation of any
provision of this Constitution relating to High Courts.

'The salient features of this provision', in the words of Shri Alladi
Krishnaswami Ayyar (speaking in the Constituent Assembly), "are that
immediately the proclamation is made, the executive functions (of the State)
E are assumed by the President. What exactly does this mean? As members
need not be repeatedly reminded on this point, 'the President' means the
Central Cabinet responsible to the whole Parliament in which are represented
representatives from the various units which form the component parts of the
Federal Government. Therefore, the State machinery having failed, the Central
F Government assumes the responsibility instead of the State Cabinet. Then, so
far as the executive government is concerned, it will be responsible to the
Union Parliament for the proper working of the Government in the State. If
responsible government in a State functioned properly, the Centre would not
and could not interfere.

G While the Proclamation is in operation, Parliament becomes the
Legislature for the State, and the Council of Ministers at the Centre is
answerable to Parliament in all matters concerning the administration of the
.....
State. Any law made pursuant to the powers delegated by Parliament by I -

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
H
RAMESHWAR PRASADv.U.0.1. [PASA YAT, J.] 793

"· Article 356 virtually comes under the executive responsibility and control of A
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 B
in view of the enormous power that it vested in the Governor and the
possibility of its misuse, the Governor being the agent of the British
Government. Many of the leading members of the Constituent Assembly had
occupied important positions as Ministers in the Provinces following the
inauguration of Provincial autonomy and had thus first-hand experience of C
the working of this particular _section and the possible effect of having in the
Constitution a provision like Section 93. There was, therefore, considerable
discussion, both in the Constituent Assembly and in the Committees, on the
advisability, or necessity, of incorporating the provision in the Constitution.
Pandit H.N. Kunzru, who had serious apprehensions regarding this provision,
suggested the limiting of the Governor's functions to merely making a report D
to the President, it being left to the President to take such action as he
considered appropriate on the report. Pandit Govind Ballabh Pant agreed with
Pandit Kunzru in principle. The former referred in particular to the administrative
difficulties that would be created by giving powers to the Governor to act on
his own initiative over the head of his Ministers.
E
The whole question was examined at a meeting of the Drafting Committee
with Premiers of Provinces on July 23, 1949. Pandit Pant again expressed the
view that the Governor should not come into the picture as an authority
exercising powers in his discretion. Armed with such powers, he would be an
autocrat and that might lead to friction between him and his Ministers. p
Shri Alladi Krishnaswami Ayyar tried io allay apprehensions in the
minds of the members of the Constituent Assembly about the similarity
between Section 93 of the Government of India Act and the provision made
in Article 356 of the Constitution. He said in the Constituent Assembly:
G
"There is no correspondence whatever between the old section 93 (of
the Government oi India Act, 1935) and this except in regard to the
language in some parts. Under Section 93. the ultimate responsibility
for the working of Section 93 was the Par! iam~nt of great Britain which
was certainly representative of the people of India, whereas under the
present article the responsibility is that of the Parliament of India H
\

794 SUPREME COURT REPORTS [2006] I S.C.R.

A which is elected on the basis of universal franchise, and I have no
doubt that not merely the conscience of the representatives of the
State concerned but also the conscience of the representatives of the
other units will be quickened and they will see to it that the provision
is properly worked. Under those circumstances, except o~ the
sentimental objection that it is just a repetition of the old Section 93,
B there is no necessity for taking exception to the main principle
underlying this article".

In winding up the debate on the emergency provisions, Dr. Abmedkar
observed:
c "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
D to the Centre to override the Provinces. In fact l 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
E actually suspending the administration of the provinces".

Dr. Ambedkar's hope that this provision would be used sparingly, it
must be admitted, has not been fulfilled. During the twenty-one years of the
functioning of the Constitution, President's rule has been imposed twenty-
four times-the imposition of President's rule in Kerala on November I, 1956,
F was a continuation of President's rule in Travancore-Cochin imposed earlier
on March 23, 1956-the State of Kerala having be•m under President's rule five
times and for the longest period. Out of seventeen States (not taking into
account PEPSU which later merged into Punjab, and excluding Himachal
Pradesh which became a State only recently), eleven have had spells of
G President's rule. The kind of political instability in some of the states that we
have witnessed and the politics of defection which has so much tarnished the
political life of this country were not perhaps envisaged in any measure at ,.. •
the time the Constituent Assembly considered the draft Constitution. No
Governor would, it can be safely asserted, want the State to be brought under
President's rule except in circumstances which leave him with no alternative.
H
RAMESHWAR PRASAD v. U.0.1. [PASA YAT. J.] 795
"· The article, as finally adopted, limits the functions of the Governor to A
making a report to the President that a situation has arisen in which there has
been failure of the constitutional machinery. The decision whether a
Proclamation may be issued under Article 356 rests with the President, that
is to say, the Union Government. Significantly, the President can exercise the
power "on receipt of a report from the Governor or otherwise" if he is satisfied
that the situation requires the issue of such a Proclamation.
B

Some of the circumstances in which President's rule may have to be
imposed .have already been discussed. What is important to remember is that
f recourse to Article 356 should be the last resort for a Governor to seek. A
frequent criticism of the Governor in this connection is that he sometimes acts
at the behest of the Union Government. This criticism emanates largely from
c
a lack of appreciation of the situations which confront the Governors.
Imposition of President's rule normally results in the President vesting the
Governor with executive functions which belong to his Council of Ministers
., This is a responsibility which no Governor would lightly accept. Under
President's rule he functions in relation to the administration of the State D
under the superintendence, direction and control of the President and
concurrently with him by virtue of·an order of the President.

As Head of the State, the Governor has a duty to see that the
administration of the State does not break down due to political instability.
He has equally to take care that responsible Government in the State is not E
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. F
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 G
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 H
'
796 SUPREME COURT REPORTS [2006] I S.C.R.

A his best judgment, the guiding principle being, as already stated, that the
constitutional machinery in the State should, as far as possible, be maintained.

CONVENTIONS:

Conventions of the Constitution, according to Dicey's classic definition,
B consist of "customs, practices, maxims, or precepts which are not enforced
or recognized by the Courts", but "make up a body not of laws, but of
constitutional or political ethics". The broad basis of the operation of
conventions has been set out in Prof. Wade's Introduction of Dic~y's Law
of the Constitution (1962 edn.). The dominant motives which secure :ibedience
C to conventions are stated to be:

'"(I) the desire to carry on the traditions of constitutional government;
(2) the wish to keep the intricate machinery of the ship of State in
working order;
(3) the anxiety to retain the confidence of the public, and with it
D
office and power".

These influences secure that the conventions of Cabinet Government,
which are based on binding precedent and convenient usage, are observed
by successive generations of Ministers. The exact content of a convention
E may change or even be reversed, but each departure from the previous
practice is defended by those responsible as not violating the older precedents.
Objections are only silenced when time has proved that the departure from
precedent has created a new convention, or has shown itself to be a bad
precedent and, therefore, constituted in itself a breach of convention.

F This exposition of the nature of conventions will show that, if they have
to be observed and followed, the primary responsibility therefor will rest on
those charged with the responsibility of governm~nt. In a parliamentary
system, this responsibility unquestionably belongs to the elected
representatives of the people who function in the Legislatures. They are
mostly members of political parties who seek the suffrage of the electorate on
F the basis of promises made and programmes announced. The political parties,
therefore, are concerned in the evolution of healthy conventions so that they
"retain the confidence of the public, and, with it, office and power".
..
"I feel that it (the Constitution) is workable, it is flexible and it is
strong enough to hold the country together both in peace time and
G
)-

RAMESHWAR PRASAD v. U.0.1. [PASAYAT, J.] 797
in war time. Indeed if I may say so, if things go wrong under the new A
Constitution, the reason will not be that we had a bad Constitution.
What we will have to say is, that Man was vile."

These words were uttered by Dr. Ambedkar in the Constituent Assembly
in moving consideration of the draft Constitution. It has become the fashion,
when situations arise which may not be the liking of a particular political B
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 C
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 D
evident from the discussions in the earlier part of this Report. The Governors,
under our Constitution, do not govern; government is the primary concern
of the Council of Ministers which is responsible to the Legislature and the
people. Therefore, for a purposeful evolution of conventions, the willing co-
operation of the political parties and their readiness to adhere to such
conventions are of paramount importance. In recent years, it has been a E
regrettable feature of political life in some of the States, with the growing
number of splinter parties, some of them formed on the basis of individual or
group alignments and not of well-defined programmes or policies, that
governments are formed with a leader-a Chief Minister-who comes to that
office not as of a right, with the previous acquiescence of followers and the F
deference of his colleagues, but as being the most "acceptable" candidate for
the time. Much of his time and efforts are, therefore, inevitably spent in
finding expedients to keep himself in power and the Cabinet alive".

In Special Reference No. I of2002 case (supra) in paragraphs 55 and 56
it was observed as follows: G

-' "55. It was then urged on behalf of the Union that under Article 174
what is dissolved is an Assembly while what is prorogued is a House.
Even when an Assembly is dissolved, the House continues to be in
existence. The Speaker continues under Article 94 in the case of the
H
798 SUPREME COURT REPORTS [20061 I S.C.R.

A House of the People or under Article 179 in the case of the State
Legislative Assembly till the new House of the People or the Assembly
is constituted. On that premise, it was further urged that the fresh
elections for constituting a new Legislative Assembly have to be held
within six months from the last session of the dissolved Assembly.

B 56. At first glance, the argument appeared to be very attractive, but
after going deeper into the matter we do not find any substance for
the reasons stated hereinafter"

Article 172 provides for duration of the State Legislatures. The
Superintendence, direction and control of the elections to Parliament and to
C the Legislatures of every State vest in the Election Commission under Article
324. Article 327 provides that Parliament may make provision with respect to
all matters relating to, or in connection with, elections to the Legislative
Assembly of a State and all other matters necessary for securing the due
constitution of the House of the Legislature. Conjoint reading of Article 327
D of the Constitution and Section 73 of the R.P. Act makes the position clear
that the Legislative Assembly had been constituted. No provision of the
Constitution stipulates that the dissolution can only be after the first meeting
of the Legislature. Once by operation of Section 73 of the R.P. Act the House
or Assembly is deemed to be constituted, there is no bar on its dissolution.

E 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
F 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
G fulfilled. The reports of the Governor clearly indicated that it was not possible
to convene a session for choosing a Chief Minister or for formation of a
Cabinet. I •

Even if hypothetically it is held that the dissolution notifications are
unsustainable, yet restoration of status quo ante is not in the present case
H the proper relief. As noted supra, no stake was claimed by any person before
)-

RAMESH WAR PRASAD v.U.0.1. IPASAYAT. J.] 799
., the Governor. The documents relied upon to show that a majority existed lack A
'
authenticity and some of them even have the stamp of manipulation. The
elections as scheduled had reached on an advanced stage. Undisputedly, the
Election Commission had made elaborate arrangements. It would be inequitable
to put the clock back and direct restoration of stats quo ante.

In Public Law 2005, some interesting write-ups are there which have B
relevance. They read as follows:
.,
"Judicial review-Power of the court to limit the temporal effect of the
annulment of an administrative decision, postpone the date at which
it will produce effects and qualify the extent of the nullity.
c
Under French welfare law, agreements relating to unemployment
allowances are private agreements signed by unions and employers'
associations-but they enter into force only if approved by the Minister
for .Social Affairs. They then become compulsory for all. Several
-~
associations defending the rights of the unemployed brought an
action against ministerial decisions approving such agreements.
D
Standing was granted. The decisions were quashed on procedural
grounds, i.e. the composition of the committee which had to be
consulted and the way the consultation took place. The issues at
stake related to the date at which this annulment would enter into
force and to its effects. The matter was an extremely sensitive one, E
socially and politically; the scope and amount of unemployment
allowances. To say nothing would have led to the application of the
principle according to which nullity is retroactive. An annulled decision
is supposed never to have existed. It is therefore impossible to maintain
its effects for a certain time. Such are the strict requirements of the
principle of legality. On the other hand, the court cannot disregard the F
practical consequences of its decision, not only for the parties, but
for a larger public, especially in such an area. These consequences
may affect not only the functioning of a public service but also the
rights of individuals. They may create a legal void, and social havoc.

Hence the idea of allowing the court, when it annuls an administrative G
decision, to include in its judgmerit 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 H
(

800 SlJPRE~lE COURT REPORIS [2006 I I S.C.R.

A 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 tune effect has been applied in cases relating not
B only to regulations, but also to preliminary rulings concerning
interpretation (Case C-43175 Defrenne v. Sabena, ( 1976 E.C.R. 455;
Case C-61 /79 Denkjavit /taliana ( 1980 E.C.R. 1205; Case C-4/79 Societe
Cooperative Providence agricole de la Champagne (1980 ECR 2823;
Case C-109179 Maiseies de Beauce (1980 E.C.R. 2882; Case-145/79
c Societe Roque/le Freres ( 1980 E.C.R. 2917), directives (Case C-195/90
European Parliament v. Council ( 1992 E.C.R. 1-4193) and decisions
(Case C-22/96) European Parliament v Council ( 1998 E.C.R. 1-3231 ). The
ECJ held that the use of such a power was justified in order to take
into account "'imperious considerations of legal certainty relating to all
interests at stake, public and private". In doing so, however, the
D Court's decisions could hann the rights of the very petitioners who
wanted the Court to arrive at the decision it took. Hence the dissenting
decisions of several national higher courts, such as the Italian
Constitutional Court (April 21, 1989, Fragd) and the Conseil d'Etat
(June 28, 1985, Office national interprofessionnel des cereales o Societe
E Maiseries de Beauce, cone!. Genevois, RTDE, 1986, 145; July 26, 1985;
Office national interprofessionnel des cereales, p.233, cone!. Genevois
AJDA, 1985; June 13, 1986, Office national interprofessionnel des
cereales, cone!. Bonichot, RTDE 1986, 533 ). This is why the ECJ took
some precautions to protect the rights of persons who had previously
brought an action or an equivalent claim. Some ECJ judgments led to
F the inclusion of special clauses into the EC Treaty, as shown by the
Maastricht Treaty Protocol 2 (the "Barber Declaration") following the
ECJ' s judgment in Case C-262/88 Barber v. Guardian Royal Exchange
Assurance Group (1991) 1 Q.B. 344). This Protocol limits the effects
ratione temporis (before May 17, 1990) of Article 141 EC. The ECJ has
G been exp Iicit on the considerations it takes into account to use such
powers. They relate. on the whole, to legal certainty Jato sensu, i.e.
to the concrete effects of its decision on ex isling legal situations, and • •
the desirability of avoiding the creation of a legal void. Many European
constitutional courts have a similar power.
H The Conseil d'Etat had never affirmed that it had such a faculty. It was
1-
RAMESHWAR PRASADv.U.0.1. [PASA YAT, J.] 801
not, however, entirely unaware of the issue; in Vassilikiotis, June 26, A
'\ 200 I, p. 303 it annulled a ministerial decision in so far as it did not
state how the permit necessary for guides in museums and historical
monuments would be granted to persons with diplomas of other EU
Member States. The judgment added precise and compulsory
prescriptions telling the Administration exactly what it should do,
even before revising the regulation. Otherwise an unlawful domestic'
B
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 national_s from guiding visits on the c
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
-<
d' Etat decided to innovate and to give administrative courts new
powers. The new principles affirmed may be summed up as fo!lows:
I. The principle is that an annulled administrative decision is supposed
never to have existed.
2. However, such a retroactive effect may have manifestly excessive
E
consequences in view of (a) the previous effects of the annulled
decision and of the situations thus created and (b) the general interest
which could make it desirable 'to maintain its effects temporarily.
)
3. If so, administrative courts are empowered to take specific decisions
as to the limitation of the effects, in time, of the annulment.
F

4. They may do so after having examined all grounds relating to the
legality of the decision and after asking the parties their opinion on
such a limitation.
5. They must take into account (a) the consequences of the retroactivity G
of the annulment for the public and private interests at stake and (b)
the effects of such a limitation on the principle of legality and on the
~1
right to an effective remedy.
6. Such a limitation should be exceptional.
H
802 SUPREME COURT REPORTS (2006) I S.C.R.

A 7. The rights of the persons who brought an action, before the court's
judgment, against the annulled decision must be preserved.

8. The court may decide that all or part of the effects of the decision
prior to its annulment will be regarded as definitive, or that the
annulment will come into force at a later time as determined by the
B judgment.

In the present case the Conseil d' Etat annulled a number of
ministerial decisions. It also annulled other ones, but only from July
1 onwards, thus giving seven weeks to the Minister. The rights of
persons who had earlier brought an action were explicitly preserved.
C The effects of a third group of annulled decisions were declared to
be definitive, with the same reservation.

Several comments are in order on this important judgment. The
influence of the ECJ 's case law and of its use of the ex nunc/ex tune
effect is evident. The judgment is also an apt illustration of a renewal
D of the conception of the role of administrative courts. It no longer
stops when judgment is given. More and more attention is given to
its effects, its practical consequences for all, the way it must be
implemented by the Administration and its repercussions on the rights
of individuals. Hence the attention given to the ways and means to
E conciliate the two basic principles of legality and of legal certainty
(securite juridique). The latter is more and more seen as a pressing
social need, to borrow the vocabulary of the European Court of
Human Rights. A strong illustration is the recent case law of the Cour
de cassation restricting the scope not only of lois de validation but
also of retroactive "interpretative statutes", on the basis of Articles
F 6(1) and 13 ECHIR: see Cass.plen. Janaury 24, 2003, Mme X o
Association Promotion des handicape's dans le Loiret, and Cass. Civ.
April 7, 2004, in Bulletin d'information de la Cour de cassation, March
15, 2004, with the report of Mme Favre. The discretion of the courts
is a two-fold one; on whether to use such a faculty and on how to
use it. One last-prospective-remark: might the next step be the
G
limitation. by the courts. of the effects in time of a change in the case

To Sum up:

So far as scope of Article 361 granting immunity to the Governor is
H
I
! RAMESH WAR PRASAD v. U.0.1. [PASA YAT. J.] 803
concerned, I am in respectful agreement with the view expressed by Hon'ble A
the C~ief Justice of India.

(I) Proclamation under Article 356 is open to judicial review, but to a
very limited extent. Only when the power is exercised ma/a fide or is based
on wholly extraneous or irrelevant grounds, the power of judicial review can
be exercised. Principles ofjudicial review which are applicablf when an B
administrative action is challenged, cannot be applied stricto sensu.

·• (2) The impugned Notifications do not suffer from any constitutional
invalidity. Had the Governor tried to stall staking of claim regarding majority
that would have fallen foul of the Constitution and the notifications of
dissolution would have been invalid. But, the Governor recommended C
dissolution on the ground that the majority projected had its foundation on
unethical and corrupt means which had been and were being adopted to
cobble a majority, and such action is not constitutional. It may be a wrong
perception of the Governor. But it is his duty to prevent installation of a
Cabinet where the majority has been cobbled in the aforesaid manner. It may D
in a given case be an erroneous approach, it may be a wrong perception, but
it is certainly not irrational or irrelevant or extraneous.

(3) A Public Interest Litigation cannot be entertained where the stand
taken was contrary to the stand taken by those who are affected by any
action. In such a case the Public Interest Litigation is not to be entertained. E
That is the case here.

(4) Hypothetically even if it is said that the dissolution notifications
were unconstitutional, the natural consequence is not restoration of status
quo ante. The Court declaring the dissolution notifications to be invalid can
assess the ground realities and the relevant factors and can mould the .reliefs F
as the circumstances warrant. In the present case restoration of the status quo
ante would not have been the proper relief even if the notifications were
declared invalid.

(5) The Assembly is constituted in terms of Section 73 of the R.P. Act
on the conditions indicated therein being fulfilled and there is no provision G
in the Constitution which is in any manner contrary or repugnant to the said
provision. On the contrary, Article 327 of the Constitution is the source of
power for enactment of Section 73.

(6) In terms of Article 361 Governor enjoys complete immunity. Governor
is not answerable to any Court for exercise and performance of powers and H
804 SUPREME COURT REPORTS [2006 j I S.C.R.

A duties of his office or for any act done or purporting to be done by him in
the exercise of those powers and duties. However, such immunity does not
take away power of the Court to examine validity of the action including on
the ground of ma/a fides.

(7) It has become imperative and necessary that right persons are
B chosen as Governors if the sanctity of the post as the Head of the Executive
of a State is to be maintained.

The writ applications are accordingly dismissed but without any order
as to costs.

G.N. Writ Petitions disposed of.

i •